Goluchowski and Sas v District Court and Circuit Court in Poland
| Jurisdiction | England & Wales |
| Judge | Lord Hughes,Lord Wilson,Lord Toulson,Lord Neuberger,Lord Mance |
| Judgment Date | 29 June 2016 |
| Neutral Citation | [2016] UKSC 36 |
| Date | 29 June 2016 |
| Court | Supreme Court |
[2016] UKSC 36
Lord Neuberger, President
Lord Mance
Lord Wilson
Lord Hughes
Lord Toulson
Appellant (Goluchowski)
Clare Montgomery QC James Stansfeld (Instructed by Lawrence & Co Solicitors)
Appellant (Sas)
Mark Summers QC Nicholas Hearn (Instructed by Kaim Todner Solicitors Ltd)
Respondents
Julian B Knowles QC Mary Westcott Saoirse Townshend (Instructed by CPS Appeals Unit)
Heard on 14 March 2016
(with whom Lord Neuberger, Lord Wilson, Lord Hughes and Lord Toulson agree)
These appeals raise issues about the validity of European arrest warrants ("EAWs") issued by two Polish courts with a view to the extradition and surrender by the United Kingdom of the appellants, Maciej Goluchowski and Marek Sas. They are wanted for the purpose of serving sentences of imprisonment in Poland which were, in the case of Goluchowski, (a) conditionally suspended and later activated and, in the case of Sas, either (b) due to be served only after an unsuccessful appeal (case II K 52/06, and EAW 1) or (c) the subject of a conditional early release which was revoked for breaches of the relevant conditions (case II K 498/03, and EAW 3). (Mr Sas was the subject of a further, accusation EAW, EAW 2, which can be ignored for the purposes of these proceedings.) Various domestic summonses or warrants were issued in unsuccessful attempts to find and arrest the appellants in Poland, before the relevant EAWs were issued.
In each appeal, the High Court has certified a question asking whether an EAW is defective for the purposes of section 2(6)(c) of the Extradition Act 2003 "if it does not also give particulars of domestic warrants issued in the category 1 territory to enforce that judgment or order within the issuing state". In the case of Goluchowski, the further question is certified:
"… Does the term 'any other warrant issued in the category 1 territory for the person's arrest in respect of the offence' in section 2(6)(c) of the Extradition Act 2003 only require the European arrest warrant to include the conviction of the requested person, or does it, following Poland v Wojciechowski [2014] EWHC 4162 (Admin), require the particularisation of the decision that required the requested person to serve an immediate sentence of imprisonment and was the decision following which it could be said that the requested person was unlawfully at large?"
What section 2(6)(c) in fact requires is that an EAW issued to ensure that a person wanted to serve a sentence of imprisonment contain "particulars of any other warrant issued in the category 1 territory for the person's arrest in respect of the offence". Sections 2(6)(b) and (e) require that it also contain "particulars of the conviction" and "particulars of the sentence which has been imposed …". The submissions before the court have in the circumstances ranged more widely than the second question certified in the case of Goluchowski.
In brief outline:
i) Both appellants submit that an EAW must contain particulars of any, or if not all then at least the most recent, domestic warrant issued to arrest a person wanted to serve a sentence of imprisonment.
ii) Miss Clare Montgomery QC for Goluchowski submits that an EAW must also contain particulars evidencing a judicial decision activating a suspended sentence. Mr Mark Summers QC for Sas submits that a similar objection in fact applies to the EAW issued in respect of his client in case II K 498/03.
iii) Both counsel submit that their submissions follow from the terms of the 2003 Act, whatever the position may be under European law under the terms of Council Framework Decision of 13 June 2002 (2002/584/JHA).
iv) On point (ii), Miss Montgomery submits that her submissions also follow from the terms of the Framework Decision. Mr Summers was not inclined to go so far, but noted that there may be respects in which the United Kingdom Parliament introduced conditions for surrender more specific or protective than those contained in the Framework Decision.
v) That last possibility was identified by Lord Hope in Office of the King's Prosecutor, Brussels v Cando Armas [2005] UKHL 67; [2006] 2 AC 1, para 24, when he observed that "unfortunately" the wording of Part I of the 2003 Act does not in every respect match that of the Framework Decision, but that the task of interpreting and applying the 2003 Act "has to be approached on the assumption that, where there are differences, these were regarded by Parliament as a necessary protection against an unlawful infringement of the right to liberty".
