Kucera v The District Court of Karvina, Czech Republic

The Czech Republic has been designated a category 1 territory for the purposes of the Act and the appellant’s extradition therefore falls to be considered under Part 1 of the Act. Part 1 is the process by which the UK has transposed into national law the Council of the European Union Framework Decision of 7 June 2002 (‘the Framework Decision’) on the EAW and the surrender procedures between Member States. The purpose of the Framework Decision (and of Part 1 of the Act) is to facilitate the prompt surrender of a person who is in the territory of one Member State to the territory of another Member State where he is the subject of criminal proceedings. This purpose is reflected in Paragraph (5) of the Framework Decision which states:

“.. the introduction of a new simplified system of surrender of sentenced or suspected persons for the purposes of execution or prosecution of criminal sentences makes it possible to remove the complexity and potential for delay inherent in the present extradition procedures”.

In Office of the King’s Prosecutor, Brussels v Cando Armas [2006] 2 AC 17, at paragraph 2, Lord Bingham referred to:

“… a movement among the member states of the European Union, gaining strength in recent years, to establish, as between themselves, a simpler, quicker, more effective procedure, founded on member states’ confidence in the integrity of each other’s legal and judicial systems”.

In order to be valid, a warrant must meet certain requirements. If it does not satisfy those requirements, Part 1 of the Act will not apply to it and the courts have no jurisdiction to make orders in respect of it: see Cando Armas at paragraphs 27 and 28.

Section 2 of the Act defines the material that must be contained in the warrant in order for it to be valid. Section 2(2) of the Act provides that a Part 1 warrant is an arrest warrant which is issued by a judicial authority of a category 1 territory and which contains (in a case, like the present one, where the person named in the warrant has been convicted of the offence(s) specified in the warrant and is unlawfully at large):

“ b) the statement referred to in subsection (5) and the information referred to in subsection (6).”

It is accepted that, in this case, the "statement” required by section 2(2)(b) was contained in the warrant. The dispute arises in respect of the “information” required by that subsection. Section 2(6) defines that “information” as including:

“ 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”.

The question that arises is whether the warrant in this case complies with the requirements of section 2(6)(e).

It should be noted that the Extradition Act 2003 (Multiple Offences) Order 2003 (‘the 2003 Order’) provides, inter alia, that references in the Act to “an offence” (including a reference to “an extradition offence”) are to be construed as references to “offences” (or “extradition offences”).

Section 10 of the Act (as modified by the 2003 Order) requires the judge at an extradition hearing to decide whether any of the offences specified in the Part 1 warrant is an “extradition offence”. If the judge decides that question in the negative in relation to an offence, he must order the person’s discharge in relation to that offence.

The conditions that must be satisfied in order for an offence to constitute an extradition offence are set out (in a case where the person named in the warrant has been convicted of and sentenced for an offence constituted by the conduct specified in the warrant, and is unlawfully at large) at section 65 of the Act. Section 65(3)(c) provides:

“The conduct … constitutes an extradition offence in relation to the category 1 territory if these conditions are satisfied - -

(a)

the conduct occurs in a category 1 territory;

(b)

the conduct would constitute an offence under the law of the relevant part of the UK if it occurred in that part of the UK;

(c)

a sentence of imprisonment or another form of detention for a term of 4 months or a greater punishment has been imposed in a category 1 territory in respect of the conduct”.

It is common ground that the Czech Republic is a category 1 territory and that the relevant conduct occurred there; the condition in section 65(3)(a) is therefore satisfied.

It is accepted also that the conduct alleged in respect of the second offence named in the warrant (the theft) would constitute an offence under the law of England and Wales if it occurred here and that it therefore fulfils what is frequently termed the ‘dual criminality’ requirement of section 65(3)(b). The offence of failing to pay maintenance would not constitute an offence under the law of England and Wales. Recognising that fact, the respondent conceded prior to the hearing before the district judge that the offence failed the dual criminality test and therefore could not meet the requirements for an “extradition offence”. Extradition was therefore sought and ordered only in respect of the offence of theft.

The question that arises is whether, in relation to the offence of theft, the condition (sometimes termed the ‘test of gravity’) set out in section 65(3)(c) is satisfied so as to render it an “extradition offence” within the meaning of section 10.

