CO/66/2008 
Neutral Citation Number: [2008] EWHC 470 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION 
DIVISIONAL COURT 
Royal Courts of Justice 
Strand
London WC2A 2LL 

Date: Wednesday, 27th February 2008
 
B e f o r e:

LORD JUSTICE RICHARDS 

MRS JUSTICE SWIFT DBE 
 
Between: 
ZAK 
Appellant

v 

REGIONAL COURT OF BYDGOSZCZ POLAND 
Respondent 

Computer‑Aided Transcript of the Stenograph Notes of  
WordWave International Limited
A Merrill Communications Company 
190 Fleet Street  London EC4A 2AG
Tel No: 020 7404 1400 Fax No: 020 7831 8838
(Official Shorthand Writers to the Court)
 
Miss R Kapila (instructed by Hallinan, Blackburn, Gittings & Nott) appeared on behalf of the Appellant 
Miss R Davidson (instructed by the CPS) appeared on behalf of the Respondent  

Judgment

1.	LORD JUSTICE RICHARDS:  The appellant is the subject of a European arrest warrant, issued by a judicial authority in Poland.  His extradition was ordered by District Judge Anthony Evans on 2nd January 2008 following a hearing at which the appellant was represented but no issues were raised on his behalf. 
2.	Subsequently the appellant, by this time acting in person, filed a notice of appeal under section 26 of the Extradition Act 2003.  At a hearing before the Divisional Court on 31st January, a representation order was granted and the case was adjourned to allow the appellant to be properly represented on the appeal.  
3.	At today's adjourned hearing, Miss Kapila has appeared for the appellant and, in an excellent and succinct set of submissions, has raised three issues.  The first of those issues is a submission that the conduct for which the appellant's extradition is sought does not constitute an extradition offence, because it does not meet the condition in section 64(3)(b) of the 2003 Act that"... the conduct would constitute an offence under the law of the relevant part of the United Kingdom if it occurred in that part of the United Kingdom." 
4.	In order to explain that submission it is necessary to refer to the relevant part of the European arrest warrant, and to further information that has been provided by the requesting authority in respect of the warrant.  The offence for which extradition is sought is described in the warrant as "unintentional receiving of stolen property", contrary to Article 292, section 1 of the Polish Penal Code.  The conduct is described in the warrant as follows: 
"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 ..." 
5.	The question is whether the conduct, as described in the warrant and supplemented in the further information, would constitute an offence under the law of England and Wales.  It is common ground that one looks, for this purpose, at the conduct complained of or relied on in the warrant and the further information, not at whether the ingredients of the Polish offence have a precise equivalent under English law:  see Office of the King's Prosecutor (Brussels) v Cando Armas [2005] UKHL 67, per Lord Bingham at paragraph 16 (referring to section 65, but the same must apply to section 64).  
6.	In Norris v Government of the United States of America [2007] EWHC 71 (Admin), [2007] 2 AER 29, the court had to decide whether the conduct alleged in a request under Part 2 amounted to an extradition offence, and in particular whether it amounted to an offence under English law.  The US charge in that case arose under the Sherman Act and related to price fixing.  Auld LJ, giving the leading judgment, stated at paragraph 27 that it was not a material averment under the US law to prove that the appellant and co‑conspirators intended to defraud or deceive.  One of the issues raised was whether the relevant offence under English law was that of conspiracy to defraud, which involved an element of dishonesty, and whether that offence was disclosed by the material relied on.  The court held, following Cando Armas, that the focus had to be on the conduct relied on, not on the offence charged in the requesting state.  At paragraph 124, Auld LJ summarised the position as it applied to that case as follows: 
"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."
7.	In the present case, two offences under English law are relied on by the requesting authority: handling stolen goods contrary to section 22 of the Theft Act 1968, and possession of criminal property contrary to section 329 of the Proceeds of Crime Act 2002.  In fact, only the first was relied on before the District Judge.  
8.	A person handles stolen goods contrary to section 22 of the Theft Act if, knowing or believing them to be stolen goods, he dishonestly receives them.  The prosecution must prove knowledge or belief that the goods were stolen and must prove dishonesty.  It is not sufficient that the circumstances would have put a reasonable man on enquiry or that he suspected that they were stolen and shut his eyes to the circumstances (see for example R v Grainge 59 Cr.App.R page 3, and R v Moys 79 Cr.App.R page 72). I note in passing that in Moys at page 75 the Lord Chief Justice said this: 