vi) However, United Kingdom courts will, if reasonably available, always prefer an interpretation of a domestic Act which accords with the United Kingdom's international obligations: Assange v Swedish Prosecution Authority (Nos 1 and 2) [2012] UKSC 22; [2012] 2 AC 471, and, since 1 December 2014 (after the United Kingdom's opt back into the Framework Decision under Protocol No 36 to the Treaty of Lisbon), it has also been the United Kingdom courts' duty if possible to interpret the 2003 Act consistently with the Framework Decision ( Criminal Proceedings against Pupino ( Case C-105/03) [2006] QB 83) and the Supreme Court's duty to refer to the Court of Justice any issue of European law which it is necessary to resolve for the purpose of resolving an appeal and which is not acte clair.
Under the 2003 Act, an EAW is a Part 1 warrant, and the language of section 2 makes clear that a Part 1 warrant to be valid must satisfy various requirements. In particular:
"(2) A Part 1 warrant is an arrest warrant which is issued by a judicial authority of a category 1 territory and which contains —
(a) the statement referred to in subsection (3) and the information referred to in subsection (4), or
(b) the statement referred to in subsection (5) and the information referred to in subsection (6)."
This introduces an important distinction between EAWs issued in respect of (a) persons accused and wanted for prosecution ("accusation cases") and (b) persons wanted after conviction either for sentencing or to serve a sentence of imprisonment or another form of detention imposed in respect of the offence ("conviction cases").
In respect of a conviction warrant, subsection (5) specifies that:
"The statement is one that —
(a) the person in respect of whom the Part 1 warrant is issued has been convicted of an offence specified in the warrant by a court in the category 1 territory, and
(b) the Part 1 warrant is issued with a view to his arrest and extradition to the category 1 territory for the purpose of being sentenced for the offence or of serving a sentence of imprisonment or another form of detention imposed in respect of the offence."
Although the term is not used in section 2, a person wanted under subsection (5) is a person "unlawfully at large" within a definition contained in section 68A (as inserted by section 42 of and paragraph 2 of Schedule 13 to the Police and Justice Act 2006—"the 2006 Act"):
"68A. (1) A person is alleged to be unlawfully at large after conviction of an offence if —
(a) he is alleged to have been convicted of it, and
(b) his extradition is sought for the purpose of his being sentenced for the offence or of his serving a sentence of imprisonment or another form of detention imposed in respect of the offence.
(2) This section applies for the purposes of this Part, other than sections 14 and 63."
Subsections (4) and (6) specify the information required in respectively accusation and conviction warrants. For an accusation warrant:
"(4) The information is —
(a) particulars of the person's identity;
(b) particulars of any other warrant issued in the category 1 territory for the person's arrest in respect of the offence;
(c) particulars of the circumstances in which the person is alleged to have committed the offence, including the conduct alleged to constitute the offence, the time and place at which he is alleged to have committed the offence and any provision of the law of the category 1 territory under which the conduct is alleged to constitute an offence;
(d) particulars of the sentence which may be imposed under the law of the category 1 territory in respect of the offence if the person is convicted of it."
For a conviction warrant:
"(6) The information is —
(a) particulars of the person's identity;
(b) particulars of the conviction;
(c) particulars of any other warrant issued in the category 1 territory for the person's arrest in respect of the offence;
(d) particulars of the sentence which may be imposed under the law of the category 1 territory in respect of the offence, if the person has not been sentenced for the offence;
(e) particulars of the sentence which has been imposed under the law of the category 1 territory in respect of the offence, if the person has been sentenced for the offence."
The scheme of the Framework Decision to which these provisions give effect is different. It deals with accusation and conviction cases together. Article 1.1 provides:
"1.1. The European arrest warrant is a judicial decision issued by a member state with a view to the arrest and surrender by another member state of a requested person, for the purposes of conducting a criminal prosecution or executing a custodial sentence or detention order."
Article 8.1 sets out the required content and form of an EAW:
"8.1. The European arrest warrant shall contain the following information set out in accordance with the form contained in the Annex:
(a) the identity and nationality of the requested person;
(b) the...
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