The defendant was tried for offences relating to indecent images of children. The jury found him guilty on three counts of breaching a Sexual Offences Prevention Order and 13 counts of making indecent images of children. However, shortly before the jury had delivered their verdicts, the defendant absconded and travelled to the Republic of Ireland. The United Kingdom was at that time a member state of the European Union. Pursuant to Council Framework Decision 2002/584/JHA a European arrest warrant was issued which recorded that the defendant had been convicted and that his surrender was sought for sentence (“the conviction warrant”). The defendant was arrested under that warrant in Ireland within a few days of arriving there and remanded in custody. However, he resisted extradition and the proceedings had not finished when, after some 21 months in custody, he was released. While the extradition process was ongoing, he was sentenced in his absence to concurrent terms of 12 months’ imprisonment on each count of breaching the Sexual Offences Prevention Order and a consecutive term of 30 months’ imprisonment for making indecent images of children. After leaving Ireland the defendant went to Romania where a further European arrest warrant was issued seeking his surrender to stand trial on further sexual offences (“the accusation warrant”). After spending 17 days in custody in Romania he was surrendered to the UK where he remained in custody until his trial and conviction of offences of indecent assault, rape of a girl under 13, sexual assault of a child under 13 and cruelty to a person under 16, for which he was sentenced to an extended sentence of 26 years, consisting of a custodial term of 21 years and an extended licence period of five years. He appealed against sentence, contending that he should have received credit for the 21 months he spent on remand in Ireland and the 17 days spent on remand in Romania.
On the appeal—
Held, appeal allowed in part. (1) The UK had implemented its obligations under article 26 of Chapter 3 of the Framework Decision, headed “Deduction of the period of detention served in the executing Member State” in two separate statutory provisions: section 245 of the Criminal Justice Act 2003, which applied to prisoners tried or sentenced after having been extradited, and section 49(3A) and (3B) of the Prison Act 1952, which applied only to those extradited from category 1 territories under conviction warrants. The difficulty facing the defendant was that section 243 of the 2003 Act did not apply to him when he was sentenced for the earlier offences, because he was not tried or sentenced “after having been extradited to the United Kingdom”; on the contrary, he was sentenced in absentia because efforts to extradite him from Ireland had failed. Furthermore, after he was extradited from Romania, section 49(3A) of the 1952 Act could only apply in relation to the 17 days he had spent in custody in Romania, since that was the category 1 territory from which he had been extradited. It followed that the judge sentencing the defendant for the earlier offences could not properly have specified under section 243 of the 2003 Act the time spent by the defendant in custody in Ireland. Moreover, his location was not known, and it followed that he might still be extradited from Ireland. If that happened, section 49(3A) of the 1952 would apply. In those circumstances, the only course open to the judge was to do as she did, which was to sentence without reference to the time spent in Ireland (paras 11, 14, 19).
(2) When sentencing the defendant after conviction of the offences alleged in the accusation warrant, section 243(2) of the 2003 Act required the court to “specify in open court the number of days for which the prisoner was kept in custody while awaiting extradition. Section 243(2) had to be read with section 243(1) which defined “extradition prisoner” materially for present purposes as (a) someone tried for an offence “after having been extradited to the United Kingdom” and “without having first been restored or had an opportunity of leaving the United Kingdom” who (b) was for any period kept in custody while awaiting his extradition to the United Kingdom “as mentioned in paragraph (a)”. That last phrase seemed to indicate that the custody referred to was custody while awaiting the extradition which led to the trial. In the present case, that meant the 17 days spent in custody in Romania in relation to the accusation warrant, not the 21 months spent in custody awaiting an extradition that never occurred from a different territory. The question then arose whether section 243 should be “read down” to achieve consistency with article 26(1) of the Framework Decision. However, that paragraph could not be read on its own. Article 26(2) imposed a requirement on the “executing judicial authority” to transmit to the issuing judicial authority “all information concerning the duration of the detention of the requested person on the basis of the European arrest warrant”. That made sense only if the “periods of detention arising from the execution of a European arrest warrant” referred to in article 26(1) were those spent in detention in the executing state (ie the one from which the requested person was in fact extradited). That state could hardly be expected to transmit information about the duration of detention in a different state. Therefore, section 243 of the 2003 Act and section 49(3A) of the 1952 Act, taken together, properly implemented the UK’s obligations under article 26(1) of the Framework Decision and no “reading down” was required. Nor did fairness require the courts to go behind the scheme provided by Parliament or to fill gaps in that regime. The only reason the defendant was not entitled to credit for the time spent in custody on remand in Ireland was that, having first absconded to Ireland, he then fled again, to Romania, in a second attempt to evade justice. Accordingly, the only error was that the judge passing sentence for the accusation warrant offences should have specified the 17 days spent in custody in Romania as time spent under section 243(2) of the 2003 Act and to that very limited extent the appeal would be allowed (paras 21–22, 23, 24, 25, 28, 29, 30, 40).
Simon Csoka KC (assigned by the Registrar of Criminal Appeals) for the defendant.
Paul Jarvis (instructed by Crown Prosecution Service, Appeals Unit) for the Crown.