Supreme Court allows appeal, refusing surrender as minimum gravity threshold under s.38(1)(a)(ii) was not met.

THE SUPREME COURT

157/07

Murray, C.J.

Geoghegan, J.

Macken, J.

IN THE MATTER OF THE EUROPEAN ARREST WARREST 2003

Between:

The Minister for Justice Equality and Law Reform

Applicant/Respondent

V

Saulius Ferenca

Respondent/Appellant

Judgment delivered on the 31st day of July by Macken, J.

This is an appeal by the respondent/appellant from the judgment and order of the High Court (Peart, J) of the 24th May

2007 pursuant to which the learned trial judge ordered that the appellant be surrendered to Lithuania on foot of a European

Arrest Warrant dated the 5th January 2007, being satisfied that there were no grounds pursuant to the European Arrest

Warrant Act 2003 (“the Act of 2003”) upon which he should refuse the appellant’s surrender.

The grounds of appeal listed in the Notice of Appeal number eight in all but it became clear at the hearing that they can be

grouped together essentially under three headings. Firstly, the learned High Court judge erred in law in ordering the

surrender of the appellant where correspondence in accordance with the Act of 2003 had not been established. Secondly,

the learned High Court judge erred in law in construing s.38(1)(b) of the Act of 2003 by determining that, although there

was no correspondence pursuant to S.38(1)(a), and the issuing State had not, in the warrant, relied on the provisions of

Article 2.2 of the Framework Decision, the High Court was nevertheless bound to order the surrender of the appellant.

Thirdly, the learned High Court judge had erred in law in determining that the minimum gravity requirements outlined in the

Act of 2003 had been met. In reality all three grounds are interlinked, in particular the first two grounds and it is appropriate

therefore to deal with all of these grounds of appeal together.

According to the European arrest warrant the appellant was, on the 5th January 2006, sentenced to imprisonment for three

particular offences. On the 8th March 2006 that sentence was suspended subject to certain conditions, after an appeal to the

relevant appellate court. On the 15th September, 2006, by reason of an alleged breach of the conditions imposed by the

appellate court to which the suspension was subject, Marijampoloe Region District Court in Lithuania ordered that the

appellant serve the sentence imposed, namely, 2 years and 9 months, none of which has been served. The appellant’s

surrender under the European arrest warrant is sought for that purpose.

The Judgment

In his judgment, so far as concerns the issues arising on this appeal, the learned High Court judge found that

correspondence, in the sense required by s.5 and s.38(1)(a) of the Act of 2003 existed in respect of the second and third

offences. He found that correspondence did not exist in respect of the first offence. However, having considered the

conduct described in the warrant as constituting the first offence, he determined that it fell within the ambit of “fraudulent in

the general sense” and therefore came within the second alternative set out in s.38(1)(b) of the Act of 2003. Both parties to

the action agree that the issuing state had not relied on the provisions of Article 2.2 of the Framework Decision in the sense

that it had not invoked any of the series of offences listed in that Decision, by ticking the appropriate box in the warrant

itself, which otherwise followed the template annexed to the Framework Decision. The learned High Court judge found,

finally, that the minimum statutory threshold concerning the penalty imposed had been met, and ordered the surrender of

the appellant.

The Argument

Mr Kelly, BL, on behalf of the appellant points to the three separate offences appearing in the description included in the

European Arrest Warrant and classifies these as being: (a) an accessory to the production of a forged payment instrument;

(b) abetting the use of the forged instrument; and (c) attempting to misappropriate another’s property. As to the main thrust

of the grounds of appeal, I set out his arguments first on the issue of correspondence.

Section 5 of the Act of 2003 reads as follows:

“For the purposes of this Act an offence specified in a European Arrest Warrant corresponds to an

offence under the law of the state, where the act or omission that constitutes the offence so specified

would, if committed in the state on the date on which the European Arrest Warrant issued, constitute an

offence under the law of the state.”

