The Court of Appeal has allowed Slawomir Palonka’s appeal and vacated an order for his surrender to Poland, ruling that the European arrest warrant lacked information required by law.
The appeal concerned a warrant issued by Poland on 6 November 2012. Palonka had not appeared at the proceedings that resulted in the sentence covered by the warrant. The issuing authority indicated that he had been aware of the scheduled trial, had given a mandate to a legal counsellor and was defended by that counsellor. It provided no information explaining how that condition had been met.
The High Court ordered surrender on 4 November 2014. It concluded that the warrant did not have to include the missing information in the circumstances, including because Palonka had not challenged the correctness of the condition stated in the warrant. The High Court also treated a difference in the numbering used by the Polish authority as a non-substantial defect under section 45C of the European Arrest Warrant Act 2003, as amended. The Court of Appeal noted that there was no appeal from that determination.
The Court of Appeal considered the statutory requirements for surrender where a person had not appeared at the relevant proceedings. It held that section 45 required the warrant to include the matters listed at points 2, 3 and 4 of the prescribed form. Where the issuing authority selected the legal-counsellor condition, point 4 required information about how that condition had been met. The court said this obligation applied independently of whether the person sought for surrender raised an issue about the condition.
The court therefore concluded that the warrant did not meet the statutory requirement and that the High Court was precluded from ordering surrender. It answered the certified question in the negative, allowed the appeal and vacated the surrender order. It also directed that the respondent be discharged.