England and Wales High Court (Administrative Court) Decisions

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

		Royal Courts of Justice Strand, London, WC2A 2LL
		7 March 2013

Mr Justice Keith:

1. On 16 October 2012, the appellant, Mariusz Mikolajczak, was arrested pursuant to a European Arrest Warrant issued by the District Court of Kalisz, Poland. The warrant had been certified by the Serious Organised Crime Agency on 14 August 2012. It was what is colloquially called a conviction warrant. It sought Mr Mikolajczak's extradition so that he could serve sentences of 8 months, 2 years, 2 years and 3 years' imprisonment respectively for four sets of offences.
2. Poland has been designated as a category 1 territory pursuant to section 1 of the Extradition Act 2003 ("the Act"). Accordingly, Mr Mikolajczak's extradition is governed by Part 1 of the Act. Section 10(2) of the Act (which is in Part 1) required the judge at the extradition hearing to decide whether the offences specified in the warrant were extradition offences. The question which this appeal raises is whether one of the four offences in the second set of offences in the warrant is an extradition offence. The description of that offence in the warrant is as follows:

"… between 1 November and 12 December 2005 in Kalisz, as a continuing offence, he stole telephone impulses in this way that using a telephone he got into a telecommunication system located in the basement of a block of flats at 52 Asnyka Street and then phoning from private numbers he dialled 0-300900900 he charged his SIM card of his mobile phone for the total amount of 306.90 PLN and thus:

between 1 and 26 November 2005 and 4 and 12 December 2005, phoning from the number 753 62 39 twenty-one times he managed to charge his SIM card for the total amount of 207.60 PLN acting to the detriment of Ms Marianna Mazurek and TP SA;

between 20 and 25 November 2005 and then between 7 and 7 [sic] December 2005, phoning from a private number 766 32 20 eight times he charged his SIM card for the total amount of 79.20 PLN acting to the detriment of Mr Jerzy Lewnadowski and TP SA;

between 20 to 21 November 2005, phoning from a private number 766 2646 he charged his SIM card twice for the amount of 19.80 PLN, acting to the detriment of Ms Arleta Fingas and TP SA."

3. Since the warrant was a conviction warrant, the section of the Act which states what constitutes an extradition offence in Mr Mikolajczak's case is section 65. Section 65 sets out a variety of circumstances in which conduct constitutes an extradition offence, and the circumstances which are relevant to Mr Mikolajczak's case are those set out in section 65(3), which provides:

"The conduct … constitutes an extradition offence in relation to the category 1 territory if these conditions are satisfied –

(a) the conduct occurs in the category 1 territory;

(b) 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;

(c) a sentence of imprisonment or another form of detention for a term of 4 months or a greater punishment has been imposed in the category 1 territory in respect of the conduct."

The issue for the district judge was whether the offence of stealing telephone impulses in the way Mr Mikolajczak was alleged to have stolen them satisfied the requirement of dual criminality in section 65(3)(b). It is contended that the district judge was wrong to rule that it did.