Section 38 of the Act of 2003 reads as follows:

“(1) Subject to subsection (2), a person shall not be surrendered to an issuing state under this Act in

respect of an offence unless-

(a) the offence corresponds to an offence under the law of the State, and-

(i) under the law of the issuing state the offence is punishable by imprisonment or detention for a maximum period of not

less than 12 months, or

(ii) a term of imprisonment or detention of not less than 4 months has been imposed on the person in respect of the

offence in the issuing state, and the person is required under the law of the issuing state to serve all or part of that term

of imprisonment,

or

(b) the offence is an offence to which paragraph 2 of Article 2 of the Framework Decision

applies or is an offence that consists of conduct specified in that paragraph, and under the

law of the issuing state the offence is punishable by imprisonment for a maximum period of

not less than 3 years.” (emphasis added)

According to counsel for the applicant, there is no Irish offence which corresponds to the first of the offences as above

described in the European Arrest Warrant. The factual ingredients constituting this offence are described as the following:

“Late in May 2004, S. Ferenca received from J. Sabataitis a maestro payment card number

6763760057794763 of AB Bank Hansabankas and handed it over to unidentified persons for the purpose

of forging it and the later (sic) forged it by re-writing the magnetic tape information belonging to the

bank teller A.S. Oslo, Norway.”

Invoking the decisions in Attorney General v Dyer [2004] 1IR 40 and Attorney General v Hilton [2005] 2 IR 375, both

determined pursuant to the provisions of prior extradition legislation, counsel contends that the test for determining

correspondence when analysing an offence under the law of another jurisdiction is well established, namely the courts look

at the acts of the person sought as stated in the warrant, and considers whether such acts would constitute an offence in the

State.

Counsel submits that the learned High Court judge was correct in applying the test mentioned in the above jurisprudence

and was correct also in finding that, in consequence, as to the first offence, there was no correspondence with any Irish

offence. He argues that the High Court correctly concluded that the surrender of the appellant on that offence was therefore

prohibited by s.38(1)(a) of the Act of 2003.

Secondly, according to counsel for the appellant, what is fundamental to his case is that the requesting state, in not ticking

the appropriate box in the European arrest warrant, has itself taken the offences outside the scope of Article 2.2 of the

Framework Decision. He argues that the correct interpretation of s.38(1)(b) is that if the box is ticked in the European arrest

warrant, it may still be appropriate for the High Court to look at the offences to ensure that these are corresponding offences

within the Act of 2003. If the box, however, is not ticked by the requesting state, the High Court is obliged to investigate

whether there is true correspondence pursuant to s.38(1)(a) of the Act, and may not surrender a person in the absence of

such correspondence.

Thirdly, none of the offences set out in Article 2.2 include or cover any of the offences described in the warrant. Therefore,

counsel submits, the learned High Court judge was wrong when he determined that, although there was no correspondence

pursuant to the provisions of s.38(1)(a) of the Act of 2003 with the first offence, he was nevertheless bound to make an

order for the surrender of the appellant because the conduct described in the warrant itself was “fraudulent in the general

sense” and therefore within the second alternative to s.38(1)(b) of the Act of 2003. Such a finding, according to counsel, is

not permitted in the context of S. 38 of the Act of 2003.

Counsel finally submits that neither the High Court nor this court should complete the document which was furnished by the

issuing member state as being the European arrest warrant. This permits a member state to require and ensure

correspondence. If Article 2.2 of the Framework Decision is not invoked by the issuing state, by ticking the appropriate box,

correspondence must then be established pursuant to s.38(1)(a) of the Act of 2003. If, in the circumstances of a particular

European arrest warrant, as here, it is unclear as to what was intended by the issuing state in not ticking any box in the

warrant, such lack of clarity must be determined in favour of the appellant.

