Edutanu v Iasi Court of Law & Ors

Part 1 of the Extradition Act 2003 (“the 2003 Act”) implements the EU Council’s Framework Decision on the European Arrest Warrant and Surrender Procedures (2002/584/JHA, 13 June 2002, hereafter “the Framework Decision”). It makes provision for simplified and accelerated procedures where the extradition from the United Kingdom is sought of a person convicted in EU Member States and Gibraltar (referred to in the 2003 Act as “category 1 territories”).

These four appeals concern the requirement in section 2(6)(b) of the 2003 Act requiring the European Arrest Warrant (“EAW”) to contain “particulars of the conviction”. More specifically, they concern cases in which the EAW containing particulars of the offence or offences for which return is sought state that the sentences for other offences have been “merged” in a variety of ways into the offence or offences for which return is sought.

Two questions fall for decision. The first is whether, and if so when, an EAW which does not give the particulars of those other offences is invalid as failing to comply with section 2(6)(b)? The second concerns the role of the principle of extradition law known as “specialty” (referred to as “speciality” in the 2003 Act) where an EAW dealing with a “merged” offence is valid. That principle prohibits a person being dealt with in the requesting state for matters other than those which form the basis of the extradition request and in respect of which he was surrendered. There is said to be a difference of approach between decisions of the Administrative Court dealing with section 2(6)(b) and decisions of the Divisional Court dealing with specialty. The appeals are against the decisions of two District Judges (Magistrates’ Courts) in the Westminster Magistrates’ Court in extradition proceedings instituted by Romanian issuing judicial authorities (“IJAs”) who took a different view about the state of the authorities.

Chronologically, the first decision under appeal is that of District Judge (Magistrates’ Court) Tempia on 5 January 2015 ordering the extradition of Irinel Edutanu, who was sought by an EAW issued by the Iasi Court of Law. The District Judge accepted that the decision of the Administrative Court in Flaviu-Daniel Presecan v Cluj-Napoca Court, Romania [2013] EWHC 1609 (Admin) dealt with a similar scenario but preferred the reasoning in a subsequent decision of the Divisional Court, Brodziak v Poland [2013] EWHC 3394 (Admin).

In Presecan’s case Cranston J, broadly speaking, held that the effect of section 2(6)(b) of the 2003 Act is to require a conviction EAW to set out the particulars of all the convictions for the offences “in respect of” which the sentence was imposed, including merged sentences. In Brodziak’s case a Divisional Court (Richards LJ and Silber J) held that where an EAW contained details of a single sentence imposed for multiple offences, some of which were not extraditable, the requested person could be discharged for the non-extraditable offences and extradited for the remaining offences. This, it was stated, is because there is a strong presumption that Member States will act in accordance with their international obligations in respect of specialty. Edutanu’s appeal was lodged on 9 January 2015, before the amendment to section 26 of the 2003 Act requiring permission to appeal came into effect.

The three other appeals, pursuant to section 28 of the 2003, are by the 4^th District Trial Court of Bucharest, the Constanta 1^st Court of Law, and the Iasi Tribunal against decisions of District Judge (Magistrates’ Court) Arbuthnot on 14, 20 and 24 August 2015 discharging Ion-Viorel Barbu, Ionel Smadeci, and Marius-Ionut Pascariu. The IJAs were granted permission to appeal by Cranston J on 22 October 2015.

In these three cases, the District Judge concluded that she had to follow the decision in Presecan’s case and the earlier decision of Davis J in R (Echimov) v Court of Babadag, Romania [2011] EWHC 864 (Admin). She stated they were on all fours with the cases before her and directly concerned the application of section 2(6)(b) of the 2003 Act. She considered that the decision of the Divisional Court in Brodziak v Poland was distinguishable because the issue was about disaggregation and that Arranz v Spanish Judicial Authority [2013] EWHC 1622 (Admin) was distinguishable because all the offences that were the subject of the warrant in that case were particularised and the issue was abuse of process. She concluded that in the light of the decisions in Presecan and Echimov, the EAWs requesting these requested persons did not comply with the requirements of section 2(6)(b) of the 2003 Act.

The remainder of this judgment is arranged as follows. Sections II and III respectively summarise the legislative framework and the relevant authorities, in particular the decisions which were considered by the District Judges. Section IV summarises the factual background (including post EAW further information) and the decisions below. Section V summarises the submissions of the parties. The principles are discussed in section VI. The application of those principles in the individual appeals and my conclusions are contained in section VII.

Before turning to the fuller treatment that is necessary because the validity of an EAW referring to a “merged” sentence depends on its precise wording and to which of the different possible meanings of the term “merged” it refers, I give a very short and possibly oversimplified summary of what is stated in each EAW and the relevant principle. As to principle, at this stage it suffices to state that what is important in determining whether an EAW is valid is whether it appears from its terms read as a whole that the sentence to be served is not only for the particularised offences but at least in part for unparticularised offences which are stated to be “merged” into those for the particularised offences. It is not always easy to determine this. The fact that an EAW refers to a total sentence to be served that is longer than the sentence for the particularised offences is, however, a strong pointer to construing it as meaning that the IJA is seeking a return that would mean the requested person is at least in part to serve a sentence for unparticularised offences. Where an EAW is valid, the approach in Brodziak’s case (summarised at [5] above, and see [31]ff below) enables extradition to be ordered on a limited basis.

The principal features of the EAWs in the four appeals are as follows:

Section 2 of the 2003 Act deals with “Part 1 warrants”, that is warrants where the extradition would be to a category 1 territory. It sets out the requirements for “accusation” warrants and “conviction” warrants. An “accusation” warrant is one in which the requested person is sought in order to be prosecuted for the offences of which he is accused. A “conviction” warrant is one where the requested person has been convicted and is sought for the purpose of being sentenced or in order to serve a sentence of imprisonment imposed in respect of the offence. These appeals only involve conviction EAWs. The provisions in section 2 concerned with them are:

“(1)

This section applies if the designated authority receives a Part 1 warrant in respect of a person.

(2)

A Part 1 warrant is an arrest warrant which is issued by a judicial authority of a Category 1 territory and which contains–

…

(b)

The statement referred to in subsection (5) and the information referred to in subsection (6).

…

(5)

The statement is one that–

(a)

The person in respect of whom the Part 1 warrant is issued has been convicted of an offence specified in the warrant by a court in the Category 1 territory, and

(b)

The Part 1 warrant is issued with a view to his arrest and extradition to the Category 1 territory for the purpose of being sentenced for the offence or of serving a sentence of imprisonment … imposed in respect of the offence.

(6)

The information is–

(a)

particulars of the person’s identity;

(b)

particulars of the conviction;

(c)

particulars of any other warrant issued in the category 1 territory for the person’s arrest in respect of the offence;

(d)

particulars of the sentence which may be imposed under the law of the category 1 territory in respect of the offence, if the person has not been sentenced for the offence;

(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.”

Sections 10(2) and (3) of the 2003 Act require the judge “to decide whether the offence specified in the Part 1 warrant is an extradition offence”, and if it is not, to order the discharge of the requested person. If it is an extradition offence, he must decide whether the person’s extradition is barred by reason of the matters set out in section 11. Where it is not so barred, he must proceed under sections 20, 21 and 21A.

Section 17 of the 2003 Act deals with the principle of “speciality” where extradition would be to a category 1 territory. Speciality, or at common law “specialty”, is the principle of extradition law that a person may only be dealt with in the requesting state for the conduct in respect of which extradition was ordered.

By section 17(1), extradition “is barred by reason of speciality if (and only if) there are no speciality arrangements with the category 1 territory”. By subsection (2), “there are speciality arrangements with a category 1 territory, if, under the law of that territory or arrangements made between it and the United Kingdom, a person who is extradited to the territory may be dealt with … for an offence committed before his extradition only if (a) the offence falls within subsection (3), or (b) the condition in subsection (4) is satisfied”. The offences listed in section 17(3) are:-

“(a)

the offence in respect of the person is extradited;

(b)

an extradition offence disclosed by the same facts as that offence;

(c)

an extradition offence in respect of which the appropriate judge gives his consent under section 55 to the person being dealt with;

(d)

an offence which is not punishable with imprisonment or another form of detention;

(e)

an offence in respect of which the person will not be detained in connection with his trial, sentence or appeal;

(f)

an offence in respect of which the person waives the right that he would have … not to be dealt with for the offence.”

Section 17(4) provides that, in the case of offences not falling within subsection (3), under the law of the territory or arrangements made between it and the United Kingdom, the person is given an opportunity to leave the territory and does not do so before the end of 45 days from the day on which he arrives in the territory or, if he does leave it before then, he subsequently returns.

As a result of the Extradition Act 2003 (Commencement and Savings) Order, SI 2003 No 3103, made on 1 December 2003, the provisions of the 2003 Act came into force on 1 January 2004. It, however, did so subject to modifications made to it three days later on 4 December 2003 by the Extradition Act 2003 (Multiple Offences) Order, SI 2003 No 3150 (“the Multiple Offences Order”). Article 2(2) provides that the 2003 Act is to have effect with the modifications specified in its Schedule where “(a) a Part 1 warrant is issued for more than one offence, (b) a request for extradition is made in respect of more than one offence”. The heading to paragraph 1 of the Schedule is “General Modification”. Paragraph 1(1) provides:

“Unless the context otherwise requires, any reference in the Act to an offence (including a reference to an extradition offence) is to be construed as a reference to offences (or extradition offences).”

The remaining paragraphs of the Schedule make specific amendments to many individual provisions of the 2003 Act with the same effect, including sections 10, 11, 20, 21 and 26-29. There is, however, no specific amendment made to section 2. The explanatory note to the Order states that the modifications “allow for the partial execution of the Part 1 warrant or the request for extradition in cases where the judge and or the Secretary of State must consider more than one offence for extradition is sought. It is possible that extradition will be refused in relation to some offences but not all, allowing for extradition to take place in relation to some offences only.” I consider the Multiple Offences Order and the decisions on it at [48] – [50] and [110] – [113] below.

As stated, the 2003 Act implements the EU Council’s Framework Decision which created a fast-track extradition arrangement within the EU. Recital (10) to the Framework Decision states:

“The mechanism of the European arrest warrant is based on a high level of confidence between Member States. Its implementation may be suspended only in the event of a serious and persistent breach by one of the Member States of the principles set out in Article 6(1) of the Treaty on European Union, determined by the Council pursuant to Article 7(1) of the said Treaty … ”.