4. The most authoritative statement on the application of the test of dual criminality is in the case of Norris v Government of the United States of America [2008] UKHL 16. The issue which had to be decided was whether the assessment should be based on an examination of the elements of the foreign offence, or whether the court simply had to determine whether the conduct complained of, if it had occurred within the relevant part of the UK, would have amounted to a criminal offence. The House of Lords concluded at [91] that the conduct test was the appropriate test, the relevant conduct "being that described in the documents constituting the request …, ignoring … the narrative background but taking account of such allegations as are relevant to the description of the corresponding United Kingdom offence".
5. Before you can say whether someone's conduct would have constituted an offence under English law, you have to identify the nature of the conduct complained of. It does not look as if the district judge did that. For my part, I do not think that it is at all obvious what the description of Mr Mikolajczak's conduct in the warrant actually means. Take the words "using a telephone he got into a telecommunication system located in the basement of a block of flats …" There are three possibilities about what that means. It could mean that he used a telephone to get into the basement in which the telecommunications system was located. Alternatively, it could mean that he used a telephone to get into the telecommunications system once he had got into the basement. Or it could mean that he never went into the basement, but that he used a telephone to get into the telecommunications system which was in the basement. None of that actually needs to be resolved, though, because it does not really matter how he got into the telecommunications system or where he was when he did so. What matters is what he is supposed to have done then.
6. There are, I think, three possible scenarios, though all of them involve treating the word "charged" as "credited". One is that he used the numbers of three other people to dial 0-300900900, and dialling that number enabled him to get credit on his SIM card. The amount of credit he got was debited to the accounts of the other people. That is the most literal meaning of the language of the warrant. However, that is highly unlikely to be the correct reading of the warrant because (a) Mr Mikolajczak would not have been stealing telephone impulses (instead he would have been obtaining credit on his SIM card), (b) it is not easy to understand why dialling 0-300900900 would have enabled him to get credit on his SIM card, and (c) it is difficult to see why he had to do that thirty-one times in order to get only 306.90 PLN worth of credit.
7. The second possible scenario is that he used the numbers of the other three people to dial 0-300900900 thirty-one times (presumably because that was the number of the person or institution he wanted to call), and the cost of those calls was debited to the accounts of those other people. That makes more sense, but it does not explain at all the use of his SIM card. He would have been using the SIM cards of the other people to which he had somehow gained access.
8. The third possible scenario is that he used the numbers of the three other people to get credit on his SIM card, and that credit enabled him to dial 0-300900900 thirty-one times (again because that was the number of the person or institution he wanted to call). The credit he obtained was then charged to the three people whose numbers he had used. That was the scenario advanced by Mr Nicholas Hearn for the requesting authority, and it is the likeliest one. It makes sense while at the same time explaining why it was Mr Mikolajczak's SIM card which would have been credited with what the cost of making these calls would have been. The difficulty is that, like the first possible scenario, it might be said that Mr Mikolajczak would not have been stealing telephone impulses: he would have been obtaining credit by fraud. However, I proceed on the assumption that the third scenario accurately described the conduct of Mr Mikolajczak of which the warrant complains.
9. Mr Hearn contended that on that scenario Mr Mikolajczak's conduct if committed now would constitute the offence of obtaining services dishonestly contrary to section 11 of the Fraud Act 2006. But that only came into force on 15 January 2007, i.e. after the time when Mr Mikolajczak stole the telephone impulses. Mr Hearn was therefore compelled to argue that Mr Mikolajczak's conduct would have constituted the offence of obtaining services by deception contrary to section 1 of the Theft Act 1978 (as amended by the Theft (Amendment) Act 1996), which was in force at the time. That provided, so far as is material:

"(1) A person who by any deception dishonestly obtains services from another shall be guilty of an offence.

(2) It is an obtaining of services where the other is induced to confer a benefit by doing some act, or causing or permitting some act to be done, on the understanding that the benefit has been or will be paid for."

There are two difficulties with this argument. First, it is questionable whether the use which Mr Mikolajczak made of other people's phone numbers amounted to the obtaining of services. They amounted rather to the obtaining of credit, and it was that credit which was used to obtain services. Secondly, I do not believe that Mr Mikolajczak could be said to have done that by deception. As was noted in the 11^th edition of Smith & Hogan's Criminal Law (which was published in 2005) at pp 754-755:

"… it has long been established that 'to deceive is … to induce a man to believe that a thing is true which is false, and which the person practising the deceit knows or believes to be false'. Deceit can therefore be practised only on a human mind (Davies v Flackett [1973] RTR 8). Where D obtains property or a pecuniary advantage as the result of some dishonest practice on a machine, without the intervention of a human mind, he cannot be guilty of an obtaining offence … There is a similar problem where the machine does not produce goods but provides a service. If the service is dishonestly obtained without deceiving a human being, there can be no obtaining offence … In Holmes [2004] EWCA 2020 (Crim) the court observed that Davies v Flackett is not a binding authority for the proposition that deception of a machine or computer is not a deception, but accepted that the prevailing view is that it is not possible to deceive a machine. The court regarded this as regrettable, and urged a new offence of theft or some cognate offence to deal with the problem."

That was why the Law Commission proposed "that it should be an offence to obtain a service dishonestly – whether by deceiving a person, giving false information to a machine, manipulating a machine without giving it false information, or by any other dishonest means". That proposal saw the light of day in section 11 of the Fraud Act, but that came too late to make what Mr Mikolajczak did an offence.

