Korcala v Polish Judicial Authority

This extradition appeal involves essentially two questions:

By an application to amend the Notice of Appeal, the Appellant, Piotr Tadevsz Korcala, also wishes to argue that it would be contrary to his rights under Article 8 of the European Convention on Human Rights to extradite him given the length of time that he has spent on remand pending the determination of Poland’s requests for his extradition.

The appeal is against the decision of District Judge Zani who, on 6^th July 2016 ordered the Appellant to be extradited to Poland on two European Arrest Warrants (‘EAWs’). EAW1 was an accusation warrant. It alleged that on 19^th December 2015 the Appellant had fled the closed psychiatric ward of a mental hospital by climbing through a toilet window. EAW2 was a conviction warrant and alleged that the Appellant had been ordered by the Krakow District Court to be detained indefinitely in a secure mental hospital on 24^th March 2009. He had faced charges of murder (on 21^st May 2006), robbery (on 20^th February 2006) and damage to an ambulance (on 28^th May 2006), but, following the presentation of reports as to the Appellant’s mental illness (schizophrenia and cross-addictions to narcotics and alcohol), the criminal proceedings had been discontinued and his detention in a mental hospital had been ordered instead.

In considering the arguments dealt with by the District Judge, it is sufficient for me to refer exclusively to the matters which are pursued on the present appeal.

EAW1 (the accusation warrant) required the District Judge to consider whether the offence for which Poland wished to prosecute the Appellant was an ‘extradition offence’ – see EA s.10. For an accusation EAW, this expression is defined in EA s.64 and, relevant to the present case, particularly s.64(3)(b), namely,

In this case the Judicial Authority argued that, if the same events as occurred on 19^th December 2015 had occurred in England, the Appellant would have committed the common law offence of escape. The District Judge accepted this argument. Having dismissed other objections to EAW1, the District Judge, as I have said, ordered the Appellant’s extradition on that warrant.

EAW2 (the conviction warrant) required the District Judge to consider whether the warrant satisfied the requirements of EA s.2. So far as is relevant to this case, s.2 provides,

Here the District Judge found that the order made by the Polish Court in 2009 had been ‘another form of detention’ within s. 2(5)(b) which was sufficient for EAW2 to be a warrant which satisfied EA s.2. Again, after considering other matters which are not relevant to the present appeal, the District Judge ordered the Appellant to be extradited on this warrant as well.

In answering this question it was common ground that the court’s task was to consider the essence of the alleged acts and the substance of the criminality charged, ignoring the adventitious circumstances connected with the alleged conduct – see Norris v Government of the USA [2008] 1 AC 920.

In the present case, as I have said, the Respondent argued that, if the events had taken place in England, the common law offence of escape would have been committed.

In E v DPP [2002] EWHC 433 (Admin) the Divisional Court (Kennedy LJ and Forbes J.) adopted and approved a passage from the then current edition of Archbold Criminal Pleading, Evidence and Practice 2002 and said at [9],

Later in his judgment Forbes J. turned to the question of what amounted to ‘custody’. He said,

Paragraph 19 was quoted by David Steel J. in the Court of Appeal Criminal Division case of R v Dhillon [2006] 1 WLR 1535 at [16].

Mr Alun Jones QC for the Appellant argues that the common law offence applies only where the defendant is in custody pursuant to criminal proceedings or a criminal sentence. That was the immediate context of E v DPP and Dhillon. He argues that it would be wrong to extend the meaning of custody to other contexts. He refers us to what Lord Bingham said in R v Rimmington [2006] 1 AC 459 in the context of the common law offence of public nuisance. At [33] Lord Bingham said,

He argues that people subject to compulsory detention in mental health hospitals must have absconded frequently in the past and yet there is no recorded instance of a prosecution for the common law offence of escape. That suggests that the common law offence is not so broad as to cover such a situation and to enlarge it now would be an example of the large leap which Lord Bingham condemned.