Before proceeding to consider these issues, I shall set out the relevant information provided by the respondent. This information is contained (a) in the warrant (b) in answers to questions asked of the respondent by the Crown Prosecution Service (CPS), which represents the respondent in these proceedings and (c) in a statement which has been provided by a judge of the respondent Court. The information contained in (a) and (b) was before the district judge. That contained in (c) was provided by the respondent subsequent to the hearing before the district judge.

The warrant identified the sentencing brackets for the two offences, stating that, both for the offence of failing to pay maintenance and for the offence of theft, “the offender will be punished by imprisonment for six months up to three years”. As to the actual sentence passed, it stated:

“…Length of the custodial sentence or detention order imposed … 1 year and 9 months …

Remaining sentence to be served … 1 year and 9 months…”

The respondent’s answers to the relevant series of questions asked by the CPS were as follows:

Q: “Is the term of imprisonment of 1 year and 9 months the total of two separate sentences for the two offences?”

A: “The prison sentence in the duration of 1 year and 9 months is the only punishment for both crimes.”

Q: “If so, what was the separate term of imprisonment imposed for each offence? Or, is the term of imprisonment indivisible (so that it applies to both offences and cannot be separated)? In which case, please state that this is the case.”

A: “The duration of the prison sentence is indivisible.”

The further statement provided by the respondent set out the procedure that would follow were the appellant to be extradited:

“In response to your request [it appears that this was probably a request in relation to specialty] we inform you that … if a person was requested or extradited to serve the sentence of imprisonment only for some of the criminal offences he/she was imposed an aggregate or cumulative sentence earlier [sic], the court shall rule in a public session on an appropriate sentence for the criminal offences the extradition applies to. This provision will be applied also in case of extradition of Jan Kucera … It means that if the convicted person is extradited for the offence of theft only, then, after he is surrendered to the Czech Republic, the court will summon a public session in which appropriate sentence only for the criminal offence to which the extradition applies, i.e. criminal offence of theft, will be imposed.”

The findings of the district judge in relation to the validity of the warrant were as follows:

“The sentence of 1 year 9 months imposed for the two offences, one not an extradition crime, are said to be an indivisible aggregate sentence. As I understand, that means that it was 1 year and 9 months on each charge concurrent, in the language of an English judge. This is not a Euro concept. In relation to the extradition offence which is accepted as theft, when the penalty ranges from 6 months to 3 years, the actual sentence of 1 year 9 months, fulfils section 2(6)(e)”.

As to whether the offence of theft was an extradition offence, the district judge found:

“In relation to the extradition offence which is accepted as theft, when the penalty ranges from 6 months to 3 years, the actual sentence of 1 year 9 months, fulfils section 2(6)(e) [He must have meant section 65(3)(c)]. It is sufficient for the purposes of showing it is an extradition offence”.

For the appellant, Miss Naqshbandi, in a most persuasive and well-presented argument, contended that the district judge’s findings were wrong. She submitted that the contents of the warrant, coupled with the respondent’s answers to the questions put to it by the CPS, demonstrate that the appellant received an aggregate sentence of one year and nine months’ imprisonment for the two offences, one of which the respondent has conceded cannot meet the dual criminality requirement and cannot therefore be an extradition offence. That interpretation of the sentence is, she submitted, supported by the explanation (contained in the respondent’s recent statement) of the procedure which would be followed if the appellant were to be extradited. She suggested that the inference to be drawn from that explanation is that the Czech court would apportion the sentence of one year and nine months’ imprisonment originally imposed for the two offences by imposing a reduced sentence for the one offence (the theft) for which the appellant had been extradited. She argued that the new information contained in the respondent’s statement suggested that the sentence imposed for the two offences was not “indivisible”, as stated in answer to the questions posed by the CPS. She observed that, had it been the case that the appellant had been sentenced to a sentence of one year and nine months’ imprisonment in respect of each of the two offences, the statement would simply have stated that fact.

Miss Naqshbandi submitted that the relevant “offence” for the purposes of section 2(6)(e) must be the offence of theft, since, at the time of the hearing, the respondent had conceded that the other offence referred to in the warrant could not meet the dual criminality requirement and was not seeking extradition in respect of that offence. She argued that, since the appellant had been sentenced to an aggregate sentence for the two offences, the respondent was unable to specify what sentence was imposed for the offence of theft (as distinct from that imposed for the offence of failing to pay maintenance). She submitted that, at the very least, it was uncertain whether the sentence of one year and nine months’ imprisonment was an aggregate sentence or a sentence passed in respect of each offence. She contended that, even if it were accepted that the sentence imposed for the two offences was ‘indivisible’, that would not answer the question of what sentence would have been considered appropriate had the appellant been sentenced for the offence of theft alone. She said that, in the circumstances, the requirement contained in section 2(6)(e) was not met and the warrant was not valid.

