Kucera v District Court of Karvina, Czech Republic
| Jurisdiction | England & Wales |
| Judge | LORD JUSTICE RICHARDS,MRS JUSTICE SWIFT DBE |
| Judgment Date | 07 March 2008 |
| Neutral Citation | [2008] EWHC 414 (Admin) |
| Docket Number | Case No: CO/11201/2007 |
| Court | Queen's Bench Division (Administrative Court) |
| Date | 07 March 2008 |
[2008] EWHC 414 (Admin)
Lord Justice Richards and
Mrs Justice Swift DBE
Case No: CO/11201/2007
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
DIVISIONAL COURT
Royal Courts of Justice
Strand, London, WC2A 2LL
Miss Saba Naqshbandi (instructed by Hickman and Rose) for the Appellant
Miss Charlotte Powell (instructed by the Crown Prosecution Service) for the Respondent
Hearing date: 27 February 2008
Background
This is an appeal under the provisions of section 26 of the Extradition Act 2003 ('the Act') from an order of District Judge Nicholas Evans on 10 December 2007, ordering the appellant's extradition to the Czech Republic.
On 12 April 2007, a European arrest warrant (EAW) was issued by the respondent for the extradition of the appellant to the Czech Republic in order to serve a period of imprisonment which was imposed in 1998. The warrant stated that the appellant had been convicted for two offences. The first offence was, in effect, a failure, over a period of a year, to pay maintenance for his daughter in accordance with a court order. The second offence was theft of builders' tools and equipment committed in March 1998.
The appellant was convicted of these offences in September 1998 and sentenced to one year and nine months' imprisonment. After an unsuccessful appeal, he was notified, in January 1999, of his obligation to serve his prison sentence. He did not surrender himself but instead left the country and travelled first to France, and then to the UK, where he has lived ever since. In June 2004, he and his wife were granted indefinite leave to remain in the UK
Meanwhile, on 29 April 2004, a domestic warrant for the appellant's arrest had been issued in the Czech Republic. The EAW ('the warrant') was issued in April 2007 and, on 5 August 2007, the appellant was arrested in the UK. He was brought before the City of Westminster Magistrates' Court the following day. He was granted bail subject to conditions. Since the hearing before the district judge, he has remained on conditional bail pending the hearing of this appeal.
Grounds of appeal
The grounds of the appeal are that:
i) the district judge was wrong to find that the warrant was valid within the meaning of section 2(6)(e) of the Act;
ii) the district judge was wrong to find that the offence of theft was an “extradition offence” within the meaning of section 65(3)(c) of the Act;
iii) the district judge was wrong to find that there were specialty arrangements in place;
iv) the district judge was wrong to find that the extradition of the appellant was compatible with Article 8 of the European Convention on Human Rights (ECHR).
Grounds 1 and 2: the issues of the validity of the warrant and whether the offence of theft meets the requirements for an extradition offence
The legal framework
Part 1 of the Act
The Czech Republic has been designated a category 1 territory for the purposes of the Act and the appellant's extradition therefore falls to be considered under Part 1 of the Act. Part 1 is the process by which the UK has transposed into national law the Council of the European Union Framework Decision of 7 June 2002 ('the Framework Decision') on the EAW and the surrender procedures between Member States. The purpose of the Framework Decision (and of Part 1 of the Act) is to facilitate the prompt surrender of a person who is in the territory of one Member State to the territory of another Member State where he is the subject of criminal proceedings. This purpose is reflected in Paragraph (5) of the Framework Decision which states:
”.. the introduction of a new simplified system of surrender of sentenced or suspected persons for the purposes of execution or prosecution of criminal sentences makes it possible to remove the complexity and potential for delay inherent in the present extradition procedures”.
In Office of the King's Prosecutor, Brussels v Cando Armas [2006] 2 AC 17, at paragraph 2, Lord Bingham referred to:
“… a movement among the member states of the European Union, gaining strength in recent years, to establish, as between themselves, a simpler, quicker, more effective procedure, founded on member states' confidence in the integrity of each other's legal and judicial systems”.