Article 1(2) provides that “Member States shall execute any European arrest warrant on the basis of the principle of mutual recognition and in accordance with the provisions of the Framework Decision”. Article 2 deals with the scope of the European Arrest Warrant and provides that such a warrant may be issued for acts punishable by the law of the issuing Member State by a custodial sentence or detention order for a maximum period of at least 12 months, and where the sentence is of at least 4 months. Article 2(2) provides that the offences specified, if punishable in the issuing Member State by a custodial sentence for a maximum period of at least 3 years, shall give rise to surrender pursuant to an EAW without verification of the double criminality of the act.

Article 8 deals with the content and form of the European Arrest Warrant. It provides:

“(1)

The European Arrest warrant shall contain the following information set out in accordance with the form contained in the Annex:

(a)

the identity and nationality of the requested person;

(b)

the name, address, telephone and fax numbers and email address of the issuing judicial authority;

(c)

evidence of an enforceable judgment, an arrest warrant or any other enforceable judicial decision having the same effect coming within the scope of Articles 1 and 2;

(d)

the nature and legal classification of the offence: particularly in respect of Article 2;

(e)

a description of the circumstances in which the offence was committed, including the time, place and degree of participation in the offence by the requested person;

(f)

the penalty imposed, if there is a final judgment, or the prescribed scale of penalties for the offence under the law of the issuing Member State;

(g)

if possible, other consequences of the offence.”

The categories in Article 8 are broadly but not exactly reflected in the provisions of section 2(6) of the 2003 Act. Section 2(6)(b) reflects Article 8(1)(d) and (e).

Speciality is dealt with in Article 27 of the Framework Decision.. Paragraphs (1) and (2) provide:

“(1)

Each Member State may notify the General Secretariat of the Council that, in its relations with other Member States that have given the same notification, consent is presumed to have been given for the prosecution, sentencing or detention with a view to carrying out of a custodial sentence or detention order for an offence committed prior to his or her surrender, other than that for which he or she was surrendered, unless in a particular case the executing judicial authority states otherwise in its decision on surrender.

(2)

Except in the cases referred to in paragraphs (1) and (3), a person surrendered may not be prosecuted, sentence or otherwise deprived of his or her liberty for an offence committed prior to his or her surrender other than that for which he or she was surrendered.”

Paragraph (3) of Article 27 provides that paragraph (2) does not apply inter alia where the offence is not punishable by a custodial sentence or detention order, or where the executing judicial authority which surrendered the person gives its consent in accordance with the procedure specified in Article 27(4). That provides that consent shall be given when the offence for which it is requested is itself subject to surrender in accordance with the Framework Decision. Consent shall be refused on the grounds for mandatory non-execution of an EAW in Article 3 of the Framework Decision, and may be refused on the grounds for optional non-execution set out in Article 4.

I first set out four matters which were not controversial at the hearing even if there was not total common ground between the parties. I then consider the decisions that are said to take different approaches. The matters which were or appeared uncontroversial are:

Four of the five decisions of the Divisional Court and the Administrative Court which are at the centre of these appeals and which I consider in the following paragraphs were heard and decided between March and October 2013. The same instructing solicitors acted for the Romanian IJAs in all four but there was no overlap in the counsel involved on either side. The earliest, Bohm’s case, was considered in the cases of Presecan and Brodziak. Although the hearing in Arranz’s case preceded Presecan’s case, the decision was handed down three weeks after it. Arranz’s case did not consider Presecan’s case, but it did consider the 2011 decision in Echimov’s case which was followed in Presecan’s case.

Any difference of approach in the decisions of the Divisional Court and the Administrative Court may in part reflect a degree of tension between the prescriptive requirements set out in Part 1 of the 2003 Act and what it is necessary to do to reflect the “high level of confidence between Member States” referred to in Recital (10) to the Framework Decision. Alternatively, it may reflect a difference between the position where the EAW does not comply with the requirements of section 2 and that where, although it does comply with them, an offence referred to which has been aggregated or merged into a single sentence is, for example, not an extradition offence.

I start with the decision of the Administrative Court on 28 March 2011 in R (Echimov) v Court of Babadag, Romania [2011] EWHC 864 (Admin). In that case, box (b) of the EAW stated that Echimov’s extradition was requested to serve a sentence stated to have been made final by lack of appeal on 2 February 2004, which was a sentence for aggravated theft in the form of the burglary of a store. In that case, box (c), which deals with the particulars of the sentence, stated: “Remaining sentence to be served: one year and six months imprisonment.” In box (e), it was stated that the warrant related to “in total: one offence”. Section I of box (e) set out the particulars of the offence of aggravated theft. Section II of box (e) contains what are described as “full descriptions of offences not covered by section I above”. That stated that Echimov was sentenced to one year imprisonment for the aggravated theft and that, according to particular statutory provisions, “the pardon of the penalty of six months imprisonment and the conditioned release applied to the same defendant [in a sentence in 2002] is revoked” and that he had to serve the six months as well as the sentence for the aggravated theft. No particulars were given of the conduct underlying the six month sentence, although in further information provided subsequently the IJA explained that it related to thefts, for which a suspended sentence had been imposed.

Davis J (as he then was) stated (at [15]) that all ultimately depends on the wording of the particular EAW and the application of section 2(6) to it. He also stated (at [37]) that where a conviction EAW relates to a combined sentence imposed in respect of an index offence, and of a previous offence the sentence for which was activated by the index offence, particularisation of both offences would ordinarily be required to ensure compliance with s.2(6)(b). He had earlier stated (at [23]):

“In the present case, the remaining sentence to be served, as particularised in this European Arrest Warrant, is 18 months imprisonment. It is true that the warrant in the opening part of box (e) explicitly states that it relates in total to ‘one offence’. But the warrant has to be read as a whole, and section II of box (e) then makes it quite clear that the sentence of 18 months in fact comprises the 12 month term of imprisonment for the [aggravated theft] … and in addition … six months in respect of the now revoked conditional release … ”.

He concluded that the lack of particulars relating to the initial suspended sentence rendered the EAW invalid.

Davis J (at [24]) rejected the suggestion that requiring the particulars of the offending conduct that led to the initial suspended sentence was an empty technicality because the requested person needed to have enough information to understand what he had been convicted of and sentenced for in order to be able to assess whether there are grounds for opposing extradition. In that case Echimov had no means of knowing from the EAW itself for what the activated six month sentence was imposed. Davis J considered (see [35]) that, in the case of an activated suspended sentence, the activated sentence was for the earlier offence. The non-compliance with section 2(6)(b) could not be regarded as an immaterial error, and the “spirit of mutual recognition and respect cannot operate so as to permit disregard of the mandatory requirements of section 2 of the 2003 Act”: see [36].

The next decision is the decision of the Divisional Court on 11 April 2013 in Ministry of Justice (Romanian Judicial Authority) v Ernest-Francisc Bohm [2013] EWHC 1171 (Admin), in which Echimov’s case was considered. In Bohm’s case the particulars of two offences were given in the EAW. It stated that Bohn’s extradition was sought in respect of sentences in December 2011 for two offences, namely "complicity to fraud", for which the sentence was three years' detention and "false documents under private signature", for which the sentence was six months. The EAW, however, also referred to a sentence of five years imposed in 2009 for sexual offences for which no particulars were given. It stated that Bohm was to “serve the hardest penalty of five years imprisonment and the complementary penalty provided by … the penal code, for a period of five years, increased with 6 (six) months of prison … [and] in the end … the convict must serve the penalty of 5 (five) years and 6 (six) months of prison”. In short, it provided for a total sentence of five years and six months imprisonment. The District Judge concluded that the EAW was void and discharged Bohm. The Divisional Court dismissed the IJA’s appeal.

In the Divisional Court, Sir John Thomas PQBD, with whom Cranston J agreed, (at [18]) rejected the submission that it was possible to regard the EAW as one for one period of imprisonment of 3 years, one period of six months and a period of 2 years imprisonment “for some unspecified reason”. It stated (see [14]) that there were two possible interpretations of the way the EAW had arrived at the total of five years and six months imprisonment. The first was that the EAW was to be interpreted as meaning that the total sentence was imposed to reflect the fact that the requested person’s previous conviction in 2009 for sexual misconduct aggravated the offences specified in the EAW. If so, there would be nothing wrong or invalid with the EAW. The second and alternative interpretation was (see [15]) that the total “originated from” the 2009 sentence for the sexual misconduct which was not specified in the EAW and in respect of which no particulars were given. The second interpretation would mean the EAW was invalid. Since (see [17]) the IJA did not wish to rely on the first interpretation, it followed that the offence was not specified, no particulars were given, and the EAW was void.

Sir John Thomas also stated (at [19]) that, had the EAW not been void, it would have been extremely difficult to see how the court could allow the provisions in relation to specialty to be considered without some evidence as to how the Romanian court would treat the sentence imposed. There was one composite sentence imposed for one of the two reasons in [27] above and the EAW could not be interpreted as meaning that the Romanian court had in mind separate sentences or that they could be severed.

In Brodziak v Circuit Court in Warsaw, Poland [2013] EWHC 3394 (Admin), which I consider in more detail below, Richards LJ described the suggestion that evidence was needed as to how a Romanian court would treat a sentence as obiter and doubted it. He did so (see [46] - [49]) because of what he described as the well-established line of authority that, in the light of the strong presumption that other Member States will act in accordance with their international obligations in respect of specialty, “compelling evidence” is required that they will act in breach of the specialty rule and Article 27 of the Framework Decision (as to which see [15] above).

The next decision, Flaviu-Daniel Presecan v Cluj-Napoca Court, Romania [2013] EWHC 1609 (Admin), was decided on 22 May 2013, about five weeks after the decision in Bohm’s case, and about two months after the Divisional Court heard Arranz v Spanish Judicial Authority [2013] EWHC 1622 (Admin) and reserved its judgment pending further information from the respondent IJA.

