Written by: Stefan Hyman
This post concerns the judgment of Fordham J in Marosan v Court of Cluj-Napoca  EWHC 3098 /  WLR(D) 594 (19 November 2021), which held that Article 26 of the EAW Framework Decision (EAW FD) requires the issuing Member State to deduct, from a term of imprisonment , periods of ‘dual remand’ comprising contemporaneous (i) remand on an European arrest warrant (EAW) and (ii) remand in domestic criminal proceedings, where the latter is not then counted towards a custodial sentence. Certification and leave to appeal, sought by the CPS, were refused by a separate judgment of 28 January 2022 (Marosa v Court of Cluj-Napoca  EWHC 169 (Admin)).
The post also briefly touches upon a broader issue disclosed by this judgment, namely the responsibility of an English extradition court to ascertain what would be required of a foreign court upon surrender under under the EAW FD, the Trade and Cooperation Agreement 2020 (TACA), or EU law more broadly.
The principle: detention arising from the EAW to be deducted
Under Article 26(1) EAW FD, an issuing Member State must deduct any period of detention arising from the execution of an EAW from the overall sentence in the executing Member State. To that end, under Article 26(2) EAW FD, the executing Member State must provide information about time spent in detention the basis of the EAW. In practice, the NCA is supposed to pass this information to the competent authority in the requesting state when a requested person is surrendered. The CJEU has interpreted this provision only once, in Case C-294/16 PPU JZ, in which it was held that Article 26 EAW FD did not require deduction of time spent subject to bail conditions which fall short of deprivation of liberty (though it remained open to a state to do so under its own law, i.e. to be more generous). This is significant since extradition bail conditions in England and Wales are onerous.
The relevance of Article 26 in the executing Member State
If a person serves a period of extradition remand equal to custodial term for which her extradition is sought, she must be discharged as it would be an abuse of process and/or disproportionate under Article 8 ECHR to extradite a person merely for the purposes of enabling the ‘management decision’ to be taken whereby the deduction is done and the sentence recognised as served (see Newman v Poland  EWHC 2931 (Admin) (§ 19) / Wysocki v Poland  EWHC 3430 (Admin) (§§ 28-34).
Short of that, extradition remand equivalent to only part-service of the custodial term may contribute to the Article 8 analysis. It has tipped the balance occasionally when associated with other positive factors, but by and large unless there is a ‘very short’ period remaining, the mere fact of part service is unlikely to sway the court (see the discussion in Molik v Poland  EWHC 2836 (Admin) (§§ 16-30).
Some consideration should be given as to whether to seek discharge under Article 8 as soon as the sentence expires or just before, or whether to invite the issuing judicial authority to withdraw the warrant. The advantage with the latter is that the EAW is withdrawn from the SIS II system (Article 26) so the requested person can readily travel within the EEA. If the requested person is discharged under Article 8, then the EAW will remain live throughout the EU/EEA and she is liable to be detained and surrender to the issuing judicial authority if she travels. It is sometimes possible to have one’s cake and eat it: (i) get the notional ‘win’ on Article 8, and (ii) apply to the issuing Member State’s court thereafter to have the warrant withdrawn due to time served. The right course will depend on practicalities, funding, and advice from a lawyer in the issuing Member State.
The dual remand scenario
Under the Extradition Act 2003 (EA), where a person is charged with an offence in the UK, the court has an obligation to adjourn proceedings or defer the extradition until such time as the charge is disposed of, and the court has discretion to do so where the person is serving the custodial element of a sentence of imprisonment (see sections 8A / 8B / 22 / 23 / 36A / 36B in Part 1 cases 76A / 76B/ 88 / 89 / 118C / 118D in Part 2 cases, though the latter will produce situations governed by the EAW FD or TACA). Matters are commonly adjourned on this basis while UK justice takes its course. In the former scenario, the person may be remanded in custody in both the domestic criminal case and the extradition proceedings. This is what Fordham J refers to as “dual remand”.
High Court judgments have held that where a person serves a custodial sentence in the UK in parallel to the extradition remand, Article 26 EAW FD does not require the deduction of the overlapping period from the sentence in the issuing Member State after extradition: see Newman (§ 17); Berk v Poland  EWHC 3583 (Admin) (§ 17).
The question of the deductibility of a a period of remand in custody on a domestic charge, however, remained undecided. King J expressly the left the position open in Petkowski v Poland  EWHC 4709 (Admin) (§ 27).
The decision in Marosan
Deduction the decisive issue in the case
In Marosan, the Appellant had been detained for 2 years, of which the first 9 weeks were on ‘dual remand’. He had first been arrested on the EAW and remanded in custody. He was then further remanded for 9 weeks on a criminal matter. When the latter was disposed of, he received a sentence of one day’s imprisonment. Only that day of the 9-week period was counted towards the sentence.
Despite various factors advanced, Fordham J agreed with the CPS that the Appellant could not succeed on Article 8 if the period of dual remand fell to be excluded (leaving 9 weeks to serve in Romania). However, if the period of dual remand fell to be deducted from the sentence under Article 26, he would have served the full period of the sentence on the day of the hearing before Fordham J. In other words, the point of law (set out in full at § 1) was decisive to the outcome of the case. This translates into two issues: (i) what does Article 26 require and (ii) whose job is it to decide that question?
