Kucera v The District Court of Karvina, Czech Republic

Where a European arrest warrant records a single sentence imposed for multiple offences, it satisfies section 2(6)(e) of the Extradition Act 2003 by stating that sentence. Its validity is considered before deciding whether individual offences satisfy the extradition conditions.

In a conviction case, the executing court must not disaggregate an indivisible sentence. If the sentence for the conduct as a whole is at least four months, section 65(3)(c) is satisfied even though one offence fails the dual criminality requirement.

Article 8 requires proportionality, not a formulaic exceptionality test. Great weight must nevertheless be given to honouring extradition arrangements, so striking and unusual facts are ordinarily required to defeat extradition.

The appellant appealed under section 26 of the Extradition Act 2003 against a district judge’s order for his extradition to the Czech Republic. He had received a single sentence of one year and nine months for theft and failure to pay child maintenance. Extradition was sought only for theft because the maintenance offence failed the dual criminality requirement.

The appeal questioned the warrant’s validity, satisfaction of the four-month gravity condition, the existence of effective specialty arrangements and compatibility with article 8 of the European Convention on Human Rights. The article 8 case relied principally on the serious mental health problems of the appellant’s wife and her dependence on him.

1. The appeal was dismissed. The warrant was valid. Its validity under section 2(6)(e) of the Extradition Act 2003 had to be considered before the separate question whether the offences met the conditions in section 65. A state whose law provides for one sentence reflecting overall criminality can provide only particulars of that sentence. The warrant supplied those particulars and the English court could not require the issuing court to divide the sentence into constituent parts.

2. The theft was an extradition offence. In a conviction case involving an indivisible sentence for multiple offences, the executing court must not investigate how the sentence was composed. The principle in Pilecki applied although the maintenance offence failed dual criminality. The sentence for the conduct taken as a whole exceeded four months and therefore satisfied section 65(3)(c). Wiercinski was not followed because it had been decided without the benefit of the subsequent House of Lords decision in Pilecki.

3. No specialty bar was established. The requested person bore the burden of showing on the balance of probabilities that appropriate arrangements were absent. Arrangements existed between the United Kingdom and the Czech Republic. The proposed Czech re-sentencing procedure appeared designed to ensure that the appellant served only a sentence appropriate to the theft for which extradition was ordered.

4. Extradition was compatible with article 8. Huang established that proportionality must not be determined by a formulaic exceptionality test. Nevertheless, great weight had to be accorded to the legitimate aim of honouring extradition arrangements, and striking and unusual facts would be required to make extradition disproportionate. The wife’s loss of practical and psychological support was serious, but the separation would be temporary and appropriate treatment and support could be provided. The effect on family life did not outweigh the legitimate aim.

Richards LJ agreed with Swift J.

1. High Court, Divisional Court: The appeal was dismissed: [2008] EWHC 414 (Admin) .
2. City of Westminster Magistrates’ Court: District Judge Nicholas Evans ordered the appellant’s extradition to the Czech Republic on 10 December 2007.