The material parts of the EAW in Presecan’s case are set out at [4] of the judgment. Box (e) stated that the offence to which the EAW related was a conviction for commercial burglary in 2006, properly particularised, for which a sentence of two years imprisonment was imposed in November 2011. The difficulty with the EAW in that case arose because Presecan had been convicted in 2004 of an offence for which he was sentenced to 3 years and 6 months’ imprisonment He was released on probation from that sentence when there were 381 days of the sentence outstanding. When he was sentenced for the 2006 burglary his probation was revoked and he was ordered to serve the outstanding term of 381 days. Box (c) of the EAW stated the following about the remaining sentence to be served: “2 years in jail as result of probation revocation for the 381 days in jail, remain[ing] unexecuted of [the 2004] sentence … merged with the punishment of imprisonment for 2 years … [for the commercial burglary]” and “… thus it has been established the heaviest penalty of two year imprisonment.”

Two submissions were rejected by Cranston J (at [12]). The first was that, while extradition could not be ordered for the 2004 offending since no particulars were given, the EAW was not void because all that the court was asked to do was to order extradition in relation to the commercial burglary specified in box (c). The second was that it was clear from the EAW that the Romanian court either aggregated the sentences for the 2004 and 2006 offending or treated them as concurrent so that all Presecan had to serve was two years. Cranston J stated (at [13]) that the plain wording of the EAW box (c) required that the remaining sentence to be served was a merged sentence in relation to both the 2004 and 2006 offending. Because the sentence was a merged one, if, for example, the conviction for the burglary was quashed on appeal, it might be that Presecan would have to remain in prison for 381 days. While accepting that it is necessary to place trust in the Romanian authorities, he considered that the position was unsatisfactory. Moreover, without knowing the details of the other offence, Presecan would not know whether it was an extradition offence or whether there is a bar in relation to it, and that was not something that can be overcome by according a purposive approach to the EAW.

On 14 June 2013, about three weeks after the decision in Presecan’s case, the Divisional Court (Sir John Thomas PQBD and Simon J) handed down judgment in Arranz v Spanish Judicial Authority [2013] EWHC 1622 (Admin). On 7 November 1989 sentences totalling 2,232 years imprisonment had been imposed on Arranz for 91 terrorism offences. In May 2000 the Audiencia Nacional in Madrid (see [5]) “combined these sentences and others imposed on” Arranz and fixed the combined term to be served at 30 years, the maximum permissible under Article 70 of the Spanish Criminal Code. The law on entitlement to remission was later changed with the effect that Arranz’s release date was put back from 2011 to 2017, but he was mistakenly released in 2011 and travelled to the United Kingdom.

The EAW set out (see [17]) “in considerable detail the facts and legal provisions relating to the offences of which [Arranz] had been convicted”. In box (f), “other circumstances relevant to the case”, it referred to the sentences being “served in a cumulative way with other responsibilities on 16 January 1987 nonstop till 19 April 1991 when his release from prison was decreed.” The EAW did not, however, contain any particulars of what was referred to as “Final Judgment 5/2000”, and January 1987 was almost three years before the sentences for the offences of which Arranz was convicted were imposed.

There were three issues before the Divisional Court; whether the EAW complied with section 2 of the 2003 Act, whether there was an abuse of process as the sentence of 30 years was the combination of the offences specified in the EAW and other offences which were not described in the EAW, and whether extradition would be in breach of Arranz’s rights under the European Convention on Human Rights because the change in entitlement to remission meant that his extradition would be in breach of ECHR Article 7’s prohibition on retroactivity.

As to the section 2 point, it appears to have been argued on behalf of Arranz that the EAW was invalid for non-compliance with section 2 because, while identifying the enforceable judgment as that of November 1989, and referring to proceedings in 1986, it did not contain any particulars of “Final Judgment 5/2000”. The Divisional Court rejected the submission It stated:

“In considering whether a warrant properly informs a requested person of the basis on which his return was sought, whether he can oppose the request and whether he can raise any bars to extradition, regard must be had to the warrant as a whole, bearing in mind the mutual trust and confidence which the courts of the executing state must place in the courts of the requesting state. …”. (at [19])

After citing a number of decisions including Echimov’s case, and stating that ordinarily in a conviction EAW the particulars of the judgment should include the time and date of the conviction, the judgment continued:

“… [A]pplying these principles, read as a whole the warrant set out all that the appellant needed to know to understand the basis on which his return was sought, whether he could oppose the request and whether he could raise any bars to extradition. It was clear first that he had been convicted of the murders and terrorist offences; second that the original sentences had totalled 2,232 years; third that these had been limited to a total of 30 years of which there were 2,096 days to be served. The sentence was to be found in the judgment of 7 November 1989 and the final judgment of 5/2000.”(at [20])

The abuse of process argument also relied on the fact that the other offences were not described in the EAW. The Divisional Court stated (see [25]) that what mattered in that context was whether the omitted information was material to the operation of the statutory scheme. It was not material because (see [25]) there was more than sufficient time in the original sentences totalling 2,232 years that were specified in the EAW for the additional days to be served by reference solely to the specified offences. That is a distinction from in particular Pascariu’s case. Additionally, (see [26]) in a response to an inquiry by the Court the IJA made it clear that, once the 30 year sentence for the offences listed in the EAW was served, Arranz would not be liable to imprisonment for the other offences.

It was submitted before us by the respondents and on behalf of Edutanu that, while the way the Divisional Court dealt with the section 2 point is not clear, its citation and treatment of Echimov’s case means it is unlikely that it disapproved of its approach. The EAW in Arranz’s case was, however, completely silent with respect to the other offences save for the statement in box (f) that the sentences were “served in a cumulative way with other responsibilities on 16 January 1987 nonstop till 19 April 1991 when [Arranz’s] release from prison was decreed”. To the extent that no details of either conviction or sentence were given, the court does seem to have taken a more relaxed approach to section 2, albeit in a context in which there was no chance of the requested person serving more than the sentences in respect of the offences that were specified in the EAW.

The last of this series of cases considered by the judges below is Brodziak v Circuit Court in Warsaw, Poland [2013] EWHC 3394 (Admin). It was one of four appeals involving persons whose extradition was sought in EAWs issued by Polish IJAs. The principal question for the court was the correct approach where extradition was sought on an EAW where a single composite sentence was imposed in respect of a number of offences, one or more of which are not an extraditable offence. Only Brodziak’s case involved a submission that the warrant was not valid within the meaning of section 2 of the 2003 Act.

The submission on behalf of Brodziak based on section 2 was solely about the requirement in section 2(6)(e) that “particulars of the sentence” be stated in the EAW. There is no reference to section 2(6)(b) in the judgment. It was argued that the warrant was invalid because it did not comply with section 2(6)(e) in relation to particulars of the sentence because the aggregated sentence did not identify the term of imprisonment for each of the offences within it. That argument was rejected (see [36] - [39]) in the light of the decision of the House of Lords in Pilecki v Circuit Court of Legnica, Poland [2008] 1 WLR 325 and Kuchera v District Court of Karvina, Czech Republic [2008] EWHC 414 (Admin), [2009] 1 WLR 806. Brodziak’s case therefore proceeded on the basis that the requirements of section 2 had been satisfied. Furthermore, the particulars of all the convictions and sentences were provided in the EAWs considered in that case. The requested persons thus knew the basis on which their returns were sought, and whether they could oppose the requests and raise bars to extradition. It will be seen that those two factors are important matters in the resolution of the appeals before us.

On the principal question considered in Brodziak and the cases considered with it, the position where a single composite sentence was imposed in respect of a number of offences, one or more of which are not an extraditable offence, there was common ground. It was agreed (see [33] and [35]) that in the light of section 10 of the 2003 Act as modified by the Multiple Offences Order the court should discharge the requested persons in respect of any offence which did not satisfy the requirement of dual criminality and that extradition should be ordered only in respect of the offence or offences satisfying that requirement.

As to whether extradition was barred by reason of specialty, I referred at [29] above to Richards LJ’s statement about the strong presumption that Member States will act in accordance with their specialty rules and that “compelling evidence” is required that they will not do so, and to his consequent doubt about Sir John Thomas’s obiter statement in Bohm’s case.

In the four appeals considered with Brodziak’s case, only Brodziak adduced evidence on specialty. An expert opinion stated that, if Brodziak was returned to Poland, he would have to serve a sentence in excess of that appropriate for the extradition offences because the total sentence involving a non-extradition offence could not be disaggregated. As a result of that, the CPS requested clarification from the IJA as to how the specialty principle would be observed and to provide an assurance that Mr Brodziak would not be required to serve any period of imprisonment in respect of any offence where the UK court had refused to order extradition. In his case, the aggregated sentence was one year and six months imprisonment for three offences. The custodial sentences for the individual sentences were three months in respect of a non-extradition driving offence, and six months and one year respectively for two drugs offences. The response from the IJA stated that, even if the cumulative sentence was reversed, Brodziak would have to serve the six months and one year custodial sentence for the two drugs offences. It was argued that this showed that there would be a breach of the specialty principle because Brodziak would, if extradited to Poland, have to serve a sentence that related to the offences for which he had been extradited and to the offence for which he had not been extradited.

The court (at [54]) regarded the response of the IJA as “highly unsatisfactory” and stated that this part of the case caused it “a degree of anxiety” because the response did not provide the assurance specifically requested nor point to a specific procedure for disaggregation or re-sentencing so as to ensure that the sentence served related only to the offence or offences for which extradition was ordered. The court considered that to require Brodziak to serve a sentence of one year and six months “would amount in practice to requiring him to serve a sentence that relates in part, albeit in small part, to a non-extradition offence”. Notwithstanding the court’s concerns, it considered that the evidence was not sufficiently compelling to displace the strong presumption that the Polish authorities would act in accordance with their international obligations in respect of specialty. It therefore concluded that Brodziak and the other appellants had failed to prove the absence of effective specialty arrangements.

The court reached that conclusion because (see [56]) the relevant provisions of the Polish Criminal Procedure Code are entirely consistent on their face with the protection of specialty in Poland and the law itself is tolerably clear. Although it was not clear how effect is or can be given to specialty in practice, and the IJA’s response referred to a final and non-appealable sentence, Brodziak’s expert opinion referred to the possibility of a judgment being quashed in “extraordinary proceedings”. The court considered that all that was a matter of internal procedure for the Polish. It was not persuaded that an extradited person would lack a remedy under Polish law to give effect to the requirements of the Polish Criminal Procedure Code protecting specialty. Secondly, the court was influenced by the fact that, despite the large number of extraditions to Poland from the United Kingdom, there was no evidence before it of even a single case in which an extradited person had been required in practice to serve a sentence relating in whole or in part to an offence for which he was not extradited. It did not consider that an adverse inference as to the absence of an effective specialty protection should be drawn on the basis of what it described as the “limited material of a general nature” that was before it.

