JUDGMENT
Zakrzewski (Respondent) v The Regional Court in
Lodz, Poland (Appellant)
before
Lord Neuberger, President
Lord Kerr
Lord Clarke
Lord Wilson
Lord Sumption
JUDGMENT GIVEN ON
23 January 2013
Heard on 6 December 2012
Appellant Respondent
John Hardy QC Hugo Keith QC
Katherine Tyler Mary Westcott
(Instructed by CPS
Appeals Unit)
(Instructed by Shaw
Graham Kersh Solicitors)
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?
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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
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“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 (and commonly is) certified in the warrant itself: see Dabas v High Court
of Justice in Madrid, Spain [2007] 2 AC 31. The same applies to the corresponding
provisions of section 65(2)(b) and (c). If the warrant contains the prescribed
particulars and these disclose an extradition offence, the court must extradite the
defendant, unless one of the limited exceptions specified in the Act applies. The
exceptions to the otherwise mandatory extradition of the defendant are dealt with
by sections 10 to 21 and 25 of the Act. Some of these also operate by reference to
“the conduct”, which must in the circumstances mean the conduct specified in the
warrant: see sections 15 and 19B (as inserted by section 42 of, and para 4(2) of
Schedule 13 to, the Police and Justice Act 2006).
7. All of these provisions reflect the underlying purpose of the Framework
Decision and Part 1 of the Extradition Act to create a simplified and accelerated
procedure based on the mutual recognition by the requested state of the antecedent
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decision to issue the warrant by the judicial authority in the requesting state.
Recital (10) of the Framework Decision records that “the mechanism of the
European arrest warrant is based on a high level of confidence between member
states.” Or, as Lord Phillips put it in Assange v Swedish Prosecution Authority
(Nos 1 & 2) [2012] 2 AC 471, para 79, “under the scheme of the Framework
Decision the safeguard against the inappropriate issue of an EAW lies in the
process antecedent to the issue of the EAW.”
8. It follows that the scheme of the Framework Decision and of Part 1 of the
2003 Act is that as a general rule the court of the executing state is bound to take
the statements and information in the warrant at face value. The validity of the
warrant depends on whether the prescribed particulars are to be found in it, and not
on whether they are correct. It cannot be open to a defendant to challenge the
validity of a warrant which contains the prescribed particulars by reference to
extraneous evidence tending to show that those statements and information are
wrong. If this is true of statements and information in a warrant which were wrong
at the time of issue, it must necessarily be true of statements which were correct at
the time of issue but ceased to be correct as a result of subsequent events. Validity
is not a transient state. A warrant is either valid or not. It cannot change from one
to the other over time.
9. It does not, however, follow from this that there is nothing to be done about
it if the prescribed particulars in the warrant are or have become incorrect. It only
means that the remedy must be found at the stage when the court is considering
whether to extradite. Neither the Framework Decision nor Part 1 of the Act
provides in terms for non-extradition on the ground of a factual error in the
warrant. There are, however, two safeguards against an unjustified extradition in
those circumstances.
10. The first and main one is the mutual trust between states party to the
Framework Decision that informs the entire scheme. The requesting judicial
authority has a right, recognised by article 15.3 of the Framework Decision, to
forward additional information at any time. These are receivable in evidence by an
English court under section 202 of the Act on the same basis as the warrant itself.
If necessary, further information may be requested by the executing court under
article 15.2. The Framework Decision proceeds on the assumption that requesting
states can be trusted to ensure that statements and information in a European arrest
warrant are true. By the same token, if they subsequently cease to be true, either
the warrant will be withdrawn or the statements and information in it will be
corrected by the provision of further information, with or without a request for it.
11. The second safeguard lies in the inherent right of an English court, as the
executing court, to ensure that its process is not abused. One form of abuse of
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process is the fortunately rare case in which the prosecutor has manipulated the
process of the executing court for a collateral and improper purpose: see R
(Government of the United States of America) v Bow Street Magistrates’ Court
[2007] 1 WLR 1157. We are not concerned with anything of that kind on this
appeal. Another category comprises cases, rather less rare, in which the prescribed
particulars are given in the warrant but they are wrong. In Caldarelli v Judge for
Preliminary Investigations of the Court of Naples, Italy [2008] 1 WLR 1724, para
24, Lord Bingham observed that “it might in some circumstances be necessary to
question statements made in the EAW”, notwithstanding the general rule. The
question is in what circumstances is the power envisaged by Lord Bingham
exercisable.
12. The clearest statement of the principle is to be found in the decision of Sir
Anthony May, President of the Queen’s Bench Division of the High Court, in
Criminal Court at the National High Court, First Division v Murua [2010] EWHC
2609 (Admin), which has been followed by the High Court on a number of
occasions. Murua was an accusation case. The warrant alleged serious terrorist
offences involving danger to life and concealment of identity. Both of these were
significant aggravating factors under Spanish law, warranting imprisonment upon
conviction for up to 48 years. The particulars of the offence specified the
aggravating factors, and the maximum sentence associated with them. However, at
the trial in Spain of seven other defendants for the same conduct, the prosecution
had accepted that these aggravating factors could not be proved. The charges were
reformulated, and the co-defendants convicted of lesser offences carrying a
maximum term of imprisonment of three years. Sir Anthony May said, at paras 58-
59:
“58. The court’s task — jurisdiction, if you like — is to determine
whether the particulars required by section 2(4) have been properly
given. It is a task to be undertaken with firm regard to mutual cooperation, recognition and respect. It does not extend to a debatable
analysis of arguably discrepant evidence, nor to a detailed critique of
the law of the requesting state as given by the issuing judicial
authority. It may, however, occasionally be necessary to ask, on
appropriately clear facts, whether the description of the conduct
alleged to constitute the alleged extradition offence is fair, proper
and accurate. I understood Ms Cumberland to accept this, agreeing
that it was in the end a matter of fact and degree. She stressed,
however, a variety of floodgates arguments with which in general I
agree, that this kind of inquiry should not be entertained in any case
where to do so would undermine the principles to be found in the
introductory preambles to the Council Framework Decision of 13
June 2002.