The validity of a warrant
In order to be valid, a warrant must meet certain requirements. If it does not satisfy those requirements, Part 1 of the Act will not apply to it and the courts have no jurisdiction to make orders in respect of it: see Cando Armas at paragraphs 27 and 28.
Section 2 of the Act defines the material that must be contained in the warrant in order for it to be valid. Section 2(2) of the Act provides that a Part 1 warrant is an arrest warrant which is issued by a judicial authority of a category 1 territory and which contains (in a case, like the present one, where the person named in the warrant has been convicted of the offence(s) specified in the warrant and is unlawfully at large):
“ b) the statement referred to in subsection (5) and the information referred to in subsection (6).”
It is accepted that, in this case, the “statement” required by section 2(2)(b) was contained in the warrant. The dispute arises in respect of the “information” required by that subsection. Section 2(6) defines that “information” as including:
“ 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 question that arises is whether the warrant in this case complies with the requirements of section 2(6)(e).
It should be noted that the Extradition Act 2003 (Multiple Offences) Order 2003 ('the 2003 Order') provides, inter alia, that references in the Act to “an offence” (including a reference to “an extradition offence”) are to be construed as references to “offences” (or “extradition offences”).
An extradition offence
Section 10 of the Act (as modified by the 2003 Order) requires the judge at an extradition hearing to decide whether any of the offences specified in the Part 1 warrant is an “extradition offence”. If the judge decides that question in the negative in relation to an offence, he must order the person's discharge in relation to that offence.
The conditions that must be satisfied in order for an offence to constitute an extradition offence are set out (in a case where the person named in the warrant has been convicted of and sentenced for an offence constituted by the conduct specified in the warrant, and is unlawfully at large) at section 65 of the Act. Section 65(3)(c) provides:
“The conduct … constitutes an extradition offence in relation to the category 1 territory if these conditions are satisfied ——
(a) the conduct occurs in a category 1 territory;
(b) the conduct would constitute an offence under the law of the relevant part of the UK if it occurred in that part of the UK;
(c) a sentence of imprisonment or another form of detention for a term of 4 months or a greater punishment has been imposed in a category 1 territory in respect of the conduct”.
It is common ground that the Czech Republic is a category 1 territory and that the relevant conduct occurred there; the condition in section 65(3)(a) is therefore satisfied.
It is accepted also that the conduct alleged in respect of the second offence named in the warrant (the theft) would constitute an offence under the law of England and Wales if it occurred here and that it therefore fulfils what is frequently termed the 'dual criminality' requirement of section 65(3)(b). The offence of failing to pay maintenance would not constitute an offence under the law of England and Wales. Recognising that fact, the respondent conceded prior to the hearing before the district judge that the offence failed the dual criminality test and therefore could not meet the requirements for an “extradition offence”. Extradition was therefore sought and ordered only in respect of the offence of theft.
The question that arises is whether, in relation to the offence of theft, the condition (sometimes termed the 'test of gravity') set out in section 65(3)(c) is satisfied so as to render it an “extradition offence” within the meaning of section 10.
The information provided by the respondent
Before proceeding to consider these issues, I shall set out the relevant information provided by the respondent. This information is contained (a) in the warrant (b) in answers to questions asked of the respondent by the Crown Prosecution Service (CPS), which represents the respondent in these proceedings and (c) in a statement which has been provided by a judge of the respondent Court. The information contained in (a) and (b) was before the district judge. That contained in (c) was provided by the respondent subsequent to the hearing before the district judge.
The warrant identified the sentencing brackets for the two offences, stating that, both for the offence of failing to pay maintenance and for the offence of theft, “the offender will be punished by imprisonment for six months up to three years”. As to the actual sentence passed, it stated:
“…Length of the custodial sentence or detention order imposed … 1 year and 9 months …
Remaining sentence to be served … 1 year and 9 months…”
The respondent's answers to the relevant series of questions asked by the CPS were as follows:
Q: “Is the term of imprisonment of 1 year and 9 months the total of two separate sentences for the two...
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