What questions are raised where defendants are sought on European Arrest Warrants in respect of a single aggregate sentence imposed for two or more offences?

The Administrative Court handed down an important judgment on 11 November 2013 in relation to a number of linked extradition appeals in Polish cases. The court in Brodziak and Others v Poland [2013] EWHC 3394 (Admin) was considering the position under Part 1 of the Extradition Act 2003 where defendants are sought on European Arrest Warrants in respect of a single aggregate sentence imposed for two or more offences including one or more extradition offences but also one or more non-extradition offences. The appeal raised a number of issues regarding the lawfulness of extradition in these circumstances, including the question of whether the requested persons, if extradited, would be required to serve sentences relating in part to non-extradition offences.

‘Extradition offences’ are offences for which it is possible to extradite a person. Under Part 1 of the Extradition Act, which deals with European Arrest Warrants, an offence can be an extradition offence in a number of different ways. Firstly, there is a list of offences included in the European Framework Decision on Extradition. If an offence appears in this list then it is an extradition offence regardless of whether it would also be an offence here. Aside from Framework List offences, the Extradition Act has different rules as to what constitutes an extradition offence depending on whether someone has been sentenced already or not. In a case such as this, where someone has already been sentenced for the offence which was committed in Poland, an offence is an ‘extradition offence’ if the conduct would also constitute an offence here in the UK and if a sentence of four months or more has been imposed in the requesting state. This is often referred to as ‘dual criminality’.

Speciality is an important rule which prevents a requesting state from prosecuting a defendant for offences that are not contained within an extradition order. So, for example, the rule prevents a state from requesting a person’s extradition on a theft and then prosecuting them for an assault. There is a bar to extradition where there are no specialty arrangements in place with the requesting state.

The court confirmed that a court should discharge the requested person on any offences which are not ‘extradition offences’ and extradition should only be ordered in respect of those offences which are ‘extradition offences’. The court held that the fact that an aggregate sentence has been imposed causes no difficulty in assessing the issue of dual-criminality in relation to the other offences. In doing so the court followed the reasoning in the cases of Kucera v Czech Republic [2008] EWHC 414 (Admin) and Pilecki v Poland [2008] 1 WLR 325.

In relation to speciality it was argued that, whilst there clearly were speciality arrangements with Poland, there were no ‘effective’ arrangements. Those representing Brodziak produced evidence from a Polish lawyer that there was no possibility of disaggregating the single sentence which had been imposed and therefore the requested person would have to serve a sentence in respect of an offence for which he has not been extradited.

The court was troubled by this proposition not least because of the ‘highly unsatisfactory’ response from the Polish authorities on this point. Nevertheless, they came to the conclusion that this evidence was not sufficient to displace the strong presumption that the Polish authorities would act in accordance with their international obligations. The court held that the issue of disaggregation was a matter for the Polish courts. They were not persuaded that an extradited person would lack an effective remedy under Polish law. Secondly, the court held that there was no evidence before them of any case where an extradited person had in fact served a sentence relating to an offence for which they had not been extradited.

It remains to be seen whether those representing Brodziak and others will ask the High Court to certify a point of law of general public importance and push on to the Supreme Court but for now at least the Administrative Court has settled the point.

Thomas Garner, extradition solicitor at Gherson