Finally, I refer to three cases which considered the Multiple Offences Order; Taylor v Public Prosecutors Office Berlin, Germany [2012] EWHC 475 (Admin), Kubun v District Court of Warzawa, Poland [2012] EWHC 3036 (Admin) and Polczynski v The Regional Court of Piotrkow, Poland [2013] EWHC 4490 (Admin).These cases concerned accusation EAWs where the extradition was sought to prosecute the requested person for a number of offences rather than conviction EAWs as in the appeals before us. As stated above, the requirements for conviction EAWs are those in section 2(6) of the 2003 Act. The requirements for accusation EAWs are those in section 2(4) of the 2003 Act. In these three cases the requirements were not provided in respect of some of the offences for which extradition was requested.

In Taylor and Polczynski the EAW gave a figure for the maximum sentence without specifying the maximum for each of the offences for which extradition was requested. In Taylor’s case further information provided by the IJA showed that in 23 of the offences the maximum was wrong so the requirements of section 2(4)(d) were not met. Moreover, in the case of two of the offences the EAW did not identify where it was alleged they were committed, and thus did not meet the requirements of section 2(4)(c). In Polczynski the further information showed that the maximum sentence for one of the offences was two years rather than the eight years stated. In Kubun’s case sufficient particulars were given of one of the two offences but those regarding the other were insufficient to meet the requirements of section 2(4)(c).

In Taylor and Kubun, Collins J stated that where an EAW is defective for non-compliance with section 2 in relation to some of the offences for which extradition is sought but not others, the effect of the Order is to allow the EAW to be treated as valid in respect of the offences in respect of which the requirements of section 2 have been met. He stated (Kubun at [11]) that the submission that because the Order did not specifically amend section 2, the amendments to section 10 of the 2003 Act did not avail the IJA. This was because it:

“would totally destroy the purpose behind and the intended effect of the [Order]. The whole purpose … quite clearly is to enable a court to decide whether any of the offences charged in a warrant which seeks return is a proper extradition offence. If it is, then – on that – return can take place. If it is not, then – on that and … that alone – return cannot be directed. To suggest that not specifically referring to Section 2 means that the amendments to Section 10 have no effect is, with respect, an utterly absurd construction of the relevant legislation.”

In Polczynski Nicol J followed the approach in Taylor’s case.

Before the District Judges, other issues were canvassed, including whether the requested person was absent from his trial and, if so, whether he had deliberately absented himself, and as to conditions in Romanian prisons. As those issues do not arise in these appeals, it is not necessary to summarise material solely relevant to them.

Shortly before the hearing, the CPS’s Extradition Unit sought further information from the IJAs on three matters. The first concerned the relevant provisions of the Romanian Criminal Code on merged sentences. The second was confirmation that specialty protection is provided for in Romanian law so that, if a court in this jurisdiction ordered extradition in relation to only some of the offences on an EAW, the Romanian judge would ensure that only that part of the sentence relating to the extraditable offences would be executed. The third was specific confirmation about the position in the cases of Barbu, Smadeci and Pascariu. The court received responses dated 23 November 2015 concerning Barbu and Smadeci the day before the hearing. A response dated 24 November 2015 concerning Pascariu was submitted on the day after the hearing together with brief submissions by Mr Knowles QC and Ms Farrant. Mr Wolstenholme responded to these. The responses from the IJAs on the individual cases are summarised below.

I have stated that courts considering EAWs are expected not to be too parochial about the document because EAWs are addressed to courts in a number of different legal systems, each with its own substantive law and procedure. They are required to take the statements and information in an EAW at face value and not to expect the document to conform to the particular requirements of their system and reflect the language of the concepts used in it. But this does not absolve the requesting IJA from explaining the concepts in play in the EAW. Bohm’s case, where Sir John Thomas stated that the provisions of Romanian law in the six pages of the EAW were not easy to follow, illustrates what can happen where they do not.

In the present appeals, it has become clear as a result of the further information provided and what was said during the hearing that the term “merger” is used in a number of senses by the Romanian IJAs. Mr Knowles QC opened his submissions on behalf of the appellants by stating that “merger” and “legal fusion” (the term used in Edutanu’s case) can mean different things in different contexts. As will be seen, there is no indication of this in the EAWs we are considering. Where courts in a single requesting state do not provide the particulars required in a consistent way and explain the concepts in play, courts in the requested state may face real difficulties. Notwithstanding the difficulties, the EAW must be examined in the round without undue technicality and with a view to reflect and give effect to the high degree of confidence between Member States required in the Framework Decision.

For convenience, in the following paragraphs about the individual cases I deal with the information in the EAW in the following order. I first deal with that in box (e), which gives the particulars of the offence for which extradition is sought. Section 1 of box (e) contains the maximum sentence(s) and section 2 contains the length of the custodial sentence(s) imposed in the particular case. I then refer to box (b), which sets out the decision on which the EAW is based, and then box (c), which is concerned with “information on the punishment period”. Finally, I deal with the further information subsequently provided by the IJAs in the cases before us.

Irinel Edutanu was convicted at the Iasi Court of Law on 5 March 2005 of three offences of “fraud committed on an ongoing basis” contrary to Article 215(2) and (3) of the Romanian Penal Code and of two counts of forgery. The fraud was a conspiracy to defraud companies by inducing them to sell goods to him and an accomplice, paying for them with cheques belonging to “STSC STIL Trading SRL”, which he had no right to use. One of the forgery offences was that he falsified fiscal receipts in respect of the fraud. The other was that he produced a cheque with false details and a false receipt to deceive a company to whom he sold goods as to the provenance of those goods. The conviction became final on 30 March 2011 and he was sentenced to a total of 6 years imprisonment by the same court on 31 March 2010. The sentences were 6 years imprisonment for the fraud and 1 year’s imprisonment for each of the forgery offences, to run concurrently.

Magistrate Judge Munteneanu Iulia Lavinia of the Iasi Court of Law issued a conviction EAW relating to Edutanu on 20 August 2013. Box (e) states “this warrant is issued for 3 (three) offences”. It then describes the circumstances of the fraud and the forgeries which I have summarised above. Later in box (e), there is a reference to the previous sentence of 3 years imprisonment and the fine of 200,000 ROL. It is stated that was for “committing on 17 May 1999 the felony of traffic of toxic substances”, namely mercury. There is no express reference to assault in the EAW, but those representing the IJA apparently presented the case before the District Judge on the basis that further information from the IJA revealed that when the sentence of 3 years imprisonment for trafficking mercury was imposed, a decision on 8 April 1997 to suspend a fine imposed for an offence of assault on 12 July 1995 was reversed, so that the fine became due and “ruled its execution with the penalty of three years of prison”. The District Judge stated (at [15] of her judgment) that the EAW stated that the sentence for the fraud offences had been merged with an offence of assault which is not particularised in the EAW.

As to the document on which the EAW is based, Box (b) states:

“Warrant for the execution of the punishment with imprisonment no.727/2008 issued by Iasi Court of Law on 31 March 2010.

Type: warrant for the execution of the punishment with imprisonment.

Final and binding court decision: criminal sentence no.659 of 05 March 2008 of Iasi Court of Law, maintained by the criminal sentence no.56 of 05 February 2009 of Iasi Courthouse, maintained and rendered final the criminal decision no.212 of 30 March 2010.”

Box (c) is “Information on the punishment period”. After stating the maximum sentences for the offences of forgery and fraud committed on an ongoing basis, it continues:

“According to the provisions of Art 85, paragraph 1 of the Criminal Code, the court orders the cancellation of the conditional suspension regarding the execution of the punishment of 3 years of imprisonment and criminal fine of 200,000 ROL (by maintaining the cancellation of the conditioned pardon pertaining the punishment through a fine of 200,000 ROL applied by the criminal sentence no. 1339/8.04.1997 rendered by Iasi Courthouse … applied by the criminal sentence no. 110/26.02.2004, rendered by Constanta Courthouse [as amended] for committing, on 17 May 1999, the offence provided for and punished by Art 312, paragraph 1 of the Criminal Code.

The punishment that is to be executed 6 (six years imprisonment).”

On 28 December 2013 the National Crime Agency certified that the EAW was issued by a judicial authority of a Category 1 territory with the function of issuing arrest warrants. Edutanu was arrested on 28 January 2014 and granted conditional bail. Further information dated 4 March 2014 was received from the IJA. It dealt with Edutanu’s presence at his trial and gave the information about the sentence of 3 years imprisonment to which I have referred. The further information also stated that “a legal fusion took place for the penalties applied through the previously mentioned judgments, more precisely, it was chosen the hardest penalty, respectively the one of 6 years of prison, which was the final penalty applied to the defendant”.

In her judgment dated 5 January 2015, (see [41]) the District Judge ordered Edutanu’s extradition in respect of the three offences of fraud and forgery. She accepted that the decision in Presecan v Cluj-Napoca Court dealt with a similar scenario and concluded that the effect of section 2(6)(b) of the 2003 Act is that the EAW was invalid where a merged sentence was imposed because all offences must be particularised. She, however, preferred the reasoning in the subsequent Divisional Court decision in Brodziak v Poland, which dealt with the approach to be taken to an EAW where sentences are imposed for a number of offences where one or more of those offences did not amount to extraditable offences. She stated that Brodziak’s case showed that in such a case the court can discharge in relation to non-extraditable offences and order extradition solely in respect of the conduct in the EAW that satisfied the requirements of sections 2 and 10.

Ion-Viorel Barbu was convicted of house burglary on 10 April 2014. He was initially arrested on 8 January 2014 and his case was sent for trial on 29 January. On 31 January 2014, the Bucharest Trial Court of the 4^th District remanded him in custody. After he had pleaded guilty and asked to be released from custody, on 6 February 2014 the Bucharest Law Court revoked his “precautionary arrest”. Thereafter, he did not respond to summonses sent to the address he had given the court or that of his family home, at which his mother still lives, and he left Romania in April 2014. The District Judge found that he had been told that a decision might be given in his absence and that he had left the country as a fugitive, knowing that he should have informed the court of his change of address.