10. However, that is not quite the end of the story. There is an offence of dishonestly obtaining electronic communications services. It was created by section 125 of the Communications Act 2003. Section 125(1) provides:

"A person who –

(a) dishonestly obtains an electronic communications service, and

(b) does so with intent to avoid payment of a charge applicable to the provision of that service,

is guilty of an offence."

What I did not know at the time of the hearing was how an "electronic communications service" was defined in the 2003 Act, and therefore whether making phone calls on other people's lines amounted to the obtaining of such a service. Nor did I know whether this section of the 2003 Act had come into force by December 2005. Of course, this offence might not have covered Mr Mikolajczak's conduct, bearing in mind that he obtained credit, and it was that which he used to obtain the services. But I need not consider that further, because Mr Hearn took the pragmatic view that if Mr Mikolajczak's conduct could not have amounted to the offence of obtaining services by deception, he was not going to argue that the requirement of dual criminality had been satisfied.

11. It follows that the offence of stealing telephone impulses – at any rate in the way in which Mr Mikolajczak is alleged to have stolen them – is not an extradition offence. That conclusion, however, raises another question. Mr Mikolajczak did not receive a separate sentence for that offence. Indeed, he received a sentence of 2 years' imprisonment for that offence and three other offences. It is not disputed that the other three offences are all extradition offences. Should the appeal be allowed in respect of the offence of stealing telephone impulses, so that Mr Mikolajczak can still be extradited on the other three sets of offences and the other three offences in the second set of offences, but not for the offence of stealing telephone impulses? Or should his appeal be dismissed on the basis that the other three offences in the second set of offences were all extradition offences? Jackson LJ in Zboinski v Circuit Law Court in Swidnica, Poland [2011] EWHC 558 (Admin) favoured the latter approach. He was himself considering two conflicting authorities on the issue: Kucera v District Court of Karvina, Czech Republic [2009] 1 WLR 806 and Wiercinski v Second Division of the Criminal Court in Olsztyn, Poland [2008] EWHC 200 (Admin). He said at [39]-[40]:

"The first two offences listed would both be crimes in England and Wales. Thus they satisfy the dual criminality test in section 65(3)(b) of the Act. Turning to section 65(3)(c), it is not possible to tell what specific sentence has been attributed to either of the first two offences. At first sight this omission may be thought to be fatal, as held by this court in Wiercinski. However, such an approach would raise technical obstacles to extradition between the UK and Poland and thus would tend to thwart the objectives of the Framework Decision.

In my view it is implicit in the reasoning in the House of Lords in Pilecki [i.e. Pilecki v Circuit Court of Legnica, Poland [2008] 1 WLR 325] that the court should disregard the fact that individual offences, listed in the European arrest warrant, do not satisfy the definition of 'extradition offence' if (a) the total sentence exceeds four months and (b) some of the offences listed satisfy the requirements of section 65. In this regard I agree with the reasoning of Swift J in Kucera at paragraphs 51 to 57 of her judgment. Accordingly, I shall follow the decision of this court in Kucera. I shall not follow the decision in Wiercinski."

12. Irwin J was confronted with the same problem in Tokarski v Circuit Court in Swidnica, Poland [2012] EWHC 2247 (Admin). He said at [10]-[11]:

"Nevertheless, the point is academic for the purpose of extradition of this appellant because the other two offences recited in the warrant carry a penalty sufficient to pass the test as laid down by this court in Zboinski [2011] EWHC 558 (Admin) and recited in paragraphs 39 to 40 of that case following the reasoning of the House of Lords in Pilecki cited in the judgment.

The penalty here exceeds four months and two of the offences satisfy the requirements of section 65."

Irwin J was therefore purporting to follow Zboinski. The difficulty is that Irwin J went on to say:

"Therefore the appeal succeeds only to the extent that the extradition here will be in relation to the first and second offences on the second European Arrest Warrant only. To that extent the appeal succeeds."

If he had been following Zboinski, the appropriate course for him to have taken would have been to dismiss the appeal.

13. I too agree with the reasoning of Swift J in Kucera, and it follows that, to the extent that there can be said to be a difference in approach between Zboinski and Tokarski, Zboinski is to be preferred. It follows that this appeal must be dismissed, with no order as to costs save that there be a detailed assessment of Mr Mikolajczak's publicly funded costs.