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Aoife O'ReillyOn 29 Jun 2016, the Supreme Court dismissed two conjoined appeals made by Polish nationals, arguing that European arrest warrants (EAWS) issued by Polish courts for their extradition were invalid. The appellants asserted that the EAWs were defective as they did not comply with the Extradition Act 2003, s 2(6)(c), which required the particulars of domestic warrants issued in category 1 territories to be given, in order for the judgment or order within the issuing state to be enforced.

Background

Mr Goluchowski was sought for the purposes of serving a sentence that had been suspended and later activated, relating to offences of possession and distribution of psychotropic substances. An EAW was issued and certified by the Serious and Organised Crime Agency. Mr Sas was wanted to serve a sentence for fraud offences that was due after an unsuccessful appeal and because relevant conditions in his conditional early release were breached.

Issues before the Supreme Court

The High Court in each appeal certified a question asking whether an EAW was defective for the purposes of the Extradition Act 2003, s 2(6)(c), “if it does not also give particulars of domestic warrants issued in the category 1 territory to enforce that judgment or order within the issuing state.”

In Goluchowski [2015] EWHC 332 (Admin), the High Court certified a further question, asking whether the reference to “any other warrant issued” only required the EAW to include the conviction of the requested person. The High Court noted that Poland v Wojciechowski [2014] EWHC 4162 (Admin) appeared to necessitate the particularisation of the decision that required the serving of an immediate prison sentence, after which the requested person could be said to be unlawfully at large.

The appellants’ arguments

It was argued that the EAW had to contain particulars of at least the most recent domestic warrant issued to arrest an individual to serve a sentence, if not all the domestic warrants issued. In particular, it was submitted that evidence of a judicial decision activating a suspended sentence had to be contained in the EAW. Both appellants asserted that this was in line with the 2003 Act, while Mr Goluchowski also submitted that this interpretation was necessitated by the EU Council Framework Decision of 13 June 2002 (2002/584/JHA).

The court’s decision

The court began by considering the applicable domestic and EU law.

Extradition Act 2003

The court considered s 2 of the 2003 Act, which set out the various requirements that an EAW must satisfy. It noted that there was a distinction between those issued in accusation cases, where a person was wanted for prosecution, and in conviction cases, where a person was wanted after conviction for sentencing or to serve a sentence or another form of detention. [paras 5-8]

Framework Decision

The court noted that the Framework Decision did not separate out accusation and conviction cases. Article 8.1 set out the form and content of an EAW, requiring, among other things, “evidence of an enforceable judgment, an arrest warrant or any other enforceable judicial decision having the same effect.” [paras 9-12]

Court’s reasoning

The court [at para 25] stated that in conviction cases, “the natural basis of an EAW is ‘an enforceable judgment’ or, again perhaps, ‘any other enforceable judicial decision having the same effect’”. There was no reason why any other domestic warrant or equivalent needed to be provided, where such an enforceable decision existed.

It formed the view that the reference in s 2(6)(c) to “particulars of any other warrant issued” would only be relevant as a criterion in a conviction case where a convicted person was at large, but not yet sentenced. While the court accepted that there were issues with this interpretation forensically, it expressed the view that arguments against this interpretation gave insufficient weight to the word “any”, and made too great an assumption about the preciseness of the 2003 Act drafters. [para 27]

While neither the Framework Decision nor the 2003 Act explicitly dealt with the imposition of sentences which did not take immediate effect after conviction, it was not the case that they could not be applied to this scenario. [para 30]

In the case of the EAW 1 issued in respect of Mr Sas, the relevant evidence that he had to serve an enforceable sentence was the District Court judgment, and the Circuit Court judgment on appeal. Subsequent warrants issued when he did not report for detention were not relevant to this. [para 30]

Similarly, where the EAW 3s were issued for Mr Goluchowski and Mr Sas, the specified sentences to be served were as a result of court judgments convicting the two men, and it was this evidence that was required for the EAWs to be valid. The fact that Mr Goluchowski had initially had his sentence conditionally suspended, and Mr Sas had been conditionally released, did not mean that subsequent domestic summonses or warrants requiring them to serve their sentences were necessary to validate the EAW. Domestic decisions activating Mr Goluchowski’s sentence or revoking Mr Sas’s conditional release were not required. [para 32-34]

The court [at para 38-40] considered the recent decision of the Court of Justice of the EU (CJEU) in Bob-Dogi (Case C-241/15), which decided that information later obtained that showed that an EAW was based on an enforceable judgment would be sufficient to validate the EAW, even if this evidence had not been accurately evidenced on the face of the EAW. In the present cases, subsequent information obtained made it clear that the EAWs were valid as a matter of EU law. The court felt that the same position had to carry through to the 2003 Act. As such, the EAWs in this instance were valid.

The court was not persuaded that an EAW was required to set out all judicial judgments or decisions by which the sentence became enforceable, not least because it could require the EAW to contain overly complex references to previous stages or proceedings, and because it would undermine mutual confidence. Where the executing state was uncertain about the evidence presented, it was always open to it to request more information, as had been the case in these instances. However, in light of the decision in Bob-Dogi about subsequent information validating an EAW that appeared defective on its face, it was not necessary to resolve this point.

The court noted that this qualified the dicta of Lord Hope in Dabas v High Court of Justice in Madrid, Spain [2007] UKHL 6, which had rejected the proposition that the validity of an EAW could “be eked out by extraneous information,” where the requirements set out in s 2(2) of the 2003 Act were concerned. In light of Bob-Dogi, it was now apparent “that the EAW may be enforced if and when separately supplied information establishes a sound factual basis for surrender.”

On the facts, the EAWs did, on their face, meet all requirements of s 2(6). It was only at a later stage that it became apparent that certain information had not been provided regarding the manner in which the sentences had actually come to be served.

Comment

The decision gives effect to the clear authority of the CJEU that EAWs will not necessarily fail simply because the Framework Decision technicalities had not been complied with on the face of the EAW. Given the obligation to interpret the 2003 Act in a manner that is compatible with EU law, it is unsurprising that the Supreme Court opted to interpret the domestic legislation as also permitting supplementary information to be utilised to validate EAWs.

Also of interest in this case is the court’s reference to Lord Sumption’s judgment in Zakrzewski v District Court in Torun, Poland [2013] UKSC 2, which stated 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.” Lord Neuberger gave a short concurring judgment, endorsing Lord Sumption’s comments, but reiterating that it had never intended to be an absolute rule.

The purpose of the EAW system is to reduce the administrative impediments to securing the return of those wanted to face prosecution or to serve sentences in other EU states. It has played a major role in depoliticising extradition proceedings, requiring mutual recognition of criminal justice systems in the EU.

This decision is consistent with the approach taken by courts to various issues that surround EAWs. There is a presumption against requiring the requesting authorities to provide excessive information to justify extradition requests. Statements by authorities are generally to be accepted, unless there is evidence to the contrary that suggests impropriety. In this instance, the failure of the EAWs to particularise domestic warrants relating to the activation of the sentence or the revocation of the conditional release did not infringe their validity.