The EAW was issued on 4 November 2014 by Judge Lorena Zidara, of the Bucharest Trial Court of the 4^th District. It gives the particulars of the offence for which extradition was sought in box (e). It states:

“This warrant refers to a total of 1 offence. Description of the circumstances in which it was/were committed, the act/acts including when (date and time), place and degree of participation in this/these of the requested person: On the facts for which he was convicted by criminal sentence no.1257/10.4.14 by Bucharest Trial Court of 4^th District remain that on 12.12.13, between the hours of 12:30 – 13:30, defendant Ion-Viorel Barbu entered the building located in Bucharest, etc, and taking advantage of the fact that the door of the house was left open, stole a Nokia mobile phone and a laptop brand Toshiba brand.

Nature and legal classification of the offense(s) and the applicable statutory provision/code:

For the offense of simple theft, provided by Art. 228 paragraph 1 of the new Criminal Code and the application of Article 37 letter (a) of the old Criminal Code, the maximum penalty is 3 years imprisonment.”

In box (b) of the EAW the decision on which the EAW is based is set out. This states:

“Warrant for imprisonment no.1822/2014/13.05.2014 issued by Bucharest Trial Court of 4^th District, under criminal sentences no.1257/10.04.2014, final and enforceable judgment: criminal sentence no.125/10.4.2014 of Bucharest Trial Court of 4^th District, final on 13.05.2014, by non-appealing …”.

Box (c) is concerned with indications on the length of the sentence. Section 1, concerned with the maximum sentence, states “for the offense of simple theft … the maximum penalty is 3 years imprisonment”. Section 2 of box (c) gives the length of the custodial sentence imposed in Barbu’s case. It is stated:

“Pursuant to Art 61 of the old Criminal Code Barbu’s conditional release from a 5 year sentence imposed by the 4^th District Court of Bucharest in March 2009 and made definitive by a decision of the Court of Appeal on 21 July 2009 and merged the remaining unexecuted 707 days in jail from that sentence but concluding ‘with the penalty of 2 years imprisonment imposed by this judgment, the accused is to serve the hardest sentence, namely 2 years imprisonment’.”

The National Crime Agency certified the EAW on 4 March 2015. Barbu was arrested in the United Kingdom on 10 April 2015 for shoplifting. He was arrested the following day under the EAW and the domestic proceedings were not pursued.

Before District Judge Arbuthnot, it was submitted on behalf of Barbu that Presecan’s case was on all fours with the present case, and in the light of that case this warrant was not valid. Counsel for the IJA relied on the decisions of the Divisional Court in Arranz v Spain and Brodziak v Poland but the District Judge stated she had to follow Presecan’s case, which was on all fours and directly concerned the application of section 2(6)(b) of the 2003 Act. Accordingly, apparently with some reluctance, she stated that in the light of that decision she had to discharge Barbu, warning him that the Romanian authorities may well proceed against him again once they had corrected the warrant.

I have referred (at [5] above) to the recent response from the IJAs. In Barbu’s case the IJA was asked for confirmation that, if the UK court ordered that Barbu be surrendered only for the offence of “simple theft” referred to at box (e) and orders that he may not be surrendered for the offences underlying the sentence of March 2009, the Romanian court would ensure in accordance with Article 27 of the Framework Decision that if for any reason the sentence for simple theft was quashed or reduced Barbu would not be detained in relation to the March 2009 sentence. The response of the IJA was inter alia that:

“The fact that the 2 year prison sentence has been merged with the remaining 707 days from the previous sentence of 5 years of prison has been determined by the committal of a petty theft in the following 707 days of release on bail. If, from the release until the end of the sentence (meaning the remaining of those 707 days), he would have committed no crime, the initial 5 years of prison would have been deemed served. Practically, ‘the reactivation’ of the remainder of sentence has been determined by the fact that a new crime of petty theft was committed during those 707 days term, which led to the release on bail revocation”.

After referring to Article 61 of the old Criminal Law Act, the response states:

“The merge of 707 days in prison with the 2 year prison sentence did not aggravate in any way the legal status of Mr Barbu Ion-Viorel. Practically, in adding the two sentences of 2 years and 707 days of prison, the court could have increased the longer sentence (meaning the 2 year one) and the resulting sentence would have been even longer. Even so, the court opted not to increase any sentence, so Mr Barbu Ion-Viorel is expected to serve just the 2 years in prison sentence, the one of the which the European Arrest Warrant has been issued, and whose execution we are demanding. To sum up, the rest of the 707 days in prison does not find itself in the sentencing the criminal has to serve and did not aggravate in any way his sanctionary treatment” (emphasis added).

In relation to the question about the consequences of an order that Barbu be surrendered only for the offence of simple theft the response also states:

“… We would like to underline, as one can see from the European Arrest Warrant box, that it only refers to a single deed and not two, as it had been mistakenly interpreted. At the same time, we would like to underline that the sentence for this second crime was the one that ‘reactivated’ the remainder of 707 prison days and made it servable; situation under which the sentencing for petty theft (the second crime) does not hold any more legal grounds. Considering this, the grounds for the release on bail vanish, so, taking these into account, Barbu Ion-Viorel will not have to serve any other sentence/remainder of sentence in relation to the criminal sentencing order no.245/20.03.2009.”

The Constanta 1^st Court of Law, in a decision on 12 December 2014 which became final on 27 January 2015, committed Ionel Smadeci to prison for 13 months in respect of one offence of driving while disqualified on 26 November 2010.

The EAW (“EAW 2”) was issued on 26 February 2015 by Judge Cristian Lungu of the Constanta First Court of Law. It was certified by the NCA on 6 March 2015. Box (e) states:

“this warrant refers to a single offence under Article 86 para 2 of OUG no.195/2002 with application of Article 5 of the Criminal Code”.

Box (e) then sets out the details of the offence on 26 November 2010. It also refers to Article 36(1) of the Criminal Code, which deals with the merger of penalties for multiple offences, but gives no particulars of any conviction other than that on 26 November 2010.

Box (b) sets out the decision on which the EAW is based. This states:

“The warrant to execute a conviction to prison no.2649/2014 issued by Constanta 1st Court of Law on 02.14.2015 and gives the final and binding decision as criminal sentence no.1377 pronounced by the same court on 12.12.2014 which remained final on 01.27.2015 by not being appealed.”

Box (c) gives the following information about the duration of the sentence: “1 year and 1 month imprisonment”.

There had been a previous EAW (“EAW 1”). EAW 1 was issued on 30 August 2013, and certified on 29 December 2014. It was a conviction warrant in relation to eight offences of driving while disqualified on eight specified occasions between 5 November 2008 and 18 June 2010. EAW 1 was withdrawn on 10 March 2015 and replaced with EAW 2.

Smadeci was originally arrested on EAW 1 on 27 February 2015. When that EAW was withdrawn on 10 March 2015, he was arrested at court on EAW 2. He has been on bail throughout.

Further information, dated 29 May 2015, was obtained from the IJA before the decision under appeal. That stated that the 1 year and 1 month sentence in EAW 2 “is a sentence that contains all nine criminal offences”. This was “because by this sentence [Smadeci] was sentenced to 1 year imprisonment for committing a single offence under Article 86(2) of OUG 195/2002 with the application of Article 5 of the Criminal Code finding that the offence brought … is related to the eight previous offences to be decided by the criminal sentence no. 1635/18.2.12 and merged with the established punishment by this present court decision no. 1377/12.12.2014 … ‘resulting to execute the hardest sentence of 1 year and 1 month imprisonment’”. It also stated that “following the merging of the sentence imposed by criminal verdict no. 1377/12.12.2014”, the offence specified in EAW 2, “he is due to serve the hardest penalty of 1 year and 1 month in prison, reason for the annulment of the imprisonment warrant no. 3275/2012 and the annulment of issuance of other forms of execution at the date of remaining final”.

District Judge Arbuthnot, in her decision on 24 August 2015, took the same approach to section 2(6)(b) of the 2003 Act as she had in the cases of Barbu and Pascariu, and discharged Smadeci.

I have referred to the very recent response of the IJA to a request by the CPS’s Extradition Unit. The CPS sought confirmation that, if the UK court orders that Smadeci may be surrendered only in respect of the single driving offence committed on 26 November 2010 which is referred to at box (e) and may not be surrendered for the remaining eight offences which were originally particularised in EAW 1, in accordance with Article 27 of the Framework Decision, if the sentence for the single offence is quashed or reduced, he would not be detained in relation to the other offences. The response, dated 23 November 2015, states that the Romanian court maintains and applies the rules in Article 27 of the Framework Decision. It also states:

“ … The fact that the punishment of 1 year and 1 month resulted following the merging of prison punishments applied to all the nine concurrent offences does not equate it, according to the Romanian criminal law, to a reconviction of the defendant Smadeci for these eight offences, and these are not the cause for the European Arrest Warrant no.6/26.02.2015 (however, they were the cause of the International Pursuit Warrant previously issued but retracted – EAW 1.

…

… [P]lease reiterate before the court of the United Kingdom that the multiple offences in relation to the eight offences which were referred to within the European Arrest Warrant no.6/26.02.2015 and in relation to which the court in the United Kingdom ascertained that it was not fully clear in the contents of this European Arrest Warrant, represent, according to the Romanian criminal law, as issuer of the European Arrest Warrant, a cause of aggravation of the criminal responsibility (meaning an increase of the applicable punishment) for the offence committed on 26.11.2010 by the requested person Smadeci Ionel. …”

The letter also states that the sentence for the eight offences was not merged in the sentence no.1377/12.12.2014 and that sentence did not include the other eight offences. It concludes:

“What the criminal sentence no.1377/12.12.2014 ‘did take into consideration’ was those eight punishments ordered for the eight offences, punishments which, because of their number, the quantum and the cause, served to ascertain the level of social danger of the offence committed on 26.11.2010 and the offender Smadeci Ionel, … in order to establish the punishment for the offence dated 26.11.2010 committed under the conditions of multiple offences as a form of aggravating the criminal responsibility. The EAW 2 was issued in virtue of this single offence .”

