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11 Nov 2013

Aggregate sentence causes aggravation?

Today the Divisional Court handed down judgment in the case of Brodziak & others v Circuit Court in Warsaw, Poland that considered the position whereby a requested person is sought on a single EAW which contains multiple offences, some of which are not extradition offences and where a single sentence has been imposed for all offences.

For example, Poland issues an EAW for 3 offences committed in Warsaw.; theft, robbery and an offence of failing to pay child maintenance. The court imposes an aggregate sentence of 1 year and 2 months for all three offences. The offences of theft and Robbery are extradition offences because they were committed in Poland (s65(3)(1)), the conduct would be an offence under the laws of England and Wales (s65(3(b)) and the sentence imposed is greater than 4 months imprisonment (s65(3)(c )). However, the offence of failing to pay child maintenance would not be an extraditable offence because it would not satisfy the requirements of s65(3)(b). In those circumstances the court could order extradition for the theft and robbery offences but discharge the requested person for the non extradition offence matter. However, the requested person would still be extradited and would have to serve the aggregate sentence imposed of 1 year and 2 months.

The Divisional Court was in agreement that the court should discharge requested persons in respect of any offence which fails to satisfy the requirement of dual criminality and that extradition should only be ordered in respect of offences that satisfy the dual criminality. That makes sense as s10 of the 2003 Act was modified by the Extradition Act (Multiple Offences) Order 2003 so that it reads:

(1) This section applies if a person in respect of whom a Part 1 warrant is issued appears or is brought before the appropriate judge for the extradition hearing.

(2) The judge must decide whether any of the offences specified in the Part 1 warrant is an extradition offence.

(3) If the judge decides the question in subsection (2) in the negative in relation to an offence, he must order the person’s discharge in relation to that offence only.

(4) If the judge decides that question in the affirmative in relation to one or more offences he must proceed under section 11.”

However, despite the clear words imposed by the amendment to s10, the High Court in the case of Zboinski upheld an extradition order relating to all 3 offences in an EAW despite one of the offences not being an offence in England & Wales. Since then, a number of decisions have followed the reasoning in Zboinski. The reasoning in Zboinski was based upon the misunderstanding of Swift J’s judgment in the case of Kucera.

The Divisional Court in Brodziak held at paragraph 35 that :

With respect to those who have read her judgment differently, we do not accept that it provides any support for the proposition that the court should disregard the fact that an offence to which the warrant relates does not satisfy the dual criminality test. We repeat our view that if, in a case where section 65(3) applies, an offence does not satisfy the test of dual criminality, the court should order discharge in relation to it.

So on an EAW where there are multiple offences the judgment makes it very clear that the appropriate judge must discharge offences that are not extradition offences and only order extradition on offences that satisfy the dual criminality test.

The court next had to grapple with what then happens to the requested person who is extradited only in relation to some of the offences on the EAW but not all. If a single sentence has been imposed would this be a breach of speciality? The Polish authorities confirmed that there would be no way to disaggregate the total sentence imposed and therefore the result is that the requested person, if extradited to Poland, will have to serve a sentence that relates both to the offence or offences for which he has been extradited and to an offence or offences for which he has not been extradited.

It is this part of the judgment that caused the Court a degree of anxiety, especially when they concluded that the response of the judicial authority to the request for clarification is highly unsatisfactory. However, that anxiety was soon dispensed by the age old assertion that there is a strong presumption that the Polish authorities will act in accordance with their international obligations in respect of speciality in the absence of compelling evidence.

The Court pointed out that there was no evidence before them that there had ever been a single case in which a person extradited to Poland (of which there have been thousands) has been required (in practice) to serve a sentence in whole or in part for an offence for which he was not extradited. That is astonishing.

The appellant’s have 14 days to apply to the court to certify a point of law of general public importance. Whether such a point of law is certified will be a matter for Lord Justice Richards and Mr Justice Silber to consider.

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