Miss Naqshbandi relied on the recent decision of this court in Wiercinski v The 2^nd Division of the Criminal Circuit in Olsztyn, Poland [2008] EWHC 200 (Admin). In that case, the appellant was convicted in Poland of three offences, namely theft, possession of heroin and persistently avoiding his duty to take financial care of his child. He was given what was described as “an aggregate sentence” of one year and two months’ imprisonment.

At the extradition hearing, the district judge found that the last-named offence did not satisfy the dual criminality requirement and could not therefore meet the section 65 requirements for an extradition offence. However, she found that the warrant satisfied the requirements of section 2(6) and that the offences of theft and possession of heroin met the condition specified in section 65(3)(b) and were therefore extradition offences.

As in the present case, the appellant in Wiercinski argued that the district judge was wrong in finding the requirement specified in section 2(6)(e) and the condition imposed by section 65(3)(c) satisfied. It was argued on his behalf that it was not possible to identify, for the purposes of section 2(6)(e), the length of the sentence imposed for the offences of theft and possession of heroin, as distinct from the aggregate sentence imposed for the three offences, one of which was incapable of forming a basis for extradition. Thus, it was not possible to say, for the purposes of section 65(3)(c), whether or not the sentences imposed for those offences were four months’ detention or more.

Counsel for the respondent in Wiercinski argued that the district judge had been correct in treating the sentence of one year and two months as having been passed in respect of each of the three offences for which he was sentenced. If that approach were adopted, the requirements of both section 2(6)(e) and section 65(3)(c) were satisfied.

In allowing the appeal, Latham, L.J. stated at paragraph 1.14 of his judgment:

“The district judge … 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…”.

Miss Naqshbandi urged this court to apply the reasoning in Wiercinski. She emphasised that the arguments she raised were not merely technical. She reminded the court of the words of Lord Hope in Cando Armas at paragraph 24 of his judgment:

“.. the liberty of the subject is at stake here, and generosity [in the construction of extradition treaties and statutes] must be balanced against the rights of the persons who are sought to be removed under these proceedings”.

For the respondent, Miss Charlotte Powell, who argued the case with considerable ability, submitted that the issue of the validity of the warrant must be considered before proceeding to decide whether the requirements for an extradition offence were satisfied. Thus, the issue of whether or not one of the offences specified in the warrant would pass the dual criminality test was not a matter to be considered at that stage. She argued that the obligation of a requesting state was to state on the warrant what sentence had been imposed according to its law. If separate sentences had been imposed for multiple offences (as would be the case in England and Wales), those separate sentences should be specified. If, however, a single sentence had been imposed for multiple offences, that was the only information the requesting state was required – and was able - to specify. Provided that was done, the warrant would be valid.

In relation to section 65(3)(c), Miss Powell submitted that the length of the sentence imposed for the purposes of that subsection is determined by the law of the requesting state. In the present case, that sentence was an aggregate and indivisible sentence which was equally applicable to both offences. Thus, she argued, it met the requirements of section 65(3)(c).

In support of her argument, Miss Powell relied on the cases of Trepac v The Presiding Judge in the County Court in Trencin, Slovak Republic [2006] EWHC 3446 (Admin) and Pilecki v The Circuit Court of Legnica, Poland [2008] UKHL 7. In Trepac, the warrant disclosed two offences, one of attempted murder and one of carrying a concealed weapon. Both offences arose out of the same conduct. A single sentence of 13 years’ imprisonment had been imposed for the two offences. The appellant argued that the warrant did not meet the requirement specified in section 2(6)(e) and that it was not possible for the court to determine whether or not the sentence for an individual offence had been four months’ imprisonment or more, so that the condition set out in section 65(3)(c) was not satisfied. The respondent contended that the Act did not require the warrant to seek to apportion a single sentence of this kind when the foreign court had not itself done so.