On behalf of the respondent Mr McCarthy, senior counsel, agrees that the first of the offences does not fall within the ambit

of s.38(1)(a) in the sense that, according to the jurisprudence invoked on behalf of the appellant in that regard, this does not

correspond with any offence within the State. However, he submits that the correct way to view the decision of the High

Court is to understand that the Act of 2003 provides for two other circumstances in which the State may recognise and give

effect to an appropriately completed European arrest warrant. Firstly, and the most simple way, is when an issuing state

invokes Article 2.2 of the Framework Directive by ticking the appropriate box in the warrant. In that event, correspondence

is not required to be established. S.38(1)(b) first alternative, makes this clear. There is however no requirement within the

Act of 2003, or the Framework Decision, that the issuing state must specify the relevant Article 2.2 offence by ticking a box

in paragraph (e) of the warrant. It has the option of doing so. Ticking the box or failing to do so is not determinative. This is

clear from the second means by which a warrant can be given effect to. S.38(1)(b) of the Act of 2003, by its second

alternative, provides that if an issuing state, instead of ticking the box, describes conduct which falls within one or other of

the offences in Article 2.2, that too is sufficient. The purpose of this alternative is to limit the scope of exceptions to

surrender, to remove existing complexities and to recognise the high level of mutual trust which must exist between the

executing state and the issuing state. Viewed thus, he argues, the determination of the High Court judge was correct and the

appellant was properly ordered to be surrendered, because the High Court judge correctly categorised the first offence, as

described in the warrant, as being “fraudulent in the general sense”.

The respondent reminds the court the that in his judgment, the learned High Court judge found that the second and third

offences came within the provisions of s.38(1)(a) of the Act of 2003, that is to say, that there was a true correspondence in

the sense in which that concept is used in extradition jurisprudence, and that no question can or does arise in respect of

those two offences.

Mr Kelly makes a supplemental submission on behalf of the appellant pursuant to s.17 of the Act of 2003. He says that the

warrant was deficient, because there was no evidence that the penalty imposed in respect of any one of the offences came

within the provisions of s.38(1). The sentence he says is a combined sentence, and there was no evidence that any one

offence was punishable by a term exceeding the threshold. This was particularly so if this court accepted that the first

offence did not correspond to any offence in the State. In that event, it was equally impossible to know what portion or

element in the combined sentence applied to that first offence. All three would therefore have to fall.

The respondent contends that the learned High Court judge was correct in his finding on this issue.

Conclusion

As a preliminary matter, I find that the real argument of the appellant concerns only the first offence, although on its face

the Notice of Appeal appears to cover all three. In his judgment, the learned High Court judge in dealing with the question of

correspondence and Mr Kelly’s arguments, stated:

“He submits that when the acts described in the warrant and which led to the conviction of the

respondent in Lithuania are examined, it is clear that in the case of at least one of the offences, and

possibly a second one, correspondence is not made out.”

I am not satisfied that the arguments presented on behalf of the respondent in respect of the correct interpretation and

application of the provisions of the Act of 2003 are fully correct. Equally, the issues raised by Mr Kelly on behalf of the

appellant are not easy to resolve, given the language used in the Act of 2003, in particular in Section 38(1). It may be useful

therefore to set out some general comments on the question of correspondence and the manner in which the Act of 2003

deals with this. In law, a European arrest warrant has its basis in the Framework Decision of the Council of the European

Union dated the 13th June 2002. The Act of 2003 was adopted, inter alia, to give effect to that Decision. One of the

intentions of the Framework Decision, as set out at recital (5), was to provide for a new simplified system of surrender of

suspected or sentenced persons for the purpose of their prosecution, or to serve sentences on conviction, making it possible

to remove the complexity and the potential for delay inherent in existing extradition procedures. The 6th and 10th recitals in

the Framework Decision further provide that 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 certain circumstances. The recitals do not

refer specifically to Article 2.2 or to the offences therein listed. These matters have been considered in the jurisprudence of

this Court, and it is sufficient to refer by way of example to MJELR v Brennan, Supreme Court, unreported, 04 May 2007,

where this court (Murray, C.J.) stated:

“The Act of 2003, as amended, is the means adopted by the State to give effect to its obligations under

the Framework Decision. As I stated in The Minister for Justice, Equality and Law Reform –v-

