England and Wales High Court (Administrative Court) Decisions

IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
THE ADMINISTRATIVE COURT

		Royal Courts of Justice Strand London WC2A 2LL
		31 May 2012

1. MR JUSTICE LLOYD JONES: Rafal Gesiewski appeals against the decision of Senior District Judge Riddle, sitting at the Westminster Magistrates' Court on 23 March 2012, to order his extradition to Poland pursuant to a European Arrest Warrant issued by the Regional Court of Bialystok in Poland. The warrant was issued on 29 September 2011. It was certified by the Serious Organised Crime Agency on 11 November 2011. The warrant relates to five convictions for five separate offences: three of robbery, one described as "buying goods that had been stolen", and one of assault. The appellant was represented by counsel at the hearing before Judge Riddle. The application for his extradition was not opposed. As a result, there is no record of any judgment having been delivered by Judge Riddle.
2. Miss Tyler, who did not appear below, now appears on behalf of Mr Gesiewski and seeks to advance two grounds of appeal. They are first that the district judge was wrong to conclude that the offence of buying goods that had been stolen satisfied the requirements of dual criminality, and secondly that the judge was wrong to conclude that extradition in respect of the offence of assault would not be barred by section 20. She accepts, of course, that neither of those points was raised below.
3. The first matter which I have to consider today, the appeal having been listed before me, is whether I should grant an adjournment on the application of Mr Gesiewski to enable him to produce evidence in support of the second proposed ground of appeal. That is his point on section 20. Miss Tyler, who appears on behalf of the applicant, says that he maintains that, although he was interviewed by the police in relation to the assault, he never received a summons to court, he never attended court in relation to the matter, and was therefore convicted in his absence. She has shown me a letter which was written on 21 May to the requesting judicial authority inviting them to produce evidence to show that he was actually summoned to appear on that occasion.
4. The warrant itself records in relation to this offence of assault that he was aware that criminal proceedings were pending against him, he was instructed of his obligations to appear at every summons of the proceedings agency and to notify the proceedings agency of any change in his place of residence exceeding seven days. He was duly notified of the date and place of the court hearing at the address provided by him for delivery. However, he failed to appear on the scheduled date of the court hearing and the court ordered a default judgment which has become valid and is in full force. It is said that the judgment that ordered his conviction is in full force and is not an in absentia judgment as described in Article 5.1 of the Framework Decision.
5. Miss Tyler accepts that she faces something of an uphill struggle in the course which she now wishes to take in relation to this ground. There has been no response yet from the Polish authority. She says that it will be inappropriate to lodge any evidence to explain why the point was not taken below until such time as evidence in relation to the substance of the matter is available. However, in response to questions from me, she has indicated that it will be Mr Gesiewski's case that he did tell his counsel below about the matter, but that the matter was not raised at the hearing before Judge Riddle.
6. On behalf of the respondent, Mr Hearn accepts that it is open to the appellant to raise points on appeal which were not raised below. However, it is clear that in the circumstances of the present case that cannot be done without evidence and Mr Hearn, on behalf of the respondent, opposes any application by the appellant to put in further evidence. He does so on the basis of the well-known principle as stated by Sir Anthony May, PQBD, in Szombathely City Court & Ors v Fenyvesi & Anor [2009] EWHC 231 (Admin), where he said:

"In our judgment, evidence which was 'not available at the extradition hearing' means evidence which either did not exist at the time of the extradition hearing, or which was not at the disposal of the party wishing to adduce it and which he could not with reasonable diligence have obtained. If it was at the party's disposal or could have been so obtained, it was available. It may on occasions be material to consider whether or when the party knew the case he had to meet. But a party taken by surprise is able to ask for an adjournment. In addition, the court needs to decide that, if the evidence had been adduced, the result would have been different resulting in the person's discharge."

