Korcala v Polish Judicial Authority [2017] EWHC 167 (Admin), [2017] MHLO 18

"This extradition appeal involves essentially two questions: (i) If a person has been found incapable of committing a criminal offence in the country in which he was tried because of mental illness, but has been ordered to be detained indefinitely in a mental hospital, has he been 'convicted' for the purposes of Part 1 of the Extradition Act 2003 ('EA')? (ii) If that person then flees the mental hospital and is wanted for a prosecution for that offence, would there be an equivalent offence if the events had taken place in England so that the double criminality requirement is satisfied and the offence qualifies as an 'extradition offence'?"

ICLR

The ICLR have kindly agreed for their WLR (D) case report to be reproduced below.

Queen’s Bench Division

Korcala v Polish Judicial Authority

[2017] EWHC 167 (Admin)

Beatson LJ, Nicol J

Extradition — European arrest warrant — Conviction warrant — Requested person charged with criminal offence in Poland but proceedings discontinued due to mental illness — Court ordering requested person to be detained in mental hospital — Requested person fleeing mental hospital — District judge ordering requested person’s extradition on conviction warrant in respect of first offence — Whether requested person “convicted” — Extradition Act 2003 (c 41), Pt 1 — Council Framework Decision2002/584/JHA, arts 1(1), 2(1)

A person who has been found incapable of committing a criminal offence in a category 1 territory in which he was tried because of mental illness, but who has been ordered to be detained indefinitely in a mental hospital by the judicial authority, has been “convicted” for the purposes of Part 1 of the Extradition Act 2003. That Part of the 2003 Act is intended to give effect to Council Framework Decision 2002/584/JHA, which extends beyond custodial sentences to include such detention orders. Where a person who has been found to have done the acts complained of is subject to a detention order as a consequence of criminal proceedings against him, it does not matter that the criminal proceedings did not end with a finding of guilt. Furthermore, the principle of conforming interpretation is broad enough to allow the 2003 Act to be interpreted so that the terms “convicted” and “sentence” in section 2 and section 65 respectively are broad enough to embrace the type of detention order made in relation to such a person (paras 32, 44, 48, 52, 53, 56).

Cretu v Local Court of Suceava, Romania [2016] 1 WLR 3344, DC applied.

Where, therefore, a conviction European arrest warrant alleged that the criminal proceedings against the requested person in Poland had been discontinued following the presentation of reports as to the requested person’s mental illness and his detention in a mental hospital had been ordered by a Polish district court, and a district judge found that the order made by the judicial authority had been “another form of detention” within section 2(5)(b) of the 2003 Act which was sufficient for the warrant to satisfy section 2 of that Act and ordered the requested person to be extradited pursuant to that warrant, and the requested person appealed—

Held, dismissing the appeal, that the detention order was sufficient for the warrant to satisfy the requirement of section 2 of the 2003 Act that the requested person had been “convicted” (paras 56, 61, 62).

Appearances:

Alun Jones QC and Martin Henley (instructed by Lewis Nedas) for the requested person.

Ben Lloyd (instructed by CPS Extradition Unit) for the judicial authority.

Reported by: Fraser Peh, Barrister

External links

BAILII

ICLR - [2017] WLR(D) 84