Altaravicius (Supreme Court, 5th April, 2006, unreported) the Act must be interpreted in the light of the

terms of the Framework Decision and in particular with regard to the objects to be achieved. This is the

interpretative approach set out by the Court of Justice in relation to Framework Decisions in the Pupino

case (C-105/03 ECJ 16th June, 2005). The system or mechanism of surrender sought to be established by

the Framework Decision applies in all Member States of the European Union. Again, as I pointed out in

Altaravicius:

“Recital 5 in the preamble to the Framework Decision refers to “… the introduction of a new

simplified system of surrender of sentenced or suspected persons for the purposes of execution

or prosecution of criminal sentences …” It has as its object “… to remove the complexity and

potential for delay inherent …” in pre-existing extradition procedures. … As that Recital,

Recital 6 and Article 1.2 make clear, it is founded on the mutual recognition of judicial

decisions and judicial cooperation within the European Union. Recital 10 emphasises ‘the

mechanism of the European Arrest Warrant is based on a high level of confidence between

Member States’”.

The Articles of the Framework Decision provide for a relatively streamlined mechanism for achieving this arrangement,

intended to be less cumbersome than that which originally existed in respect of bilateral arrangements between states. To

that end Article 2 provides as follows:

“1. A European arrest warrant may be issued for acts punishable by the law of the issuing Member State

by a custodial sentence or a detention order for a maximum period of at least 12 months or, where a

sentence has been passed or a detention order has been made, for sentences of at least four months.

2. The following offences, if they are punishable in the issuing Member State by a custodial sentence or a

detention order for a maximum period of at least three years and as they are defined by the law of the

issuing Member State, shall, under the terms of this Framework Decision and without verification of the

double criminality of the act, give rise to surrender pursuant to a European arrest warrant:

— participation in a criminal organisation,

— terrorism,

— trafficking in human beings,

— sexual exploitation of children and child pornography,

— illicit trafficking in narcotic drugs and psychotropic substances,

— illicit trafficking in weapons, munitions and explosives,

— corruption,

— fraud, including that affecting the financial interests of the European Communities within the meaning of the

Convention of 26 July 1995 on the protection of the

European Communities' financial interests,

[and several others]

…

4. For offences other than those covered by paragraph 2, surrender may be subject to the

condition that the acts for which the European arrest warrant has been issued constitute an

offence under the law of the executing Member State, whatever the constituent elements or

however it is described.” (emphasis added)

These provisions are mirrored substantially, although not in an identical format, and not quite to the same intent, in Section

38 of the Act of 2003, already set out above.

The effect of Article 2.2 of the Framework Decision is that in respect of those listed offences “as they are defined by the

law of the issuing Member State” correspondence with an offence in the executing member state is not required to be

established. It will be noted that the list of offences include “fraud”. Whatever the rationale behind the adoption of this

approach, the important consequence of Article 2.2, is that correspondence does not require to be established for the

offences there listed.

In addition, the Framework Decision itself sets out in the form of a template annexed to it, a sample European arrest

warrant, and in respect of which Article 8 requires certain information to be included, “in particular by reference to Article

2”. Article 2.2 is, in turn, put into effect in the template warrant by means of the inclusion of a corresponding list of the

offences appearing in that Article (at any given time), which a requesting authority in an issuing state may tick so as to

indicate that the offences in question “as defined by the law of the issuing Member State” fall within Article 2.2. The effect

of ticking a box in the list appearing in the warrant is to generate a demand for surrender where no enquiry as to

correspondence is required in the executing state.

Bearing in the mind the foregoing, it is necessary now to turn to the Act of 2003, and the judgment of the learned High

Court judge. The entire of the Framework Decision, including the Annex comprising the template warrant, is scheduled to

the Act of 2003. The provisions of Article 2.2 and the mechanism envisaged in the Annex to the Framework Decision are

reflected in the first part of s.38(1)(b) of the Act of 2003, being the first of two alternatives there provided for. The first

important matter to note is that correspondence is only required to be shown, so far as the Act of 2003 is concerned, under

Section 38(1)(a). It is not required by, and not even mentioned, in Section 38(1)(b).

