The Court of Appeal has referred questions to the Court of Justice of the European Union about whether a person may be surrendered to Poland to serve a suspended sentence that became enforceable after a later conviction in absentia. The appeal is stayed pending the EU court’s ruling.
The judgment, delivered by Mr Justice Maurice Collins on 21 July 2021, concerns Dorian Szamota, whose surrender was sought by the Minister for Justice and Equality under a European arrest warrant. The warrant sought surrender in connection with a 2015 conviction for a denial of service attack accompanied by threats. Szamota had attended that trial, and the resulting one-year prison sentence was suspended for five years.
In 2017, a Polish court convicted him in his absence of breaking into a caravan and stealing items, sentencing him to 14 months in prison. He said he had not known about the proceedings and could not attend or arrange legal representation. A separate Polish court then ordered enforcement of the suspended one-year sentence, after the later conviction. The warrant did not seek his surrender for the caravan offence.
The High Court ordered surrender in November 2020. On appeal, the Court of Appeal said the EU court’s earlier ruling in Ardic did not unambiguously resolve the issue. Ardic concerned revocation of suspended sentences after breaches of release conditions; the Court of Appeal noted that this case involved a later criminal conviction which, on the information before it, automatically triggered enforcement.
The appeal court considered it arguable that the conviction and enforcement proceedings could be relevant to identifying the “trial resulting in the decision” under the EU arrest warrant rules. It also considered whether surrender could raise fair-trial concerns if the later conviction was reached in breach of the right to be present at trial. These were questions for the EU court, not final findings by the Court of Appeal.
The court’s reference asks whether the later criminal proceedings, the enforcement proceedings, or both fall within those rules; whether the executing court may examine compliance with fair-trial rights; and whether it may or must refuse surrender or require a guarantee of a retrial or appeal. The court did not decide whether surrender should ultimately be refused. It stayed the appeal pending the EU court’s answer, with the parties given a further opportunity to comment on the draft reference order.