Mr Jones also submitted that, in this country, the Mental Health Act 1983 drew a distinction between compulsory detention, on the one hand, and ‘custody’ on the other. He comments that a person may be ‘sectioned’ (i.e. compulsorily admitted to a mental hospital under s.2 of the 1983 Act) without a court order. A hospital order may be made by a Crown Court under s.37 of the Act and an Interim Hospital Order could be made by the Crown Court under s.38. Both provide for the detention of the person concerned – see s.37(1), s.38(4) and the effect of such orders is to authorise the managers of the hospital to admit and detain him - see s.40(1)(b).

Mr Jones drew attention to s.137 of the Mental Health Act 1983 which says,

Mr Jones also argued that the distinct use of ‘custody’ in the Mental Health Act 1983 was also reflected in s.17 which dealt with leaves of absence from a hospital for a patient. This leave could be granted by the responsible clinician, but – see s.17(3) - the clinician could also direct that the patient remain in custody during his absence, and, in those circumstances, the patient would be ‘kept in the custody of any officer or the staff of the hospital’. If a patient absented himself from the hospital without leave, he could be taken into custody and returned to the hospital – see s.18(1), but not if the patient had been absent for more than 6 months – see s.17(4) (the time limitation does not apply if a s.41 restriction order is made – see s.41(3)). Mr. Jones argued that these provisions were inconsistent with the idea that a compulsorily detained patient who ‘escaped’ was guilty of the common law offence. Likewise, s.128 of the 1983 Act created the offence of assisting patients to absent themselves without leave. This would have been unnecessary if they would anyway be guilty as secondary parties to the common law offence of escape.

Mr Jones also referred us to R v Soul (1980) 70. Cr. App. R. 295 in which the Appellant and another had been charged with conspiracy to commit a public nuisance in that they had planned to bring about the escape of a patient from Broadmoor. The appeal against conviction was dismissed. Mr Jones comments that no one seems to have considered charging the Appellant with a conspiracy to bring about the common law offence of escape. He also observes that Soul was criticised by Lord Bingham in Rimmington at [20] and [36].

None of the old treatises on the common law suggested that ‘escape’ could be committed by lunatics who were lawfully detained. Mr Jones referred us to Hawkins’ Pleas of the Crown (1721), Hales’ Pleas of the Crown (1736), Blackstone’s Commentaries on the Laws of England (1809) and Russell on Crime (1964).

I do not accept any of Mr Jones’ arguments on this matter. In my judgment, the District Judge was right to find that the accusation warrant was for an extradition offence because, if the same conduct occurred in England, it would constitute the offence of escape.

The ingredients of that common law offence are clearly established by E v DPP and Dhillon. The court has first to ask whether the defendant was in ‘custody’. As the Court of Appeal said in R v Montgomery [2007] EWCA Crim 2157 at [12]

With these modern authorities directly on the point, I did not find Mr Jones’s references to the old text books to have been helpful (diligent though it showed the researches of him and his team to have been).

Immediately before the Appellant climbed out of the toilet window he was plainly confined in the secure hospital. His freedom of movement was obviously curtailed. He was detained. He was in custody. There is no dispute that the custody in which he was kept was lawful or that (by climbing through the window) he escaped from it.

It seems to me that what has to be transposed to England to decide whether the same conduct in England would constitute an offence is the essence of the entire factual situation. In my view, whether he was in ‘custody’ in Poland can only be answered by reference to the factual and legal situation in Poland. The Court’s task is then to ask whether, on that basis and if those facts occurred in England, there would be an offence. I do not, therefore, see any scope for comparing the position if the Appellant had been found Not Guilty by reason of insanity and been detained under a Hospital Order in accordance with the requirements of the Criminal Procedure (Insanity) Act 1964 and with or without a restriction on release pursuant to Mental Health Act 1983 s.41.

However, if I am wrong about that, then I would also conclude that he would then have been ‘in custody’ for the purposes of the common law offence. As I have shown, a Hospital Order is authority for the managers of the hospital to detain the person concerned. I see no distinction of any significance in the terms ‘detention’ and ‘custody’ in s.137 (or any other relevant part of the Mental Health Act 1983). That means they may curtail the person’s freedom of movement. The first and critical element of the common law offence would be established. I do not accept that the enactment of s.128 of the 1983 Act impliedly restricted the common law offence and meant it was of no application to detained mental patients. This would not be the first time that a statutory and a common law offence had an element of overlap.

