The Supreme Court has allowed the Minister for Justice’s appeal on whether a Polish offence of failing to return to prison after a break in a sentence corresponds to an offence under Irish law. It remitted the case to the High Court to consider a separate, unresolved issue relevant to surrender.
Mr Justice Clarke delivered the judgment on 15 February 2013. The case concerned a European Arrest Warrant seeking Robert Szall’s surrender to Poland. The High Court had refused surrender in February 2012, finding no correspondence for one of the six offences in the warrant. Because a single sentence had been imposed in Poland for all six, the Minister accepted that surrender could not proceed unless all six had corresponding Irish offences.
The disputed Polish offence concerned an alleged failure to return to detention after a fixed-term break in serving a prison sentence. The warrant stated that the break had been granted by a Polish court. The Supreme Court noted that it had not been given enough information to determine whether Polish law allowed such breaks to be granted only by courts or by other bodies as well.
The Minister argued that the Irish offence of being unlawfully at large under section 6(2) of the Criminal Justice Act 1960 was broad enough to cover the conduct. The Court rejected that interpretation of the Irish provision. It held that the offence applied to people who fell within the situations deemed unlawful under section 6(1): a temporary release period had expired or a release condition had been broken. The Minister accepted that the condition-breaking provision did not apply to this case, leaving expiry of a release period as the relevant comparison.
The Court held that offences tied to different national statutory schemes can correspond if the schemes are sufficiently similar in substance. It found a broad and close correspondence between Ireland’s temporary release provisions and the Polish provision for a break in serving a prison sentence: both allowed a convicted person to be lawfully outside prison during a sentence, and both made failure to return at the end of the authorised period an offence. The difference between a minister and a court granting the release did not, on the facts before the Court, prevent correspondence.
The Court therefore found a corresponding Irish offence for the sixth Polish offence, resolving the only ground of opposition to surrender that remained live in the appeal. It allowed the Minister’s appeal. It did not order Mr Szall’s surrender: the judgment records that another issue relevant to surrender remained undecided by the High Court, and the case was sent back there for further consideration.