Sesinova v District Court in Most, Czech Republic, Court of Appeal - Administrative Court, November 07, 2017, [2017] EWHC 2755 (Admin)

Resolution Date:November 07, 2017
Issuing Organization:Administrative Court
Actores:Sesinova v District Court in Most, Czech Republic
 
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UCase No: CO/2209/2017

UNeutral Citation Number: [2017] EWHC 2755 (Admin)

UIN THE HIGH COURT OF JUSTICE

UQUEEN'S BENCH DIVISION

UADMINISTRATIVE COURT

URoyal Courts of Justice

UStrand, London, WC2A 2LL

UDate: 7 November 2017

Before:

USIR WYN WILLIAMS

USITTING AS A JUDGE OF THE HIGH COURT

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Between:

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Simon Gledhill (instructed by H.P. Gower, Solicitors) appeared for the Appellant

Emilie Pottle (instructed by CPS Extradition Unit) appeared for the Respondent

Hearing date: 27 September 2017

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JudgmentSir Wyn Williams:

  1. This is an appeal against the decision of District Judge Snow made on 5 May 2017 whereby he directed that the Appellant should be extradited to the Czech Republic pursuant to a European Arrest Warrant (hereinafter referred to as ``the EAW'') issued on 10 February 2017 and certified by the National Crime Agency on 14 February 2017.

  2. Before the District Judge a number of reasons were advanced as to why extradition should not be ordered. This appeal, however, is confined to a single issue, namely whether the EAW complied with section 2 Extradition Act 2003 (``the 2003 Act'' or ``the Act''). That section so far as material reads as follows:-

    ``(1) This section applies if the designated authority receives a Part 1 warrant in respect of a person.

    (2) A Part 1 warrant is an arrest warrant which is issued by a judicial authority of a category 1 territory and which contains--

    (a) ...

    (b) the statement referred to in subsection (5) and the information referred to in subsection (6).

    ...

    (5) The statement is one that--

    (a) the person in respect of whom the Part 1 warrant is issued has been convicted of an offence specified in the warrant by a court in the category 1 territory, and

    (b) the Part 1 warrant is issued with a view to his arrest and extradition to the category 1 territory for the purpose of being sentenced for the offence or of serving a sentence of imprisonment or another form of detention imposed in respect of the offence.

    (6) The information is--

    (a) particulars of the person's identity;

    (b) particulars of the conviction;

    (c) particulars of any other warrant issued in the category 1 territory for the person's arrest in respect of the offence;

    (d) particulars of the sentence which may be imposed under the law of the category 1 territory in respect of the offence, if the person has not been sentenced for the offence;

    (e) 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.''

    ......

  3. The relevant parts of the English translation of the EAW adduced before the District Judge are as follows. In Box (b) the judgment to be enforced is described as follows:-

    ``The judgment issued by the District Court in Most dated 12th January 2017 reference No.2 T98/2013.''

    Box (c) contains the heading ``Length of the custodial sentence or detention order imposed'' and then continues:

    ``A summary punishment in the duration of 3 years and at the same time the sentence of the judgment from the District Court in Most dated 25th September 2014, ref. No. 1 T34/2014-179 is cancelled.

    Remaining sentence to be served: 3 years.''

    Box (e) has a description of the offences committed by the Appellant. It begins with the sentence:

    ``This arrest warrant relates to in total 1 crime.''

    It then continues:

    ``At the time from half of the year 2010 to July 2013, in various places in Most, without an appropriate authorisation ... she was selling and providing methamphetamine, the psychotropic substance ... for free to the persons among addicts ...''

    There are then set out further detailed particulars of this activity.

  4. At the hearing before the District Judge evidence was adduced about the accuracy of the English translation of the EAW and, in particular, the phrase which appears in Box (c) ``a summary punishment in the duration of 3 years''. The District Judge accepted that this was an erroneous translation; the correct translation was ``an aggregate punishment in the duration of 3 years''.

  5. As is clear from Box (c), the Appellant had been subject to an earlier judgment of the District Court in Most. That was a judgment dated 25 September 2014. This judgment related to offences of theft for which the Appellant had been sentenced to a term of 18 months' imprisonment. This judgment had also been subject to a European Arrest Warrant (hereinafter referred to as ``the earlier EAW''). That warrant was issued on 16 January 2017 and certified by the NCA on 6 February 2017. The Appellant was initially arrested pursuant to the earlier EAW on 7 February 2017. However, within a matter of days, the Respondent decided not to pursue this warrant and withdrew it.

