THE APPLICATION FOR LEAVE TO APPEAL UNDER SECTION 28(1) OF THE EXTRADITION ACT 2003 BY HER MAJESTY'S ADVOCATE ON BEHALF OF THE REGIONAL COURT IN RADOM, REPUBLIC OF POLAND AGAINST MIROSLAW ALEKSANDER LISEK [2017] ScotHC HCJAC_15 (17 March 2017)

Web Blue HCJ

APPEAL COURT, HIGH COURT OF JUSTICIARY

[2017] HCJAC 15

HCA/2016-000047/XM

 

Lord Brodie

Lady Clark of Calton

Lord Turnbull

OPINION OF THE COURT

delivered by LORD BRODIE

in

THE APPLICATION FOR LEAVE TO APPEAL

under section 28(1) of the Extradition Act 2003

by

HER MAJESTY’S ADVOCATE

on behalf of the Regional Court in Radom, Republic of Poland

Appellant

against

MIROSLAW ALEKSANDER LISEK

Respondent

Appellant:  D Dickson AD;  Crown Agent

Respondent:  G Brown, Solicitor Advocate;  G R Brown Solicitors

17 March 2017

Introduction
[1]        The respondent, Miroslaw Aleksander Lisek, appeared before the sheriff at Edinburgh on 18 August 2016, having been arrested on a European Arrest Warrant issued by a judge of the Regional Court in Radom, Poland, and dated 27 January 2016 (“the EAW”).  As such, the EAW was a Part 1 warrant issued by a Category 1 territory in terms of the Extradition Act 2003 and so certified in terms of section 2(7) of the Act by an officer of the National Crime Agency on 27 June 2016.  The respondent accepted that he was the person named in the EAW.

[2]        The EAW narrated that the respondent, having appeared in person at the trial resulting in the decision, had under a judgment of the District Court in Radom dated 2 June 2008 been sentenced to a custodial sentence of two years for the fact that:

“(1)      On 26 December 2006 in Radom the above stole property entrusted to him, namely sewing machines, ie stitch-bonding machines and punching machines, as a result of leasing agreement No 0002365/2006 concluded with GETIN Leasing SA in Wroclaw, worth in total PLN 65,100 to the detriment of the above entity in the way that he did not return the above mentioned machines being the subject of leasing although the agreement had been terminated by GETIN Leasing SA and he was called on to release the property being the subject of the leasing agreement, ie an offence under Article 284 § 2 of the Penal Code.

 

(2)        On 7 May 2007 in Radom, the above stole property entrusted to him, namely ESTRICH BOY DC 260/45 screed pump serial number WO9D4AAAAVB6B10199, as a result of leasing agreement No 37/0313/06 concluded with Pekao LEASING Spolka z o.o. in Warsaw, worth in total PLN 129,320 to the detriment of the above entity in the way he did not return the above mentioned machines being the subject of leasing although the agreement had been terminated by Pekao LEASING Spolka z o.o. and he was called on to release that property being the subject of the leasing agreement, ie an offence under Article 284 § 2 of the Penal Code.”

 

The nature and legal classification of the offences and applicable statutory provision/code is stated to be Article 284.2 of the Penal Code – stealing a thing entrusted.  In the Form A – Supplementary Information attached to the EAW, against description of the circumstances of the offence, the narrative of fact quoted above is repeated.  The legal classification is stated as Article 284 of the Polish Penal Code, and the legal description of the offence is stated as “appropriation”.

[3]        On 18 August 2016 the sheriff gave the respondent the information specified in section 8(3) of the Act as to consent to extradition.  The respondent confirmed that he did not consent to extradition to Poland.  The sheriff fixed 1 September 2016 as a full extradition hearing and remanded the respondent in custody.

[4]        The full hearing assigned for 1 September 2016 was discharged on defence motion, as were three subsequently fixed hearings.  A hearing was then fixed for 1 December 2016.  At the preliminary hearing on 3 November 2016, Mr Brown, Solicitor Advocate, intimated to the court that the argument at the full hearing would be in respect of section 10(2) of the Act, and specifically that the offences specified in the EAW were not extradition offences. 

[5]        At the full hearing on 1 December 2016, having heard parties, the sheriff held that the offences specified in the EAW were not extradition offences and accordingly, in terms of section 10(3) of the Act, ordered the respondent’s discharge. 

[6]        In terms of note of appeal lodged on 7 December 2016 the appellant, the Lord Advocate acting on behalf of the Polish judicial authority, seeks leave to appeal and appeals in terms of section 28(4) of the Act on the ground that the sheriff erred in fact and law in finding that the conduct described in the EAW describing the offences of which the respondent was convicted in Poland did not constitute an extradition offence.

 

The Sheriff’s decision
[7]        The sheriff has provided a note dated 30 December 2016 at the end of which he poses the question for this court as: 

“In the circumstances, did I err in concluding that the two offences described in the European Arrest Warrant did not amount to extradition offences under sections 10 and 65 of the Act?”

