Katarzyna Berk, R (on the application of) v District Court of Olsztyn

Article 3(2) of the Council Framework Decision concerns mandatory non-execution of a European arrest warrant where the requested person has been finally judged by a Member State for the same acts. It does not prevent extradition merely because the person has been detained in the executing state on unrelated domestic matters. Article 26 requires the issuing state to deduct detention attributable to execution of the warrant from the sentence to be served there. That obligation may materially reduce the period remaining to be served and therefore weighs against a finding that extradition is oppressive. Mental illness will justify refusal under section 25(2) of the Extradition Act 2003 only where the statutory threshold is met on the evidence.

The claimant appealed against an order made by District Judge Wickham at Westminster Magistrates’ Court on 14 January 2009 ordering her extradition to Poland to serve sentences imposed for damaging a motorcar and abandoning her children. She relied on section 25(2) of the Extradition Act 2003, mental health, the passage of time, and Article 8 of the European Convention on Human Rights.

At the High Court hearing, the Article 8 ground was conceded. The claimant additionally argued that Article 3(2) of the Council Framework Decision prevented execution of the European arrest warrant because of her detention in the United Kingdom, and relied on Article 26. The central issues were whether the Framework Decision applied and whether extradition would be unjust or oppressive.

1. Appeal dismissed. The order for extradition was upheld. Legal aid assessment was ordered.

2. Article 3(2) of the Council Framework Decision was not engaged. The United Kingdom executing authority had not been informed that the claimant had been finally judged by a Member State for the same acts. No United Kingdom or other Member State court had adjudicated on, or sentenced her for, the Polish offences. The provision addressed execution of a European arrest warrant, not extradition generally, and could not be relied upon to require refusal of extradition.

3. Section 11 of the Extradition Act 2003 addressed double jeopardy, but concerned a wholly different factual situation.

4. Article 26 imposed an obligation on Poland, as issuing Member State, to deduct periods of detention arising from execution of the warrant from the period of detention to be served in Poland. The likely deduction substantially reduced the remaining period and militated against a finding that extradition would be oppressive.

5. Other relevant considerations supported extradition. Return to Poland was probably the most likely means by which the claimant could be reunited with her children. The updated psychiatric evidence showed, at most, mild depression and no severe or enduring mental illness requiring hospital treatment. It fell far short of the evidence required to establish oppression under section 25(2).

6. The District Judge had been entitled to order extradition on the evidence before her, and the later legal argument did not alter that conclusion.

• Westminster Magistrates’ Court: District Judge Wickham ordered extradition to Poland on 14 January 2009.
• High Court (Administrative Court): The appeal was dismissed and the extradition order upheld.