Marius-Ionut Pascariu was convicted on 6 June 2008 of two counts of aggravated theft and one count of bribery. The sentences were maintained by the Court of Appeal on 14 April 2009. The EAW was issued by Judge Daniela Iovu of the Tribunalul Iasi on 8 September 2009. (Footnote: ¹) Pascariu had been present at the sentencing, but then fled and was arrested at Gatwick Airport on 19 July 2015.

The EAW stated, in box (e), that the warrant relates to “in total, 2 (two) offences”. The description of the circumstances in which the offences were committed is that Pascariu, together with co-defendants, promised a security guard payment to allow them access to company premises on 22 September 2004. They then stole items described, and then sold them on. In that box the offences are stated to be “aggravated theft” and “giving a bribe”, contrary to provisions of the Romanian Criminal Code. In box (b), the decision on which the EAW is based is stated to be “Warrant of execution of custodial sentence no.399/2008 issued on April 15^th, 2009 … warrant issued based on an enforceable judgment”. The enforceable judgment is stated to be:

“Criminal sentence no.346 of June 6^th, 2008, ruled by Iasi Tribunal, which was maintained through criminal decision no.8 of February 3^rd, 2009, ruled by the Court of Appeal of Iasi, maintained and became enforceable through the criminal decision no.1391 of April 14^th, 2009, ruled by the High Court of Cassation and Justice in Bucharest – the criminal section.”

In box (c), paragraph 2, it is stated that Pascariu was sentenced to 1 year and 6 months imprisonment for the aggravated theft and 5 months imprisonment for giving a bribe. It is also stated that the court merged the “imprisonment sentences … into the heaviest penalty of 1 year and six months imprisonment”. This appears to be similar to what, in this jurisdiction, would be achieved by ordering the sentences to be served concurrently.

Box (c) also states that the court cancelled the conditional suspension of a 1 year sentence of imprisonment imposed on 8 July 2002 for aggravated theft committed on 23 February 2002, activated a 2 year suspended sentence imposed by the court on 27 May 2003 for aggravated theft committed on 21 – 22 June 2002, revoked a pardon granted on the same day for a 1 year 6 month sentence for trespassing on 21 – 22 June 2002, and revoked a fine for bribery imposed on 22 June 2004.

It is also stated in box (c) that the conduct for the previous sentences constituted “multiple offences” under Romanian law and that the court merged the penalties for them “into the heaviest penalty of 2 years imprisonment”. It states that it “ruled for the resulting penalty of 2 years imprisonment, together with the penalty for the offences deducted from the sentence, is 3 years and 6 months in prison”. In section 3 of box (c), under the heading “remaining sentence to be served”, it is stated “the total penalty to be executed is of 3 (three) years and 6 (six) months in prison”.

District Judge Arbuthnot set out the law and the conflict in the authorities substantially as she had done in Barbu’s case. She stated (at [17]) that the EAW did not particularise the earlier offences, the terms of imprisonment for which amount to 2 years, but only the most recent offences of aggravated theft and bribery, with sentences totalling 18 months. She concluded that, in the light of the decisions in Echimov v Romania and Presecan v Romania, the warrant did not comply with the requirements of section 2(6)(b) of the 2003 Act and that Arranz’s case (see [33]ff above) was distinguishable. She stated that the problem with the lack of particularisation of the earlier offences was that the requested person was not able to say even whether they were extraditable offences. She therefore concluded that the warrant was invalid and discharged Pascariu, while warning him that the Romanian authorities might well proceed against him once they had corrected the warrant.

I have referred to the further information sought from the IJAs shortly before the hearing of these appeals. In Pascariu’s case, the IJA was asked for confirmation that, if the court ordered that he may be surrendered only for the offences of theft and bribery referred in box (e) and not for the additional offences which are referred to at box (c), he would serve only the sentence of 1 year and 6 months for the offences of theft and bribery, and not the sentence of 2 years relating to the offences referred to in box (c). The response of the IJA states, inter alia, that:

“Romanian legislation does not allow the issue of several simultaneous serving sentences or several European Arrest Warrants. In this case, the sentence, and consequently the European Arrest Warrant, had been issued as a result of sentencing decision no.346/06.06.2008. This sentence is highlighted by [the sentencing decisions of the Iasi High Court maintaining it and the Supreme Court making it irrevocable] through which the total sentence to be served is of 3 (three) years and 6 (six) months imprisonment.

The judge that issues the prison serving sentence and the European Warrant can no longer intervene in a final decision that decides the serving sentence. His only role, according to Romanian legislation, is to issue warrants.

As a result, the defendant Pascariu Marius-Ionut must serve a sentence totalling 3 (three) years and 6 (six) months imprisonment without the possibility to divide the sentences into two separate ones [1(one) year and 6 (six) months and 2 (two) years of prison] as per your request. There is no mention in the legal proceedings according to which the appointed sentencing judge or courts could fragment the serving of a sentence that had been previously issued as a total in a final sentence.

…

Taking into account that previously, as demonstrated above, the details requested in relation to the European Arrest Warrant have been provided, on the basis of mutual trust and recognition, in concordance with the European Union Framework Decision no.2002/584/JAI of 13 June 2002, … modified by the Framework Decision 2009/299/JAI of the European Union Council from 26 February 2009, we are asking you to enforce the warrant.”

On behalf of the IJAs, Mr Knowles QC submitted that an EAW should not be construed parochially to meet the requirements of this jurisdiction because it is a Europe-wide document that has to work in a number of contexts and in different national legal systems. Its validity should be assessed in the round and without technicality.

Mr Knowles submitted that no issue under section 2(6)(b) in fact arises on the facts of Edutanu and Smadeci. In Edutanu extradition was not sought for the mercury trafficking offence or the assault which had been merged with the trafficking offence. In the case of the assault because the sentence remained a fine, the offence was also not one for which extradition could be ordered. In Smadeci he submitted no issue arose because the relevant EAW (EAW2) requested extradition for a single offence of driving while disqualified and, save for a reference to the provision of the Romanian Criminal Code which deals with the merger of penalties, does not refer to any conviction or sentence other than that for the single offence. As to the cases of Barbu and Pascariu, he submitted that the requirements of the section were satisfied because the references in the EAWs to the sentences for other offences for which extradition was not sought does not affect their validity and is immaterial to the statutory scheme.

At the core of the case of the IJAs is the submission that Article 27 of the Framework Decision enables extradition on a limited basis and that all that has to be particularised is the offence for which extradition is sought as identified in box (e) of the EAW. Mr Knowles argued that the decision in Presecan’s case was wrong, and that the outcomes in the cases of Echimov and Bohm were correct but that Echimov’s case is distinguishable from the appeals before us and that in Bohm’s case the right conclusion was reached for the wrong reasons.

In Echimov’s case box (e) of the EAW made it clear in substance (Footnote: ²) that the IJA was seeking extradition for the two offences and not only for the particularised aggravated theft of the supermarket to which the EAW was stated to relate. It gave no particulars of the other offence, the sentence for which was activated by the revocation of the conditional release. In Bohm’s case it was not possible to tell whether the total sentence reflected the fact that the previous offending aggravated the offence box (e) was the one for which extradition was sought or reflected the earlier and more severe sentence for an offence particulars of which were not given.

Mr Knowles submitted that the decision in Presecan’s case was wrong and inconsistent with the decision in Arranz v Spain where some of the conduct was not particularised. In Presecan’s case box (e) of the EAW sought extradition only for the commercial burglary, i.e. one offence and box (c) made it clear that the sentence was the “heaviest penalty” of two years imprisonment for the commercial burglary and not the 381 days outstanding from the previous sentence. The written submissions of Mr Knowles and Ms Farrant stated that “the fact that the 381 days had been ‘merged’ into the two year sentence (and the effect of that process under Romanian law is not known) was irrelevant to the question of the validity of the warrant and its compliance with section 2”. Cranston J was, he argued, wrong to regard the sentence as for the two offences because of the merger and consequently to conclude that the EAW was invalid because it did not comply with section 2(6)(b) of the 2003 Act.

Mr Knowles argued that the decisions in Arranz v Spain and Brodziak v Poland show the way of proceeding where some of the conduct underlying a merged sentence is not particularised in the EAW in circumstances where it is considered that a requested person needs protection. Where the court dealing with the matter considers that the requested person needs protection, the solution is not to hold that the EAW is invalid. The solution lies in the ability of the court to grant extradition on a limited basis relying on the existence of specialty arrangements protecting the requested person from being dealt with for any offence other than that for which he or she is extradited.

The IJAs also relied on the Multiple Offences Order and the cases on its effect referred to at [46] – [48] above. They argued that, in the case of an EAW covering multiple offences, if the EAW complies with section 2 for some of the offences it is not invalidated because there are insufficient particulars in respect of others.

On behalf of the requested persons, Mr Jones QC and Mr Wolstenholme submitted that the EAWs in the cases before the court are invalid because sentences for other offences, not particularised on the EAW, are stated to be “merged” (in a number of ways) with the sentence for the offence for which return is sought by the Romanian courts when passing that sentence. They relied on the statements in a number of the cases concerning conviction EAWs, as to the reason the requested person needs details of the offence(s) for which extradition is sought, summarised at [20(v)] above, which they submitted applies to the details of the offences which have been merged into those offences: see R (Echimov) v Court of Babadag, Romania [2011] EWHC 864 (Admin) at [25], dealing with a “merged” sentence. They submitted that where a sentence relates to another conviction in any way the conviction must be particularised and trust in specialty is not a solution. This is particularly so in cases where there are statements by the IJA that the sentences cannot be disaggregated or that the person extradited will serve a greater sentence than the sentence for the offences for which extradition was sought.

As to Taylor and the cases following it, they argued that they do not assist the IJAs. First, they are confined to accusation EAWs because the Order applies where the word “offence” appears in the 2003 Act and, while the word appears in section 2(4)(c) in respect of accusation warrants, it does not in section 2(6)(b) in respect of conviction warrants. Secondly, the Order does not apply to an EAW for a single sentence for a number of offences not all of which are particularised. Alternatively, Taylor and the cases following it were decided by single judges and are wrong because the condition precedent for the application of the Order is that there is a valid EAW because the Order applies where “a Part 1 warrant is issued for more than one offence”. It follows that the question whether a particular EAW is a Part 1 warrant is logically antecedent to the application of the Order, and the Order cannot apply to a determination of whether or not an EAW satisfies the requirements of section 2 and is valid.