 

In his note he records that no evidence was led at the hearing and that the only ground on which extradition was challenged was under section 10 of the Act.  He summarises the submission on behalf of the respondent as being that the charges were not offences known to Scots law and did not show the necessary mens rea for a criminal offence.  He makes reference to the decision of King J in Gruszka v Regional Court in Opole and Circuit Court in Swidnica, Poland [2015] EWCA 2564 (Admin).  The sheriff does not record the submission for the appellant. 

[8]        In stating his reasoning the sheriff explains that given that the respondent had been sentenced for an offence but that no certificate had been issued by the appropriate Polish authority that the conduct constituting the offence fell within the European Framework list, for the offences to be extradition offences, in addition to meeting the criteria in section 65(1) they had to meet the criteria set out in section 65(3) and, in particular, the criterion set out in section 65(3)(b) of the Act:  that the conduct constituting the Polish offences constituted an offence under Scots law.  What had been submitted on behalf of the respondent was that they did not;  while the word “stolen” was used, the narrative in the EAW did not describe events which showed the necessary mens rea for theft.  It was not enough that the description is capable of describing a criminal offence known to Scots law;  the description must “impel such a description”:  Gruszka.  The sheriff took the view that the requirements of section 65 were not met.  The offences were said to arise from commercial contracts.  The criminality was said to have arisen as a result of failure to return the goods following demand.  Although it was speculative, it was not difficult to see that there were a variety of possible explanations for failure to return goods, most of which did not require criminal intent:  loss or destruction of the goods without fault of the hirer, in a fire or in transit for example;  a liquidator preventing removal of goods pending clarification of title;  theft by a third party;  contractual breach disentitling the owner to demand redelivery;  the hirer having a right of retention;  or the assignation, transfer or extinction of the obligation to redeliver.  The sheriff considered that if it was important to bear in mind that the relevant Polish authority had not certified the offences as falling within the European Framework list.  It had been open to the Polish judge to certify these as offences of theft, or other category, which would have served to remove any discretion from the Scottish courts as to whether these were extradition offences:  section 65(5) of the Act.

 

Submissions to this Court
Appellant
[9]        Mr Dickson, on behalf of the Polish judicial authority moved for leave to appeal and submitted that the appeal should be allowed.  The sheriff had failed to consider the conduct narrated in the EAW as constituting the offences in contravention of Article 284.2 of the Penal Code and then properly to undertake an assessment as to whether it would constitute an offence under the law of Scotland.  Had he done so he should have concluded that what was narrated would constitute the crime of theft, the necessary mens rea being readily inferred from the narrative of fact:  Carmichael v Black, Carmichael v Penrice 1992 SLT 897 at 901K;  Harazin v Lord Advocate [2010] HCJAC 65;  Gordon Criminal Law (3rd edit) paras 14.05, 14.10, 14.11.  The test was whether the description of the conduct which had led to conviction in Poland would have constituted a relevant charge of a criminal offence known to the law of Scotland.  As the sheriff had recognised, there was no other issue over the validity of the EAW and the extradition request.  The possibilities canvassed by the sheriff might provide a defence to a charge of theft, but only once they were raised by the accused.  It had been inappropriate to second-guess the decision of the Polish judge.  The sheriff’s drawing an adverse inference from the absence of a tick against any of the listed Framework offences was unwarranted.  Apart from anything else, theft was not an offence that was included on the list. 

 

Respondent
[10]      On behalf of the respondent Mr Brown submitted that the question at the end of the sheriff’s note should be answered in the negative and the appeal refused.  In terms of section 65(3)(b) of the Act the question was whether the conduct narrated in the EAW constituted a crime under the law of Scotland.  To answer that question in the affirmative the narrative had to impel that conclusion:  Assange v Swedish Prosecution Authority [2011] EWHC 2849 (Admin) at paras 57 and 76, Gruszka at para 20.  There was no reference to dishonesty in the narrative of conduct.  The sheriff had adopted the correct approach by considering the variety of possible explanations that there might be for failing to return goods following upon a demand by the owner to do so.

 

Decision
[11]      Part 1 of the 2003 Act was enacted by the United Kingdom in implementation of its obligation under Article 34 of Council Framework Decision of 13 June 2002 (2002/584/JHA).  The Framework Decision makes provision for the European Arrest Warrant, of which the EAW in the present appeal is an example.  In the Act a European Arrest Warrant is described as a “Part 1 warrant”.  The territory of a member state of the European Union is described as a “category 1 territory”.