Keene LJ, sitting in this court, was not persuaded by the appellant’s submissions. At paragraphs 13 and 14 of his judgment, he observed:

“The form of the warrant accords with that to be found in the Annex to the Framework Decision and that form clearly contemplates that a warrant may relate to more than one offence. Indeed it has a specific sentence where the number of offences to which it relates is to be inserted. Yet it requires the requesting state merely to specify the length of the custodial sentence imposed and the amount remaining to be served …

I also note that, in its form, as modified by the 2003 Order, section 2(6)(e) does not require in a multiple offences case “particulars of each of the sentences” imposed in respect of the offences. In that, there is a contrast with the modified wording of section 10 which does refer to “any of the offences”.

He went on to say at paragraphs 16 and 17:

“… one should resist the temptation to assume that other member states in the European Union use the same sentencing regime as ourselves, with consecutive or concurrent terms in multiple offence cases. It seems that in the Slovak Republic it is possible in the case of multiple offences to impose a single overall sentence reflecting the total criminality, which sentence then appears to stand as the sentence for each offence …

It would be an unwarranted action on the part of the English courts to demand … that the Slovak court should divide up the sentence of 13 years into such constituent parts when it has not itself done so in its original decision. I can see no justification for such a course of action. The ethos of the Framework Decision involves respect for, and confidence in, the legal systems of other Member states even though they may well differ in various ways amongst themselves in their particular procedures.”

Having concluded that the requirement set out in section 2(6)(e) was met, Keene LJ went on to consider section 65(3)(c). He set out his conclusions at paragraph 23 of his judgment :

“… it does seem to me that the sentence of 13 years’ imprisonment was imposed in respect of both offences looked at together and that it does not seem that that term of imprisonment can be disaggregated. The 13 years applies as much to the firearms offence as it does to the attempted murder offence. It follows that the terms of section 65(3) are met.”

In Pilecki, two separate EAWs had been issued for the extradition of the appellant. The first EAW related to convictions for three offences, for which a sentence of one year and two months’ imprisonment had been imposed. The second EAW related to convictions for four offences, which had been met by a sentence of one year’s imprisonment.

Subsequent information supplied by the respondent Court revealed that the appellant had in fact received a variety of sentences of imprisonment for each of the offences for which he had been convicted. Some of those sentences were for periods of less than four months and some of them were for longer periods. The Polish court had aggregated the sentences for the purposes of its final judgment. However, the combined punishment was less than the sum of the individual sentences for each offence. It was not possible to say how much of the aggregated sentence was attributable to each offence.

Lord Hope gave the leading judgment. At paragraph 5, he set out the issue for determination thus:

“The short but important question on this appeal is whether, for the purposes of Part 1 of the 2003 Act, it has to be shown that the sentence that was imposed in respect of each offence, taken on its own, was at least four months or whether it is sufficient, where that person has been convicted of several offences and an aggregated sentence has been imposed on him, that the aggregated sentence was for four months or a greater period.”

In his judgment, Lord Hope accepted that, in a case where extradition of a person who is accused of multiple offences is sought, it is appropriate for a judge at the extradition hearing to examine each of the offences separately in order to determine whether all or any of them meet the requirements for an extradition offence. However, he said that this approach is not necessarily appropriate in a case where extradition is sought of a person who has already been convicted of multiple offences. He referred to Article 2(1) of the Framework Decision which states:

“A European arrest warrant may be issued for acts punishable by the law of the issuing Member State by a custodial sentence or a detention order for a maximum period of at least 12 months or, where a sentence has been passed or a detention order has been made, for sentences of at least four months”.

Lord Hope pointed out that Article 2(1) provided two different tests as to whether the purpose for which extradition is sought is sufficiently serious to justify the arrest of the requested person and his surrender to the requesting state under the Framework Decision. In a case where the requested person has already been sentenced, the test is directed solely at the execution of sentences. He observed at paragraph 25 of his judgment :

“It is the length of the sentence alone that determines whether or not it falls within the scope of a European arrest warrant”.

This approach was, he said, confirmed by other provisions of the Framework Decision. At paragraph 26 of his judgment, he quoted a passage from paragraph 5 of the Preamble of the Framework Decision which states:

“Traditional cooperation relations which have prevailed up till now between Member States should be replaced by a system of free movement of judicial decisions in criminal matters, covering both pre-sentence and final decisions, within an area of freedom, security and justice”.

