Istanek, R (on the application of) v District Court of Prerov, Czech Republic

Where a person convicted in absentia can readily obtain a retrial on return, the classification of the European arrest warrant depends on the statutory scheme and relevant authority. The availability of retrial does not automatically determine whether the warrant is an accusation warrant or a conviction warrant. A single judge should not choose between conflicting Divisional Court authorities where authoritative resolution may be required.

The claimant appealed against an order made by District Judge Wickham at Westminster Magistrates’ Court on 20 September 2010 for his extradition to the Czech Republic under a conviction warrant. He had been convicted in his absence but could, on return, obtain reversal of the conviction and a retrial by a simple request within eight days.

The issues were whether he remained an accused person, whether the warrant was validly issued as a conviction warrant, and the effect of Article 8 of the framework decision and section 20 of the Extradition Act. The court was referred to conflicting Divisional Court authorities.

1. Disposition. The single judge did not determine whether the European arrest warrant was properly an accusation warrant or a conviction warrant. The matter was relisted before an appropriately constituted Divisional Court for full argument.
2. The warrant contained particulars of a conviction and stated the sentence imposed. The claimant’s conviction had been entered in his absence, but he could obtain its reversal and a retrial on return to the Czech Republic. That feature raised a substantial issue about the warrant’s proper classification.
3. R (on the application of) Bikar v Governor of Brixton Prison [2003] EWHC 372 concerned section 6(2) of the Extradition Act 1989 and protection for persons convicted in their absence who would not be retried. Although some of its language assisted the claimant, it could readily be distinguished.
4. Czech Republic v Janiega [2010] EWHC 463 (Admin) and Ruzicka v Slovakia [2010] EWHC 1819 (Admin) provided strong support for treating a readily reversible conviction as supporting an accusation warrant. Conversely, Sonea v Mehedinit District Court of Romania [2009] EWHC 89 treated such circumstances as supporting a conviction warrant after examining the statutory framework.
5. The court regarded the two lines of authority as conflicting. It considered Sonea more consistent with the statutory framework, but held that it was inappropriate for a single judge to choose between the competing Divisional Court authorities. Caldarelli v Court of Naples, Italy [2008] 1 WLR 1724 did not assist in resolving the issue.
6. Bail was continued. Time was extended, insofar as necessary, until 11 April. Further skeleton arguments were invited, and the bundle was to include Article 8 and sections 2, 11 and 20 of the Act.

1. Westminster Magistrates’ Court — On 20 September 2010, District Judge Wickham ordered extradition to the Czech Republic under what she concluded was a conviction warrant.
2. High Court (Administrative Court) — The single judge declined to resolve the conflict between Divisional Court authorities and directed that the matter be relisted before an appropriately constituted Divisional Court.