Next, the second alternative provided for in s.38(1)(b) must now be considered, as this is invoked on behalf of the

respondent. I agree with the submission of Mr. McCarthy, that this provides, on its face, that even if Article 2.2 has not

been invoked in the sense that the corresponding box in the European arrest warrant has not been ticked, nevertheless a

person may be surrendered without any requirement for correspondence to be established, if the offence as described in the

warrant consists of conduct specified in one or other of the offences listed in Article 2.2. However, although counsel

contends that there are three mechanisms by which a European Arrest Warrant can be executed, pursuant to the Act of

2003, for reasons which I now set out, I am not satisfied, having regard to the Act itself, in particular s.38(1)(b), and to the

Framework Decision, that the learned trial judge was correct when he stated that not ticking the box appearing in a warrant

which otherwise follows the template attached to the Framework Decision was not determinative of the question whether

the offences necessarily fall within Article 2.2 of the Directive or not.

The language used in the second alternative in s.38(1)(b) seems to me to mirror to some extent the provisions of Article 2.4

of the Framework Decision. But of course, as is clear from the extract set out above, Article 2.4 only covers offences other

than Article 2.2 offences. It may be, although this is not at all clear, that the likely rationale behind this second alternative in

s.38(1)(b) is to ensure that, even if the template is not used or not completed as envisaged in the annex to the Framework

decision, for one reason or another, but nevertheless the conduct described constitutes an offence which could have been

relied on by an issuing state by ticking an appropriate box, then the warrant is not to be rejected, or the appellant not

surrendered on that basis alone. This alternative in s.38(1)(b) may well also have been adopted to recognise that the precise

description of an offence according to Irish law, if it is not the same as that of an requesting state, will not necessarily

undermine the full implementation of Article 2.2 of the Framework Decision, even though a box has not been ticked.

I consider this to be the likely meaning of the particular wording of s.38(1)(b) second alternative. Article 2.2 of the

Framework Decision gives no right to an executing Member State to go behind the listed offences, once ticked, to require

correspondence – correctly reflected in s. 38(1)(b) first alternative, and Article 2.4 enables a member state to require

correspondence for all other offence, however described. S. 38(1)(b), second alternative, goes beyond what is envisaged in

Article 2.2 as provided for in the template warrant annexed to the Framework Decision, to cover offences whose description

could have led the issuing state to tick an offence in the equivalent box in the warrant.

Adopting the statutory framework implementing the Framework Decision, where a person is sought to be surrendered, the

starting point must be Article 2.2, and s.38(1)(b), first alternative, working on an ascending scale from there. If the issuing

state has adopted the template referred to above and has completed it by, inter alia, ticking a box or boxes, the matter is

determined automatically pursuant to the provisions of s.38(1)(b), first alternative. Section 38(1)(a) does not supersede or

have any precedence over s.38(1)(b). Indeed

s.38(1)(a) is specifically made subject to the provisions of subsection (b) of that section. If a court were first obliged to

consider the provisions of s.38(1)(a) to ascertain whether or not correspondence existed pursuant to the provisions of s.5 of

the Act of 2003 as interpreted by existing jurisprudence, the benefit of adopting the simplified mechanism in respect of the

designated offences listed in Article 2.2 would be seriously undermined. I can find nothing in the Act of 2003 which suggests

that this was the intention of the legislature and such an approach could not have been intended by the Oireachtas when

giving effect to the Framework Decision in the Act of 2003. Indeed I consider the intention of the Oireachtas, as gleaned

from the language of the section itself, to have the opposite meaning to that contended for by counsel on behalf of the

applicant. I therefore reject his argument that the executing state is entitled to verify whether correspondence exists even if

the box in the warrant has been ticked. It is only if s.38(1)(b) does not apply, that the High Court may look to provisions

such as s.38(1)(a) to ascertain whether there is correspondence in accordance with s.5 of the Act of 2003. If it were

otherwise then s.38 would have to have been drafted in a different manner, and would not have provided for the subsidiarity

of s.38(1)(a) to s.38(1)(b).