Lord Hope went on to refer to the provisions of Article 8(1) of the Framework Decision and the Annex thereto. He observed, at paragraph 28 of his judgment:

“… There is no indication here or anywhere else in the Framework Decision that the sentence needs to be examined more closely to see how it was arrived at. There is no indication that it is any concern of the executing Member State to inquire as to the number of offences to which the sentence relates, if there was more than one. It is the length of the sentence that the requested person is to be required to serve, and the length of that sentence alone, that determines whether or not it falls within the scope of a European arrest warrant.”

At paragraph 29, he said:

“The situation that presents itself in a conviction case is … in essence a very simple one. The Framework Decision does not require it to be stated in a European arrest warrant that the requested person is unlawfully at large after conviction of an offence … Nevertheless the assumption on which it proceeds is that this indeed is the position. The requested person has absconded, and his return is needed so that he may serve his sentence in the Member State where he was convicted. The principle of mutual recognition dictates that effect must be given to the sentence that was passed in the issuing Member State. All the executing Member State needs to know in these circumstances is whether or not the sentence was one for at least four months. It is not for the judicial authorities in the executing Member State to question how the sentence was arrived at”.

Lord Hope referred to the fact that Member States have differing sentencing practices. He said that an inquiry by one Member State into how a sentence had been arrived at would be contrary to the principle of mutual recognition on which the Framework Decision was founded. The computation of sentence was entirely a matter for the requesting state. Nor was it to be supposed that the purpose of the Framework Decision was to require Member States to change their sentencing practices.

Lord Hope observed that section 2(6)(e), as modified by the 2003 Order, required information to be given of particulars “of the sentence which has been imposed under the law of the category 1 territory in respect of the offences [my emphasis]”. This corresponded precisely with the Annex to the Framework Decision. He had no difficulty in concluding that the requirement of section 2(6)(e) was met. Section 65(3)(c) did not, he said, present any problem either. It referred to “a sentence of imprisonment … [that] has been imposed in the category 1 territory in respect of the conduct [my emphasis]”. This wording was consistent with the Framework Decision and the contents of the warrant fulfilled this requirement.

At paragraph 34 of his judgment, Lord Hope stated that the problem in the case lay only in the wording of section 10(2), as modified by the 2003 Order. This required a judge to decide whether “any of the offences” specified in the Part 1 warrant was an extradition offence. He concluded:

“I would hold that it is unnecessary, in a conviction case to which section 65(3) applies, for the judge to ask himself whether the sentence that was passed for each offence satisfies the test that is set out in section 65(3)(c). If the other requirements of section 65(3) are satisfied, all he needs to do is to determine whether the sentence for the conduct taken as a whole meets the requirement that it is for the term of at least four months”.

Miss Powell submitted that, applying the principles in Pilecki, the district judge was right to find that the requirements of section 2(6)(e) and 65(3)(c) were satisfied. She pointed out that, at the time Wiercinski was decided, the House of Lords decision in Pilecki was not available.

For the appellant, Miss Naqshbandi sought to distinguish the factual background in Trepac and Pilecki from that in the present case. She pointed out that, in both cases, all the offences specified in the warrant met the dual criminality test and were therefore (subject to the decision in relation to section 65(3)(c)) capable of being extradition offences. This was not so in this case. She referred to the passage in Lord Hope’s judgment, which I have quoted at paragraph 48 above, in which he said, “If the other requirements of section 65(3) are satisfied”, all the judge need do is to decide whether the sentence taken as a whole meets the four-month requirement. She submitted that, in this case, the offence of failing to pay maintenance did not meet the dual criminality requirement of section 65(3)(b) so that the condition referred by Lord Hope was not fulfilled. She argued that, in those circumstances, it was not correct to look at the sentence as a whole. Instead, it was necessary for this court to ask itself whether it was able to tell what sentence the appellant would be required to serve for the offence of theft. She submitted that it was just not possible to say. She pointed out that, in the case of Wiercinski, where the factual situation was similar to that in this case, Latham LJ had been referred to the decisions of this court in Trepac and Pilecki and had stated that he was unable to carry through into that situation the logic of those decisions.