7. It is clear to me that the evidence which it is now proposed to obtain was available at the extradition hearing. It could have been obtained at the time and was therefore available. In those circumstances, whatever might now be produced in response to the request made of the requesting authority, it seems to me that it is a matter that could and should have been placed before the district judge. Quite apart from the fact that this is a speculative claim at a very late stage in the proceedings, there is no possibility of that evidence being admitted on the appeal, and therefore I refuse an adjournment to permit the appellant to obtain that further evidence.
8. I need to hear the parties in relation to the other ground of appeal, which is a ground which is raised for the first time by Miss Tyler. Mr Hearn accepts that it is a ground she is entitled to rely on because it does not depend on fresh evidence, but where nevertheless he says he is prejudiced because he is taken by surprise.
(Submissions were heard)
9. MR JUSTICE LLOYD JONES: The other ground on which Miss Tyler relies on this appeal is essentially a double criminality ground. Under section 10 of the Extradition Act, it is necessary for me to decide whether the offence for which the extradition is sought is an extradition offence. That in turn depends on the definition of "extradition offence" in section 65 of the Extradition Act 2003. In the particular circumstances of this case, it is necessary for the court to be satisfied that under section 65(3)(b) the conduct alleged 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.
10. It is common ground between the parties that the test to be applied here, as throughout the statute, is a conduct test. (See Norris v Government of the United States [2008] UKHL 16). The conduct relevant under Part 1 is that described in the warrant. That description in the present case is as follows:

"On 18 March 2007 in Bialystok in Lipowa he bought a Samsung E-250 mobile telephone for PLN 100 (the actual value of that mobile being PLN 599) from an unknown person, the subject telephone had been obtained through a prohibited act, namely theft with the use of violence against Marcin Piotr Lipski, whereby Rafal Gesiewski acted to the detriment of Elzbieta Lipska."

11. On behalf of the requesting judicial authority, Mr Hearn points to the offence of possession of criminal property contrary to section 329(1) of the Proceeds of Crime Act 2002 as the relevant offence if the conduct had taken place within the United Kingdom. The property is defined as criminal property if it constitutes a person's benefit from criminal conduct or it represents such a benefit and the alleged offender knows or suspects that it constitutes or represents such a benefit. The mens rea, therefore, is one of knowledge or suspicion as opposed to one of knowledge or belief under section 22(1) of the Theft Act 1968 in respect of handling stolen goods. It is not difficult to see why Mr Hearn, on behalf of the respondent authority, selects that offence, which sets a lower hurdle for the authority to clear.
12. There is no express reference in the warrant to the mens rea. It is permissible in certain circumstances to draw inferences from the description provided in the warrant. (See for example Zak v Regional Court of Bydgoszcz, Poland [2008] EWHC 470 (Admin) per Richards LJ at paragraph 16).
13. I would also draw attention to the observation of Stanley Burnton J as he then was in Holmes v Governor of Brixton Prison [2004] EWHC 2020 (Admin), that it scarcely surprising that information provided by foreign courts and prosecution authorities, which establishes an offence or offences under their own law, does not address specifically the technical requirements of English law.
14. However, it would not be sufficient that a matter may be a possible inference. It is necessary that it should be the only reasonable inference. Thus in Assange v Swedish Prosecution Authority [2011] EWCA 2849 (Admin), Sir John Thomas PQBD delivering the judgment of the court stated at paragraph 57:

"...The facts set out in the EAW must not merely enable the inference to be drawn that the Defendant did the acts alleged with the necessary mens rea. They must be such as to impel the inference that he did so; it must be the only reasonable inference to be drawn from the facts alleged. Otherwise, a Defendant could be convicted on a basis which did not constitute an offence under the law of England and Wales, and thus did not satisfy the dual criminality requirement."

15. In the present case, the question for me to consider is whether the description of the conduct alleged impels the inference that it is done with knowledge or suspicion that the mobile phone represented the benefit of crime. I have come to the clear conclusion that it does. The description of the offence makes specific reference to the fact that it was sold for one sixth of its true value. In those circumstances, it seems to me an irresistible inference that it is alleged that it was purchased with such knowledge or suspicion.
16. For those reasons, I do not consider that it is appropriate or necessary to grant an adjournment to permit the requesting judicial authority to produce further information in relation to the offence, a course which I would otherwise have followed, because, as Miss Tyler accepts, this point was not taken below and the respondent authority has been taken by surprise. In the light of the clear conclusion that I have come to as to the necessary inference from the conduct expressly alleged, I am satisfied that the requirements of double criminality are satisfied in this case. Therefore the appeal will be dismissed.

Are there any further matters?

MISS TYLER: I am legally aided. Can I ask for a detailed assessment of costs?

MR JUSTICE LLOYD JONES: Certainly. There will be detailed assessment of costs for the purpose of legal aid. Thank you both very much.