[12]      In terms of the 2003 Act a Part 1 warrant may contain a statement that the person in respect of whom the warrant is issued is accused of an offence specified in the warrant (see section 2(2)(a), (3) and (4)) (an “accusation warrant”) or it may contain a statement that the person in respect of whom the warrant is issued is unlawfully at large after conviction of an offence specified in the warrant (see section 2(2)(b), (5) and (6)) (a “conviction warrant”).  In either case when the person is brought before the appropriate judge for the extradition hearing, the judge must decide whether the offence specified in the Part 1 warrant is “an extradition offence” (section 10(2).  In the case of an arrest on a conviction warrant, interpretation of “extradition offence” is governed by section 65 of the Act. 

[13]      In so far as relevant, section 65 provides as follows:

“65 Extradition offences:  person sentenced for offence

 

(1)        This section sets out whether a person's conduct constitutes an ‘extradition offence’ for the purposes of this Part in a case where the person—

(a)        has been convicted in a category 1 territory of an offence constituted by the conduct, and

(b)        has been sentenced for the offence.

(2)        The conduct constitutes an extradition offence in relation to the category 1 territory if the conditions in subsection (3), (4) or (5) are satisfied.

(3)        The conditions in this subsection are that—

(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.

...

(5)        The conditions in this subsection are that—

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

(b)        no part of the conduct occurs in the United Kingdom;

(c)        a certificate issued by an appropriate authority of the category 1 territory shows that the conduct falls within the European Framework list;

(d)       the certificate shows that 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.”

 

[14]      Section 65 reflects the terms of Article 2 of the Framework Decision in that it provides for extradition in respect of two categories of offences:  first (Article 2.2 of the Framework Decision), Framework list offences (cf Office of the King’s Prosecutor, Brussels v Cando Armas [2006] 2 AC 1 at para 50), to which subsection (5) of section 65 relates;  and, second (Article 2.4 of the Framework Decision), offences other than Framework list offences, in respect of which surrender under the warrant may be subject to the condition that the acts for which the European Arrest Warrant has been issued constitute an offence under the law of the executing member state, to which subsection (3) of section 65 relates.  It has long been a principle of extradition that the person should only be extradited where the conduct is not only an offence under the law of the state requesting extradition, but also under the law of the state from which the person’s extradition is sought;  this is the principle of dual criminality:  Assange at para 55.  Thus, Article 2.4 of the Framework Decision allowed member states to preserve the principle of dual criminality when implementing the Decision in respect of offences that were not Framework offences.  On the face of it, Article 2.2 is a departure from the principle but the departure may be more apparent than actual.  As Lord Bingham observed in Office of the King’s Prosecutor, Brussels at para 5, underlying the Framework list is an unstated assumption that offences of the character of those listed will feature in the criminal codes of all member states;  the assumption is that double criminality need not be established in relation to these offences because it can, in effect, be taken for granted. 

[15]      The Framework Decision includes, in an annex, a pro forma European Arrest Warrant.  At section E of the pro forma warrant there is set out the Framework list offences with an invitation to tick the box beside a particular offence “if applicable”.  The EAW in the present case follows that format.  However, none of the offences listed is ticked.  As a result there is no certificate that the conduct of which the respondent was convicted falls within the European Framework list, as provided for by section 65(5)(c) of the Act.  Accordingly, this is a case where dual criminality must be demonstrated in terms of section 65(3) and therefore “the particulars of the conviction” which must be contained in a Part 1 conviction warrant in terms of section 2(6) of the Act, require to include a description of conduct which would constitute an offence under the law of the relevant part of the United Kingdom (here Scotland):  section 65(3) (b).

[16]      The sheriff provides four partly overlapping reasons for accepting the submission on behalf of the respondent that the conduct for which the respondent had been convicted in Poland would not constitute an offence under the law of Scotland.  In the order that they occur in the sheriff’s note these are:

(1)        The offences of which the respondent had been convicted in Poland were not offences known to the law of Scotland.  While the word “stole” is used, the narrative in the EAW did not show the necessary mens rea for theft. 

(2)        It is not enough that the description of the relevant conduct in the warrant is capable of describing a criminal offence known to Scots law.  The description must impel such a description:  Gruszka.

(3)        There are a variety of possible explanations for failure to return goods which have been the subject of a contract of hire which are capable of displacing mens rea:  the goods may have been destroyed or lost without fault, for example by accidental fire or loss in transit;  redelivery may be thwarted by the act of a third party;  there may be a contractual defence to a demand for return arising from wrongful termination, a plea of retention or set-off, or a dispute over the transfer or assignation of obligations.

(4)        The Polish judicial authority (a judge in the Regional Court) did not consider that the offences should be certified as falling within the European Framework list.  It had been “open to the judge to certify these as offences of theft, or other category.  The judge did not do so.  It was a necessary inference that the Polish judicial authority had a good reason for so deciding.  It would follow that a Scottish court should be slow to take a contrary view, and to assume (based on nothing more than a short translated narrative) that this was an error or oversight, and that in fact these are offences which would fall within that framework (for example “aggravated theft”). 