The facts of this case raise an issue of considerable importance to the effective implementation of the Framework Decision and of Part 1 of the Act. It is clear that the imposition of a single sentence of imprisonment to reflect the overall criminality of a defendant who has been convicted of multiple offences (as in the present case) is a common practice among Member States. It seems that, in some jurisdictions, separate sentences for multiple offences are identified but the total of the separate sentences is then ‘scaled down’ to a lesser period which constitutes the single sentence actually imposed; that had been done in Pilecki. The concept of ‘consecutive’ and ‘concurrent’ sentences, as applied in England and Wales, is unknown in the criminal justice systems of many Member States. These differences of approach and practice present difficulties in operating an extradition system common to all Member States, as well as in giving effect to the ethos of the Framework Decision referred to by Keene LJ in the passage quoted at paragraph 36 of this judgment.

Where the criminal justice system of a Member State provides for the imposition of a single sentence in respect of multiple offences, particulars of that single sentence constitute the only information about sentence that the Member State can give. It was suggested on behalf of the appellant in Trepac that the requesting court (Slovakia) should be required, before issuing a EAW, to divide up the single sentence so as to meet the condition specified in section 65(3)(c). I share the view of Keene LJ (see paragraph 36 of this judgment) that such a demand would be “unwarranted”. In addition, it would have serious practical difficulties, given that, by definition, the defendant would be unavailable to participate in the re-sentencing process.

It might be suggested that, in order to avoid the problem that has arisen in this case and in Wiercinski, a requesting state should ensure that it specifies in a EAW only such offences as can meet the dual criminality requirement. The difficulty with that argument, as Miss Powell pointed out, is that a requesting state often has no means of knowing in which state the requested person will be arrested. Thus, it is just not possible for it to “tailor” the contents of the EAW to meet the requirements of the legal system of any individual state. It will not, therefore, be unusual for a EAW to contain some offences that meet the dual criminality test and some that do not.

Turning to the arguments in this case, I accept Miss Powell’s submission that the court should first consider the issue of the validity of the warrant and that it is not at that stage concerned with the question of whether or not the conditions specified in section 65 (including the dual criminality requirement) have been satisfied. It is concerned solely with the requirements of section 2(6)(e). That was the approach of the House of Lords in Pilecki and of Keene LJ in Trepac. Since the warrant contained particulars of the “sentence” imposed under the law of the Czech Republic in respect of “the offences” specified therein, it seems to me that, applying the principles set out in Pilecki, the warrant must be valid.

In Pilecki, the court held that it was unnecessary, in a case to which section 65(3)(c) applies, for the court to ask itself whether the sentence that was passed for each offence satisfies the test in that subsection. If the warrant specifies that a single sentence was passed for multiple offences, the court should not go behind that sentence in an attempt to ascertain how it was made up. The question is whether the position is different if, as in this case, one of the offences specified in the warrant has failed the dual criminality test and cannot form the subject of extradition. In Pilecki, the court was aware (although it held that the information was irrelevant to its considerations) that, if examined individually, the sentences imposed in respect of some of the offences specified on the EAWs would not have been capable of meeting the requirement imposed by section 65(3)(c) (because the original sentences of imprisonment identified were for periods of less than four months), so that the relevant offences would not if examined individually have constituted extradition offences. Nevertheless, the House of Lords declined to look at the individual offences separately and instead held that the correct approach was to look at each of the two single sentences of imprisonment identified in the warrants as having been actually imposed for the offences and to decide whether that sentence met the condition specified in section 65(3)(c). It therefore confirmed the requested person’s extradition for all the offences specified in the two warrants.

It seems to me clear that, although the factual background of this case is slightly different, the principle is the same. This court should not go behind the sentence specified in the warrant and seek to separate what part of it can be attributed to the failure to pay maintenance and what part to the theft. To quote Keene LJ in Trepac, the sentence cannot be “disaggregated”. I do not consider that, by referring in Pilecki to the other requirement of section 65(3) being satisfied (see paragraph 48 of this judgment), Lord Hope intended to suggest that the principle could not be applied in a case such as the present one; he was dealing with the facts as they were in that case. Since the sentence imposed in the present case is for a period of four months or more, it fulfils the condition in section 65(3)(c) and the offence therefore satisfies the requirements for an extradition offence.

In reaching this conclusion, I do not of course overlook the decision in Wiercinski. However, at the time the court decided that case, it did not have the advantage of having before it the decision of the House of Lords in Pilecki, which was given very recently. It seems to me that, had the court in Wiercinski had the opportunity of studying the statements of principle set out in that case, it might well have come to a different conclusion.

