Popovic v Regional Court of Usti Nad Labem, Czech Republic
| Jurisdiction | England & Wales |
| Judge | Mr Justice Johnson |
| Judgment Date | 18 May 2022 |
| Neutral Citation | [2022] EWHC 3639 (Admin) |
| Court | Queen's Bench Division (Administrative Court) |
| Docket Number | No. CO/4006/2021 |
[2022] EWHC 3639 (Admin)
Mr Justice Johnson
No. CO/4006/2021
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
Royal Courts of Justice
Ms F Iveson (instructed by ITN Solicitors) appeared on behalf of the Appellant.
Mr T Hoskins (instructed by CPS Extradition Unit) appeared on behalf of the Respondent.
( )
In this case the appellant appeals against an order for his extradition made by District Justice Leong sitting at the Westminster Magistrates' Court. That order was made pursuant to a European Arrest Warrant issued on 4 April 2016 by the Czech judicial authority. The issue at first instance, and on appeal, was whether there was a failure to comply with the obligations under s.2 of the Extradition Act 2003 in respect of the information that should be contained in a European Arrest Warrant, such that the District Judge ought to have ordered the appellant's discharge.
The basic problem was that the warrant, on its face, was clearly an accusation warrant whereas, as is now common ground, the appellant has since been convicted. There were, however, more problems than the simple description of the type of warrant. The warrant itself says, at the outset:
“I request that the person mentioned below be arrested and surrendered for the purposes of conducting a criminal prosecution.”
In fact, as I have said, the appellant has since been convicted.
The warrant, in box A, sets out accurately information regarding the identity of the requested person, including his name, date and place of birth and last known residence. In box B the warrant states that it is based on an arrest warrant issued on 20 May 2015. That is incorrect because by the time the European Arrest Warrant was issued that warrant had been withdrawn. One of the arguments advanced on the appellant's behalf, by Ms Florence Iveson, is that even now it is not clear what the basis for this arrest warrant was. In box C, information is given as to the maximum length of the custodial sentence that might be imposed for the offences in question. However, by the time the warrant was issued the appellant had been convicted and there were no particulars of the sentence that had been imposed.
In box D, in response to the obligation to indicate if the person had appeared in person at the trial resulting in the decision, the response given is “Not applicable”. In fact, because the trial had by then taken place, the question was applicable and it was necessary to go on and answer the consequential questions that arise. As to those, it is common ground that the appellant had not appeared at the trial resulting in the decision and that the judicial authority could and should, therefore, have indicated that the appellant had been summonsed and informed of the scheduled date and place of trial and informed that a decision might be handed down if he or she did not attend for the trial. It might additionally have been indicated that the appellant was aware of the scheduled trial and had given a mandate to a legal representative to defend him at trial and that he was, in fact, defended by a legal representative at trial.
In box E, the warrant states that it relates to one offence, which is set out in considerable detail, in fact dealing with four separate pieces of conduct that gave rise to four charges. Those resulted to a procurement of a bank loan by using false documentation and ancillary offences, the total loss being in the region of £420,000. There is no dispute that the details of the underlying offending are correctly set out.
The warrant also indicates the domestic legislation that is applicable and that the charges amounted to fraud within the meaning of the Framework Decision.
The judicial authority was asked to provide further information in respect of the warrant and did so by a statement dated 18 January 2021. That further information makes it clear that criminal proceedings against the appellant had been conducted. They had commenced on 3 June 2013 and an indictment had been filed with the court on 13 December 2013. The decision to commence proceedings had been served on the appellant in writing on 20 June 2013. The trial was held on 14 April 2015 and the appellant did not appear. On 20 May 2015 a warrant for his arrest was issued by the court and a European Arrest Warrant was issued. On 5 June 2015, the defendant appeared at court and was given a new date of trial, which was 9 June 2015. The trial took place on that date. The appellant did not attend and it proceeded in his absence, albeit he was represented. He was convicted on 9 June 2015. He could not then be located and it was not, therefore, possible to serve the judgment on him. It transpired that the address he had given in Germany did not exist.
Having explained that the appellant had been convicted by a judgment of conviction on 9 June 2015, the further information continues:
“On that ground a new warrant to arrest and a new European Arrest Warrant were issued for the defendant on 4 June 2016.”
The appellant, in the course of the extradition proceedings, provided a copy of the judgment of conviction which he had, in fact, received. That resulted in a second request for more information. That request was in these terms:
“Lawyers on behalf of Mr Popovic have now made available to us the attached judgment which they claim is a judgment in respect of the offences on the EAW. The EAW is an accusation warrant. However, this judgment appears to indicate that Mr Popovic has already been convicted of the offences on the EAW. I would be so grateful if you could confirm as a matter of urgency whether this is correct and, if so, if you wish to withdraw the EAW.”
On 16 February 2021, the presiding judge of the respondent judicial authority replied to the request for further information by way of a “statement regarding the extradition proceedings of Jan Popovic”. The judge said:
“The European Arrest Warrant was issued because the Regional Court in Usti Nad Labem pronounced its judgment, Jan Popovic escaped. It was not possible to serve the judgment on him so the judgment has not become legally effective yet. The time for Jan Popovic to appeal against the judgment will start to run the moment he is served the judgment by personal delivery in the Czech Republic. The European Arrest Warrant will not be revoked. There are no reasons to do so.”
The reasons for the errors in the European Arrest Warrant are explained by the chronology. As the District Judge explained in her judgment, and as is clear from the further information that had been received, the initial trial date had been 14 April 2015 but the appellant did not attend and the matter did not proceed. As a result of that, the respondent judicial authority issued a domestic arrest warrant and also a European Arrest Warrant to secure the appellant's attendance. As the District Judge says, it is reasonable to assume that that EAW must have been drafted as an accusation warrant because the appellant was wanted for prosecution but had not yet been convicted. When the appellant subsequently attended court, on 5 June, as the further information explains, both the domestic warrant and the European Arrest Warrant were withdrawn. When, however, he was convicted and it was found that he had given a false address, the judge again issued a domestic arrest warrant and a European Arrest Warrant to enforce the judgment. As the District Judge said:
“It is reasonable to assume that instead of drafting an EAW afresh to aver a conviction and with the purpose of enforcing the judgment and the sentence of 7 years' imprisonment, the same EAW previously drafted was used but with a new date inserted.”
It is against that background that the issue that arose at first instance, and now on appeal, is whether the errors in the warrant were capable of remedy by the provision of further information and, if so, whether they were remedied by the provision of further information. Or, on the other hand, whether the errors had the effect of invalidating the warrant such that a district judge was bound to discharge the appellant.
Section 2 of the Extradition Act says:
“(1) This section applies if the designated authority receives a Part 1 warrant in respect of a person.
(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).
(3) The statement is one that—
(a) the person in respect of whom the Part 1 warrant is issued is accused in the category 1 territory of the commission of an offence specified in the warrant, and
(b) the Part 1 warrant is issued with a view to his arrest and...
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