CO/10296/2007 
Neutral Citation Number: [2008] EWHC 200 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION 
DIVISIONAL COURT 
Royal Courts of Justice 
Strand
London WC2A 2LL 

Thursday, 17th January 2008
 
B e f o r e:

LORD JUSTICE LATHAM 

MR JUSTICE COOKE 
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Between: 
MACIEJ SLAWOMIR WIERCINSKI 
Claimant

v 

THE 2ND DIVISION OF THE CRIMINAL CIRCUIT IN OLSZTYN, POLAND 
Defendant 
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Mr J Jones (instructed by Lawrence & Co, 404 Harrow Road, London W9 2HU) appeared on behalf of the Claimant
Mr B Lloyd (instructed by Crown Prosecution Service, Special Crime Division, Fifth Floor, 50 Ludgate Hill, London EC4M 7EX) appeared on behalf of the Defendant
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Judgment
1.	LORD JUSTICE LATHAM:  This is an appeal from an order of 14th November 2007 when District Judge Wickham ordered that this appellant should be remanded in custody and ultimately extradited to Poland, which is the requesting state, on the basis of three separate sets of proceedings.  
2.	In one sense this appeal is restricted in scope because, of those three sets of proceedings, the appeal relates to only one.  It follows that the ultimate order for the appellant's extradition will stand, subject to the arguments that are made in relation to one of those sets of proceedings.  The position appears that the appellant has been sentenced in Poland, in his absence, to sentences of the equivalent of imprisonment and the basis of the claim for his return is the provisions of section 65(3) of the Extradition Act 2003 in that he is required to be returned, in the request, in order to serve those sentences of imprisonment. 
3.	The proceedings with which we are concerned can be identified by the number 796/02 in which he was charged and convicted of three offences.  One was an offence of theft, the second was an offence of possession of heroin and the third was an offence under Polish law of persistently avoiding his duty to take care of his child.  
4.	As far as the first and the second charges are concerned, those are capable of being extraditable offences.  As far as the third charge is concerned, that is not capable of being an extraditable offence because it is not conduct which satisfies the double criminality test in section 65(3)b of the Act.  That was indeed the conclusion of the district judge and she declared that that third count was not an extraditable offence.  The first typical point that is taken is that the consequence of that should have been that she should have ordered the appellant's discharge in consequence of that finding.  Insofar as the order failed to do so, it certainly should have done, but ultimately that does not affect the practicalities of the position.  
5.	Returning to the substitute argument on this appeal, it is that the problem presented to the courts here is the form of the order imposing the penalty of imprisonment on the appellant.  It was expressed as an aggregate sentence of 1 year and 2 months.  There was no subdivision of that sentence as between the three offences and it is accordingly entirely unclear on the documents that we have whether or not the aggregated sentence is, or would be, in terms of sentencing practice in this country, a series of consecutive sentences making up the total of 1 year 2 months or three concurrent sentences with a maximum within it of 1 year 2 months.  Therein lies the difficulty in this case.  
6.	Firstly, in order to justify the return of the appellant to Poland on the basis of the European arrest warrant, which was the basis of the proceedings, the court had to be satisfied firstly that the warrant was in proper form in accordance with section 2 of the Act and, secondly, that the offences were indeed extraditable offences within the terms of section 65(3), as I have indicated.  
7.	In relation to the warrant itself, the difficulty arises out of the requirement in section 2 of the Act that the sentence in cases such as this should be identified.  Section 2(6) requires in circumstances such as this that the warrant should include: 
"e) particulars of the sentence which has been imposed under the law of the category 1 territory in respect of the offence, if the person has been sentenced for the offence."  
8.	It follows that in relation to the two offences which were capable of being extraditable offences the sentence had to be identified.  
9.	If one then turns to section 65(3), in order for those two offences to indeed be extraditable offences as opposed to be simply capable of being extraditable offences, the sentence imposed in relation to each of them had to be a sentence of detention or imprisonment for 4 months or longer.  The point made on behalf of the appellant is that the requirements of both those subsections simply cannot be met on the facts of this case because it is impossible to determine from the material before this court what was the length of sentence imposed in relation to the two offences which were capable of being extraditable offences, as opposed to the length of sentence, comprised within the aggregate sentence, which was considered appropriate for the non‑extraditable offence, that is the offence of failing to support his child.  
