Wiercinski v 2nd Division of the Criminal Circuit In Olsztyn, Poland

For extradition based on a European arrest warrant, the warrant must identify the sentence imposed for each offence, and each offence must satisfy the applicable minimum-sentence requirement under section 65(3) of the Extradition Act 2003. An aggregate sentence covering both extraditable and non-extraditable offences cannot be treated as the sentence for each extraditable offence where the court cannot determine how the aggregate term was apportioned. Specialty safeguards cannot cure that evidential defect if they do not enable the sentence attributable to the non-extraditable offence to be identified or excluded.

The claimant appealed against District Judge Wickham’s order of 14 November 2007 directing his remand and extradition to Poland in respect of three sets of proceedings. This appeal concerned proceedings numbered 796/02, involving theft, possession of heroin and the Polish offence of persistently avoiding the duty to care for his child.

The first two offences were capable of being extraditable offences. The third was not, because it failed the double-criminality requirement in section 65(3)(b) of the Extradition Act 2003. The Polish court had imposed a single aggregate sentence of one year and two months without allocating it between the offences. The central issue was whether that sentence could satisfy the warrant and minimum-term requirements for the two extraditable offences.

The appeal was allowed and the claimant was ordered to be discharged in relation to proceedings 796/02.

1. Under section 2 of the Extradition Act 2003, the European arrest warrant had to contain particulars of the sentence imposed for each offence. Under section 65(3), each relevant offence also had to attract detention or imprisonment of at least four months.
2. The aggregate sentence of one year and two months could not safely be treated as the sentence imposed for each of the two extraditable offences. It was impossible to determine whether the Polish sentence represented consecutive sentences, concurrent sentences, or an allocation that included a substantial element for the non-extraditable offence.
3. The court had previously adopted a pragmatic approach in Milan Trepac v the Presiding Judge in the County Court in Trencin, Slovak Republic, [2006] EWHC 3446 (Admin), and Pilecki v the Circuit Court of Legnica, Poland, [2007] EWHC 2080 (Admin), where all offences were capable of being extraditable. That approach could not be extended to the present case, because it might result in return to serve a sentence for an offence which was not extraditable.
4. The Polish specialty provisions, said to arise under article 607e of the Criminal Procedure Code, did not cure the problem. The court could not identify the part of the aggregate sentence attributable to the non-extraditable offence, and therefore lacked confidence that the requirements of sections 2(6)(e) and 65(3)(c) were met.
5. The district judge’s conclusion that the non-extraditable sentence was effectively ring-fenced was therefore insufficient. The claimant was discharged in relation to proceedings 796/02, although the extradition order concerning the other proceedings remained unaffected.

High Court (Administrative Court): allowed the appeal in relation to proceedings 796/02 and ordered the claimant’s discharge in respect of that request. The extradition order relating to the other proceedings remained standing.

District Judge: on 14 November 2007, ordered the claimant’s remand in custody and eventual extradition to Poland in relation to three sets of proceedings.