"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." 
9.	For a person to commit an offence of possession of criminal property contrary to section 329 of the Proceeds of Crime Act he must know or suspect that the property constitutes or represents a person's benefit from criminal conduct (see the definition of "criminal property" in section 340(3)).  
10.	The submission made by Miss Kapila is that the conduct complained of and relied on by the requesting authority must include both the actus reus of the English offence which it is said the conduct would constitute and also the mens rea of that offence.  It is for the requesting authority to specify the conduct and for the court to decide whether the conduct so specified amounts to an offence.  
11.	It is submitted that in this case the conduct specified does not include knowledge or belief that the mobile telephone was stolen, or knowledge or suspicion that it constituted or represented a person's benefit from criminal conduct.  What is alleged falls short even of suspicion.  It is alleged only that the appellant could and should have suspected that the mobile telephone was stolen.  The essence of the allegation is a failure to exercise due care and attention and falling below an objective standard.  Reference is made both to the wording of the warrant itself and to the further information that I have quoted.  The allegation made by the requesting state is that the appellant did not make assumptions about ‑‑ that is to say did not suspect ‑‑ the criminal origins of the property in circumstances in which he should have done so, and would have done so if he had exercised due care.  That conduct, it is submitted, does not disclose the mens rea requisite for it to constitute either of the offences under English law relied on by the requesting authority.  
12.	I have concentrated on the absence of an allegation of knowledge, belief or suspicion, but in relation to section 22 of the Theft Act, Miss Kapila makes a similar point in relation to the absence of an allegation of dishonesty, which is one of the ingredients of the English offence.
13.	The authority's response, presented equally ably by Miss Davidson, is to focus on the details of what is alleged against the appellant: namely that while serving at a kiosk he bought a stolen mobile telephone without documents, a charger or packaging or a contract (presumably, it is suggested, a receipt) from someone whom he did not know, at a price only one third of its true value.  Miss Davidson submits that the mental element of an offence is, in a case such as this, a matter of inference.  The inference drawn by the requesting authority from the objective facts is one that is relevant to the particular ingredients of the Polish law in question, namely that the appellant ought to have known or suspected that the item was stolen.  But the objective facts are equally capable of supporting the inference relevant to the ingredients of the English offences, that the appellant did in fact know or believe that the telephone was stolen or know or suspect it was criminal property.  The same point applies to the element of dishonesty in the offence of handling.  It is said that whether to charge an offence of handling or possession of criminal property would be a matter for the discretion of the prosecutor, but that the conduct alleged amounts to either of the two offences.
14.	Miss Kapila's submissions have made me hesitate about the right decision in this case.  The conduct described in the warrant and in the further information does not, in terms, include the elements of knowledge, belief or suspicion as to the mobile telephone being stolen or being criminal property.  An allegation of actual knowledge might indeed involve in Poland a different offence from that charged there, namely an offence of intentionally receiving stolen property.
15.	However, it appears to me that actual belief or actual suspicion are consistent with the offence of unintentional receiving that is charged in Poland, but they are simply unnecessary for that offence since the relevant Polish law looks at whether the appellant could and should have suspected, rather than at whether he actually did suspect or believe.  In those circumstances, if the conduct alleged is such that actual belief or suspicion can properly be inferred from it, then I am inclined to the view that it does not matter that such actual belief or suspicion is not spelled out in terms in the warrant or further information.  
16.	Thus, I would reject the submission that the requesting authority has to identify or specify in terms the relevant mens rea of the English offence.  In my view, it is sufficient if it can be inferred by the court from the conduct that is spelled out in the warrant and further information.  That seems to me to accord fully with the reasoning in Norris (the essential part of which I have quoted) and the decision in that case.
