Judgments - Pilecki (Appellant) v Circuit Court of Legnica, Poland (Respondents) (Criminal Appeal from Her Majesty's High Court of Justice)

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25.  A close examination of article 2(1) shows that it provides two different tests as to whether the purpose for which the surrender of the requested person is sought is sufficiently serious to justify his arrest and surrender to the requesting state under the Framework Decision. In accusation cases the acts for which a criminal prosecution is to be conducted must be punishable by a custodial sentence or a detention order for a maximum period of at least 12 months. This requirement is directed to the level of penalty that is attached to the offence which the requesting state wishes to prosecute. It is built into the definition of what constitutes an extradition offence in section 64 of the 2003 Act. In conviction cases the test is not directed to acts but to the execution of sentences. This can be seen from a reading of article 2(1) which strips out the words that relate to accusation cases and concentrates on the remainder. So read it states: “A European arrest warrant may be issued …, where a sentence has been passed or a detention order has been made, for sentences of at least four months.” It is the length of the sentence alone that determines whether or not it falls within the scope of a European arrest warrant.

26.  An examination of the other provisions of the Framework Decision confirms this approach. First, there is para 5 of the Preamble. The last sentence is in these terms:

“Traditional cooperation relations which have prevailed up till now between Member States should be replaced by a system of free movement of judicial decisions in criminal matters, covering both pre-sentence and final decisions, within an area of freedom, security and justice.”

This system is based on the principle of mutual recognition: see article 1(2). As was observed in Dabas v High Court of Justice in Madrid, Spain, para 18, it was to be subject to sufficient controls to enable the judicial authorities of the requested state to decide whether or not surrender is in accordance with the conditions which the Framework Decision lays down. But they are not to be unnecessarily elaborate, as complexity and delay are inimical to its objectives.

27.  Then there is Article 8(1) of the Framework Decision. It states that the European arrest warrant shall contain information set out in accordance with the form contained in the Annex about, among other things

“(f) the penalty imposed, if there is a final judgment, or the prescribed scale of penalties for the offence under the law of the issuing Member State.”

The relevant part of the form contained in the Annex sets out this requirement in these words:

“(c) Indications on the length of the sentence:

1. Maximum length of the custodial sentence or detention order which may be imposed for the offence(s):…

2. Length of the custodial sentence or detention order imposed:…

Remaining sentence to be served:…”

28.  It is plain that para (c) 1 refers to accusation cases. In those cases, as article 8(1)(f) states, information is required about the prescribed scale of penalties for the offence that the issuing Member State wishes to prosecute so that the executing Member State can determine whether the offence falls within the scope of a European arrest warrant as defined in article 2(1). Para (c) 2, on the other hand, refers to conviction cases. As both article 8(1)(f) and this para make clear, all that the executing Member State needs to know is the length of the sentence. The words “penalty", “sentence” and “detention order” are all stated in the singular. There is no indication here or anywhere else in the Framework Decision that the sentence needs to be examined more closely to see how it was arrived at. There is no indication that it is any concern of the executing Member State to inquire as to the number of offences to which the sentence relates, if there was more than one. It is the length of the sentence that the requested person is to be required to serve, and the length of that sentence alone, that determines whether or not it falls within the scope of a European arrest warrant.

29.  The situation that presents itself in a conviction case is, after all, in essence a very simple one. The Framework Decision does not require it to be stated in a European arrest warrant that the requested person is unlawfully at large after conviction of an offence: see Office of the King’s Prosecutor, Brussels v Cando Armas, para 43. Nevertheless the assumption on which it proceeds is that this indeed is the position. The requested person has absconded, and his return is needed so that he may serve his sentence in the Member State where he was convicted. The principle of mutual recognition dictates that effect must be given to the sentence that was passed in the issuing Member State. All the executing Member State needs to know in these circumstances is whether or not the sentence was one for at least four months. It is not for the judicial authorities in the executing Member State to question how the sentence was arrived at.

30.  Furthermore it is a reasonable assumption, as this case demonstrates, that sentencing practice differs between Member States. The information that has been given in the European arrest warrants indicates that it is the practice in Poland for the sentencing court, in multiple offence cases, to aggregate the sentences that would have been appropriate for the offences if taken individually and to apply a discount from the total of the individual sentences to arrive at the overall sentence of imprisonment or detention that must be served. Mr Perry QC for the respondent said that a similar practice was followed in Slovakia and Italy. The question whether there is a case to answer on the conduct that is alleged in the European arrest warrant in an accusation case is not one that can be examined in the requested state: In re Hilali [2008] UKHL 3, para 16. An inquiry into that question is contrary to the principle of mutual recognition on which the Framework Decision is founded. So too is an inquiry as to how the sentence was arrived at in a conviction case. That is a matter which is exclusively for the issuing Member State.

