The Supreme Court allowed Arnost Herman’s appeal against surrender orders under two European arrest warrants, finding serious lack of clarity about the offences and sentences sought by the Czech Republic. The Court said he could not be surrendered on those two warrants. An order under a third warrant was not appealed and remained in force; the stay on surrender under that warrant ended when the appeal concluded.
The judgment, delivered by Chief Justice Denham on 21 May 2015, concerned a High Court order made on 28 March 2014. The first warrant, dated 10 August 2011, described Herman as convicted and sought his surrender to serve a custodial sentence. It listed offences including racketeering and extortion, and weapons offences. The third warrant, dated 15 November 2012, also concerned racketeering and extortion and referred to 11 offences, described as one act comprising 11 attacks.
The judgment noted that the third warrant said an appeal was pending against the underlying judgment. An accompanying amendment said the earlier judgment had been cancelled and the case returned to the Regional Court for further consideration, after part of the trial had taken place in Herman’s absence without all statutory conditions being met. The amendment sought surrender for criminal prosecution or enforcement of a custodial sentence or detention order, while the original warrant described enforcement of a custodial sentence.
The Court found the amendment did not explain a variance or minor defect. It considered it a fundamental change in the purpose for which surrender was sought. The judgment also said a prosecution under the third warrant could affect the sentence under the first warrant, leaving unclear the sentence Herman might face after surrender. The first warrant stated that three years and seven days remained to be served, but the Court said the maximum sentence was unclear and might be eight years or more.
The Court held that where an issuing authority seeks to change a warrant’s fundamental nature or purpose, it should issue a new warrant in the required form so it can be endorsed by the High Court. On that basis, it allowed the appeal in relation to Warrants 1 and 3. It did not disturb the High Court order concerning the second warrant, dated 9 October 2012; that order stood, and the stay on surrender under it ended.