  6. Before the District Judge the stance taken by the Appellant was that the EAW did not contain the information specified in section 2(6) (b) and (e) of the Act. Further, the deficiencies in the EAW could not be ``cured'' by extrinsic evidence. In summary, it was argued on behalf of the Appellant that it was at least possible that the sentence of 3 years' imprisonment specified in the EAW related not just to the offences particularised in the EAW, but also to the offences of theft which were the subject of the earlier EAW. The relevant particulars of those offences were not contained within the EAW and, accordingly, the EAW was invalid. If that was correct the Appellant was entitled to be discharged. Ms Pottle, who appeared below, disputed that the EAW was invalid; she did so on a number of bases some of which I consider below.

  7. Before turning to deal with the rival contentions advanced before me I should deal a little more fully with what occurred before the District Judge. At some stage during the course of the proceedings Ms Pottle disclosed a document, known as Form F, which had been provided to her by the Respondent and which contained the following paragraph:

    ``Dear Colleague,

    Regarding to our message dated 23.2.2017 our District Court in Most confirmed that the EAW No. 1T34/2014 was revoked on 10.02.2017. As we wrote you, District Court in Most confirm that the reason for EAW cancellation was the fact that on 12.01.2017 District Court in Most rendered judgment No. 2T98/2013-342 (final and effective as of 25.01.2017) by which the new multiple sentence of 3 years imprisonment was imposed to Ms Sessinova and at the same time the previous sentence resulting from judgment No. 1T34/2014-178 was revoked. Subsequently the new EAW No. 2T98/2013 was issued on 10.2.2017...''

    That document was quite properly disclosed by the Respondent and, in due course, it was adduced in evidence before the District Judge. It is also accepted that two further documents were adduced in evidence before the District Judge. One of those documents was the earlier EAW. That document was adduced on behalf of the Appellant. The second document was adduced on behalf of the Respondent. It was a letter dated 19 April 2017 which was provided by the Respondent in response to a request for further information made by the extradition unit of the CPS. The letter included the following:

    ``Regarding to our message dated 23/1/17 our District Court in Most confirmed that the EAW No. 1TR34/2017 was revoked on 10/2/17. As we wrote you District Court in Most concerned that the reason for EAW cancellation was the fact that on 12/1/17 the District Court in Most rendered judgment No. 2T98/2013-342 (final and effective as of 25/1/17) by which the new multiple sentence of 3 years imprisonment was imposed to Ms Sesinova and at the same time the previous sentence resulting from the judgment No. 1T34/2014-178 was revoked. Subsequently the new EAW No. 2T98/2013 was issued on 10/2/17 ...

    ... Regarding the request to clarify the multiple penalty of imprisonment in the duration of 3 years we can confirm that with respect to the fact that it is a multiple penalty when at the same time the sentence on punishment from the judgment of the local court in the case kept under the ref. No. 1T34/2014 was cancelled. This punishment was also imposed for the offences kept in the European Arrest Warrant mentioned by you issued to the case of the local court under Ref. 1T34/2014....

    ... Pursuant to s.43(2) Criminal Code the Court shall impose a multiple penalty pursuant to the principles stated in paragraph 2 when it condemns the perpetrator for a criminal offence which he/she had committed before the Court of First Instance declares the conviction for his/her other crime. The Court shall cancel the sentence on punishment imposed to the perpetrator with former judgment together with imposing a multiple penalty as well as all the other decisions following at the sentence in content if regarding the change which took place due cancelling its last grounds. The multiple penalty is not allowed to be milder than the punishment imposed by the former judgment ...''

    As the District Judge observed, the English translation of the further information (especially the last paragraph set out above) is difficult to follow and understand.

