Tomcik v District Court in Okresny (Slovakia)

MR JUSTICE COLLINS: This appeal under section 26 of the Extradition Act 2003 against the decision of District Judge Snow, which was given on 1 April this year ordering the surrender of the appellant to stand trial in Slovakia on a charge of (according to the warrant) trafficking in an illicit substance, has had an unfortunate history. It originally came before a court consisting of Bean LJ and myself on 3 June 2015. We then considered some of the submissions made by Mr Cooper, and in particular submissions relating to section 21A of the 2003 Act and the sentence that would be likely to be imposed were he to be returned to Slovakia, which was said, having regard to the nature of the offence, to be wholly disproportionate.

The EAW had ticked in the list the offence of trafficking in an illicit substance. In those circumstances, it was perhaps not at all surprising that both the district judge and we in the Divisional Court took the view that this was indeed an allegation of trafficking rather than one of simple possession, which is what Mr Cooper was submitting was the reality. He at that stage had no further information from the prosecuting authority in Slovakia as to the nature of the offending.

The circumstances of the alleged offending are set out in some detail. What they amount to was that the appellant was in a car which was stopped; he was told by the police to get out, and in the car was found a syringe which contained what turned out to be methamphetamine to a quantity of 1.15 grammes, 0.8 grammes of which was pure amphetamine. That, according to the warrant, was sufficient to provide between 20 and 80 single doses of the drug. In the statement that he made and was before the district judge, the appellant asserted that in fact it was only sufficient to provide ten, but that he had it in his possession, he then being a drug addict, having obtained it for use by him and his two companions who were also in the car. He has since gone back on that and asserted that it was actually only for his own use.

We did not accept on the basis of what the warrant appeared to indicate that this was merely simple possession and we were of the view, it being a case of an allegation that he had it in his possession for the purpose of trafficking, that it was an offence which could carry a custodial sentence. The sentence in Slovakia appeared to be imprisonment of 3 to 10 years. I say "appeared to be": that in fact is what the relevant section of the legislation provides, and we had no information as to whether the 3 years was truly a minimum sentence or whether there was any discretion in the court to reduce it below 3 years. But we approached the matter on the basis that it was 3 years.

I have had experience dealing with a number of cases involving possession or trafficking or intent to supply narcotic substances, and some countries in Europe (and Slovakia is one) provide for a very serious sentencing regime, no doubt because they take the view that there is a real problem so far as drugs are concerned. Obviously anyone in those countries would be well aware of the risks that are run if they are found to be in possession of or dealing in narcotic substances. It is not generally for this court, provided that custody is something which is not disproportionate, to quarrel with what other states regard as a necessary regime, even if it contains a minimum sentence which exceeds that which this country would consider appropriate. That is the general approach.

When one looks at the relevant section, 172, it is headed "Illicit manufacturing and possession of narcotic and psychotropic substances, poisons or precursors and trafficking". Subsection (1) provides:

Since in this case the charge was, it seems (although the warrant is not wholly clear), under 172(1)(d), it is clear that he had not been convicted or sentenced for such a crime in the past. Thus one is looking at him as a first-offender in relation to the drug offence such as the one with which he is charged. I should add, I think I have given already the date when this was said to have taken place, which is now over four years ago.

The detail set out in the warrant of the approach of the prosecuting authority appears to have been that originally it was suggested that he was to be charged with manufacture, but that, for obvious reasons, was not to be pursued. In dealing with limitation, it concludes that the limitation period had not expired because the provision under which he was charged was a crime relating to the possession and trafficking under 172(1)(d). Accordingly, on the face of it, 172(1)(d) appears - and certainly appeared to us in the Divisional Court - to relate to trafficking as opposed to simple possession. Indeed, that would have been consistent with the ticking of the relevant box in the list of extraditable offences, namely illicit trafficking of narcotic drugs and psychotropic substances.

We adjourned the appeal in order to enable consideration to be given and information to be obtained in relation to the medical problems faced by the appellant's wife. In addition, we asked for a report from the London Borough of Haringey Social Services indicating what steps would be taken for the care of the appellant's children were he to be extradited, having regard to his partner's state of health and the loss of his income. We thought, clearly, that we had dealt with the issue raised as to whether it would be proportionate to return having regard to section 21A of the 2003 Act, to which I will come in a moment.

