R v Thomasz Mysiak

This is an application for leave to appeal against sentence and an extension of time of 682 days in which to do so. The applications have been referred to the full court by the single judge.

Following a trial in the Crown Court at Kingston-upon-Thames, the applicant was convicted of one offence of conspiracy to sell or transfer a prohibited weapon (count 1) and one offence of conspiracy to sell or transfer prohibited ammunition (count 2). The trial began on 4 June 2018. On 12 June, the applicant, who was on bail, failed to attend court and a warrant was issued for his arrest. The trial continued in his absence, resulting in his conviction on both counts on 13 June 2018.

The following day, 14 June, he was sentenced on each count to concurrent terms of eight years' imprisonment. That sentence was passed in the continued absence of the applicant.

On 17 January 2020, a European Arrest Warrant was issued. It was issued in respect of the offence relating to the prohibited weapon. There was by that stage some doubt as to whether the offence of selling or transferring prohibited ammunition was properly pursued. The prosecution took the view that there was no evidence that the ammunition was prohibited. They alerted the applicant’s lawyers to their concerns but they have not applied for leave to appeal against conviction. That is not a matter that we can deal with today.

As a result of the issue of the warrant, in February 2020 the applicant was arrested in Poland. He was not returned to the United Kingdom. For reasons which are unclear, he was released after spending 100 days in custody in that state.

He was then further arrested on the European Arrest Warrant in the Netherlands on 3 May 2022. He spent 17 days in custody in that jurisdiction in connection with the extradition request, before being returned to the United Kingdom on 19 May.

On 20 Mary 2022, the applicant appeared in the Crown Court and was sentenced to a further term of six weeks' imprisonment for failing to surrender to bail at the time of his trial. That sentence was to be served consecutively to the sentence he was by then already serving.

Again, there is doubt as to whether the judge had power to deal with the Bail Act offence following extradition, that offence not having been specified as one of the offences for which extradition was sought in the European Arrest Warrant. Again, no application for leave to appeal against conviction in respect of this offence has yet been made. If it is, it will be dealt with by a different constitution of this court on a different date.

The facts behind the offences of which the applicant was convicted have no relevance to this application. The sole point taken on appeal is that the 117 days spent by the applicant in custody abroad in connection with the sentence he is now serving should be credited towards that sentence.

There is no doubt that the statute did not permit the judge to make any order in respect of those days. The relevant law is contained in section 327 of the Sentencing Act 2020, which provides:

The duty on the court to specify the number of days during which a defendant was kept in custody abroad while awaiting extradition is limited by the terms of section 327(1) to circumstances where the sentence was imposed after the extradition was effected. If section 327 applies, then section 243 and section 240ZA of the Sentencing Code ensure that those days will thereafter be credited towards the sentence that the prisoner is to serve. Therefore, the upshot of these sections is that the time spent on remand abroad awaiting extradition will count towards any eventual sentence of imprisonment if the number of days is specified by the judge, and that this can only be done if the extradition takes place before sentence is passed.

That does not leave an applicant such as this applicant without remedy. Section 49(3)(a) of the Prison Act 1952 empowers the Secretary of State to direct that time served on remand abroad awaiting extradition to serve a sentence already passed should count towards that sentence. That is a power not exercisable by the court. The power, however, is limited to time spent in the country from which the extradited prisoner was returned to the United Kingdom. In this case, therefore, on its face, that power might provide a remedy for the applicant in respect of the 17 days spent in the Netherlands, but not the 100 days spent in Poland.

We accept that this power exists. We must consider whether it is in the interests of justice that we should exercise that power and reflect the days spent by the applicant in custody abroad (in whole or in part) by allowing this appeal.

We are sure that the interests of justice should not lead us to do so. We note, first, that there is a statutory scheme as to when and how such days are to be credited. The duty to reflect such days where the time served abroad is as a result of an Arrest Warrant being issued is on the court; in cases where the time in custody abroad results from the issuing of a Conviction Warrant being issued is on the Secretary of State.

Second, the reason why these days have arisen in the way in which they have is that the applicant himself decided to abscond from this country before sentence could be imposed on him. He is to that extent the author of his own misfortune.

Third, once he was arrested for the first time on the European Arrest Warrant in Poland, he could have voluntarily surrendered himself to this country, rather than contest his extradition, and thereby made sure that the length of time he spent in Poland would have been minimal and would have counted towards his sentence. He could have ensured that there was no second period of detention, one of which would not be counted towards his sentence.

Fourth, there is a strong interest in the finality of sentence. There is, of course, also an interest in ensuring that an applicant does not serve more than is fair for him to serve in relation to any sentence passed on him. But we have concluded, without hesitation in this case, that the former outweighs the latter; that there is no good reason why we should utilise an exceptional power in this case; and that it is not required for justice to be done.

This application is accordingly refused.