  8. In his written judgment the District Judge recorded the various arguments presented to him in relation to the issue of whether the EAW complied with section 2(6) of the 2003 Act. Having done so, he ruled:

    ``22. I am satisfied that the RP's reliance on the term ``total 1 crime'' in Box E is misplaced. The wording of that box and the further information leaves me in no doubt that the court sentenced the RP for numerous offences relating to her production and supply of drugs, the sentence of 3 years imprisonment was the aggregate sentence for those offences. The Court then applied s.43(2) to cancel the sentence imposed for the file 1 T 34/2014-179. The repeated use of the word cancel leaves me in no doubt. I am satisfied so that I am sure that the sentence for the earlier discharged EAW was not aggregated with the sentence imposed for the drugs offences.

  9. I am satisfied so that I am sure that all of the allegations comply with s.2(4) and that the offences are extradition offences s.10 and s.64(5).''

    Submissions to me

  10. By the time of the hearing before me the implications of the decisions in Bob-Dogi [2016] Case C-241/15, Goluchowski v Poland [2016] 1WLR 2665 and Alexander v France [2017] EWHC 1392 (Admin) were becoming well known. Mr Gledhill does not submit that it is impermissible in all circumstances for a court to take account of extrinsic evidence when assessing whether the requirements of section 2 of the 2003 Act are satisfied. Nonetheless he submits that the reasoning of the District Judge as set out above at paragraph 8 led him into error. He submits that the further information provided by the judicial authority in the letter of 19 April 2019 raised the distinct possibility that the term of 3 years imprisonment related both to the drugs offences and the earlier offences of dishonesty. Taking the further information into account should have led the District Judge to conclude that he could not be sure that the 3 year term did not relate to both the drugs offences and offences of dishonesty and, accordingly, the District Judge should have ruled that the EAW was not valid.

  11. Ms Pottle accepts that there is force in the submission that the further information contained in the letter of 19 April 2017 tended to suggest that the 3 year term was imposed in respect of both the drugs offences and the offences of dishonesty. In effect, she accepts that the Judge's reliance upon the further information to justify his conclusion that the EAW was valid cannot be justified. Nonetheless, she submits that the ultimate decision of the District Judge, namely that the EAW was valid, was correct and, accordingly, this appeal should be dismissed. She submits first that the EAW is clear and unambiguous and relates solely to the drugs offences. Consequently, she submits no extrinsic evidence was admissible to undermine its validity. Second, and alternatively, she submits that if extrinsic evidence was admissible such evidence included the earlier EAW. If that is correct all the necessary particulars to cure any ambiguity in the EAW were before the District Judge. Third, by way of a further alternative, extradition was lawful because it was proper to conclude that upon her return to the Czech Republic the Appellant would be made to serve only that part of the 3 year term which related to the drugs offences, i.e. if necessary the authorities in the Czech Republic would ``disaggregate'' the term of 3 years' imprisonment.

    Discussion

  12. Section 202 of the 2003 Act provides:

    ``(1) A Part 1 warrant may be received in evidence in proceedings under this Act.

    (2) Any other document issued in a category 1 territory may be received in evidence in proceedings under this Act if it is duly authenticated.

    (3) ....

    (4) A document issued in a category 1 ... territory is duly authenticated if (and only if) one of these applies--

    (a) it purports to be signed by a judge, magistrate or officer of the territory;

    (aa) it purports to be certified, whether by seal or otherwise, by the Ministry or Department of the territory responsible for justice or for foreign affairs;

    (b) it purports to be authenticated by the oath or affirmation of a witness.

    (5) Subsections (2) and (3) do not prevent a document that is not duly authenticated from being received in evidence in proceedings under this Act.''

  13. In the light of these statutory provisions, it is clear that the EAW, the earlier EAW and the letter dated 19 April 2017 were capable of being admitted into evidence before the District Judge. Neither party disputed that this was so but, in my judgment, the words used in the section are of some significance since there is no suggestion that evidence of the kind specified can be adduced only by or on behalf of the judicial authority. As I have already indicated, the letter of 19 April 2017 was adduced by the Respondent whereas it was the Appellant who introduced into evidence the earlier EAW.

  14. The Appellant adduced the earlier EAW in support of his case that the particulars provided in the EAW about the offences for which he was sentenced to a term of 3 years imprisonment were deficient. As I have said, it was his case that the term of 3 years' imprisonment had been imposed in respect of both the drugs offences and the theft offences. No doubt, the earlier EAW was adduced to prove that the Appellant had been convicted of offences not specified in the EAW and that she had been sentenced to a significant term of imprisonment in respect of those offences. From that starting point, the District Judge was invited to infer that the term of 3 years related to both drug offences and offences of dishonesty yet that had not been specified in the EAW.