We shall consider these reasons separately, although the first three rather run one into the other. 

[17]      It is accepted that the section 65(1) criteria are met, as are the section 65(3)(a) and (c) criteria, but, and we have designated this as his reason (1), the sheriff considered that the conduct of which the respondent was convicted did not constitute an offence under the law of Scotland, hence the section 65(3)(b) criterion was not met.  In order to assess that we begin by reminding ourselves of the conduct which constituted the respondent’s contravention of Article 284.2 of the Polish Penal Code.  The charges related to two separate incidents each involving different property but the conduct was essentially the same in each case.  We therefore take charge (1) as an example in that what applies to it must also apply to charge (2).  Charge (1) is in these terms: 

“(1)      On 26 December 2006 in Radom the [respondent] stole property entrusted to him, namely sewing machines, ie stitch-bonding machines and punching machines, as a result of leasing agreement no.  0002365/2006 concluded with GETIN Leasing SA in Wroclaw, worth in total PLN 65,100 to the detriment of the above entity in the way that he did not return the above mentioned machines being the subject of leasing although the agreement had been terminated by GETIN Leasing SA and he was called on to release the property being the subject of the leasing agreement, ie an offence under Article 284 § 2 of the Penal Code.”

 

Mr Dickson submitted that, leaving aside the reference to the Polish Penal Code, that narrative would constitute a relevant charge of theft under the law of Scotland.  We agree.  In Scots law the essential characteristic of the crime of theft is the appropriation (in the sense of treating as one’s own) of an item of tangible moveable property which belongs to someone else without that person’s consent:  Gordon Criminal Law (3rd edit) paras 14.01, 14.10.  The conduct amounting to appropriation may take a number of forms.  Wheel-clamping a vehicle is one example.  That is what was in issue in Carmichael v Black, the charge simply stating that the accused attached the device to the wheel of the motor car, thus depriving the person having control of it of the use of the car and that they did steal the same.  However, what was said there by Lord Justice-General Hope in his opinion in Carmichael (supra at 901K and 902B-F), with which the other members of the court concurred, has more general application:

“The Lord Advocate submitted that there was no need to spell out in the charge what was the intention of the act.  It was sufficient to state what the act was.  The felonious intention could be left to inference.  In the normal charge of theft, which describes the act of taking away or appropriation, the facts averred will invite the inference.  So also in this case the intention necessary for mens rea could be inferred simply from the fact of depriving the motorist of the use of the car.

 

...

 

It seems to me that the act of depriving the motorist of the use of his motor car by detaining it against his will can accurately be described as stealing something from him, and that on this basis the facts libelled are sufficient to constitute a charge of theft.  The accused are said to have deliberately placed a wheel clamp on a wheel of the vehicle which they found in the car park, in order to detain it there and keep it under their control against the will of the motorist.  There is no suggestion that it was intended by the motorist that they should have control over the car for any purpose, or that by parking the vehicle in the car park he intended that anyone else should have control over it.  And the physical element of appropriation is clearly present, in my opinion, since the purpose and effect of the wheel clamp was to immobilise the vehicle and use of it as a motor car.

 

I should add that I am not persuaded that this approach involves an extension of the crime of theft beyond limits which have already been recognised.  While the act cannot be described as theft by taking away, I consider that it can properly be described as theft by appropriation of the car in the car park. 

 

... 

 

Thus the deliberate nature of the act of appropriation in knowledge of its consequences is sufficient in this case to justify the inference of mens rea.  I think that the necessary elements are all present in the libel and that the sheriff was wrong to hold that the alternative charges of theft were irrelevant.”

 

Thus, appropriation, which may or may not involve an act of taking away, is what is important, both as constituting the actus reus of theft and, without anything more, as justifying the inference of the necessary mens rea (a point explained in Gordon at para 14.01).  The accused in Carmichael never had any rights in respect of the motor car which they had wheel-clamped, but a person can equally be guilty of theft if he appropriates an article which he was originally entitled to possess, for example by virtue of a loan or a contract of hire-purchase:  Gordon at para 14.01.  That was the position in Harazin v Lord Advocate, an application for extradition to Poland on a conviction warrant where the offence in question was a contravention of the same provision of the Penal Code as is applicable here:  Article 284.2.  Giving the opinion of the court in Harazin, Lord Bonomy said this:

“The sheriff interpreted the statements of the circumstances of each of the offences with the assistance of the provisions of the Polish Penal Code which were specified as having been contravened, and with the additional benefit of a second translation of the EAW which the Crown obtained when the interpreter at court stated that the English translation of the EAW which accompanied the Polish warrant was a poor translation.  The sheriff found that there were no material differences from the point of view of the essentials of the charges.  However, he identified one advantage of the new translation as being the translation into English of the names of the various organisations which were mentioned.  His approach can be illustrated by reference to the way in which he dealt with the circumstances of charge 1:

 

‘In relation to charge I the original warrant described it thus:  'On 28 November 2001 in Kielce, he stole the car make 'Ford Escort' Reg.  No.  KJV-2602 worth £18,000 PLN acting at the loss of Cezary Radomski.' In the new translation, it was said that 'He appropriated a Ford Escort car...valued at £18,000 Zlotys, entrusted to him by Cezary Radomski.' The offence is said to be contrary to Article 284.2 of the Criminal (original warrant) or Penal (new translation) Code.  I was provided with an English translation of 'The Penal Code'.  According to Article 284.2, 'Whoever appropriates a moveable property entrusted to him shall be subject to the penalty or deprivation of liberty for a term of between 3 months to 5 years.' The appellant's explanation was that he was buying this car on hire purchase, and that it had been left behind in a garage on the farm when he had been put off the property;  he had not been allowed to recover it.  It may well be that the appellant was buying this car on hire purchase, but it is quite clear that Article 284.2 describes an offence of dishonesty, and that the Polish Court have found that the appellant dishonestly appropriated the vehicle.  In my view, the appellant's conduct was criminal by the law of Scotland.’

 

The Sheriff proceeded to deal with each of the other cases of theft and fraud in a similar way.  Having reviewed the sheriff's analysis of the circumstances, we are satisfied that he correctly determined in each case that the conviction was in respect of an extradition offence.”

 

There is therefore no question but that the conduct described in the EAW in the present case would constitute the crime of theft under Scots law.  The narrative of retention of the lessor’s machinery after the termination of the lease despite a call for its return constitutes the deliberate appropriation which amounts to the actus reus of theft.  The nature of that conduct is also “sufficient ...to justify the inference”, to use the language of Lord Hope in Carmichael, of the mens rea of theft, that being the intention to deprive the owner of his property (Gordon at para 14.23 rejects the utility of the imprecise concept of “dishonesty” in determining the mens rea of theft). 

[18]      It is convenient now to consider the sheriff’s reason (3) for concluding that the conduct narrated in the EAW did not constitute an offence under the law of Scotland.  In paragraphs 16 and 17 of his note the sheriff sets out “a variety of possible explanations for failure to return goods [which] do not require criminal intent”.  The sheriff’s examples are of situations where a hirer has been deprived of possession or control of the article in question (which comes to the same thing) by force majeure or where he has contractual claims allowing him to retain possession, “all capable of displacing mens rea for the purpose of criminal law”.  We suppose the sheriff to be right about his various imagined examples but all of them are just that, imagined, or as he puts it, “ speculative”.  There is no reason whatsoever to suppose that, to take one of the sheriff’s examples, the machinery referred to in the EAW had been destroyed by an accidental fire.  It would be different if any of the sheriff’s imagined examples appeared on the face of the EAW;  if, for example, the description of the offence of which the appellant had been convicted disclosed that a conviction had followed despite the machinery having been accidentally destroyed by fire or that the appellant had otherwise been convicted on a basis which included him being prevented from returning the machinery by force majeure.  However, that is not the case;  what we have in the EAW is a description of conduct which would constitute a relevant charge of theft under the law of Scotland.  Just because one can imagine good defences to that charge on certain factual hypotheses, none of which can be said to apply, does not make the charge irrelevant.  To put it another way, what section 65(3)(b) requires is consideration of the conduct described in the warrant, not consideration of entirely imaginary conduct which has nothing to do with the facts of the case as presented to the executing court.

[19]      We return to reason (2), which was effectively the whole focus of Mr Brown’s submission to us.  Mr Brown drew our attention to para 20 of the judgment in Gruszka where King J said this:

“[Counsel for the appellant] has reminded this court of the important principles established in Assange [2011] EWHC 2489 that the inference of mens rea of any conduct has to be impelled by the description of the conduct.  The description of the conduct must be sufficient to impel the necessary inference of dishonesty.  It is said this cannot be so in this particular instance.  Reliance is put also on Brodziak [2013] EWHC 3394 (Admin) to like effect.”

 

Brodziak v Circuit Court in Warsaw, Poland, a decision of the Divisional Court, is indeed to like effect.  At para 15 of the judgment in that case there is this:

“Whilst inferences can be drawn as to mens rea, the facts must be such as to impel that inference (see the judgment of the Divisional Court in Assange v Swedish Prosecutor [2011] EWHC 2849 (Admin), at para 57);  and it is submitted that there is nothing within the particulars in the warrant which impels the inference that the appellant possessed the necessary mens rea in this case.”

 

The sheriff explains in his note that Gruszka was the authority relied on before him.  However, neither he in his note nor Mr Brown in his submission to us, offered any analysis of Gruszka or of Assange, to which King J refers.  We shall therefore attempt to supply the omission.