Proportionality of sentences the “key which unlocks Article 26”
Although the CJEU ruling in JZ concerned a different point of law (the meaning of ‘detention’), it included at § 35 a steer as to the objective pursued by Article 26: “preserving the right to liberty … and the practical effect of the principle of the proportionality in the application of penalties” (the latter part being a reference to Article 49(3) of the EU Charter of Fundamental Rights). The judgment in Marosan finds this the critical consideration when considering deductibility of periods of dual remand.
Fordham J held that in a given case one first has to establish whether there is a ‘detention’ capable of being deducted under Article 26 (§ 20(i)). Then, one must ask whether the period is deductible having regard to the object and purpose of Article 26, as a provision of EU law (§ 20(ii)). This involves asking whether the remand has “been deployed or become subsumed within” a “domestic sentence of custody” (ibid). If so, it will not fall to be deducted, as that would go against the purpose of Article 26 as identified in JZ as “[t]o allow ‘double counting’ of a period which serves as part of a domestic criminal sentence would not promote, but would serve to undermine and defeat, that principled objective” (Marosan, § 20(iii). That supports the rulings in Berk and Newman (that extradition remand in parallel to a domestic sentence is not deductible). Conversely, it means that extradition remand overlapping with a criminal remand which is then not counted towards a sentence is deductible.
The allocation of roles as between issuing and executing courts
In the world of the EAW FD drafters, EAW cases would be resolved within 90 days at most (Article 17 EAW FD). Unsurprisingly therefore, the executing Member State was envisaged as simply conveying information about time in detention, so that it could be deducted leaving the bulk of the sentence to be served in the issuing Member State. Indeed, given the minimum sentence length, it would be near impossible for a requested person to serve her entire sentence in the executing Member State.
In reality, many extradition matters take longer to resolve. In the rare cases where the period on extradition remand (including a period on dual remand) approaches the full term, can an executing judicial authority or a court of appeal take upon itself the role of deciding whether the full period would have to be deducted, anticipating the decision of the issuing judicial authority under Article 26(1)? Or is that a matter for issuing judicial authority?
The answer in the judgment of Fordham J is that, in circumstances such as these where the deduction could be decisive, the court has a “responsibility” to give an answer (§ 18). Romania had been asked for its view but had not given one. Its response appeared (effectively) to be asking the English court to tell it what was required of it under Article 26. In any case, it is uncontroversial that the English court should be able to ascertain what will happen as a result of Article 26 EAW FD, at least where it appears the issue could be decisive to the outcome in the UK (otherwise the Newman / Wysocki approach would be impossible).
Broader issue: English courts’ ascertaining the EU law obligations of foreign courts
Arising from the above is a broader underlying theme: the extent to which an English court can interpret a provision of EU law to ascertain what would be required of a foreign court after extradition. Marosan relates to a narrow point about prospective deduction of detention. However, the same issue arises in other contexts, posing potentially more serious challenges.
For example, in relation to specialty, the English courts have interpreted Article 27 EAW FD – in the absence of CJEU rulings to this effect – as requiring disaggregation of a final sentence for a person extradited for some but not all offences for which she was sought. These cases emerge from the fact that in several jurisdictions (which, incidentally, includes England and Wales – see R v Shepherd  4 WLR 116 (§§ 65-76)), legislators have not put in place dedicated legal provisions allowing sentence disaggregation. The assumption is that the foreign courts will ensure the English court’s assumption is realised, e.g. by harnessing other mechanisms available in law to give effect to Article 27 EAW FD. One may ask: is it always safe to assume that foreign courts will agree with the English court’s interpretation as to what EU law requires of them, rather than with their own legislators’ interpretation? That question has continuing relevance under TACA, by reference to Article 625.
A further issue relates to the issuing Member State’s obligations under Directive 2016/343/EU (which governs the right to be present at trial). Article 9 of that directive requires a Member State to ensure a retrial in circumstances in which a person was not aware of her trial (roughly corresponding to them not being deliberately absent from her trial for the purposes of s. 20(3) EA). Can a UK court go so far as to rely on the effects of Article 9 of Directive 2016/343/EU (including the principle of direct effect, allied with the legal effects of the EU Charter), to satisfy itself that there would be an entitlement to a retrial in law? A Divisional Court was due to consider the issue in Budi v Romania (CO/4920/2019), but the matter was discontinued on other grounds. It is an issue of continuing relevance, as the Directive continues to bind EU states (save for Denmark and Ireland) even if the UK itself is no longer bound by EU law in general terms (and, indeed, never participated in the Directive).
In relation to such points, a scenario may realistically arise in which the English court is unsure as to what the EU law rule would require of a court in the issuing (Member) State. Yet the English court could not ask the CJEU for a ruling because the UK is now outside the EU law ecosystem. The English court then has no option but to interpret the EU law itself (as Fordham J did in Marosan). The risk is that a person is extradited on the assumption that EU law will protect her in a certain way, only for the foreign court and/or the CJEU to take a different interpretation so that the person is dealt with in a manner contrary to that assumed. Mutual trust and recognition offer no assistance in that scenario: in principle, a foreign court will be bound to apply EU law as it finds it, not the English court’s prior interpretation of it. That should fortify the English court in asking questions of its counterpart first, to ascertain pre-emptively how the EU law will be applied, rather than relying on assumption alone. Theoretically, the issuing judicial authority could, of its own volition, refer a question to the CJEU, but this would require a live dispute before that court, in which the CJEU’s ruling was necessary for it to decide the dispute: it cannot just do so on an academic basis because it would be helpful to know the answer.
In Marosan, Alex Tinsley appeared for the Requested Person whilst Hannah Burton represented the judicial authority.