Zakrzewski v District Court in Torun, Poland and another
| Jurisdiction | England & Wales |
| Judge | The Hon. Mr. Justice Lloyd Jones |
| Judgment Date | 07 February 2012 |
| Neutral Citation | [2012] EWHC 173 (Admin) |
| Docket Number | Case No: CO/5797/2011 |
| Court | Queen's Bench Division (Administrative Court) |
| Date | 07 February 2012 |
[2012] EWHC 173 (Admin)
The Honourable Mr Justice Lloyd Jones
Case No: CO/5797/2011
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
Royal Courts of Justice
Strand, London, WC2A 2LL
Ms. Mary Westcott (instructed by Shaw, Graham and Kersch) for the Appellant
Ms. Katherine Tyler (instructed by Crown Prosecution Service) for the Respondents
Hearing dates: 25 th and 26 th January 2012
I make an order formally extending the time for the hearing of this appeal in the interests of justice pursuant to CPR Part 52 PD.120 22.6A (4) to the date of the hearing of the appeal before me.
This is an appeal against the decision of District Judge Rose made on 16 th June 2011 pursuant to section 21(3) of the Extradition Act 2003 ("the Act") to order the appellant's extradition to Poland.
The proceedings are based on two conviction European Arrest Warrants ("EAW 1" and "EAW 2"). EAW 1 was issued by the District Court in Torun, Poland on 3 rd February 2010. EAW 2 was issued by the Regional Court in Lodz, Poland on 24 th February 2011.
Poland is a designated Part 1 authority for the purposes of the Act. Accordingly Part 1 of the Act (as subsequently modified) applies to these proceedings.
The issues on the appeal were both raised before the District Judge. They are
(1) Whether EAW 2 is invalid for a failure to comply with section 2(6)(e) of the Act because it fails to state the aggregate sentence imposed for the six offence to which it relates; and
(2) In respect of both warrants, whether his extradition is compatible with the appellant's rights under Article 8 ECHR.
The appellant first came before City of Westminster Magistrates' Court on 6 th May 2010 having been arrested pursuant to EAW 1. EAW 1 relates to eight convictions (thefts between 2003 and 2004) which resulted in a two year custodial sentence, originally suspended, but activated on 1 st August 2006.
The appellant was arrested pursuant to EAW 2 on 28 th September 2010. EAW 2 relates to six offences which resulted in four sentences. EAW 2 relates to six offences which resulted in four sentences.
(1) A three year suspended sentence in respect of offences of assault and robbery were subsequently activated due to a further offence.
(2) A four year suspended sentence in respect of robbery and theft.
(3) A three year suspended sentence in respect of theft.
(4) A four year suspended sentence in respect of theft.
In each case the sentence was later activated due to the commission of a further offence.
It was necessary to adjourn a number of extradition hearings due to ongoing hearings at Kingston Crown Court in which the Appellant was the Defendant.
District Judge Rose heard evidence on 20 th May 2011. Two additional pieces of information provided by the Polish Courts were considered. The first was a document dated 16 th May 2011 which had been provided by the District Court in Torun. The second was a document dated 18 th May 2011 provided by the Regional Court in Lodz. The second document states that on 19 th April 2011 the District Court in Grudziadz passed a cumulative sentence which combined the sentences imposed on the Appellant for the offences to which EAW 2 relates, resulting in a cumulative penalty of one year and ten months' imprisonment.
Extradition was ordered on 16 th June 201. The appeal to this court was lodged on 16 th June 2011.
Ground 1: The second warrant is invalid because it fails to meet the requirements of section 2(6)(e).
The appellant submits that the District Judge was wrong to conclude that EAW 2 is a valid warrant. He submits that it fails to meet the requirements of section 2(6)(e) of the Act because it fails to give particulars of the sentence which has been imposed in respect of the offences.
Section 2(2) of the Act requires that a warrant contain a statement in accordance with section 2(5) and information in accordance with section 2(6).
