The Supreme Court dismissed appeals by two men whose surrender to Poland was sought under European arrest warrants so that they could serve prison sentences. The warrants did not set out later Polish summonses or domestic arrest warrants or, in some cases, the decisions which activated a suspended sentence or revoked conditional release. The Court held that the warrants were nevertheless valid: they rested on enforceable judgments, and further information from the Polish courts confirmed that foundation.
The challenge to the warrants
Maciej Goluchowski and Marek Sas were wanted in Poland to serve sentences of imprisonment. Polish courts issued European arrest warrants, and both men were arrested in the United Kingdom in 2014. They argued that the warrants were invalid under section 2 of the Extradition Act 2003 because they did not give particulars of later domestic steps taken in Poland to secure their attendance at prison. In Mr Goluchowski’s case, and in one of Mr Sas’s cases, it was also said that the warrant had to record the court decision which made a suspended sentence, or a sentence subject to conditional release, immediately enforceable.
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The High Court certified questions on those points. The Supreme Court, in a judgment of Lord Mance with which Lord Neuberger, Lord Wilson, Lord Hughes and Lord Toulson agreed, dismissed both appeals.
Mr Goluchowski
Mr Goluchowski’s warrant covered two convictions. Originally suspended sentences had become enforceable.
The European warrant recorded the two judgments, their case references and the sentences, both of which remained to be served in full. After his arrest on 1 August 2014, the Polish court supplied further information setting out the suspensions, the activating decisions and the later domestic measures.
Mr Sas
Two conviction warrants were in issue. A further accusation warrant was left out of the appeals.
One of the warrants against Mr Sas was based on a judgment imposing imprisonment and the related appellate judgment.
The other warrant concerned a sentence which he was required to serve after conditional release was revoked.
What a conviction warrant must show
Section 2 of the 2003 Act separates warrants for prosecution from warrants issued so that a convicted person can be sentenced or can serve a sentence. For a conviction warrant, section 2(6) requires particulars of the person’s identity, of the conviction, of any other warrant issued in the category 1 territory for the person’s arrest in respect of the offence, and of the sentence imposed or still to be imposed.
Those provisions give effect to the Council Framework Decision of 13 June 2002. Article 8.1(c) requires evidence of an enforceable judgment, an arrest warrant, or any other enforceable judicial decision having the same effect. In Bob-Dogi the Court of Justice stressed that an arrest warrant must rest on at least one of those national decisions. They are alternatives. In a prosecution case the usual foundation is a domestic arrest warrant. In a conviction case the natural foundation is the enforceable judgment. There is then no reason why a domestic warrant must also exist or, if one has been issued only to secure compliance, why the European warrant must evidence it.
Lord Mance considered that section 2(6)(c) would have a real role where someone was convicted while at large, had absconded and was wanted for sentencing, so that a domestic arrest warrant might found the European warrant. Otherwise it was unlikely to matter. That reading kept the 2003 Act consistent with the Framework Decision. Where possible, United Kingdom courts prefer a reading of a domestic Act which accords with international obligations. Since 1 December 2014, after the United Kingdom opted back into the Framework Decision, they must also interpret the 2003 Act consistently with it if they can.
The later Polish measures
On that reading, the summonses, police orders and domestic arrest warrants did not have to be mentioned. In Mr Sas’s first case the sentence became final and enforceable when the appeal failed. The summons to report was a formal step in carrying that result into effect. It was not a warrant which section 2(6)(c) required the European warrant to record, and article 8.1(c) did not require it either. The warrant already identified the original judgment and the appeal judgment and particularised the conviction and sentence. It was valid.
Mr Goluchowski, in both cases, and Mr Sas under the later warrant, were due to attend prison because of court judgments and defaulted. Those judgments could found the European warrants. Domestic measures aimed only at securing compliance were irrelevant and did not have to be particularised.
Suspended sentences and conditional release
Neither the Framework Decision nor the Extradition Act dealt expressly with the information required where a sentence had been suspended or release was conditional.
Read literally, each warrant named an enforceable judgment, gave its reference and stated the sentence imposed and outstanding. On their face they could have concerned immediate sentences, with the delay explained by absconding. In Zakrzewski the Supreme Court had said that, as a general rule, the executing court takes the statements in a warrant at face value: validity depends on whether the prescribed particulars appear, not on whether they are correct. Lord Neuberger, who had agreed with that statement, explained that it was justified on the facts of Zakrzewski, where a later Polish order had shortened the sentence after the warrant was issued. It was not an absolute rule that the facts stated in a warrant must be assumed correct whatever the evidence.
Bob-Dogi shows that a failure to satisfy article 8.1(c) should in principle lead the executing court to refuse surrender, but refusal must remain exceptional. Before refusing, that court must use article 15 to ask the issuing state urgently for any necessary supplementary information. The warrant then stands or falls on whether it was in fact based on the required national decision, not merely on how the form was completed.
Lord Mance found it unnecessary to decide whether evidence of an enforceable judgment means that the warrant must itself recite every later decision by which a suspended sentence was activated or conditional release revoked. He was not attracted by that view. The article and the form appear to contemplate a single reference; mutual confidence is better served by accepting, at least initially, an accurate statement that the sentence is now enforceable; and the executing state can ask for more information, as the United Kingdom authorities had done here.
Even if the activating decisions ought strictly to have been mentioned, Bob-Dogi means that a warrant is not invalid merely because the full history appears only in information obtained afterwards. A warrant which was valid on its face could not be treated as invalid because later information confirmed that it rested on enforceable court judgments or decisions.
The same result follows under the 2003 Act. Section 202 allows other documents issued in a category 1 territory to be received in evidence, and should be read as permitting the same regularisation of formal rather than substantive defects that article 15 contemplates. In Dabas, Lord Hope had said that a warrant lacking the statements required by section 2(2) cannot be eked out by extraneous information. Those words had to be qualified so that further information can be requested and taken into account, in parallel with the Court of Justice’s approach. In any event, these warrants appeared on their face to meet section 2(6). Only the later information made it possible to suggest that the particulars were incomplete, and that same information showed that the warrants were in all substantial respects justified.
Verdict: The Court unanimously dismissed both men’s appeals. All three conviction warrants were valid. It left open how much detail of activating decisions had to appear in the warrant itself because the additional information resolved the issue here.
Source: Goluchowski and Sas v Polish judicial authorities [2016] UKSC 36
