Korcala v Polish Judicial Authority

For double criminality, the court must identify the essence of the conduct and the substance of the alleged criminality, disregarding adventitious circumstances. The common-law offence of escape requires lawful custody and an escape from it. Custody is a factual question and includes confinement in a secure psychiatric hospital where the person’s freedom of movement is directly controlled. The Extradition Act 2003 is to be interpreted, so far as possible, consistently with the Framework Decision. A detention order made by a criminal court instead of a prison sentence may fall within the statutory references to conviction, sentence and another form of detention, even where the person was not criminally responsible because of mental illness. Novel application of established elements to a new factual situation does not necessarily enlarge a common-law offence impermissibly.

The appellant appealed against District Judge Zani’s order of 6 July 2016 for his extradition to Poland on two European Arrest Warrants. The first warrant sought his prosecution for escaping from a secure psychiatric hospital. The second sought his return to serve an indefinite detention order imposed by a Polish court after criminal proceedings had been discontinued because mental illness prevented criminal responsibility.

The appeal raised whether the alleged escape would constitute an extradition offence in England, whether the Polish detention order satisfied the conviction-warrant requirements in Part 1 of the Extradition Act 2003, and whether the appellant should be permitted to add an Article 8 ground based on the period spent on remand in England.

1. EAW1: escape. The court applied the approach in Norris v Government of the USA [2008] 1 AC 920. The essence of the alleged conduct and substance of the criminality had to be transposed to England. Under E v DPP [2002] EWHC 433 (Admin) and R v Dhillon [2006] 1 WLR 1535, the prosecution had to establish custody, lawful custody and escape from that custody.
2. Custody was a question of fact. Immediately before leaving the hospital, the appellant was confined there and his freedom of movement was directly controlled. His custody was lawful and he had escaped from it. The accusation warrant therefore concerned an extradition offence under section 64(3)(b) of the Act.
3. The court rejected the argument that the common-law offence was limited to custody arising from criminal proceedings or sentence. The statutory use of custody and detention in the Mental Health Act 1983 did not create a material distinction, and section 128 did not impliedly exclude the common-law offence. Applying established elements to a new situation was not the impermissible enlargement discussed in R v Rimmington [2006] 1 AC 459.
4. EAW2: detention order. The court accepted the principle of conforming interpretation identified in Cretu v Local Court of Suceava, Romania [2016] EWHC 353 (Admin) and approved in Goluchowski v District Court in Elbag, Poland [2016] 1 WLR 2665. The Framework Decision extended beyond custodial sentences to detention orders. The Polish order was made by a criminal court instead of a prison sentence after findings that the appellant had committed the relevant acts. Sections 2 and 65 of the Act could therefore be read broadly enough to encompass it.
5. Article 8. Permission to add a ground based on time spent on remand was refused. The English court could not speculate about the Polish sentence. Although credit for time served had to be assumed, this was not a case in which no further custodial term could be imposed.
6. The appeal against extradition on both warrants was dismissed.

District Judge: On 6 July 2016 District Judge Zani ordered extradition to Poland on both European Arrest Warrants. The High Court dismissed the appeal.