[20]      We confess to having been initially puzzled by the use of the word “impel”.  Its original provenance and meaning are to be found in para 57 of the judgment in Assange where the then President of the Queen’s Bench Division, Sir John Thomas (now the Lord Chief Justice of England and Wales), is recording the submission by Mr Ben Emmerson QC, Mr Assange’s counsel:

“It was accepted by Mr Assange that it was not necessary to identify in the description of the conduct the mental element or mens rea required under the law of England and Wales for the offence;  it was sufficient if it could be inferred from the description of the conduct set out in the EAW.  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.”

 

Thus, Mr Emmerson was drawing a distinction between, on the one hand, a description of conduct which justified a particular inference being drawn (in Assange the presence of the mens rea for sexual assault) but which would also permit a different inference, and, on the other hand, a description of conduct which was such as to permit only that particular inference reasonably to be drawn and no other.  His submission was that, where something had to be inferred in order to include all the elements of an English offence with a view to ensuring dual criminality, only the latter sort of description would do;  not the first.  That was Mr Assange’s position, but with all respect to King J, having read the judgment of the Divisional Court, we are doubtful whether it can properly be said that what had been submitted by Mr Emmerson was established as a principle by virtue of the court’s decision. 

[21]      What was under consideration in Assange was an accusation warrant which alleged that Mr Assange had committed four offences in Sweden.  Offence 4 (rape) was a Framework list offence.  Offences 1 (unlawful coercion) and 2 and 3 (sexual molestation) were not.  It was conceded on behalf of Mr Assange that the conduct described in the warrant in respect of offence 1 and 3 would constitute an offence in England and Wales, but his position was that a fair and accurate description of the prosecution case would not meet that test.  As far as offence 2 was concerned, this did not meet the dual criminality test either on the basis of the description in the warrant or of a fair and accurate description of the offence.  As offence 4 was a Framework list offence, the section 65(3)(b) test for dual criminality did not apply, but Mr Assange’s position was that the conduct had not been fairly and accurately described.  If it had been it would not have amounted to rape according to the law of England and Wales.  This contention:  that the descriptions were not fair and accurate, raised the question as to whether the alleged conduct could and should be tested by looking at extraneous material (from the Swedish prosecution file) to determine the nature of the case against Mr Assange.  The President, giving the judgment of the Divisional Court, focused that question as follows, at para 69:

“It is always possible, as [The Criminal Court at the National High Court, 1st Division (a Spanish Judicial Authority) v Murua [2010] EWHC 2609 (Admin)] demonstrates, that there may be circumstances in which extraneous material should be admitted without undermining the principles underlying the Framework Decision.  Such circumstances will be exceptional and therefore are likely to be very rare, given those underlying principles.  In our view, those circumstances will not arise where the EAW is clear on its face and the evidence sought to be adduced does not show that the case actually being advanced by the prosecutor is different to the case set out in the EAW.  Such circumstances will normally only occur where there has been a fundamental error or fundamental unfairness or bad faith on the part of the court or prosecutor in the issuing state.  It is necessary to consider whether the request for Mr Assange's surrender is such a case.”

 

At para 71 the Court states its conclusion that in this case it was not apposite to take into account the material in the prosecution file for reasons it then elaborated.  Nevertheless, as the material in the file had been put before the Court, it went on to express a view on that material.  Having done so the Court concluded in relation to charges 1 to 3 that dual criminality was made out, that charge 4 had been fairly and accurately described and that what was described amounted to rape according to the law of England and Wales.  The distinction suggested by Mr Emmerson’s between a description of facts which enable an inference to be drawn and a description of facts which impelled an inference to be drawn, played no part in the resolution of what was in issue in the case.  It is true that at para 76 of the judgment the President does use the word “impel” when reiterating the Court’s conclusion, previously stated at para 71 v) in the context of giving reasons why material in the prosecution file should not be taken into account, that the facts set out in the warrant were “sufficient to lead to the inevitable inference of lack of consent” and, in the same sub-paragraph (71 v)) that if Mr Assange had done as was alleged “it would also be the inevitable inference, to the extent relevant, that he knew that she was not consenting”.  However, we would be slow to read that as an endorsement of the proposition that where something has to be inferred in order that a description of conduct can be taken to include every element in an offence for the purposes of section 65(3)(b) of the Act that the inference must be an inevitable inference as opposed to merely an available inference.  The judgment contains absolutely no discussion of why the apparently more demanding “impel” should be preferred over the apparently less demanding “enable”.  It is true that the President does couch his reasoning in terms of inevitable inference but we would understand him as simply taking on the argument on Mr Emmerson’s terms, in other words expressing the view that in the circumstances of the particular case the Swedish prosecutor was relying on alleged facts which would impel the inference of lack of consent.  We do not recognise what appears in either para 71 or para 76 in Assange as a statement of principle.

