The Supreme Court dismissed the Minister for Justice and Equality’s appeal against a High Court refusal to surrender Arkadiusz Tokarski to Poland under a European Arrest Warrant. The Court held that the Polish court had tried and convicted him in his absence, so the absence of an assurance of a retrial meant surrender could not be ordered under the version of section 45 then applicable.
The warrant sought Tokarski’s return to serve an aggregate prison sentence of one year and two months, imposed after convictions for breaking and entering a residential building and assault causing actual harm. The offences arose from the same occasion, the judgment said.
Before the Polish court acted, Tokarski admitted the offences to police and agreed to a sentence proposed by the prosecutor. He was told of his right to legal assistance but did not use it. The Polish court imposed the agreed sentence on 1 December 2009, without Tokarski present. The Supreme Court noted that this was the first and only judicial determination in the case, and that he was not notified of the hearing within the meaning of section 45.
The Minister argued that the Polish court’s decision was not a “trial” for section 45 because Tokarski had already admitted guilt and agreed to the penalty. The Supreme Court rejected that argument. It said the pre-trial agreement did not itself convict or sentence him: under the information supplied by Polish authorities, only a court could do that. The court still had to decide whether to accept the admissions and whether to impose the proposed sentence. Those matters were judicially determined at the hearing.
The Court distinguished earlier cases relied on by the Minister, where the person had attended or been notified of the trial that led to conviction and the dispute concerned a later sentencing hearing. It said it was unnecessary to rule on a broader statement made in one of those cases about the meaning of “trial” under section 45.
Because Poland had not given an undertaking that Tokarski would receive a retrial or an opportunity for one after surrender, the High Court had refused surrender. The Supreme Court agreed with that conclusion and dismissed the Minister’s appeal. Its decision addressed the certified question about section 45 and the Polish pre-trial process; it did not order Tokarski’s surrender.