10.	This court has considered this issue in a slightly different context on two previous occasions.  One in the case of Milan Trepac v the Presiding Judge in the County Court in Trencin Slovak Republic, [2006] EWHC 3446 (Admin) and in July of last year in the case of Pilecki v the circuit court of Legnica, Poland, [2007] EWHC 2080 (Admin).  In both those cases the question arose as to how the requirement that the sentence be one of 4 months or more, or indeed, as would apply in other situations, where it is a framework offence, 12 months or more, could be applied in cases where the sentence is imposed for a number of offences and expressed as an aggregate total sentence.  In both cases the offences were all capable of being extraditable offences so that the mischief that a person might be returned to serve a sentence in relation to an offence which was not capable of being an extraditable offence, which is the position here, did not exist.  Essentially, I am putting it shortly, in both cases the court came to the pragmatic solution that the court was entitled to treat the aggregate sentence as being the sentence in relation to each of the offences contained within the proceedings.  
11.	It has been urged upon us by Mr Lloyd on behalf of the respondent that that is a solution which we should adopt in this case and treat the sentence as being in respect of each of the offences capable of being extraditable offences, a total of 1 year and 2 months for each of them, that is applying the views expressed in the two cases to which I have referred.  
12.	If that is the position, the only remaining question, it is submitted, is whether or not the appellant's rights in relation to specialty provisions can be properly protected.  In that regard we have been referred to a letter from the Polish authorities which sets out the provisions of Polish law applicable in relation to cases where specialty is in issue.  It is apparently from article 607e of the Criminal Procedure Code which provides:
"1. A person surrendered in performance of a warrant cannot be persecuted for offences other than those that formed the base for surrender or enforce the custodial sentence or other means involving deprivation of freedom imposed on that person for such offences.
"2.  The court that entered the absolute decision in the case can order enforcement of the penalty only for those offences, which formed the base for surrender of the wanted person."
13.	It is accordingly submitted that there would be a prohibition, if the appellant were returned to Poland in relation to these proceedings, on the authorities enforcing any part of the sentence, it is said, which can be properly be said to relate to the non‑extraditable offence.  
14.	The district judge concluded that those provisions did indeed satisfy the specialty requirements and she described the position as resulting in the sentence for the non‑extraditable offence being "ring‑fenced".  The difficulty I have with that argument is that there is no way that this court can in fact determine the extent to which the aggregate sentence reflects the sentence which the court considered appropriate for failing to provide for his son.  This court is accordingly unable, it seems to me, to carry through into this situation the logic of this court in Trepac and Pilecki.  It simply is not possible for this court to feel any confidence that it can identify the extent to which in truth the two remaining offences capable of being extradition offences do meet the requirements of 65(3)c.  Accordingly, it is not possible to identify, as required by section 2(6)e, the term of imprisonment for those two offences and the specialty arrangements do not seem to me to be capable of putting right that difficulty on the facts as we have them in the papers before us.  Accordingly, I would allow this appeal and order the discharge of the appellant in relation to the request, insofar as it relates to the proceedings which we have identified by the numbers 796/02. 
15.	MR JUSTICE COOKE:  I agree. 
16.	LORD JUSTICE LATHAM:  Thank you both very much indeed.  Any consequential orders? 
17.	MR JONES:  My Lord, there are two matters.  One, I believe your Lordships referred to Mr Wiercinski being sentenced in his absence.  I think I am right in saying that that is not the case. 
18.	LORD JUSTICE LATHAM:  I am sorry, it was not in his absence. 
19.	MR JONES:  No. 
20.	LORD JUSTICE LATHAM:  I will make sure that is corrected. 
21.	MR JONES:  Secondly, my Lord, there is an application for detailed assessment for public funding purposes.  I believe that is an application I have to make. 
22.	LORD JUSTICE LATHAM:  Yes.  Mr Lloyd? 
23.	MR LLOYD:  No application. 
24.	LORD JUSTICE LATHAM:  Thank you very much.   
25.