Case Comment: Zakrzewski v The Regional Court in Lodz, Poland  UKSC 2
29 Wednesday May 2013
In January the Supreme Court handed down the decision in Zakrzewski. The case concerned the requirement under the Extradition Act 2003, s 2(6)(e) that an EAW must state the “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 Supreme Court’s decision was in the appellant’s favour however, just before the judgment was 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 court that issued it withdrew the warrant and the appeal was formally dismissed.
Mr. Zakrzewski was arrested on the grounds of two European Arrest Warrants. EAW 1 was issued by the District Court of Torun and EAW 2 by the Regional Court of Lodz. EAW 2 related to six offences that resulted in four sentences. Prior to the hearing in relation to his extradition the four sentences were reduced to one year and ten months by an order of the District Court in Grudziadz. The Respondent submitted in the Administrative Court that EAW 2 was no longer valid because of the passing of a “cumulative sentence”, which substituted a total penalty in respect of all of the offences to which the second warrant related and therefore the warrant no longer satisfied the requirements of s 2(6)(e). Established case law (Pilecki v Circuit Court of Legnica, Poland  1 WLR 325) has already clarified that 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. In Zakrzewski the issue was effectively whether the same principle applied in the reverse circumstances.
Decision of the lower courts
District Judge Rose found that the warrant still satisfied the requirements of s 2(6)(e). The judge relied on the wording of the letter from the Regional court of Lodz that stated, “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.” District Judge Rose considered that the warrant therefore still accurately reflected “the sentence which has been imposed” as required by the subsection.
?n the Administrative Court Mr. Justice Lloyd Jones reversed the decision. On his analysis it was clear that the cumulative sentence was the operative sentence and that the previous individual sentences, while remaining valid, were not operative. The purpose of s 2(6)(e) is to provide the necessary sentencing information in order to determine if the requirement of s 65 of the Act are satisfied. In order to determine whether the offences identified in the warrant are extradition offences within ss 65(2), (3), (4), (5) or (6) the court has to ascertain the length of sentence that has been imposed. Justice Jones concluded that in order to fulfil this purpose, the information must relate to the current operative sentence and not to earlier sentences that have been subsumed in an aggregated order. As a matter of general principle Justice Jones stated that there is a duty on the part of the requesting authority to ensure that the information contained in the warrant is proper, fair and accurate. Therefore, after a European arrest warrant is issued, if the courts of the requesting State vary the length of sentence imposed for the offence to which the warrant relates, it is necessary for the requesting authority to withdraw the warrant and issue a new warrant that accurately states the sentence imposed and meets the requirements of section 2(6)(e).
The decision of the Supreme Court
The Supreme Court – whose decision was given by Lord Sumption, restored District Judge Rose’s decision. Lord Sumption commented early in the judgment that the case was “about as technical as it could possibly be”, but the judgment in effect relies on a purposive reading of the Extradition Act.
Lord Sumption stated that:
“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 decision to issue the warrant by the judicial authority in the requesting state.
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.” [paras 7 and 8]
Lord Sumption want on clarify that this did not mean that nothing is to be done if the prescribed particulars in the warrant are or have become incorrect. There are two safeguards against an unjustified extradition in those circumstances. The first is mutual trust between states party to the framework decision. The second lies in the discretion of the court to halt proceedings for abuse of process. Lord Sumption referred to Sir Anthony May’s judgment in Criminal Court at the National High Court, First Division v Murua  EWHC 2609 where the ruling suggested that, in the case of an inaccurate warrant, proceedings could be halted either as an abuse of process argument or as a contention that the description in the warrant of the conduct alleged did not sufficiently conform with the requirements set out in s 2. Lord Sumption agreed with May’s statement subject to four observations:
- 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).
- 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. 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 sole juridical basis for the inquiry into the accuracy of the particulars in the warrant is abuse of process.
It followed from this reasoning that the only basis upon 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. There was no abuse as the Regional Court of Lodz supplied further information about the effect of the aggregation order, which made it clear that the composite sentence did not invalidate any of the individual sentences. Therefore, the information in the warrant about the original sentences did not cease to be true when the cumulative sentence was passed.
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 that 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 that 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.
The decision in the case was largely predictable, given the decision in Pilecki. Where it is enough for a cumulative sentence to be stated rather than individual sentences, provided the individual sentences were longer than four months, it appears logical the same principle would apply in reverse circumstances; otherwise there would be rather an odd legal asymmetry.
However, some of the further reasoning applied in the judgment is perhaps not as satisfactory. While Lord Sumption is right that there is no ground for invalidity due to ‘factual error’, the phrasing of s 2(6)(e) suggests that there will be a problem if the particulars of the sentence are not supplied. Lord Sumption’s statement that “The validity of the warrant depends on whether the prescribed particulars are to be found in it, and not on whether they are correct” implies the privileging of form over substance to a significant degree. While Lord Sumption’s observations’ regarding Sir Anthony May’s judgment in Murua provide some welcome clarity, it is suggested that with regard to the fourth observation, Sir May’s original judgment is to be preferred.
In the case preview of Zakrezwski it was suggested that the wide sweeping nature of the EAW system is in part justified by its rigorous procedural requirements, and its operation needs to be absolutely clear. While the UKSC judgment does provide welcome clarity on the main point, and also provides some further clarification re. abuse of process, it is suggested that the restriction of challenges to the warrant’s accuracy of warrants to abuse of process proceedings, with only a procedural regard to s 2(6)(e) is not necessarily helpful.