I make the latter findings, because, on one interpretation of the judgment, it might be thought that the learned High Court

judge had considered that the combination of s.5 and s.38 obliged him first to investigate whether or not the offences

“correspond” by reference inter alia to existing extradition case law, and if there is no correspondence within s.38(1)(a), then

to consider whether the warrant may be “saved” by the provisions of s.38(1)(b). In the present case it was determined first

that the second and third offences corresponded to offences in the State, under the provisions of Section 38(1)(a). It may

well have been that the learned High Court judge, faced with the contention that there was no correspondence between any

of the three offences and any offence in the State, and the warrant itself being unclear, in the sense that no box was ticked,

was able readily to dispose of the second and third offences in that manner, perhaps giving rise to the reservation I set out

above.

It is against the above analysis that the rather difficult issues raised in the present appeal must now be resolved. In respect of

the offences therein listed, it will be recalled that Article 2.2 of the Framework Decision provides that these are “as defined

by the law of the issuing Member State” Under the second alternative provided for in s.38(1)(b) of the Act, it is not

explicitly stated by reference to whose law “an offence that consists of conduct specified in that paragraph” is to be defined.

There are, however, good reasons arising from the wording of the section itself why any such offence must also be defined

by reference to the law of the issuing Member State. Firstly, logic would suggest that if it is a description of any of the

offences “consisting of conduct specified in that paragraph” it must be, as the respondent contends, those offences to which

Article 2.2 applies. However, the consequence of that must equally mean that the conduct in question is intended also to

describe an offence as defined by the law of the issuing state.

Secondly, the offence, whether by reference to Article 2.2 directly or to “conduct specified in that paragraph” is one which,

according to the subsection, must be, under the law of the issuing state, “punishable by imprisonment for a maximum period

of not less than 3 years”. In the present case, the parties did not directly address this issue, certainly I am sure because it

was not raised in the course of the hearing. However, since I have found that the second alternative provided for in s.38(1)

(b) clearly only refers to Article 2.2 offences, if the conduct in question must also be punishable by reference to the issuing

state’s prescribed sentencing code, that conduct could only refer to an offence as defined in that Member State, since its

punishment regime could scarcely relate to an offence according to the law of any other Member State. In consequence, the

learned trial judge could not, in my view, have been correct in finding it sufficient that the first offence met a description

“fraudulent in a general sense”, upon which the appellant could be surrendered, without considering Lithuanian law, upon

which he had no information.

I am driven to the conclusion that, while it may have been intended by the Oireachtas when including in the Act of 2003 the

second alternative in s.38(1)(b), it would also be helpful to provide a facility to meet circumstances where a requesting

member state did not adopt, strictly, the simple ticking mechanism provided for in the Framework Decision, and while I

would be reluctant to hold that that part of s.38 (1)(b) has no function, particularly at a time when the European Arrest

Warrant is a relatively new and unusual instrument, I find nevertheless that the second alternative provided for in the section

has neither practical effect, nor does it appear to comply with what is envisaged in the Framework Decision itself as being a

simple practical easily adopted and final mechanism in respect of those offences listed in Article 2.2. For the reasons set out

now, it certainly could not apply to the European Arrest Warrant furnished in the present appeal.

The final reason why I consider that the learned trial judge was incorrect in the present case in finding that the offence,

while not corresponding an offence in the State within the meaning of s. 38(1)(a), could nevertheless be saved by s.38(1)(b),

is because of the very manner in which the template warrant is constructed, and in the present case, the warrant actually

completed. In the template warrant, annexed to the Framework Decision and also to the Act of 2003, and also as used by

the issuing state here, its format is very clear, including the self-contained section of the warrant dealing with “Offences”.