17.	Here the matters set out in the warrant and further information do provide a proper basis for the inference that the appellant believed that the mobile telephone was stolen or suspected that it was criminal property.  To use language similar to that deployed by Auld LJ in Norris, the conduct alleged includes matters capable of sustaining the necessary finding of belief or suspicion for the purposes of the relevant offences under English law.  
18.	For those reasons, I would reject the submissions made on behalf of the appellant on the first issue, concerning extradition offence.
19.	The remaining two issues advanced by Miss Kapila overlap.  They concern the triviality of the offence and the impact of extradition on the appellant's private and family life.  They are presented, first, in terms of Article 8 of the European Convention on Human Rights, and secondly, in terms of the provisions of section 14 of the 2003 Act whereby extradition is barred by reason of the passage of time if, and only if, it appears that it would be unjust or oppressive to extradite a person by reason of the passage of time since he is alleged to have committed the extradition offence.  
20.	The submissions are founded, first, on the proposition that the offence for which the extradition is sought is a relatively trivial one, involving the handling of an item of low value.  They are founded, secondly, on a witness statement very recently filed in which the appellant recounts his personal circumstances.  He is 41 years old.  He and his wife came to this country in May 2004 from Poland.  He has been in various forms of work since that date.  His wife is also in full‑time work.  They have a son who is 19 years old and attends a college of technology, where he is in the third year of a diploma course.  The appellant's brother also resides with the family.  The appellant says that “we have very much made a life for ourselves here and would be very upset to have to leave". 
21.	The relevant test as regards Article 8 is to be found in the case of Jaso, Lopez and Hernandez v Central Criminal Court No.2 Madrid [2007] EWHC 1983 (Admin), at paragraph 57 of which Dyson LJ said this, applying decisions of the House of Lords in Razgar and Huang: 
"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." 
22.	Miss Kapila contends that the offence for which extradition is sought is so trivial that to extradite the appellant, with the resulting adverse effect on his private and family life, would be disproportionate to the legitimate aim of honouring extradition treaties with other states.  It would be, to use the words of Walker J at the hearing on 31st January, "to use a sledgehammer to crack a nut".  
23.	Miss Davidson rightly submits in her skeleton argument that the triviality of an offence is not itself a ground for resisting extradition under the 2003 Act, by contrast with the former position under section 11(3) of the Extradition Act 1989.  But I see no reason why, in striking the balance under Article 8, the relative seriousness of the offence for which extradition is sought should not be taken into account.  
24.	Nevertheless, looking at the overall circumstances of the present case, and applying the approach in Jaso, I am satisfied that the facts are nowhere near strong enough to lead to the conclusion that extradition would involve a disproportionate interference with the appellant's Article 8 rights.  I should make clear that I do not regard the words used by Dyson LJ in Jaso, as to "striking and unusual facts", as laying down an additional test.  I accept Miss Kapila's submissions as to that.  Nevertheless, the facts of this case are plainly not of a kind to give rise to a breach of Article 8.
25.	The other way in which the point is put, as I have indicated, is by reference to section 14 of the 2003 Act.  Reference is made to a passage in Kakis v Government of the Republic of Cyprus [1978] 1 WLR 779 at 784G, where Lord Diplock stated that the gravity of an offence is relevant to whether changes in the circumstances of the accused, which have occurred during the relevant period, are such as would render his return to stand trial oppressive.  What is said on the appellant's behalf is that, in the period since the offence is said to have been committed, he has established a life for himself and his family in this country.  To turn his life over and return him to Poland for the sake of a trivial offence would be oppressive.  
26.	Miss Kapila acknowledged that this was in substance much the same point as that advanced under Article 8.  It seems to me to have no greater weight when presented by reference to section 14 of the 2003 Act than when presented by reference to Article 8.  I am entirely satisfied that return in the circumstances of this case cannot be said to be oppressive by reason of the passage of time since the appellant is alleged to have committed the offence.
27.	For those reasons, the conclusion I reach is that this appeal must be dismissed. 
28.	MRS JUSTICE SWIFT:  I agree.
29.	MISS KAPILA:  My Lord, can I ask for Legal Aid assessment.
30.	LORD JUSTICE RICHARDS:  Indeed so.  Detailed assessment, certainly.  Thank you both very much.