I see nothing in this which is contrary to Lord Bingham’s principles in Rimmington. My conclusions involve no great leap. If, as Mr Jones submitted, the common law offence of escape has not previously been used in such circumstances, there is an element of novelty. But the application of established requirements or elements of an offence to a new situation is not antithetical to Lord Bingham’s principles.

I agree with Mr Lloyd, for the Respondent, that Lord Bingham’s criticisms of Soul in Rimmington were directed to its treatment of the different common law offence of public nuisance. They do not help with the present issue.

The District Judge was provided with a copy of the Polish Court’s judgment in 2009. This concluded as follows:

The formal order of the Court then recorded that the criminal proceedings were dismissed.

I have quoted the current version of EA s.2 above. The words ‘has been convicted’ were substituted by the Police and Justice Act 2006 for the previous version which said, ‘is alleged to be unlawfully at large after conviction’. The parties were agreed that nothing turned on this alteration.

This Part of the 2003 Act was intended to give effect to the Framework Decision of 13^th June 2002 (2002/584/JHA) (‘the Framework Decision’). Article 8 of the Framework Decision prescribed the content and form of the European Arrest Warrant. Article 8(1)(c) said,

Article 1 of the Framework Decision provides,

Article 2 of the Framework Decision says,

The Preamble to the Framework Decision included the following:

The European Convention on Extradition to which paragraph 3 of the Preamble referred set out its objective in Article 1 which said,

Relevant to the present issue, Article 25 of the Convention provided a definition of the term ‘detention order’ which was,

In its published Proposal for a Council Framework Decision on the European arrest warrant and the surrender procedures between the Member States on 19^th September 2001 (COM(2001) 522 final) the Commission proposed that the Decision should include an Article setting out definitions and that these should include a definition of a ‘detention order’ which mirrored the definition in Article 25 of the 1957 Convention - see Article 3(e) of the Commission’s draft. In the event, the final version of the Framework Decision did not include an article setting out any definitions as such (although some of them were reflected elsewhere in the Framework Decision).

Mr Jones’ argument is simple. The criminal proceedings against the Appellant were dismissed. He was not, therefore ‘convicted’ of the offences with which he had been charged. Correspondingly, the order of commitment in the secure psychiatric hospital was not a ‘sentence for the offence’. Consequently, EAW2 did not accord with s.2, nor could the offences constitute ‘extradition offences’ for the purpose of EA s.65.

Furthermore, Mr Jones submitted, the order made by the Polish court was not punishment, but a preventative measure made to protect the public in Poland and for the purpose of treating the Appellant. According to Polish law, it was subject to a review every 6 months by a court and the Appellant would be released if the court considered that further confinement was unnecessary.

Mr Jones argued that the Extradition Act was so clear that there was no scope for interpreting it any differently by reference to the Framework Decision. But, in any case, no different interpretation was required in consequence of the Framework Decision. Paragraph 5 of the Preamble spoke of the purpose of the Decision as introducing a ‘simplified system of surrender of sentenced or suspected persons for the purposes of execution or prosecution of criminal sentences.’ Although Article 2(1) spoke of a ‘detention order’ as an alternative to ‘sentence’, Mr Jones submitted that punishment had to be at the heart of both expressions.

Mr Jones referred to Bowen v Government of the USA [2016] EWHC 1400 (Admin) where the Divisional Court had held that the possibility of a civil commitment order after the service of a sentence for the extradited offence might breach the specialty principle. The Court in Bowen held it would not because the measure was a civil and not a criminal process. The Court quoted R (R) v Durham Constabulary [2005] 1 WLR 1184 (HL) at [14] where Lord Bingham had said,

So, too, Mr Jones argued, the commitment order made in the Appellant’s case was of a purely preventative purpose and civil, not criminal, in character. There was, he frankly submitted, a lacuna in the European arrangements for dealing with those who were compulsorily kept in mental hospitals.