31.  An examination of sentencing practice in the United Kingdom reinforces this approach. It is open to the sentencing judge, in appropriate cases, to impose consecutive sentences. Account may be taken of the overall length of the sentence that results when decisions are made about the length of the sentence for each offence. It has not hitherto been thought to be necessary to ensure that the sentence for each offence meets the minimum necessary for a European arrest warrant should it be necessary to seek the person’s return if he absconds to another Member State. Judges in Scotland may impose an overall, or “cumulo", sentence in respect of offences arising as a course of conduct or from the same incident: Nicholson v Lees, 1996 SLT 760, 712G-H. Where this is done no part of the overall sentence is allocated to any of the individual offences. The form of sentence that was under consideration in Trepac v Presiding Judge of the County Court in Trencin, Slovak Republic [2006] EWHC 3346 (Admin) provides another example of this approach. In my opinion that case was correctly decided. It is not to be supposed that it was the purpose of the Framework Decision to require Member States to change their sentencing practices. The principle of mutual recognition indicates the contrary.

32.  How then can the wording of the relevant sections of the 2003 Act be reconciled with the Framework Decision? In Criminal Proceedings against Pupino (Case C-105/03) [2006] QB 83, 91, para 26, Mrs Advocate General Kokott said that the object of creating an ever closer union among the people of Europe to which article 34(2)(b) EU refers will not be achieved unless the Member States and institutions of the Union co-operate sincerely and in compliance with the law. She then explained how framework decisions must be given effect in accordance with article 34(2)(b) EU:

“36. In summary, it follows from article 34(2)(b) EU and from the principle of loyalty to the Union that every framework decision obliges national courts to bring their interpretation of national laws as far as possible into conformity with the wording and purpose of the framework decision, regardless of whether those laws were adopted before or after the framework decision, so as to achieve the result envisaged by the framework decision.”

In para 43 of its judgment the Court of Justice said that the principle of interpretation in conformity with Community law is binding in relation to framework decisions adopted in the context of Title VI of the Treaty on European Union.

“When applying national law, the national court that is called on to interpret it must do so as far as possible in the light of the wording and purpose of the framework decision in order to attain the result which it pursues and thus comply with article 34(2)(b) EU.”

33.   Adopting that approach to the construction of the 2003 Act, it seems to me that section 2(6)(e) does not present a problem. As modified, it requires information to be given of particulars “of the sentence which has been imposed under the law of the category 1 territory in respect of the offences.” The singular use of the word “sentence", even in multiple offence cases, matches exactly the wording of the Annex to the Framework Decision. Nor does section 65(3)(c) present a problem either. It refers to “a sentence of imprisonment or another form of detention…[that] has been imposed in the category 1 territory in respect of the conduct.” This wording too is consistent with the Framework Decision.

34.  The problem lies only in the wording of section 10 as modified in the case of multiple offences. Section 10(2) requires the judge to decide whether “any of the offences” specified in the Part 1 warrant is an extradition offence. I would hold that it is unnecessary, in a conviction case to which section 65(3) applies, for the judge to ask himself whether the sentence that was passed for each offence satisfies the test that is set out in section 65(3)(c). If the other requirements of section 65(3) are satisfied, all he needs to do is to determine whether the sentence for the conduct taken as a whole meets the requirement that it is for a term of at least four months. If it does, he must answer the question in subsection (2) in the affirmative and proceed to section 11: section 10(4). The information on which this decision is to be based must be found within the Part 1 warrant itself: section 2(6)(e). Further information such as that which was made available in this case will be irrelevant to his decision on this issue.

Conclusion

35.  For these reasons I would hold that the district judge was entitled to find that the European arrest warrants satisfied the requirements of section 2(2)(b) of the 2003 Act and were accordingly Part 1 warrants, that effect had to be given to the extradition procedure and that the offences constituted by the appellant’s conduct taken as a whole fell within the definition of an extradition offence in section 65(3). I would dismiss the appeal.

LORD SCOTT OF FOSCOTE

My Lords,

36.  I have had the advantage of reading in advance the opinion prepared by my noble and learned friend Lord Hope of Craighead and agree both with his conclusions and with the reasoning by which he reached them. I agree, therefore, that this appeal should be dismissed.

LORD BROWN OF EATON-UNDER-HEYWOOD

My Lords,

37.  I have had the benefit of reading in draft the opinion of my noble and learned friend, Lord Hope of Craighead. For the reasons he gives, I too would dismiss this appeal.

LORD NEUBERGER OF ABBOTSBURY

My Lords,

38.  I have had the advantage of reading in draft the opinion of my noble and learned Lord Hope of Craighead and for the reasons he gives I too would dismiss this appeal.

 
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Prepared 6 February 2008