[22]      Gruszka was concerned with two conviction warrants and one accusation warrant.  The point taken in relation to each of the conviction warrants was that it did not disclose conduct which could amount to a recognised offence in England and that therefore the conviction warrant was not in respect of an extradition offence.  King J first considered the warrant he designated EAW 2 in which the circumstances of the relevant offences were set out as follows:

“From 4 April 2000 to 8 September 2000 in Bielany, Wroclawskie and in Zabkowice Slaskie, acting with aforethought intent, fraudulently did he obtain money at the amount of PLN 4894.28 as well as fraudulently did he attempt to obtain the amount of PLN in the following way:  while being aware that he did not have sufficient financial means in his bank account he made out six cheques which he later presented and cashed causing a debit balance of PLN 4894.28 on his account which was to the detriment of Bank Zachodno SA Bank Branch in Ziebice.”

 

There then follow details of the presentation of each of the cheques at a branch of a bank and finally a reference to the applicable provisions of the Polish Penal Code.  King J accepted a submission that what was set out in EAW 2 did not constitute a crime under the law of England.  He noted under reference to Barclays Bank v WJ Simms Son & Cooke (Southern) Ltd [1980] QB 677, that if the customer draws a cheque when there are insufficient funds in his account and without making prior arrangements with the bank, the position is that the drawing of the cheque is a request for overdraft facilities.  The bank has no obligation to grant such facilities or to honour the cheque.  It is free to choose.  If the bank chooses to pay, then it has a claim against the customer, but the customer has not committed an offence.  At para 21 of his judgment King J said this:

“In my judgment, although the word ‘fraudulently’ is used, the warrant, as [counsel] submitted, does not expand or explain why it was considered the conduct to have been fraudulent or indeed dishonest beyond the mere fact of the transactions set out.  The phrase ‘acting with an aforethought intent’ adds nothing to the analysis.  I am persuaded that notwithstanding the submissions of the respondent, one cannot make out to the criminal standard that the conduct alleged includes making a false representation with intent to deceive a cashier.  ...  I am unable to say that the description of the conduct impels the necessary inference of dishonesty which is required both for an offence under the Fraud Act and indeed for an offence of theft.  For all these reasons, I agree with [counsel] that the EAW 2 does not disclose an extradition offence.”

 

[23]      The description of the offence in EAW 1 was as follows:

“On 6 May, 2003 in Nysa … for private financial gain, as a joint owner of the enterprise PHU ‘Marcin,’ with its registered office in Niedwiednik, purchased 8000 litres of fuel oil the value of which amounted to PLN 10 800, according to VAT invoice no.  DF 01133/03, with a deferred payment term, not intending or being able to pay this amount due, thus he caused PHU TANK spoika sp.z o.o [a limited liability company], with its registered office in Nysa, to disadvantageously dispose of the property in the aforementioned amount.”

 

King J said this about EAW 1 at paragraphs 23 and 24 of his judgment

“The description is of a transaction of obtaining fuel oil in the course of business under terms in deferred payments.  The key phrase is ‘not intending or being able to pay this amount due.’ [Counsel] for the respondent says this is clearly an offence of theft as well as an offence of fraud by false representation, because it alleges that the person has obtained fuel under a deferred payment scheme not intending to pay.  I would agree if that is the way in which the conduct is alleged against the appellant.  But it is not, in my judgment.  It is in the alternative.  And the alternative to not intending to pay is not being able to pay.  [Counsel for the respondent] has valiantly sought to invite me to say the ‘or’ should really be an ‘and’, and thus gives rise to clear dishonesty:  no intention to pay and not being in a position to pay amounts when due.  But I cannot read it in this way.  In the alternative, the conduct is simply not being able to pay when the amounts become due.

 

...  The conduct as alleged is not clearly conduct which would amount to a criminal offence in this country because it includes conduct which does not include an intention not to pay.  It includes conduct whereby when amounts became due the appellant was unable to pay.  One cannot impel, by the wording here, dishonesty to the standard required as in Assange.  The position is not saved, in my judgement, by the expression ‘for private financial gain.’ For all these reasons, I agree with [counsel for the appellant] and I conclude that the offence is not an extradition offence in EAW 1.”