Section 2(5) provides:
"(5)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."
Section 2(6) provides in relevant part:
"(6) The information is—
…
(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 effect of The Extradition Act 2003 (Multiple Offences) Order 2003 is that, unless the context otherwise requires, any reference in the Act to an offence (including an extradition offence) is to be construed as a reference to offences (or extradition offences).
The Appellant accepts that EAW 2 was initially valid. Box E of the warrant states that it pertains to a total of six offences subject to four judicial verdicts. Box C sets out the details of the four sentences imposed, explaining that in the case of each of the first two that it is a cumulative penalty and identifying the single penalties from which it is derived. However it is submitted that the warrant is no longer valid because of the passing of a "cumulative sentence" which substituted a total penalty in respect of all of the offences to which the second warrant relates of one year, ten months' imprisonment.
The translation provided to the court of the letter of the Regional Court in Lodz dated 18 th May 2011 states in relevant part:
"In reply to your letter of 12 May 2011 the…Regional Court in Lodz…hereby respectfully provides that on 19 April 2011 the…District Court in Grudziadz passed in respect of Lukasz Zakrzewski a valid cumulative sentence whereby the court combined the prison sentence imposed on the convict in all the judgements covered by the European Arrest Warrant executed by this court on 24 th February 2010 i.e. the following judgements passed by:
1. …District Court in Grudziadz on 10 December 2003…
2. The…District Court in Grudziadz on 18 March 2004…
3. The…District Court in Swiecie on 28 May 2004…
4. The…District Court in Grudziadz on 14 February 2005…
Pursuant to the judgement passed, Lukasz Zakrzewski has been sentenced to a cumulative penalty of one year and ten months' imprisonment. The court was obligated to impose the said cumulative sentence pursuant to Article 569 section 1 Polish Criminal Procedures Code and Article 85 Polish Criminal Code. In accordance with the provisions referred to herein above it is possible to impose a cumulative sentence if the offender has been convicted under valid judgements passed by various courts for two or more offences committed prior to the first judgement being passed, even if not in full force and effect, in respect of any of these offences. At that, it should be underscored that a cumulative sentence does not invalidate any of the single sentences covered by that cumulative sentence and its only effect is that instead of executing the single penalties of imprisonment imposed on the convict, a cumulative penalty is executed in the extent determined in the cumulative sentence. In other words, in connection with the cumulative sentence having been passed in respect of the convict, Lukasz Zakrzewski's situation, as compared with that which would exist if the cumulative sentence were not passed, is in as much more favourable that instead of serving the sentences passed in respect of each offence he will serve the cumulative prison sentence of one year and ten months for all the offences covered by the European Arrest Warrant executed by the…Regional Court in Lodz."
The District Judge was satisfied that the warrant complied with the requirements of section 2(6)(e) despite the cumulative sentence that was passed on 19 th April 2011. She referred to the passage in the requesting court's letter which stated that the cumulative sentence does not invalidate any of the single sentences. The District Judge considered that the warrant therefore still accurately reflected "the sentence which has been imposed" as required by the subsection.
On behalf of the appellant Miss Mary Westcott submits that the requirement in section 2 and in Article 8 of the Framework Decision that a warrant must state the sentence imposed in respect of the offences on the warrant requires any aggregate sentence to be stated. She submits that the further information provided by the Regional Court in Lodz in its letter of 18 th May 2011 makes it plain that a one year and ten months aggregate sentence now prevails over the individual sentences detailed in the second warrant. She does not submit that the component sentences are invalid in Polish law. However she does submit that the failure to state the aggregate sentence is a fatal defect in the context of section 2(6)(e).
The primary response of Miss Katherine Tyler on behalf of the Respondent is that the aggregate sentence is not the sentence imposed but the remainder of the sentence left to be served. She submits that this is apparent from the following sentence in the response of the Regional Court:
"…it should be underscored that a cumulative sentence does not invalidate any of the single sentences covered by that cumulative sentence and its only effect is that instead of executing...
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