Accordingly, grounds 1 and 2 of the appeal fail.

Section 17 of the Act bars a person’s extradition if (and only if) there are no specialty arrangements with the category 1 territory. The purpose of the statutory provisions, and of the specialty arrangement, is to ensure that, with some limited exceptions, a person who is extradited is not dealt with in the requesting state for any offence other than that for which he was extradited. The burden is on the requested person who raises the bar to show on the balance of probabilities that appropriate specialty arrangements are not in place.

It is not disputed that specialty arrangements are in force as between the UK and the Czech Republic. However, it is argued on behalf of the appellant that, if he is returned to the Czech Republic, he might be required to serve a sentence that is in part attributable to the non-extradition offence of failure to pay maintenance. It now appears that, if he is returned, there will be some form of re-sentencing exercise as described in the statement of the judge of the respondent Court. Nevertheless, Miss Naqshbandi submitted that, if the appellant is returned to the Czech Republic, he has no assurance as to the eventual length of his sentence. He does not know whether the re-sentencing exercise will result in the imposition of the same, a reduced or an increased sentence for the theft. Thus, it was submitted that there are no effective arrangements in place to protect him from serving a sentence in excess of that appropriate for the offence of theft.

For the respondent, Miss Powell submitted that, in the absence of evidence to the contrary, the court should infer that the specialty arrangements referred to in section 17(2) are in place and will be implemented. The appellant had produced no evidence to the contrary. In the unlikely event that the specialty arrangements are not honoured, he will be able to make appropriate submissions before a Czech court. In any event, she argued that the court could be satisfied that the re-sentencing exercise was designed to ensure that the appellant would not be sentenced for any offence other than the offence for which he was extradited.

There is in my view no reason to suppose that there are not appropriate specialty arrangements in place, in accordance with the provisions of section 17. In addition, the re-sentencing exercise which would take place in the event of the appellant’s return to the Czech Republic appears to be intended to ensure that he serves only a sentence appropriate for the offence which was the subject of the extradition. The appellant has therefore failed to establish any bar to extradition on this ground.

Section 21 of the Act provides that the judge at the extradition hearing must decide whether the requested person’s extradition would be compatible with his Convention rights within the meaning of the Human Rights Act 1998. If he decides that it would not be compatible, he must order the person’s discharge.

Article 8 of the ECHR, on which the appellant relies, provides that:

“(1)

Everyone has a right to respect for his private and family life, his home and his correspondence.

(2)

There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.”

In order successfully to rely upon Convention rights to resist extradition, the requested person must overcome the high threshold test set in the case of R (Ullah) v Special Adjudicator [2004] 2 AC 323. In his judgment, Lord Bingham referred to “the great desirability of honouring extradition treaties made with other states”. At paragraph 24, he stated:

“While the Strasbourg jurisprudence does not preclude reliance on articles other than article 3 as a ground for resisting extradition or expulsion, it makes quite clear that successful reliance demands presentation of a very strong case”.

In the case of R (Bermingham and others) v Director of the Serious Fraud Office; Bermingham and others v Government of the United States of America [2006] EWHC 200 (Admin) (applying the decision of the European Commission in the case of Launder v United Kingdom (1997) 25 EHRR CD 67), Laws, LJ stated that “a wholly exceptional case” would have to be shown to justify a finding that the extradition would, on its facts, be disproportionate to its legitimate aim.

In Huang v Secretary of State for the Home Department [2007] UKHL 11, the House of Lords considered the application of Article 8 in the context of immigration and held that it was not appropriate to apply a “test of exceptionality” as a formula for proportionality. This decision was applied in the case of Jaso, Lopez and Hernandez v Central Criminal Court No 2, Madrid [2007] EWHC (Admin). At paragraph 57 of his judgment , Dyson LJ stated:

“What is required is that the court should decide whether the interference with a person’s right to respect for his private or (as the case may be) family life which would result from his extradition is proportionate to the legitimate aim of honouring extradition treaties with other states. It is clear that great weight should be accorded to the legitimate aim of honouring extradition treaties made with other states. Thus, although it is wrong to apply an exceptionality test, in an extradition case there will have to be striking and unusual facts to lead to the conclusion that it is disproportionate to interfere with an extraditee’s article 8 right”.