The starting point must be the words of the statute. Section 2(5) of the 2003 Act refers to the person in respect of whom the warrant has been issued and whose extradition is sought as (a) one who has been convicted of an offence specified in the warrant and (b) one where the warrant has been issued with a view to his extradition for the purpose of being sentenced for the offence (which is not relevant in the cases before us) or of serving a sentence of imprisonment imposed “in respect of” the offence.

It is clear from section 2(6)(c), (d) and (e) and it is implicit in section 2(6)(b) that the particulars referred to must be particulars of the conviction “in respect of” which the warrant was issued and extradition is sought. What, however, is the significance of the use in section 2(5)(b) and section 2(6) of the phrase “in respect of” the offence rather than “for” the offence. Although it may be a pointer to understanding these provisions as having a broader ambit and including some or all of the different ways in which other offences may become “merged” in the offence in respect of which extradition is sought, in my judgment the basic position is that “the” offence in section 2(5)(b) is the offence in respect of which extradition is requested. I thus accept Mr Knowles’s submission that box (e) of the EAW which deals with the offence or offences to which the warrant relates is important. I do not, however, consider it conclusive as to what the total sentence reflects.

It is also relevant to observe that Article 8(g) of the Framework Decision requires a requesting state to put into the EAW “if possible, other consequences of the offence” but Article 8 does not require a description of the circumstances giving rise to those consequences.

I have referred (see [41]ff above) to the cases in which a composite sentence was imposed for a number of offences some of which were not extradition offences (“the Brodziak group of cases) and (at [46] – [48] above) to the Taylor line of cases on the Multiple Offences Order. Those cases show that problems of a similar nature to the questions about the operation of section 2(5) and 2(6)(b) in cases of merged sentences have arisen in cases where sentences have been aggregated. The first group of cases involved a single composite sentence imposed in respect of a number of offences, some of which were not extradition cases. The Taylor line of cases involved requests for extradition for more than one offence where there was non-compliance with section 2 in relation to the individual maximum sentences or the particulars of some of the offences for which extradition was requested. In neither group of cases was the effect that the EAW was wholly invalid.

In the Brodziak group of cases an aggregated sentence which did not identify the terms of imprisonment for each of the offences within it was held to comply with section 2(6)(e) even though some of those offences were not extradition offense. Extradition was, however, ordered only in respect of those that were. In Brodziak’s case, notwithstanding the statement in the further information provided by the IJA did not give the assurance that he would not be required to serve any period of imprisonment in respect of an offence for which the United Kingdom court had refused to order extradition. In the Taylor group of cases, extradition was only ordered in respect of the offences for which the requirements of section 2 were met.

The question is whether the merged sentences in these appeals or in some of them are susceptible to a similar approach. As recognised in the authorities, including Sandi v The Craiova Court, Romania and Arranz’s case (see [22(v)] and [38] above), the underlying matter of substance as far as the validity of the EAW is concerned is whether the requested person has sufficient details of the offences [in respect of which extradition was requested and for which a sentence of imprisonment is to be served] to understand what he has been convicted of and whether any bars to extradition apply. This must be determined in the light of the warrant as a whole.

Are the EAWs in these appeals before us entirely invalid or are they valid in respect of the particularised offences and sentences? The approach in the two groups of cases points to the latter. It is, however, to be noted that in the Brodziak group of cases the issue was not the particulars of the offences referred to but the fact that some of them were not extradition offences. The required particulars of all the offences for which the composite sentence was given were in the EAW and what I have described as the matter of substance so far as the validity of an EAW is concerned was satisfied. I have concluded that, provided the underlying matter of substance is addressed and that the protection required by the requested person can be accorded, that approach does not open to the door to an impermissible transient state of validity. Rather it gives the EAW under consideration a broad purposive construction when considering whether it is valid or not. The reasons for giving it such a construction boil down to the need to reflect the principle of mutual trust and the fact that difficulties in interpreting the language used by the IJA in the EAW result from the fact that warrants are addressed to the courts in different legal systems and need to be construed accordingly.

With that introduction, I have concluded that the significant aspects of the decisions summarised in section III of this judgment are as follows. First, in Echimov’s case, despite stating in section 1 of box (e) that the EAW related in total to one offence, in section 2 of that box information is given about two offences only one of which is particularised. It was thus apparent that extradition was being sought in relation to two separate offences. The consequence was that the EAW did not comply with what I have described as the “basic position”; that “the” offence in section 2(5)(b) is the offence or offences for which extradition is sought and in respect of which by section 2(6)(b) it is a mandatory requirement that particulars be given. I do not consider that Echimov’s case is justified solely because the unparticularised offences were dealt with in box (e). It may be easier to conclude that extradition is being requested for offences for which the mandatory requirements of section 2 have not been met where all the material is found in box (e), but EAW as a whole has to be considered and other parts of it may show that the requested person was sought to serve a sentence for an unparticularised offence so that the EAW is not valid.

Secondly, in Bohm’s case the IJA had made it clear that it did not seek to interpret the EAW to mean that the total sentence for the fraud offences for which particulars were given in the EAW had been imposed to reflect the fact that the requested person had an earlier conviction for a sexual offence and that previous conduct was an aggravating circumstance that increased the sentences for the fraud offences. The only other interpretation of the EAW was that Bohm was to serve a total sentence in respect of the earlier conviction for sexual offences of which no particulars had been given, a sentence which was more severe than that for the fraud offences. As the protection required by the underlying matter of substance was not provided, the EAW was not valid.

The question is whether the circumstances of those two cases differ from those in Presecan’s case. In that case, box (e) of the EAW stated that extradition was sought only for the commercial burglary, which was properly particularised and did not refer to another offence. However, the statement in box (c) about the remaining sentence to be served was in the terms set out at [33] above, that is, it referred to the revocation of probation for the unexecuted part of the previous sentence and stated that it was merged with the heavier sentence for the commercial burglary and the sentence “thus … has been established [as] the heaviest penalty of two year imprisonment”.

The question is whether Presecan’s case was one in which, as in Bohm’s case, the sentence to be served included a period in respect of the earlier unparticularised offence or whether it remained purely one for the particularised commercial burglary. Only in the latter case would the EAW be valid. But the terms of box (c) do not sit comfortably with those of box (e), which stated that extradition was requested only for the commercial burglary. They are also an example of the failure to explain what is meant by a merged sentence. The reference in box (c) is to the “heaviest penalty of two year imprisonment”. That is the sentence for the commercial burglary and for that reason I do not consider that “on the plain wording of box (c)” the sentence is in relation to the unparticularised offences as well as the particularised ones. Although it is understandable that the judge concluded that it was, the effect under Romanian law of the merger in that case was not known. As in Bohm’s case, any doubt or ambiguity might have been resolved by further information from the IJA as to the effect of a successful appeal for the burglary.

Mr Knowles is correct to submit that Arranz’s case shows that the fact that an offence which has been merged with the offence which is the subject of the request for extradition and dealt with in box (e) has not been particularised is not in itself fatal to the validity of the EAW. Mr Jones and Mr Wolstenholme correctly argue that account must be taken of the fact that there was no way that Arranz would serve more than the 30 years for the two offences particularised in the EAW which is the maximum permitted under Article 30 of the Spanish Criminal Code.

That, however, does not get them home. First, the proposition (see [93] above) that where a sentence relates to another conviction in any way the conviction must be particularised is inconsistent with Arranz. Secondly, and somewhat inconsistently with that proposition, Mr Jones recognised (skeleton argument, paragraph 9.10) that an EAW which sets out a number of distinct sentences for which extradition is sought but particularises the convictions in relation to some offences and not others is not necessarily invalid. It appears that he thus draws a distinction between distinct sentences and merged sentences for a number of convictions. He stated that the effect of the Multiple Offences Order “could be that the EAW may … be severed and treated as a valid warrant in respect of some sentences and convictions … but not for those sentences in relation to which the convictions in relation to which they were imposed have not been particularised”. I do not consider that the distinction made between distinct and merged sentences should have a different effect on the validity of the EAW. After all, the Pilecki, Kuchera and Brodziak line of cases show that single composite sentences do not render the EAW entirely invalid and can in certain circumstance in effect be disaggregated in the way I have described.

As to the Multiple Offences Order, I reject the submissions of Mr Jones which Mr Wolstenholme adopted. First, the approach of the court in the cases of Taylor, Kubun and Polczynski (see [48] – [50] above) cannot be confined to accusation warrants either as a matter of principle or on the construction of the relevant provisions of the 2003 Act and the Order. The argument summarised at [96] above that they are so confined is based on the fact that the Order applies where the word “offence” is used and while it is used in section 2(4)(c) in respect of accusation warrants, it not used in section 2(6)(b) in relation to conviction warrants. The word is, however, used in section 2(5)(a) and (b) which describe the statements in conviction warrants. The effect of paragraph 1(1) of the Schedule to the Order is that the word is to be construed as a reference to “offences (or extradition offences)”. It would make no sense for the statement to relate to multiple offences but the information required in such cases not to do so. Secondly, for the reasons given earlier in this judgment I reject the submission that the Order can have no effect on the validity of an EAW that is issued in respect of a single sentence which was imposed for a number of convictions not all of which have been particularised.

I also reject the submission that a condition precedent for the application of the Order is the existence of a valid EAW determined by section 2 without regard to the Order. Section 2(1) of the 2003 Act provides that the section applies if the designated authority “receives a Part 1 warrant in respect of a person”. Article 2(2) of the Order provides that where “a Part 1 warrant is issued for more than one offence” and “a request for extradition is made in respect of more than one offence” the Act has effect with the modifications in the Schedule. The Order thus makes textual amendments to the 2003 Act, including, albeit not specifically to section 2, and consequently modifies the qualifying tests for validity in the case of multiple offences. I have concluded that in determining the validity of an EAW account must be taken of the Order. In these circumstances, ascertaining whether an EAW is valid without regard to the Order would largely destroy the purpose behind the Multiple Offences Order.

