QUEEN'S BENCH DIVISION
Royal Courts of Justice
London WC2A 2LL
B e f o r e :
MRS JUSTICE SWIFT DBE
|REGIONAL COURT OF BYDGOSZCZ POLAND||Respondent|
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(Official Shorthand Writers to the Court)
Miss R Davidson (instructed by the CPS) appeared on behalf of the Respondent
Crown Copyright ©
"On the day of 2nd July 2003 in Inowrociaw he acquired from Michal Lewandowski a mobile telephone make Nokia 5510 worth of PLN 300.00 for the amount of c.a. PLN 100.00, about which, based on the surrounding circumstances, he should and could have suspected that it had been obtained by a prohibited act."
That has been supplemented by further information provided by the judicial authority. I need refer only to what is said in a document dated 18th February 2008 which reads, in material part:
"The gathered evidence shows that the defendant should and could have assumed that the phone Nokia 5510 had been obtained in connection with a prohibited act because the purchase price amounting to PLN 100 was three times lower than its true value -- PLN 300. Furthermore, the phone was sold without any documents, any loader [i.e. charger], packaging, the defendant did not know his business partner and no sale contract was made (even though such a sale contract was not required, in these circumstances it would have ensured a proper sale transaction). If the defendant had conducted in the existing objective circumstances exercising due care and attention, he would have made an assumption about the criminal origin of the phone. The defendant did not follow the pattern of conduct which can be expected from 'a typical citizen'.
Due to circumstances stipulated in paragraph 2 it can be stated that the defendant should and could have assumed that the phone was obtained in connection with a prohibited act.
At unintentional handling of stolen goods, an offender is unaware of a fact that the goods he deals with were obtained in connection with a prohibited act. However, in factual circumstances where an offender took action connected to the thing, he had possibility to assume that the thing was obtained in connection with a prohibited act. He could have made the assumptions about the origin of the phone on the basis of attendant circumstances during the purchase of a thing.
Attendant circumstances create opportunities and obligation for an offender to make assumptions that the thing he deals with was obtained in connection with a prohibited act. If attendant circumstances are so unusual that no conclusions referring to the origin of a thing can be drawn, then there are no grounds for any subjective attribution of an unintentional character of offence to an offender.
Obligation, as an element which identifies the type of fault and the level of intention in a prohibited act stipulated in article 292, is determined by a standard, an example (a model) presenting the level of requirements which can be expected from any person who performs his/her duties or activities related to his/her affiliation with his/her professional or social environment.
In order to attribute an unintentional character of offence to an offender it must be proved that while performing defined activities in concrete attendant circumstances he did not make assumptions about the criminal origin of a thing, which resulted from a certain failure in his conduct which can be defined as the violation of proper conduct in given circumstances. Describing the offender's conduct, the following thesis may be formulated: if he had conducted in given objective circumstances exercising due care and attention, then he would have made an assumption that the thing he purchased, accepted, or he helped in its disposal was obtained in connection with a prohibited act.
If an offender had known, thus had been fully aware that this deed results from a prohibited act -- his conduct should be classified in accordance with Article 291, paragraph 1 of Criminal Code ..."
"Accordingly, it is immaterial whether dishonesty was a necessary constituent of the offence in the United States constituted by the conduct there, if the conduct alleged included acts or omissions capable of amounting to dishonesty here."
In paragraph 126 he said:
"It was for the United States government simply to identify in the papers constituting part of its request information, of the conduct upon which it relied, and for the District Judge to consider whether, on that information, the conduct, if it had occurred here, would have constituted an offence here."
"It is true that there were suspicious circumstances. As I have already indicated, the appellant told two conflicting stories as to the circumstances in which he had come into the possession of this animal. On the other hand there were none of what have come to be regarded as the usual trappings of a guilty receipt; there was no reliable evidence that he paid too little for the horse. The prosecution evidence indicated that the absence of a receipt in these circumstances was not unusual: apparently people trading in horses are not apt to record their transactions in writing as a general rule in ordinary circumstances."
"What is required is that the court should decide whether the interference with a person's right to respect for his private or (as the case may be) family life which would result from his or her extradition is proportionate to the legitimate aim of honouring extradition treaties with other states. It is clear that great weight should be accorded to the legitimate aim of honouring extradition treaties made with other states. Thus, although it is wrong to apply an exceptionality test, in an extradition case there will have to be striking and unusual facts to lead to the conclusion that it is disproportionate to interfere with an extraditee's Article 8 rights."