Brodziak v Circuit Court In Warsaw, Poland

Where a European arrest warrant concerns a single sentence imposed for several offences, the requested person must be discharged in respect of each offence which fails the dual criminality requirement. Extradition may nevertheless proceed for the remaining offences. An aggregate sentence can satisfy the warrant-information requirement and the minimum four-month sentence threshold without allocation between individual offences.

Specialty bars extradition only where effective specialty arrangements are absent. A strong presumption exists that an EU Member State will comply with its international obligations. Compelling evidence is required to rebut that presumption. Uncertainty about the requesting state’s procedure for disaggregating or revising a sentence is insufficient without evidence that extradited persons have actually been required to serve sentences attributable to offences for which extradition was refused.

Four linked appeals concerned European arrest warrants issued by Polish judicial authorities under Part 1 of the Extradition Act 2003. Each appellant was wanted to serve a single sentence imposed for multiple offences. In each case, at least one offence was alleged or accepted to fall outside the statutory definition of an extradition offence.

The court considered whether the conduct underlying particular offences satisfied dual criminality; whether discharge was required for each non-extradition offence; whether an aggregate sentence satisfied the warrant and minimum-sentence requirements; and whether extradition for the remaining offences would infringe specialty because the Polish sentence might not be capable of disaggregation.

1. Brodziak’s and Madej’s appeals were dismissed. Marczuk’s and Dunec’s appeals were allowed only in respect of the identified non-extradition offences, for which they were discharged; their appeals concerning the remaining offences were dismissed.

2. For dual criminality under section 65(3)(b) of the Extradition Act 2003, mens rea may be inferred where the stated facts impel the inference. Madej’s acquisition of goods from unidentified persons in the described circumstances supported the only reasonable inference that his handling was dishonest and that he knew or believed the goods to be stolen. By contrast, Marczuk’s stated alcohol level did not establish either driving above the applicable statutory limit or incapacity to control a bicycle. Dunec’s offensive-name-calling offence was conceded not to satisfy dual criminality.

3. Section 10, as modified for multiple offences, requires discharge in relation to each offence which is not an extradition offence. The court proceeds under section 11 only for qualifying offences. The contrary approach in Zboinski and Mikolajczak was not followed. Kucera had itself proceeded on the basis that extradition could not be ordered for the offence which failed dual criminality.

4. A single sentence imposed for several offences can satisfy section 2(6)(e), even where one offence cannot form the subject of extradition. It is also sufficient under section 65(3)(c) that the sentence imposed for the conduct taken as a whole was at least four months. The principles in Pilecki and Kucera were applied, while the inconsistent approach in Wiercinski was not followed.

5. The United Kingdom had specialty arrangements with Poland through article 27(2) of the Framework Decision and article 607e of the Polish Criminal Procedure Code. A strong presumption exists that a Member State will comply with those obligations. The requested person must provide compelling evidence to rebut it.

6. The Polish authority’s response was unsatisfactory because it supplied neither the requested assurance nor a clear procedure for disaggregation or re-sentencing. Requiring service of the unadjusted aggregate sentence would in practice attribute part of the imprisonment to a non-extradition offence. Nevertheless, the evidence did not rebut the presumption. Polish law appeared consistent with specialty, a domestic remedy had not been shown to be unavailable, and there was no evidence of any actual case in which an extradited person had served a sentence attributable to an offence for which extradition was refused.

• High Court (Administrative Court): Brodziak’s and Madej’s appeals against extradition orders were dismissed. Marczuk’s appeal was allowed for offences (iii) and (v), and Dunec’s appeal was allowed for offence (iii); both were discharged for those offences, while their appeals concerning the remaining offences were dismissed.
• Westminster Magistrates’ Court: District judges ordered the extradition of all four appellants. Brodziak’s order was confined to the two offences accepted to be extradition offences.