The appellant is a married man with a 13 year old son who is fully integrated into this country and speaks little Czech. The appellant and his wife have been together for 17 years. Prior to their move to the UK, they lived with the appellant’s parents in the Czech Republic. The parents are poor and elderly and, in the event of the appellant being imprisoned, would not be able to accommodate his wife and son. There is nowhere else in the Czech Republic where they could stay. If the appellant is extradited, his wife and son will stay in the UK.

The appellant’s submissions relate to his wife’s medical condition. She is a 35 year old woman with mental health problems. Prior to the appellant’s arrest in the UK, she had neither sought nor been offered any psychiatric treatment, although she had attended her general practitioner complaining of stress and depression and had been prescribed sleeping tablets and anti-depressant medication. In November 2007, arrangements were made by the appellant’s solicitors for her to be examined by Dr Theodore Soutzos, a private consultant psychiatrist experienced in the field of post-traumatic stress disorder (PTSD). He saw her on one occasion and provided a report. He gave oral evidence before the district judge.

Mrs Kucera described to Dr Soutzos an unhappy childhood during which she experienced violence by her stepfather towards her mother and herself. At the age of 13, she was taken into care. Conditions were poor and she was regularly beaten and imprisoned in a cellar for days on end. She told him that she had had episodes of self-harm, in her late teens, shortly before leaving the Czech Republic when there were threats by the authorities that her son would be removed from her care and also after witnessing her mother die of a heart attack in the UK.

Dr Soutzos detailed Mrs Kucera’s symptoms as related to him. He said that she suffered from low mood, disturbed sleep, nightmares, reduced appetite, low levels of energy, concentration, motivation and confidence. She also reported symptoms of anxiety. He said that she was unable to cope with stress. He diagnosed Mrs Kucera as suffering from a moderately severe to severe PTSD, together with a major depressive disorder of moderate severity. He said that she needed specialist treatment and different medication. He expressed the opinion that she was highly dependent on her husband who was “her psychological backbone”. He said that, if her husband were extradited, her anxiety and self harming would become “catastrophically worse”. He expressed doubt as to whether she would be able to look after her son in those circumstances.

In oral evidence, Dr Soutzos described Mrs Kucera as being in a “fragile” state and “a very very damaged lady”. He expressed the view that, without her husband, she would “spiral into ever more instability”. He stated that, without her husband, she was not fit to look after herself or her son. In saying that, he went rather further than he had done in his report written a fortnight or so earlier.

The district judge did not reject Dr Soutzos’ evidence but expressed some surprise at the force of his views, expressed after only one consultation with Mrs Kucera. The impression I have is that he felt that Dr Soutzos was somewhat overstating the case. In any event, he observed that, were the appellant to be returned to the Czech Republic, it would be for a limited period only. He would then be free to return to the UK. Meanwhile, now that a diagnosis had been made in Mrs Kucera’s case, appropriate treatment could be provided and steps taken by the authorities to give her any necessary support.

In the circumstances, the district judge concluded that extradition would be compatible with the appellant’s rights under Article 8. His decision pre-dated the decision in Jaso and, in reaching it, he applied the ‘exceptionality test’.

Miss Naqshbandi argued that, given the relative triviality of the offence of which the appellant was convicted, the time that had elapsed since its commission and the potentially catastrophic effects on his wife and son if the appellant were required to return to the Czech Republic to serve a sentence of imprisonment, his extradition would constitute a disproportionate interference with his Article 8 rights.

Miss Powell submitted that there were no striking or unusual facts in this case such as should lead a court to find that extradition would be incompatible with the appellant’s rights under Article 8. The separation from his wife would be relatively short and, when he had served his sentence of imprisonment, he would be free to return to the UK and resume his family life.

In the event of the appellant being extradited, Mrs Kucera will be deprived of his practical and psychological support, which may make it more difficult for her to cope with her mental health problems. However, as the district judge observed, the separation will be of a temporary nature and, now that the nature and potential severity of her condition are known, it should be possible for her to receive appropriate treatment and support. In those circumstances, it does not seem to me that the effects on the appellant’s family would be such as to amount to interference with his rights disproportionate to the legitimate aim of honouring extradition arrangements which require that he should be returned to the Czech Republic in order to serve a sentence lawfully imposed there. This ground of appeal cannot succeed.

I would therefore dismiss the appeal.

I agree.