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: On 13 January 2012, the appellant's extradition was ordered by District Judge Nicholas Evans in respect of a European Arrest Warrant issued by the Circuit Law Court of Swidnica, Poland on 27 April 2010. The warrant relates to two convictions for four separate offences. The appellant's surrender is sought for the purposes of serving in relation to the first conviction (which relates to two offences of possession of amphetamine, and the second, which is described in the warrant as an offence contrary to Article 276 of the Penal Code, offence against the credibility of documents) from the sentence of 1 year and 2 months' imprisonment originally imposed a period of 8 months and 1 day, and in relation to the second conviction (supply of amphetamines and possession of amphetamines) to serve 6 months and 1 day, being the remainder of a 1-year custodial sentence originally imposed.
2. The appellant appeals on the issue of whether the district judge was right to decide that the conduct specified in the warrant would constitute an extradition offence. It is right to say that when the matter came before the district judge, he dealt with this point summarily. He said that the requested person had raised one issue which even he conceded was academic. That was the submission that the second offence, relating to a military identity document, was not an extradition offence. The judge observed that if it was important, he would adjourn for further information to be obtained from the issuing judicial authority. However, that would take three weeks, and whether the offence is an extradition offence or not was academic: it would not prevent extradition because the requested person had been sentenced to an aggregate sentence combining the offence with another offence which was an extradition offence. On that basis, he left the matter and ordered the extradition of the appellant.
3. The question for consideration on this appeal is whether the requirement of double criminality is satisfied; more specifically, whether the offence in relation to the document is an extradition offence in 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. The offence is described in the warrant in the following terms:

"On 25 February 2003 in Walbrzych, in the province of Dolny Slask, the subject was hiding military ID document no. 314539 issued in the name of Marcin Ledwinek, which he did not have a right of disposal to."

4. It is common ground between the parties that in relation to this provision, as throughout the Extradition Act, one has to apply a conduct test. The court does not look to whether there is correspondence between the elements of the offence in the requesting jurisdiction and an offence or offences in the law in force in the relevant part of the United Kingdom, but solely to the description of the conduct (see The Office of the King's Prosecutor, Brussels v Cando Armas [2005] UKHL 67 per Lord Bingham at paragraph 16). Furthermore, it is common ground that the conduct must have been an offence under the law of the relevant part of the United Kingdom at the time it is said it was committed (see Norris v United States of America [2008] UKHL 16 at paragraph 62).
5. On behalf of the appellant, Mr Harbinson submits that the conduct described in the warrant does not constitute an offence contrary to the relevant part of the United Kingdom. On behalf of the respondent, Mr Caldwell submits that the conduct in question constitutes the offence of handling stolen goods contrary to section 22(1) of the Theft Act 1968; alternatively, that it constitutes the offence of theft contrary to section 1 of the Theft Act 1968. He has also referred in passing to a further alternative in the offence contrary to section 329 of the Proceeds of Crime Act. On the face of it, there are certain elements of each of those offences missing from the description in the warrant. In particular, there is no express statement that the document was stolen, that the conduct was dishonest, or that the item was received or retained with the knowledge that it was stolen or the belief that it was stolen.
6. I note in passing that for the purposes of the offence contrary to section 329 of the Proceeds of Crime Act, the relevant mens rea would be one of knowledge or suspicion.
7. Section 22(1) of the Theft Act 1968 provides:

"A person handles stolen goods if (otherwise than in the course of the stealing) knowing or believing them to be stolen goods he dishonestly receives the goods, or dishonestly undertakes or assists in their retention, removal, disposal or realisation by or for the benefit of another person, or if he arranges to do so."

The requesting authority says that the conduct described would constitute an offence contrary to this section. The appellant says that the following elements are missing: first, that the identity card was stolen; secondly, that the defendant knew or believed it was stolen; and thirdly that the defendant acted dishonestly.

8. 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.
9. I also draw attention to the observation of Stanley Burnton J in Holmes v Governor of Brixton Prison [2004] EWHC 2020 (Admin) that it is 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.
10. It is now clear that it is not sufficient that a matter may be a possible inference. It has to be the only reasonable inference. This is the point which emerges from the judgment of Sir John Thomas (President of the Queen's Bench Division) in Assange v Swedish Prosecution Authority [2011] EWCA 2849 (Admin), where he stated at paragraph 57:

"However, 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."

11. The description in the warrant makes clear that the property in the document was not the appellant's. It was a military identification document for another named person. It also makes clear that the appellant did not have a right of disposal of it and that he was concealing it. It seems to me that this gives rise to a very clear inference that it is alleged that he knew he should not have the document. I can think of no reason why he should hide it unless he knew he should not have it. Here it seems to me that the matters set out in the warrant do provide a proper basis for the inevitable inference that the card was stolen, that the appellant knew or believed that it was stolen, and that he acted dishonestly in retaining it.
12. Alternatively, the conduct alleged here would clearly constitute the offence of theft contrary to section 1 of the Theft Act 1968, the inference being impelled that this was a stealing by retention, the hiding of property which is not his own, and, again, the inference being impelled that it was dishonest.
13. It would be sufficient for present purposes if the conduct in question constituted one offence or the other, had it been performed in the relevant part of the United Kingdom. I am satisfied that the conduct described must constitute one offence or the other had it taken place here.
14. For those reasons, despite the helpful submissions of Mr Harbinson, I dismiss the appeal.

MR HARBINSON: My Lord, the usual matter of a detailed assessment of (Inaudible) costs.

MR JUSTICE LLOYD JONES: Certainly.