If the “logically antecedent”/condition precedent argument applies to the Order, in principle it would also apply to the unmodified section 2, section 2(1) of which provides that it applies if the designated authority “receives a Part 1 warrant”. (Footnote: ³) That cannot be what the framers of the legislation intended. I accept Mr Knowles’s submission that section 2(1) should be read as referring to a “purported Part 1 warrant”, that Article 2(2) should also be so read, and the court should then consider whether the requirements of the section have in fact been met to determine whether or not the EAW is valid.

The discussion above shows that where it appears from the terms of an EAW read as a whole that the IJA is seeking a return that would mean the requested person will serve a longer sentence than the sentences for the offences for which extradition is sought and that the total sentence is in respect of offences which have not been particularised rather than only aggravating those which have been particularised it will not be valid. As I stated at [9] above, particular care must be taken in ascertaining the meaning of the EAW in such cases. The fact that the EAW refers to a total sentence to be served that is longer than the sentence for the particularised offences is a strong pointer to construing the sentence as “originating from” and being for the unparticularised conduct. Of the cases before us, only the EAW in Pascariu’s case falls into this category. Care also has to be taken where there is a possibility that a requested person will serve a disaggregated shorter sentence in respect of an unparticularised offence, as in the circumstances contemplated in Presecan’s case if the conviction for the commercial burglary was set aside.

I now turn to the application of the approach set out above to the appeals before us.

Mr Jones relied on the fact that before the District Judge the case was presented on the basis that the sentence of six years imprisonment was ultimately imposed for the unparticularised assault as well as for the frauds and the forgeries. He submitted that in ordering extradition in those circumstances the District Judge fell into error and that fairness should prevent the IJA arguing that the sentence for the assault remained a fine for which extradition could not be ordered and had not been requested because there was insufficient time to check whether that was so.

In my judgment the EAW in this case was valid. There is no express reference in it to the assault, only an oblique reference in box (c) to the cancellation of a pardon pertaining to a sentence of a fine. There is reference to the mercury trafficking but it was clear below that extradition was not sought for that and Edutanu was discharged in respect of that offence. The assault was later referred to in the further information in an unclear and possibly erroneous manner. But that subsequent development does not (see Zakrzewski at [8] summarised at [20(ii)] above) affect the validity of the EAW. In any event, it now appears from the further information that the sentence for the assault remained a fine and that no custodial sentence was imposed for it.

For this reason, had extradition been sought for the assault, Edutanu’s case would have been substantially on all fours with Brodziak’s case. As it was, neither the trafficking nor the assault played any part in the extradition process. The EAW sought extradition only for the particularised fraud and forgery offences. For these reasons, I have concluded that Edutanu’s appeal should be dismissed.

It is clear from the EAW that Barbu’s return was requested for a single offence of theft for which he was sentenced to two years imprisonment. The EAW’s reference to the outstanding 707 days imprisonment in respect of an unparticularised previous offence being merged with the main theft offence makes this case appear to be on all fours with Presecan’s case. However, bearing in mind Davis J’s statement in Echimov’s case that all ultimately depends on the wording of the particular EAW, it is necessary to consider the wording of what is contained in boxes (b), (c) and (e) carefully. The lack of clarity and the failure in the EAW to explain which of the various meanings of “merged” has been used has meant that I have not found it easy to ascertain the meaning of the EAW when read as a whole.

Barbu’s case differs from Echimov’s because the merged offence is not named in box (e) as an offence for which extradition is sought. Despite the difficulty I have encountered in interpreting the EAW in Barbu’s case, in my judgment it differs from Presecan’s case because box (c) stated that Barbu was to serve the harshest sentence, namely two years imprisonment, which was the sentence for the particularised offence of theft.

Reading the EAW as a whole, i.e. taking account of box (e) when interpreting box (c) and doing so in a purposive way, I consider that the reference in the latter to the merged sentence does not mean Barbu would be serving a sentence for the unparticularised offences as well as the particularised offences. To assume that would be to disregard what is stated in box (e). Accordingly, I have concluded that the EAW was valid.

I recognise that the EAW does not expressly state whether, if the theft conviction is set aside, Barbu would be required to serve the 707 days in respect of the unparticularised offence and that it is clear that if the failure to do so means the EAW does not contain the information required by section 2(6) that failure cannot be cured by the further information. However, taking account of box (e) when interpreting box (c) and adopting the cosmopolitan and purposive interpretation with a view to helping the due operation of extradition requests and recognising that EAWs are not to be interpreted technically, for the reasons given above I consider that the failure to spell out the consequences of the fact that the sentence was merged does not in itself invalidate the EAW. In doing so, I take account of the fact that, notwithstanding the unusual circumstances in Arranz’s case, it showed (see [38] above) a more relaxed approach to section 2, provided the underlying matter of substance has been addressed. In those circumstances, the approach in Brodziak’s case would apply and extradition could be limited to particularised offences, relying on the mutual trust and confidence in the EAW scheme. In Barbu’s case there is in fact no need to limit the extradition because the further information in this case makes it clear that, if the main sentence was quashed, the merged sentence would go as well.

Smadeci’s case differs from the others before us because the February 2015 EAW under consideration, EAW2, while referring to the provision of the Romanian Criminal Code which deals with the merger of penalties for multiple offences, does not refer to any conviction other than that for the single offence of driving while disqualified, which is stated to be the offence for which his extradition is sought. It is only in the further information dated 29 May 2015 that it is stated that EAW2 “contained all nine criminal offences” and that eight previous convictions for driving while disqualified had been “merged” with the offence that was its subject. Those offences had been the subject of and particularised in the first EAW, EAW1, issued in August 2013, but withdrawn when EAW2 was served.

I do not consider that merely referring to the provisions of the criminal code about merger in EAW2 means that the sentence of one year and one month is in part for other unspecified offences. Accordingly, I accept Mr Knowles’s submission that no section 2(6)(b) question in fact arises and have concluded that EAW2 is valid. The fact that validity is not transitory means that the position is not affected by the further information about the offences which were the subject of the earlier EAW1 which was withdrawn although, for the reasons given below, that information raised more questions that it answered and meant that there might have been a case for limited extradition using the approach in Brodziak.

The possibility of limiting extradition in the way indicated in Brodziak’s case arose because the reference in EAW2 to the provision of the Romanian Criminal Code dealing with merger and the content of the further information, together with the possibility that Smadeci was in fact requested in respect of all nine offences. Before the District Judge there was no answer to that question. The very recent further information, however, makes it clear that the sentence of one year and one month was for the single offence but that the culpability for that offence was aggravated by the earlier offending in the way that Bohm’s case stated was not wrong or a reason to regard the EAW as invalid. Accordingly, it is not necessary to limit extradition by using the approach in Brodziak’s case. I would therefore allow the IJA’s appeal and remit this case.

I also observe that in the particular circumstances of Smadeci’s case, where he had been served with EAW1 containing the particulars of the eight earlier offences, it is likely that he knew to what conduct the reference in EAW2 to the provision of the Romanian Criminal Code dealing with merger related. It is thus probable that what I have referred to (at [102] – [103] above) as the underlying matter of substance was satisfied.

In this case, it is to be recalled that box (e) of the EAW stated that it related to counts of aggravated theft and bribery, which were particularised. The sentence for those totalled one year and 11 months imprisonment, but was merged into the heaviest penalty of one year and six months imprisonment. That information was given in box (c). Box (c) stated that “the total penalty to be executed is of three years and six months imprisonment”. That figure was the result of adding to the one year and six months for the offences that had been particularised in box (c) a sentence of two years imprisonment for earlier unparticularised offences, in respect of which suspended sentences were activated and a pardon and fine revoked. The penalties for the earlier, unparticularised offences were also merged into the heaviest penalty for those offences, two years imprisonment. There is no information as to what those offences are, and Pascariu is unable to raise any bars to extradition in relation to them.

Reading the EAW as a whole, as is required, and in particular the statement in box (c) that the total sentence was for a period that was two years longer than the sentence for the particularised offences, the total cannot only be for the particularised offences. This distinguishes the case from Presecan’s case, where the 381 day sentence for the unparticularised offence was less than that for the particularised one, and it could be said that the position was ambiguous. It also distinguishes this case from Brodziak’s case where (see Brodziak at [53]) there was no material difference as to the length of sentence to be served, whether the non-extradition offence was included or not. Accordingly, in Pascariu’s case, I have reached the clear conclusion that since the total sentence in the EAW clearly reflects sentences for the unparticularised offences in the same way as the EAW in Bohm’s case did, it does not meet the requirements of section 2.

I am reinforced in my conclusion by the fact that what I have referred to as the underlying matter of substance in the context of section 2 (see [100] – [102] and [125] above) has not been satisfied. The information in the EAW does not provide Pascariu with sufficient material to raise any bars to extradition. I accept Mr Wolstenholme’s submission that Mr Knowles’s submission, that extradition be granted only in relation to the particularised offences and that there is no risk of Pascariu serving a sentence for conduct for which he was not extradited, in effect runs the two stages of the process referred to in Zakrzewski’s case (see [22] above), whether the mandatory requirements of section 2 have been satisfied and the EAW is valid and whether limited extradition should be granted in respect of a valid EAW because of concerns, together. Brodziak’s case is distinguishable because in that case the EAW contained sufficient particulars of the conviction and sentences to satisfy the underlying matter of substance.

I consider that the material recently provided by the IJA confirms my understanding of the meaning of the EAW. Had the EAW been valid, then the strength of the presumption that Part 1 countries will abide by their obligations and the way that presumption was applied in Brodziak’s case despite the unsatisfactory nature of the response received from the IJA in that case would have meant that the unsatisfactory response in this case would have had to have been discounted. The court may well have had to assume that, notwithstanding the terms of the response, since specialty is implemented into Romanian domestic legislation, there would be a remedy under Romanian law, even if the sentencing court or judge himself or herself had no power to fragment the serving of a sentence that had previously been issued as a total in a final sentence, as stated in the recent reply. But in any event, the recent response suggests that there is no remedy in Romania similar to the provisions of the Polish Criminal Procedure Code referred to in Brodziak’s case (at [56]) for the protection of specialty and for a remedy should specialty rights be infringed. For these reasons, in my judgment the decision of the District Judge should be affirmed and this appeal dismissed.

Accordingly, if my lord agrees:

I agree.