Zakrzewski v The Regional Court in Lodz, Poland

JurisdictionEngland & Wales
CourtSupreme Court
JudgeLord Wilson,Lord Kerr,Lord Clarke,Lord Sumption,Lord Neuberger
Judgment Date23 January 2013
Neutral Citation[2013] UKSC 2
Date23 January 2013

[2013] UKSC 2

THE SUPREME COURT

Hilary Term

On appeal from: [2012] EWHC 173

before

Lord Neuberger, President

Lord Kerr

Lord Clarke

Lord Wilson

Lord Sumption

Zakrzewski
(Respondent)
and
The Regional Court in Lodz, Poland
(Appellant)

Appellant

John Hardy QC

Katherine Tyler

(Instructed by CPS Appeals Unit)

Respondent

Hugo Keith QC

Mary Westcott

(Instructed by Shaw Graham Kersh Solicitors)

Heard on 6 December 2012

Lord Sumption (with whom Lord Neuberger, Lord Kerr, Lord Clarke and Lord Wilson agree)

1

Where an application is made for the extradition of a convicted person to a category 1 territory, ie pursuant to a European arrest warrant, the warrant is required by section 2(6)(e) of the Extradition Act 2003 to include "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 purpose of this requirement is to enable the court to apply section 65(2)(c), (3)(c), (4)(c) and (5)(c). These provide minimum sentences of imprisonment or detention which must have been imposed in order to disclose an extradition offence. The minimum periods are 12 months in the case of offences on the European Framework list or four months for offences which are not on the European Framework list but satisfy the relevant requirement of double criminality. In the present case, the relevant provision is section 65(3)(c), which applies to offences committed in the category 1 territory which would constitute an offence under the law of the relevant part of the United Kingdom if it occurred there, provided that "a sentence of imprisonment or another form of detention for a term of four months or a greater punishment has been imposed."

2

In many states of the European Union the criminal law provides for the aggregation of successive sentences imposed by criminal courts on different occasions so as to produce a single sentence reflecting the totality of the course of criminality disclosed. This will commonly result in a reduction of the total period of imprisonment imposed, by comparison with the period arrived at by adding up each of the original sentences. Poland's aggregation procedure is contained in articles 85–86 of the Penal Code and articles 569–577 of the Criminal Procedures Code, which require a court to aggregate successive sentences to produce a single "cumulative penalty". The effect of this procedure has been considered in a number of cases in which a European arrest warrant has given particulars of the cumulative penalty but not of the individual sentences which were aggregated so as to produce it. The question whether this satisfies sections 2(6)(e) and 65(3)(c) of the Act was finally settled in Pilecki v Circuit Court of Legnica, Poland [2008] 1 WLR 325. The House of Lords held that, at any rate in a case where each of the original sentences was for conduct satisfying all the other requirements for an extradition offence, it was enough for the warrant to specify the cumulative sentence. If it exceeded four months it was irrelevant that some of the original sentences might have been less than that. The present appeal concerns the converse situation. What happens if the warrant specifies only the original sentences, but after it has been issued they have been aggregated and their totality reduced?

3

Lukasz Zakrzewski, was convicted on four occasions in Poland of various offences of dishonesty or violence. On 10 December 2003, he was convicted by the District Court in Grudziadz of assault and robbery committed on separate occasions in February 2003, for which he received a combined sentence of 14 months imprisonment. On 18 March 2004, he was convicted by the same court of two distinct offences of theft, and received a further combined sentence of 15 months imprisonment. On 28 May 2004, he was convicted of theft by the District Court of Swiecle and sentenced to six months imprisonment. On 14 January 2005, he was back before the District Court of Grudziadz, which convicted him of theft and sentenced him to a further ten months imprisonment. All of these sentences of imprisonment were initially suspended, but all of them were subsequently activated either by the commission of further offences during the period of probation which followed conviction, or by breaches of the probation terms. On 24 February 2010, Mr Zakrzewski having absconded, the Regional Court of Lodz issued a European Arrest Warrant against him, based on his conviction on these four occasions. The warrant specified the sentence passed on each occasion.

4

Mr Zakrzewski was arrested in England on 28 September 2010 and brought before City of Westminster Magistrates' Court on the same day. At that time, he was facing further criminal charges in the United Kingdom. The extradition proceedings were therefore adjourned pending the resolution of proceedings arising from them. During the adjournment, Mr Zakrzewski applied to the District Court of Grudziadz to have the four sentences aggregated. The court duly aggregated them, and on 19 April 2011 imposed a cumulative sentence of 22 months, as opposed to the aggregate of 45 months under the original sentences. When Mr Zakrzewski came back before Westminster Magistrates on 20 May 2011, it was submitted on his behalf that the aggregation order meant that the warrant no longer gave the particulars required by section 2(6)(e) because the only relevant sentence was now the cumulative sentence. It followed, so it was said, that the warrant had become invalid, or that the court should exercise an inherent jurisdiction not to proceed with the extradition on the ground that it no longer gave proper, fair or accurate particulars: see Criminal Court at the National High Court, First Division v Murua [2010] EWHC 2609 (Admin). It will be noted that each of the original sentences was for conduct in Poland which would have been criminal if it had occurred in England, and that the original sentences and the cumulative sentence all exceeded four months. The argument advanced on Mr Zakrzewski's behalf is therefore hardly overburdened with merit. It is about as technical as it could possibly be. It is common ground that a further warrant giving the same particulars but specifying the cumulative sentence would be good.

5

District Judge Rose rejected the argument in both its forms and made the extradition order. But it was accepted in both forms by Lloyd Jones J on appeal to the High Court. He allowed the appeal against the extradition order on 7 February 2012. In summary, he held that the information in the warrant must

"relate to the current operative sentence and not to earlier sentences which have been subsumed in an aggregated order. In determining whether the requirement of section 65 is satisfied, the court needs to know the total length of time which the court of the requesting state has ordered must be served in prison. In the present case, that is the aggregated order.": [2012] 1 WLR 2248, para 26.

6

The basic features of the scheme for the execution of a European arrest warrant under Part 1 of the Extradition Act 2003 are too familiar to need extensive restatement here. It has often been pointed out that the contents of the warrant are critical to the operation of the scheme of both the Council Framework Decision 2002/584/JHA of 13 June 2002 and the United Kingdom Act. Extradition under Part 1 of the Act is by way of direct execution of the warrant. To fall within the definition of a "Part 1 warrant" and be capable of initiating extradition proceedings, it must contain the statements and information required by section 2 of the Act, which reflect the mandatory contents provided for by article 8 of the Framework Decision. The procedure operates at each stage by reference to the prescribed particulars contained in it. Thus, under section 10, the court must decide whether "the offence specified in the Part 1 warrant" is an extradition offence as defined by section 64 (in an "accusation" case) or section 65 (in a "conviction" case). Both sections require the court to consider whether the "offence constituted by the conduct" satisfied the requirements of those sections. "The conduct" for this purpose means that specified in the warrant, and it is not permissible to conduct an independent examination of the elements of the offence under the law of the requesting state: Office of the King's Prosecutor, Brussels v Cando Armas [2006] 2 AC 1, paras 16 (Lord Bingham of Cornhill) and 30 (Lord Hope of Craighead). Under section 64(2)(b) and (c), the questions whether "the conduct" falls within the European Framework list and whether it is punishable under the law of the requesting state by a sentence of imprisonment of three years or more are to be determined by reference to information certified by the requesting authority, which may be...

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