  15. I accept, of course, that the earlier EAW was adduced in evidence for the purpose which I have just identified. Does that mean that this can be its only evidential significance?

  16. Mr Gledhill's skeleton argument does not address this point. Orally, however, he submits that it would not be right, at least in the context of extradition proceedings, for evidence adduced by an appellant for one purpose to be used for any other especially if the evidence is used in order to undermine the appellant's appeal. He seeks to support that submission by reference to passages in the speeches in Goluchowski which focus upon the extrinsic evidence in that case having been obtained by way of further information from the judicial authority and the terms of Article 15.2 of the Council Framework Decision which empowers the executing authority to seek further information from the judicial authority if ``the executing judicial authority finds the information communicated by the issuing Member State to be insufficient to allow it to decide on surrender....''.

  17. I cannot accede to that submission. As a matter of general principle under the law of England and Wales, once evidence is properly adduced before a tribunal it is for the tribunal to determine its significance. A tribunal is not limited to considering its significance exclusively in the context in which the party who adduced the evidence wishes it to be considered. I do not consider that anything said in Goluchowski detracts from that general principle.

  18. I have reached the conclusion that in assessing whether the EAW complied with section 2 of the 2003 Act it was open to the District Judge to consider the warrant both in the light of further information contained in the letter of 19 April 2017 and in light of the contents of the earlier warrant.

  19. As I see it, therefore, the position is as follows. The District Judge was not satisfied that the respondent had proved that the EAW contained all the relevant particulars required by section 2 of the 2003 Act because he accepted the possibility that the EAW related not just to the drugs offences but also to the theft offences. He considered that the further information contained within the letter of 19 April 2017 established, beyond doubt, that the EAW related only to the drugs offences and that the 3 year term was imposed only in respect of those offences. That is a conclusion which Ms Pottle does not seek to uphold. However, she submits that if the District Judge was in any doubt about whether the EAW related not just to the drugs offences but also the theft offences and that the term of 3 years related to both those groups of offences the District Judge should have concluded that the necessary particulars to satisfy section 2 of the Act were to be found in the EAW as supplemented by the particulars of the theft offences contained in the earlier EAW which had been properly admitted into evidence before him.

  20. Mr Gledhill does not dispute that if it was permissible to look to the earlier EAW to supplement the information contained in the EAW in this way the requirements of section 2 of the Act are met. He submits, however, that it was impermissible for the District Judge to use the earlier EAW for the evidential purpose suggested by Ms Pottle. As I have indicated, I cannot accept his submission on this point.

  21. As I mentioned during the course of the argument, at first blush I was disposed to think that the EAW was clear in its terms and that, beyond any reasonable doubt, it related solely to the drugs offences, i.e. extradition was being sought to enforce a sentence of 3 years' imprisonment which had been imposed upon the Appellant exclusively for the drug offences specified in the warrant. On that basis I queried whether it was necessary to consider any extrinsic evidence at all. I still think that the meaning of the EAW is clear especially when it is read as a whole. However, the District Judge did receive evidence, namely the further information contained within the letter of 19 April 2017 which, at least arguably, undermined the plain words of the EAW. In my view, having received that evidence (about which he had a discretion - see section 202 of the Act), he could not then ignore it. His task became to consider whether the warrant was compliant with section 2 of the 2003 Act in the light of all the evidence properly admitted before him.

  22. I accept the submission of Ms Pottle that if all admissible extrinsic evidence is taken into account the EAW complies with section 2 of the Act. Accordingly, the decision of the District Judge is correct, albeit that his reasoning process is not supported by the respondent.

  23. In the light of this conclusion, it does not seem to me to be necessary to consider the decisions in Edutanu v Iasi Court of Law & Others [2016] EWHC 124 (Admin) and Brodziak v Poland [2013] EWHC 3394 (Admin) upon which Ms Pottle relies as alternative routes to upholding the decision of the District Judge. No useful purpose would be served in an in-depth analysis of those decisions since my views would be at best obiter dicta.

  24. For the reasons expressed above this appeal is dismissed.

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