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59. Ms Cumberland submitted that an argument of the kind which
succeeded before the District Judge can be raised, but not with
reference to section 2 of the 2003 Act. She said that the proper
approach was to deal with it as an abuse argument, and this ties in
with the appellant’s third ground of appeal, to which I shall come in a
few moments. I do not agree that the respondent’s case could only be
advanced as an abuse argument. It can properly be advanced, as it
was, as a contention that the description in the warrant of the conduct
alleged did not sufficiently conform with the requirements set out in
section 2 for the reasons advanced by Mr Summers with reference to
Dabas v High Court of Justice in Madrid, Spain [2007] 2 AC 31 and
Pilecki v Circuit Court of Legnica, Poland [2008] 1 WLR 325. If
that is shown, it is not a valid Part 1 warrant.”
13. I agree with this statement, subject to four observations. The first is that the
jurisdiction is exceptional. The statements in the warrant must comprise statutory
particulars which are wrong or incomplete in some respect which is misleading
(though not necessarily intentionally). Secondly, the true facts required to correct
the error or omission must be clear and beyond legitimate dispute. The power of
the court to prevent abuse of its process must be exercised in the light of the
purposes of that process. In extradition cases, it must have regard, as Sir Anthony
May observed, to the scheme and purpose of the legislation. It is not therefore to
be used as an indirect way of mounting a contentious challenge to the factual or
evidential basis for the conduct alleged in the warrant, this being a matter for the
requesting court. Third, the error or omission must be material to the operation of
the statutory scheme. No doubt errors in some particulars (such as the identity of
the defendant or the offence charged) would by their very nature be material. In
other cases, the materiality of the error will depend on its impact on the decision
whether or not to order extradition. The fourth observation follows from the third.
In my view, Ms Cumberland was right to submit to Sir Anthony May in Murua
that the sole juridical basis for the inquiry into the accuracy of the particulars in the
warrant is abuse of process. I do not think that it goes to the validity of the warrant.
This is because in considering whether to refuse extradition on the ground of abuse
of process, the materiality of the error in the warrant will be of critical importance,
whereas if the error goes to the validity of the warrant, no question of materiality
can arise. An invalid warrant is incapable of initiating extradition proceedings. I do
not think that it is consistent with the scheme of the Framework Decision to refuse
to act on a warrant in which the prescribed particulars were included, merely
because those particulars contain immaterial errors.
14. I now return to the facts of Mr Zakrzewski’s case. The warrant issued
against him was undoubtedly a valid warrant when it was issued. It was therefore
effective to authorise the commencement of extradition proceedings in the United
Kingdom against him. It did not become invalid when the aggregation order was
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made. It follows that the only basis on which Mr Zakrzewski could object to his
extradition was that the conduct of the requesting judicial authority in persisting
with extradition proceedings after the aggregation order was an abuse of those
proceedings. The short answer to this contention in the present case is that the
particulars of the sentence in the warrant, although no longer complete, were not
wrong. This is because the Regional Court of Lodz supplied further information
about the effect of the aggregation order in the following terms:
“The consequence of a composite sentence having been passed is
that the single penalties imposed for each of the offences are
replaced by that single composite sentence. In such a case, the
penalties imposed for each of the offences are not to be enforced
separately, but replaced with the new composite sentence that is to
be enforced in respect of the convict… It should be noted that the
issue of a composite sentence does not invalidate any of the
individual sentences.”
This answer was effective to explain the contents of the warrant. Its effect is that
the original sentences remain valid but the cumulative sentence determines what
period of imprisonment will be treated as satisfying them. Therefore, the
information in the warrant about the original sentences did not cease to be true
when the cumulative sentence was passed.
15. Although true, the information in the warrant about the sentence imposed
became incomplete when the cumulative sentence was passed. The prosecution of
extradition proceedings on a warrant containing prescribed particulars which are
(or have become) incomplete is capable of being an abuse of process, but only if
the information omitted is material to the operation of the statutory scheme. In this
case the fact that the period of imprisonment which would satisfy the four original
sentences had been shortened was wholly immaterial, because even the shorter
cumulative sentence was substantially longer than the minimum of four months.
As Lord Hope observed in Pilecki [2008] 1 WLR 325, para 29, “all the executing
court needs to know in these circumstances is whether or not the sentence was one
for at least four months.” The position would be different if the composite sentence
was below the four-month threshold, because there would then be no extradition
offence.
16. I cannot agree with Lloyd Jones J [2012] 1 WLR 2248, para 26 that the
failure of the warrant to specify the “current operative sentence” was fatal. The
sentence of the court will rarely be the “current operative sentence”, since the
period to be served will commonly be affected by a variety of factors, such as
remission or parole. As the cases on aggregation procedure show, they may also be
affected by aspects of criminal procedure which will vary from one jurisdiction to
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another without affecting the application of the ordinary criteria for extradition or
undermining the purpose of the Framework Decision or Part I of the Act.
17. It follows that in the ordinary course the appeal would have been allowed
and the order of the District Judge restored. However, just before this judgment
was due to be delivered, the Court was informed that Mr. Zakrzewski had returned
voluntarily to Poland after the argument on the appeal and been arrested there.
Accordingly, the warrant has been withdrawn by the court which issued it. This
does not affect the issue which the Court has to decide. But it does mean that,
formally, the appeal must now be dismissed: see section 43(4).