Mr Lloyd argued that we are obliged to interpret the Extradition Act to give effect to the Framework Decision so far as it is possible to do so without contradicting the clear intent of the legislation – see Cretu v Local Court of Suceava, Romania 2016] EWHC 353 (Admin) at [14] – [18] approved by the Supreme Court in Goluchowski v District Court in Elbag, Poland [2016] 1 WLR 2665 at [46]. This is known as the ‘principle of conforming interpretation’.

He observed that the Framework Decision in Article 1(1) said that one of the purposes of the European Arrest Warrant was to achieve the surrender of a requested person ‘for the purposes of … executing a custodial sentence or detention order’ and Article 2(1) defined the scope of an EAW as including where ‘a sentence has been passed or a detention order has been made, for sentences of at least four months.’ Thus, Mr Lloyd submitted, it was clear that the EAW system was not limited to the enforcement of custodial sentences, but also embraced a wider category of ‘detention orders’.

He drew attention to the European Convention on Extradition 1957 and the definition of a ‘detention order’ for the purposes of that Convention in Article 25. As already shown, a like definition of a ‘detention order’ was included in the Commission’s draft for the Framework Decision. Even though that express definition was not included in the final text of the Framework Decision, it was unlikely that the European Council (whose Decision it was) intended the term to have a narrower meaning than had prevailed in the 1957 Convention. The type of order which had been made in Poland for the Appellant’s detention in a secure mental hospital was a clear example of an order that was ‘made by a criminal court… instead of a prison sentence’.

Mr Lloyd argued that the principle of conforming interpretation could, and should, be applied to give the terms used in the EA comparable meanings. The Appellant had not been ‘convicted’ in the strict sense in Poland, but the Polish court had found that he had done the acts which constituted the offences of murder and robbery. Its procedures were therefore very similar to what would have been required in England under the Criminal Procedure (Insanity) Act 1964. Here, too, if a defendant is found not guilty by reason of insanity (s.1 of the 1964 Act) or unfit to plead (s.4), but did the acts which constitute the offence (see s.4A) the Court has powers to make certain orders as if he had been convicted (see ss.5 and 5A). They included a Hospital Order under s.37 of the Mental Health Act 1983, with or without a restriction under s.41. Thus the outcome of the procedure is treated as analogous (at least in some respects) to a conviction. Furthermore, both s.2 and s.65 referred to ‘another form of detention’ as an alternative to a sentence.

I accept the arguments of Mr Lloyd.

It is, of course, necessary to address the omission of the express definition of a ‘detention order’, as proposed by the Commission, in the final version of the Framework Decision. But silence is, at best ambiguous. I note also that the Supreme Court had to deal with a similar drafting sequence in Assange v Swedish Prosecution Authority (Nos. 1 and 2) [2012] 2 AC 471. In that case the Court had to consider whether the expression ‘judicial authority’, which recurs throughout the Framework Decision, could include a public prosecutor. The Court considered the same European Convention on Extradition which had included a definition of the term ‘judicial authority’ and which expressly included public prosecutors. The Court also considered the Commission’s draft for the Framework Decision (what it called ‘the September draft’) which included the same definition (and so which again expressly included a public prosecutor) but had to confront the fact that the final text of the Framework Decision omitted the definition.

Of course the immediate question which faced the Supreme Court was different to that which we have to ask, but what is interesting is that the drafting history and the omission of an express inclusion of a public prosecutor in a definition of ‘judicial authority’ did not lead the majority to conclude that the drafters of the Framework Decision had deliberately decided to narrow the meaning of that term.

The general purpose of the new system was to simplify and expedite the procedures for surrender. There is no indication that it was to narrow the scope of the existing arrangements. Just as Lord Phillips and Lord Kerr would have expected some clearer indication of intent if the Framework Decision was meant to narrow the term ‘judicial authority’ so as to exclude public prosecutors, so, too, I would have expected a clearer indication than there is had the drafters intended to adopt a narrower meaning for the term ‘detention order’ than had previously existed. I acknowledge that for other members of the majority in Assange (Lord Dyson and Lord Walker) the differences in the scheme of the Framework Decision by comparison with what had gone before were so great that no conclusions could be drawn from the way that the European Convention on Extradition had operated.

