Application for Leave to Appeal Under Section 26 of the Extradition Act 2003 by Karol Meger against The Lord Advocate Advocate, Representing the Republic of Poland (High Court of Justiciary)

Factual and Procedural Background

The Applicant is a national of Company B who was convicted by a District Court in The City of Tczew for robbery of a minor on 17 April 2022. The offence was aggravated by its commission within five years of two similar offences for which the Applicant had previously served sentences of imprisonment. The Applicant was present at trial and sentenced to three years' imprisonment, with two years, six months, and ten days remaining to be served. The Applicant failed to present himself at prison and instead came to Scotland, where he is considered unlawfully at large under section 68A of the Extradition Act 2003.

On 27 October 2023, the Regional Court in The City of Gdansk, acting as a judicial authority under the Extradition Act 2003, issued an arrest warrant seeking the Applicant's extradition to serve the remainder of the sentence. The Applicant was arrested in Scotland. A preliminary hearing was scheduled before the sheriff at Edinburgh with an evidential hearing initially set for 26 September 2024 but subsequently continued to 23 January 2025 due to motions by the Applicant.

On 22 January 2025, the Applicant lodged a late objection contending that the arrest warrant was invalid because it did not specify the place of the Applicant's participation in the offence. The sheriff continued the hearing to 30 January 2025 to allow the Respondent to seek clarification from the requesting authority. The authority confirmed the offence occurred in Tczew, and this information was lodged in accordance with section 202 of the Extradition Act 2003.

At the evidential hearing, the Applicant's solicitor argued the defect in the warrant was fundamental and could not be cured by the additional information. The sheriff ordered written submissions and continued the hearing until 27 February 2025. After further consideration, the sheriff held that the absence of the place of participation in the warrant could be cured by the subsequent provision of information and ordered the Applicant's extradition. The Applicant now seeks leave to appeal, challenging the sheriff’s characterization of the warrant as a Part 1 warrant.

Legal Issues Presented

1. Whether the arrest warrant qualifies as a Part 1 warrant under the Extradition Act 2003 despite initially lacking specification of the place of the Applicant's participation in the offence.
2. Whether a defect in an arrest warrant concerning required particulars can be cured by subsequent provision of supplementary information from the requesting authority.
3. Whether the sheriff erred in ordering extradition based on the warrant and supplementary information combined, considering the Applicant's Convention rights and statutory requirements.

Arguments of the Parties

Applicant's Arguments

• The arrest warrant is invalid as a Part 1 warrant because it does not specify the place of the Applicant's participation in the offence, which is a mandatory requirement under section 2(2)(b) read with section 2(6)(b) of the Extradition Act 2003.
• The place of participation is an essential element of the "particulars of the conviction," as confirmed by Article 8.1(e) of the Council Framework Decision and Article 606.1(e) of the Trade and Cooperation Agreement (TCA), supported by case law such as Sandi v Romania.
• The defect in the warrant is substantive and cannot be cured by subsequent supplementary information, citing Dabas v Spain where it was held that a warrant lacking mandatory statements cannot be supplemented by extraneous information.
• The warrant’s defect is not merely formal but fundamental, and therefore the Applicant should be discharged under section 27(5) of the Extradition Act 2003.

Respondent's Arguments

• The Respondent accepts that "particulars of the conviction" include the place of participation in the offence, consistent with international obligations under the TCA and the former Framework Decision.
• Lord Hope’s strict approach in Dabas has been qualified by later authorities such as Bob-Dogi, Goluchowski, and Alexander, which establish that deficiencies in arrest warrants can be cured by supplementary information provided by the requesting authority.
• The present case involves only a minor omission—the place of participation—which was subsequently provided, thus curing the defect.
• The process of supplementing the warrant with further information was conducted lawfully and did not prejudice the Applicant’s rights under the 2003 Act.

Table of Precedents Cited

Precedent	Rule or Principle Cited For	Application by the Court
Case C-241/15 Criminal Proceedings against Bob-Dogi [2016] 1 WLR 4583	Clarification that deficiencies in European arrest warrants (EAWs) can be remedied by subsequent information; invalidity arises only if no underlying national warrant exists.	The court relied on this precedent to support that the absence of place of participation could be cured by additional information, provided the warrant was not wholly deficient.
Gołuchowski v District Court in Elblag, Poland [2016] UKSC 36, [2016] 1 WLR 2665	Distinction between formal and substantive defects in arrest warrants and recognition that some defects can be cured by supplementary information.	Supported the court’s conclusion that the warrant’s omission was a lacuna rather than a fundamental defect, curable by further information.
Alexander v Public Prosecutor's Office, Marseilles [2017] EWHC 1392 (Admin), [2018] QB 408	Confirmed that the approach to deficiencies in EAWs had evolved to allow supplementation of missing information and that courts have a duty to make further inquiries before refusing execution of a warrant.	The court adopted the reasoning that the warrant and supplementary information should be treated as a single document for validity purposes.
Dabas v Spain [2007] UKHL 6, [2007] 2 AC 31	Held that a warrant lacking mandatory statements cannot be supplemented by extraneous information and is therefore invalid.	The court acknowledged this precedent but qualified it in light of later case law, distinguishing between wholly deficient warrants and those with curable defects.
Jipa v Hunedoara County Court, Romania [2024] EWHC 2785 (Admin)	Further illustrated that supplementary information can be incorporated into an arrest warrant to cure deficiencies, absent wholesale failure to provide particulars.	Reinforced the court’s approach to treat the warrant and supplementary information as a combined valid document.
Litvinchuk v The Circuit Court in Szczecin, Poland [2019] EWHC 2745 (Admin)	Supported the principle that further information is incorporated into the EAW and that only nullities cannot be cured by supplementation.	The court agreed with this reasoning and applied it to the present case.

Court's Reasoning and Analysis

The court began by affirming that "particulars of the conviction" under section 2(6)(b) of the Extradition Act 2003 include the place of participation in the offence, consistent with Article 606.1(e) of the TCA and the former Framework Decision. It acknowledged the Applicant’s contention that the absence of such specification rendered the warrant invalid.

However, the court examined the evolution of case law from Dabas through Bob-Dogi, Goluchowski, and Alexander. It noted that while Dabas imposed a strict requirement that warrants must contain all mandatory statements to be valid, subsequent decisions have recognized that some defects can be remedied by supplementary information provided by the requesting authority. This approach aligns with the cooperative spirit of the TCA and the Framework Decision, as well as the statutory scheme under the Extradition Act 2003, particularly section 202.

The court found that the omission of the place of participation was a lacuna rather than a wholesale failure to provide particulars. The supplementary information received from the requesting authority clarified the place of the offence, curing the defect. The warrant was not internally contradictory or confusing, and the Applicant was aware of the place of the offence as he was present at trial.

The court further reasoned that there was no unfairness or prejudice to the Applicant’s rights in allowing supplementation. The combined warrant and supplementary information satisfied the statutory requirements for a Part 1 warrant. Therefore, the sheriff was correct in holding that the warrant was a valid Part 1 warrant and ordering extradition.

Holding and Implications

The court granted leave to appeal but ultimately DISMISSED the appeal.

The direct effect of this decision is to uphold the sheriff’s order for the Applicant’s extradition to serve the remainder of the sentence. The court confirmed that defects in arrest warrants concerning required particulars, such as the place of participation in the offence, may be cured by subsequent provision of supplementary information, provided the warrant is not wholly deficient. No new precedent was established beyond reaffirming and applying existing principles from prior case law and statutory interpretation in the context of the post-Brexit Trade and Cooperation Agreement framework.