SMW acted for the Appellants in Pilecki v Poland [2008] 1 WLR 325.

Nearly 20 years later, the High Court has affirmed that the general principle established by the House of Lords in Pilecki has survived Brexit: where a state requests a person’s extradition to serve a sentence of at least four months, if that sentence is for multiple offences some of which do not meet the statutory threshold for extradition, the court should look at the overall term imposed when determining whether to allow extradition.

Whether the requested persons in Tobosaru will appeal further and attempt to overturn Pilecki is unknown at this stage. Thus far, Pilecki has stood the test of time.

What did Pilecki decide?

Pilecki concerned European arrest warrants sought in respect of two people who had been convicted of a number of offences in Poland. In both cases, the Polish courts showed their working by arriving at a sentence for each offence before passing a total (adjusted) aggregate sentence (applying the equivalent of the Totality principle). In each case the aggregate sentence exceeded four months, whereas the sentences for the component offences fell below four months. 

In that context, the House of Lords was asked to consider the correct interpretation of sections 10 and 65 of the Extradition Act 2003. Section 10 requires the court to determine whether the offence (or offences) specified in the arrest warrant are ‘extradition offences’, and section 65 defines an extradition offence as (paraphrasing) 1) conduct that would constitute an offence in the UK; and 2) an offence for which a sentence of imprisonment has been imposed for a period of four months or longer.

Lord Hope concluded that it was unnecessary for a judge to consider each of the component offences separately: “If the other requirements of section 65(3) are satisfied, all he needs to do is determine whether the sentence for the conduct taken as a whole meets the requirement that it is for a term of at least four months.” [§34; emphasis added]

What happened in Tobosaru?

Ms Tobosaru had been convicted and sentenced in Romania for multiple offences relating to the sale of illegal fireworks. The court arrived at three-month sentences of imprisonment for each offence, but imposed an aggregate sentence of four months’ imprisonment. Mr Tofan, whose appeal was joined to Ms Tobosaru’s, had been convicted and sentenced in Romania in relation to a variety of offences and received a combined sentence of five months’ imprisonment.

The fundamental argument advanced in the appeal was that Pilecki was no longer good law. The Appellants contended that the reasoning in Pilecki rested on an incorrect reliance on Criminal proceedings against Pupino (Case C 105/03) 2005, a European case which held that national courts were required, so far as possible, to interpret domestic law in conformity with EU law. The Appellants argued that Lord Hope had applied this principle in Pilecki as against the “natural and ordinary” meaning of the statute, but that courts’ interpretive obligations had changed following the Supreme Court ruling in Assange Swedish Prosecution Authority (Nos 1 and 2) [2012] UKSC 22 which clarified that the Pupino principle does not override clear statutory language or fundamental constitutional principles. The Appellants argued that the “natural and ordinary” meaning of sections 10 and 65 required courts to consider each component part of the sentence. For Ms Tobosaru and Mr Tofan, none of their component sentences reached four months; their extradition must therefore fail.

Mr Justice Sweeting disagreed:

[In Pilecki] the House of Lords referred to the principle that domestic law should, so far as possible, be interpreted consistently with EU obligations. However … the core reasoning in Pilecki was rooted in the language and purpose of the domestic statute, and in broader principles governing extradition, rather than in any novel or uniquely EU law derived doctrine … In that respect, the approach in Pilecki sits comfortably with both the domestic statutory scheme and the post-Brexit extradition framework. It reflects a principled balance between statutory construction, respect for foreign judicial decisions and the need for effective extradition arrangements.

[§§52-53, 60; emphasis added]

He clarified that Ms Tobosaru’s single custodial sentence of four months' imprisonment remained the operative sentence for the purposes of extradition. Crucially:

The fact that part of the underlying conduct falls to be excluded following the application of section 65(3)(b) does not require this court to reconstruct the sentence which might have been imposed had the Romanian court been sentencing only by reference to the extraditable conduct. [§73]

The judgement in Pilecki therefore remains binding.

Postscript - AI

During the proceedings, it emerged that two authorities relied on by the Respondents in their grounds of opposition did not exist.

Junior counsel for the Respondents discovered the error, albeit six months after the grounds were filed, and raised it with the CPS. The Appellants independently identified the error and also raised it with the CPS. After investigating the matter, the CPS concluded that the authorities “were likely to have originated from the use of artificial intelligence,” but that the “operative cause” had been that the reviewing lawyer failed to verify the authorities before the grounds were served. [§§99-100]

It is notable that Mr Justice Sweeting included an account of the error in his judgment. We have set out the final paragraph of his judgment in full:

As far as the appeal was concerned the errors came to light prior to the hearing and therefore had no impact on argument or the court's judgment … I have noted the steps taken to ensure that there is no repetition but considered that it was necessary to set out what had taken place in this judgment given the serious consequences that an error of this nature might have had in other circumstances. It would be naive to assume that there will not be an increasing use of artificial intelligence in legal work in future; indeed, that may be both necessary and beneficial. The episode highlights the risks of its use without appropriate oversight particularly for legal research. [§105; emphasis added]

The lesson here: Practitioners and clients should be wary of placing too heavy a reliance on AI. It is a valuable tool when used responsibly – but its output always needs to be checked by a real lawyer!

If you require any advice regarding extradition proceedings, please contact Katy Smart, Enrico Braguglia or Ahlam Omar of this office.