Newman v District Court of Krakow - Poland

Transfer arrangements under the Convention on the Transfer of Sentenced Persons and its Additional Protocol are facilitative. Neither the sentencing state nor the executing state is obliged to agree to a transfer. A refusal or failure to agree does not, without more, constitute an abuse of process.

Detention under a European arrest warrant is deducted from the sentence by the issuing state. Detention while simultaneously serving a separate domestic sentence does not count under Article 26 of the Council Framework Decision 2002. Once the requested person has effectively served the sentence, continued extradition may constitute an abuse of process and a disproportionate interference with private or family life under Article 8 of the Convention.

The claimant appealed under section 26 of the Extradition Act 2003 against District Judge Zani’s order at Westminster Magistrates’ Court on 8 March 2012 for his extradition to Poland. The Polish warrant concerned an eighteen-month custodial sentence imposed in 2005.

Before the extradition hearing, the United Kingdom had indicated that transfer of responsibility for enforcement might be agreed under the Additional Protocol to the Convention on the Transfer of Sentenced Persons. Poland did not make the necessary agreement. The claimant later argued that his detention in the United Kingdom, including detention under the European arrest warrant, meant that the Polish sentence had effectively been served. The central issues were abuse of process, the effect of Article 26 of the Council Framework Decision 2002, and proportionality under Article 8 of the European Convention on Human Rights.

1. Transfer arrangements. The Convention on the Transfer of Sentenced Persons, the Additional Protocol of 1997 and section 4A of the Repatriation of Prisoners Act 1984 facilitate agreements for transfer of responsibility. They do not require either state to consent. Poland’s failure to agree to the proposed transfer therefore did not establish an abuse of process.
2. Abuse of process. The court adopted the four-stage approach in [2006] EWHC 2256 (Admin): identify the alleged conduct precisely; decide whether it is capable of amounting to abuse; consider whether there are reasonable grounds for believing it occurred; and, if so, determine whether abuse has been established so that extradition should be barred.
3. Deduction of detention. Article 26 of the Council Framework Decision 2002 requires the issuing state to deduct periods of detention arising from execution of the European arrest warrant. It does not make time spent simultaneously serving a separate United Kingdom sentence count towards the Polish sentence. The executing state’s relevant obligation is to transmit information about detention under the warrant. The court followed [2009] EWHC 358 (Admin) and [2011] EWHC 1698 (Admin) on this point.
4. Subsequent events and outcome. By the time of the appeal, the claimant had been detained for the full eighteen-month Polish sentence after release from his domestic sentence. It was conceded that continued extradition solely to enable a Polish management decision would be an abuse of process and a disproportionate interference with Article 8 rights. Under section 27(2) and (4) of the Extradition Act 2003, the new evidence could be considered. The appeal was allowed, the extradition order quashed and the claimant discharged.

1. High Court (Administrative Court) — allowed the appeal against the decision of District Judge Zani at Westminster Magistrates’ Court dated 8 March 2012. The extradition order was quashed and the claimant was discharged.