This lists the several offences found in Article 2.2 of the Framework Decision. Under subsection (e) I of this section, an

issuing state is requested to tick, if applicable, one or more of that long list of offences. This option is then followed by the

statement under subsection (e) II which reads:

“Full description of offence(s) not covered by section I above.”(emphasis added)

In the warrant completed in the present case, it is under this latter heading one finds the description of the particular conduct

constituting the offences for which the appellant was sought to be surrendered. There was no evidence that, according to

Lithuanian law, this conduct described any offence listed in Article 2.2 of the Framework Decision, and the reasonable

conclusion to be drawn from the warrant is to the opposite effect.

In the foregoing circumstances I am satisfied that the appellant cannot lawfully be surrendered to the requesting state on the

first offence listed in the arrest warrant, it being accepted by the respondent that the offence does not correspond to an

offence under Irish law.

The subsidiary ground : the threshold test

The legal submission on this ground of appeal is based on the argument that, because the sentence imposed, according to the

warrant, is one of 2 years and 9 months for all three offences, and according to counsel for the applicant, is a cumulative

sentence, it is not possible to determine, in the circumstances which arise, that is to say if the first offence falls, which part

of the sentence applies to either of the surviving convictions. I make no finding at all based on the more general argument

that the warrant would have to fall even if all three offences were ones upon which the appellant could have been

surrendered.

Article 2 of the Framework Decision reads as follows:

“A European arrest warrant may be issued for acts punishable by the law of the issuing Member State by

a custodial sentence or a detention order for a maximum period of at least 12 months or, where a

sentence has been passed or a detention order has been made, for sentences of at least four months.”

The provisions of this article have been transposed, in the Act of 2003, by s.38. This has been set above, and only s.38(1)

(a) is of relevance here. It, in turn, provides for two alternatives, namely (a) an offence which is punishable for a maximum

period of not less than 12 months, or (b) a term of imprisonment of not less than 4 months has been imposed in the issuing

state, and the person is “required” under the law of the issuing state to serve all or part of that term of imprisonment. On

their face these are not mutually exclusive, but in the scheme of the Framework Decision and the Act of 2003, I think it is

probable that (a) refers to warrants sought in respect of the prosecution of offences and (b) refers to warrants sought in

respect of sentences imposed.

In this case, the second and third offences are each liable to punishment of up to 3 or 6 years, so they clearly overcomes the

first possible threshold. s.38(1)(a)(ii) sets an alternative threshold. In the event the appellant was sought to answer the

charges he could be surrendered without difficulty as the threshold in s.38(1)(a)(i) would be met. If, however, as is clearly

the case, a person is sought so as to serve a sentence actually imposed, the threshold drops to four months. I think the

correct interpretation of s.38(1)(a)(ii) is that when the act speaks of “required under the law of the issuing state to serve all

or part of that term of imprisonment” this really means that, according to the warrant, the person is “requested” to be

surrendered for that purpose. That appears to follow, in my view, from a reading of Article 8 of the Framework Decision.

On the face of the warrant, the two sentences imposed exceed this lower threshold also.

The difficulty arises because of the fact that the warrant gives the details of the sentences in the form of a global sentence. It

is, on the face of the warrant, unclear whether the 2 years and 9 months sentence imposed was made up of the same

sentence in respect of all three individual offences, each to run concurrently with the other, or is composed of separate and

different sentences in respect of each of the three convictions, all to run consecutively, and therefore combining to make up

the term, or simply that it is a single global sentence imposed in respect of all three offences. The appellant in the written

submissions contends that the sentence is “cumulative”. Since the warrant is ambiguous on the matter, clarification might

have been sought on the make up of the sentence, but no request for information appears to have been made by the

respondent pursuant to s.20 of the Act, although I note that this does not appear to have been a point raised in the Notice of

Objection. Having regard to the finding in the judgment that all three offences were ones to which the Act of 2003 applied,

the learned High Court judge clearly did not himself find it necessary to deal with the sentence conundrum which arises

from the findings I have now made.

Having regard to the fact that there is no information upon which the court can be satisfied that the threshold set out in

s.38(1)(a)(ii) is met, I am satisfied that the appellant cannot be surrendered pursuant to this warrant.

In the foregoing circumstances, I would allow the appeal and set aside the High Court order for the surrender of the

appellant.

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