Istanek, R (on the application of) v District Court of Prerov, Czech Republic

MR JUSTICE OUSELEY: This is an appeal against the decision of the District Judge, District Judge Wickham, at the City of Westminster Magistrates' Court on 20th September 2010 whereby she ordered the appellant's extradition to the Czech Republic on what she concluded was a conviction warrant.

The terms of the warrant are those of a conviction warrant. The term of imprisonment to which the appellant has been sentenced is set out.

He was, however, convicted in his absence. The warrant states, but subsequent information makes the position clearer, that, upon return to the Czech Republic, he can, within eight days, and with no great formality, seek a retrial. He does it by simply asking that the conviction be reversed and a retrial would then take place. The precise form of the retrial may differ from the original trial in terms of what evidence is called.

The Czech judicial authorities could, but chose not to, serve the judgment upon the appellant in the United Kingdom which would have meant his eight days ran from that date of service. They say it would be served on him on his return. His trial in his absence was concluded while he was represented but that does not alter his entitlement to have the conviction set aside and a retrial take place.

The issues before the District Judge were whether the first question which had to be decided was whether the appellant was an accused or an convicted person. The second question was whether the warrant was a valid warrant for somebody who was an accused person, as Ms Drudy for the appellant submits he was. She submits that the judgment could not be final for the purposes of Article 8 of the framework decision since it could so readily be reversed.

She points to an authority: R (on the application of Bikar) v Governor of Brixton Prison [2003] EWHC 372. This was a decision on the provisions of section of 6(2) of the Extradition Act 1989. It was concerned with protecting those who were convicted in their absence who would not be retried. Although some of the language of the judgment assists her, it is not a decision I would have had any difficulty in distinguishing. More pertinently, there have been two recent decisions of the Divisional Courts in Czech Republic v Janiega[2010] EWHC 463 (Admin) and Ruzicka v Slovakia[2010] EWHC 1819 (Admin), both of which dealt with situations which had some similarity with the present.

In Janiega, the warrant was issued as an accusation warrant which was the correct position at the time and, by the time of the extradition hearing, the appellant had been convicted in his absence, had had an appeal dismissed but nonetheless would have been entitled on return to have his conviction set aside. Although the principal issue appeared to have been whether the validity of the warrant was judged at the time of issue or at the time of the hearing, the decision was resolved in favour of the Czech Republic, which argued that it was still an accusation warrant because of the ready reversibility of the conviction on return to the Czech Republic. Some of the advocacy appears to have had a last minute flavour to it, for understandable reasons in that case. In Ruzicka, although the details of the Slovak Republic's criminal code may now differ from those of the Czech Republic, the essential principle was the same and the Divisional Court upheld, by reference to Janiega, that an accusation warrant was the appropriate form of warrant, even though Mr Ruzicka had been convicted but was entitled to have his conviction set aside.

All of that provides strong support for Ms Drudy's submission that the European Arrest Warrant here should not be a conviction warrant.

Ms Bramwell submits that the statutory framework does not require that question to be engaged with. The first question is whether a warrant contains particulars of convictions, which it does, and, as to the effect of the reversal of conviction provisions, she points to section 20 of the Extradition Act as being the means whereby the effect of a retrial is taken into account. It seems to me a potent argument in her favour that section 20 deals with retrial in circumstances which could never arise if Ms Drudy was right that the availability of retrial meant that an accusation warrant was all that could ever issued. I appreciate her argument that there may be a difference between discretionary and mandatory retrial, but that seems to be a poor basis for interpreting section 20.

Ms Bramwell's trump card is a decision of the Divisional Court in Sonea v Mehedinit District Court of Romania [2009] EWHC 89, which goes through the statutory framework and reaches the conclusion that the circumstances which have arisen in this sort of case mean that the warrant is properly a conviction warrant. Again, it may be distinguishable but essentially the two lines of authority are in conflict.

I do not consider that the decision of the House of Lords in Caldarelli v Court of Naples, Italy[2008] 1 WLR 1724 is of assistance in resolving it, bearing in mind that was concerned with the effect of the availability of an appeal as part of the overall criminal process leading to the initial conviction.

Accordingly, I am faced with two conflicting, as it seems to me, lines of authority. The later two do not refer to the earlier one in circumstances where undoubtedly they would have derived assistance from it. My own impression is that the decision in Sonea is more consistent with the statutory framework. So I would be left in the invidious position of choosing between two differing lines of Divisional Court authority. I do not consider that appropriate for a Single Judge to do and I propose therefore to have the matter relisted before an appropriately constituted Divisional Court, rather than reach a decision which could have well have made an appeal to the Supreme Court necessary for it to resolve the position as between those two lines of authority.

I do so with some diffidence since it was my decision back in October last year that this case should be dealt with by a Single Judge, but I do not wear overmuch sackcloth and ashes because the conflicting authorities, as opposed to those supporting Ms Drudy, were not to my attention at that time and the conflicting lines have only become apparent really during the course of argument before me.

Accordingly, and with regret that the matter cannot be dealt with more swiftly, this matter will have to go to a Divisional Court for full argument. The reason I have delivered the judgment I have is simply so that the Divisional Court can understand why I have reached the decision I have.

MS BRAMWELL: Yes.

MR JUSTICE OUSELEY: I do? Even though the hearing has begun.

MS BRAMWELL: I do not know --

MR JUSTICE OUSELEY: Well, I will extend time until 11th April insofar as it is necessary to do so, I extend time to the 11th April and that can be incorporated in the order.

In the light of the arguments, I wonder whether further skeleton arguments would be appropriate. Do you think? I think it might help focus the debate a little more clearly on the conflicting lines of authority. So can I ask you to supply further skeleton arguments, to the extent you think appropriate to analyse the issues, seven days before the hearing?

The court, I think, would be helped by having in the bundle Article 8 and sections 2, 11 and 20 of the Act, because it is not so easy to get hold of, as you might imagine.