But even if I set aside the ‘legislative’ history of the Framework Decision, I would still agree that the Framework Decision was intended to extend to a situation such as the present one. As Mr Lloyd submitted, it expressly extends beyond ‘custodial sentences’ to other detention orders. The Appellant was subjected to a detention order and this was the consequence of criminal proceedings against him for the most serious criminal offences. It is true that the criminal proceedings did not end with a finding of guilt, but that was only because the Appellant’s mental illness meant that he could not have had the necessary criminal mental state. It was found that he had done the acts complained of. All of this leads me to conclude that the term ‘detention order’ as used in the Framework Decision included the order made in the Appellant’s case.

Furthermore, in my judgment the principle of conforming interpretation is broad enough to allow the Extradition Act to be interpreted in the same way, so that the terms ‘convicted’ and ‘sentence’ in s.2 and s.65 are broad enough to embrace the type of order made in relation to the Appellant. I also note that the Criminal Procedure (Insanity) Act 1964 s.5A treats a finding of unfit to plead or not guilty by reason of insanity as equivalent to a conviction.

Bowen does not lead me to the opposite conclusion. In that case the Court had to consider whether the possibility of civil commitment in New York would offend the principle of specialty. If it did, the Secretary of State could not have ordered his extradition – see EA s.95(1). The question in that case turned on whether civil commitment proceedings would mean that Bowen ‘was dealt with…for an offence committed before his extradition’. The issue was therefore different from the one which we are considering. However, of particular importance is that this was a case under Part II of the Extradition Act. Consequently, the Framework Decision could, and did, play no part in the Court’s deliberations. The principle of conforming interpretation had no application.

In any case, as Mr Jones recognised, it would be a Pyrrhic victory for the Appellant to succeed on this ground in relation to EAW2, but be extradited in response to the accusation warrant, EAW1. If, consistent with Mr Jones’ argument, continuing detention in a psychiatric hospital in accordance with the order of the Court in 2009, is a civil rather than a criminal measure, there could be no specialty objection to it being reinstated after the Appellant’s return to Poland. Since I have rejected Mr Jones’ argument, that sting in its tail is of only hypothetical interest.

For all of these reasons, I would reject Mr Jones’ submission that the District Judge was wrong to reject the Appellant’s challenge to EAW2.

The District Judge rejected an argument that extradition would be incompatible with the Appellant’s rights under the European Convention on Human Rights. Mr Jones would wish to argue that the position is different now because of the length of time that the Appellant has been held on remand in the UK.

The Appellant was arrested on 3^rd March 2016 and has therefore been held for just under 11 months and will have been held for about a year before he is returned. EAW1 says that the maximum sentence is 2 years imprisonment. There appear to be no aggravating circumstances in his ‘escape’. Mr Jones’s skeleton argument says ‘no doubt [he will be] entitled to some automatic reduction from the sentence imposed.’ In addition, the Appellant had been held in Wandsworth prison (and not in a mental hospital in the UK). He was not taking any anti-psychotic medication. He gave evidence to the District Judge that he had been seen by three psychiatrists while in Wandsworth and they could see no reason for him to be held in a secure hospital. An email from one of the psychiatrists, Dr Nigel Blackwood, consultant forensic psychiatrist at Wandsworth supported this view.

I am not persuaded that these matters give Mr Jones an arguable additional ground of appeal. It is not for the English court to speculate as to the sentence which the Appellant might receive for his escape. There is no evidence as to what provisions exist in Poland for the reduction of sentences, whether automatic or otherwise. I must, of course, assume that the Polish court will give the Appellant credit for the time spent on remand in the UK since that would be required by the Framework Decision, Article 26. This, however, is not a case where no further custodial term could be imposed in light of the time spent on remand here. We were told in a witness statement of the Appellant’s solicitor, Anna Matelska, that the psychiatric evidence had been presented to the Polish Court as recently as 17^th January 2017, but it had not persuaded that Court to discharge the Appellant.

I would therefore refuse the Appellant permission to add this extra ground of appeal.

It follows that I would dismiss the Appellant’s appeal against the extradition order on both EAW1 and EAW2.

I agree.