However, in the meantime, further enquiries were made by the appellant's solicitors of the prosecuting authority. That resulted in a communication of 20 July 2015 in which this is said by the prosecutor:

It is important to bear in mind that the European Arrest Warrant system is based on mutual trust, and that the Judicial Authority who requests the extradition from whichever country indicates accurately what the relevant offence is. To adopt an approach which finds it necessary to tick a box in the list, even if the offending in question is not covered by the list, when that box indicates a more serious offence than that which is indeed being charged is clearly not permissible. It means that the warrant is not trustworthy, and that is what happened in this case. The whole basis of the system is undermined by that sort of activity, and the sooner the Slovak authorities are informed that this is unacceptable so far as this country is concerned the better.

The result is that two courts have been misled and the offence alleged against the appellant has been considered to be more serious, and considerably more serious, than that with which he is indeed charged. It is to be borne in mind that he was an addict, that this was a first offence and that a relatively small quantity - he says 10 shots they say 20 to 80 - but whichever it be the possession was for his use only. It is not even alleged, according to the letter from the prosecutor, that he had it for the purpose of supply to his friends. Indeed, so far as this country is concerned, albeit if one of a number of addicts purchases drugs for the use of and only for the use of the friends, that could be and indeed in one sense clearly is possession with intent to supply, it is normal to prosecute only for simple possession.

So far as 21A is concerned, that provides for the question of proportionality to be considered in deciding whether in an accusation case extradition is both necessary and proportionate. So far as material, section 21A provides:

There are specified matters that have to be taken into account pursuant to subsection (3) relating to proportionality: (a) what is the seriousness of the conduct alleged to constitute the extradition offence and (b) what is the likely penalty that would be imposed if the defendant was found guilty of the extradition offence.

The Lord Chief Justice has made a Practice Direction pursuant to the relevant legislation, which I need not go into (section 7A of the Act). This sets out offences under general guidance which, generally speaking, might be regarded as insufficiently serious to warrant extradition. It deals with possession of controlled substances and provides as follows:

So possession merely for personal use of the quantity of the drug in question in this case is not such as under the guidance will fall to be considered automatically to be disproportionate. However, it is to be noted that the minimum sentence to be imposed for even simple possession is 3 years' imprisonment, which of course is far and away above that which would be considered appropriate in this country. Indeed, for a first offence (which this is) it is highly unlikely that a custodial sentence would be imposed in this jurisdiction. That, as I have already indicated, is not the sole test.

What is submitted by Mr Cooper is that it is an abuse of process for the error in the EAW to have been made and so put before the courts of this country to seek to justify extradition. It seems that abuse of process is the approach that the court should adopt in considering in a case such as this whether indeed what has been done by the requesting state is such as would amount to an abuse of the court's process here.

It seems to me that here there was clearly a deliberate decision to tick in the list the offence which was not the offence with which the appellant was charged but was a more serious offence. That produced a false warrant. That, as I have said, is entirely contrary to the purpose that lies behind the European Arrest Warrant system. In my judgment, albeit it may be that the Slovak authorities did not appreciate that they were doing anything which was wrong, nonetheless they clearly were. It would be, I have no doubt, an abuse in the circumstances to extradite the appellant on this particular warrant.

I would add that the information that we have in relation to the Article 8 claim has been expanded. It is plain from the report obtained from Haringey that there would be difficulties in assisting the appellant's partner if he was away for at least three years. That is more particularly the case since it is plain that her medical state is such that she is suffering from depression; she is having to receive medication for that condition and is unable to work. She was working part time and he was caring for the children when she was not working. The children are three years old and under one. Indeed, she suffered from serious bleeding after the birth of the second child and has not recovered her full health ever since. So on the face of it, this was a relatively strong Article 8 case on the evidence that I now have.

It seems to me that the errors in relation to the EAW which I have referred to are a material consideration when considering proportionality in terms of Article 8. When one adds together the strength of the Article 8 claim and the actions of the Slovak authorities in dealing with the European Arrest Warrant in the way that they did, they combine to make it clear that this is an appeal which must be allowed.

MR COOPER: My Lord, that only leaves the matter of the appellant's costs order, only for expenses incurred in attending court, the lower court and this court.

MR JUSTICE COLLINS: Yes. You are entitled to the usual order, I think.

MR COOPER: Indeed. I am grateful. Thank you very much.

MR JUSTICE COLLINS: I hope, Ms Iveson, that some indication is given to the Slovak authorities that they must not do anything like this again.

MS IVESON: My Lord, I think it is very likely that a copy of your judgment will be provided to the Slovak authorities.