 

[24]      We respectfully take no issue with King J’s reasoning and consider that a Scottish court would have come to the same conclusion as he did in relation to the two conviction warrants if it had to decide whether what was described there constituted offences under the law of Scotland.  However, we do not consider that King J’s reasoning supports the sheriff’s conclusion in the present case.  It had been argued before King J that the conduct described in EAW2 constituted the crime of fraud under English law but when he considered the description, although the words “fraudulently” and “acting with aforethought intent” were included in the narrative there was no reference to a fraudulent misrepresentation with intent to deceive (and therefore no reference to a practical result).  In other words, the conduct described did not amount to fraud under the law of England because an essential element which a prosecutor would have to prove in order to secure an English conviction was missing.  Applying language perhaps more familiar to a Scottish lawyer and the test proposed by Mr Dickson before this court, the description of the conduct in EAW 2 in Gruszka did not amount to a relevant charge of fraud, or indeed theft.  Similarly, when he came to consider EAW 1 King J noted that the relevant description in the warrant included what he construed as alternatives “purchased ...not intending or being able to pay”.  King J accepted that as far as the first alternative (purchased ...not intending ...  to pay) was concerned that would sufficiently describe the offence of theft as well as fraud by false misrepresentation.  However, as the conduct was described in the alternative he had to look to the weaker alternative (just as would a Scottish lawyer when determining the relevancy of averments), which was the second alternative.  That alternative (purchased ...not ...  being able to pay) included conduct whereby when the amounts became due, the appellant, without having initially had an intention not to pay, nevertheless found himself unable to pay.  That was not an offence under English law.

[25]      Thus in Gruszka when it came to the decisions, inferences, whether inevitable or otherwise, simply did not enter the picture.  In EAW 2 the description of the relevant conduct was not enough to amount to fraud.  In EAW 1 it was, but only on the first alternative version of the two versions of fact which King J considered were set out in the warrant.  King J’s decision does not support an “impel test”.  Neither, we would add, was his decision reached by the route adopted by the sheriff in the present case:  there was no speculation as to what were the other circumstances of the cases which led to the convictions.  There was no consideration of what defences might be available in England if certain imagined facts were applicable.

[26]      We turn to the sheriff’s reason (4).  There is a curiosity about “aggravated theft” to which we shall return, but we disagree with the sheriff that there is anything material that can be taken from the fact that the Polish judicial authority did not certify the offences of which the respondent had been convicted as Framework list offences.  The most that can be taken from the absence of certification is that in the opinion of the judge in the Regional Court the relevant offences under Article 284.2 of the Polish Penal Code are not offences which fell within one or other of the offence descriptions on the Framework list.  From the perspective of the United Kingdom as the executing member state that means that the Framework list with its presumption of dual criminality falls out of consideration and the question comes to be whether the conduct of which the respondent has been convicted is conduct to which the principle of dual criminality actually applies, as given statutory expression by section 65(3).  The question for the sheriff as the judge of the executing state is whether the conduct which led to a conviction in Poland would constitute an offence in Scotland.  That is a different question to the question as to whether the Polish offences are Framework list offences. 

[27]      We have said that there is a curiosity about “aggravated theft”.  When we refer to the EAW we are of course referring to the certified true English translation.  At section E 1 of the EAW “aggravated theft” is included in what, when compared with the consolidated version of the official English text of the Framework Decision with which the advocate depute provided the court, otherwise appears to be a comprehensive list of Framework offences.  We say “otherwise” because “aggravated theft” is not included in the English text of the Framework Decision (indeed neither is “theft”).  There is thus a discrepancy which we cannot explain.  We do not see it as something which matters.  This is not a Framework list case where the need for a finding of dual criminality is excluded by virtue of section 65(5) of the Act;  it a case where dual criminality remains in issue, to be judged by reference to section 65(1) and (3).

[28]      We are not therefore persuaded by any of the reasons which led the sheriff to conclude that the offences of which the respondent had been convicted were not extradition offences.  What he had to decide was whether the conduct set out in the EAW would constitute an offence under the law of Scotland if it occurred in Scotland.  It was submitted on behalf of the Polish judicial authority that it did, the offence being theft.  We agree with that submission.  As we have already explained, under reference to Carmichael v Black, Harazin and Gordon, the conduct described in the EAW would form a relevant charge of theft as a matter of Scots law.  As appears from the passage quoted from the opinion of the Lord Justice-General in Carmichael v Black, some of the elements of a particular offence will be established by direct evidence and, almost inevitably, some must be established by inference from the direct evidence.  Where in a purely domestic context an element in an offence has to be inferred the question of whether it can be inferred is usually expressed in terms of whether the averred or evidenced direct facts are sufficient to justify any inference necessary to establish the charge (cf Carmichael v Black supra at 902F).  We see no reason why any different approach should be adopted in the context of extradition when determining whether particular conduct, as described in a Part 1 warrant, amounts to an extradition offence.  However, were we to be wrong about that and dual criminality can only be determined where any inference which it was necessary to draw has to be an inevitable inference then in the present case we would conclude that that test is met.  When considering what is the appropriate inference to draw from given direct facts one must look to the given facts and to no others.  In the present case, as Mr Dickson submitted, the conduct described in the EAW both constituted that actus reus of theft and, as a matter of inevitable inference, demonstrated the mens rea of theft.

[29]      We accordingly answer the question posed by the sheriff at the end of his note in the affirmative.  He did err.  He should have held the offences in the EAW to be extradition offences.  We shall therefore grant leave to appeal, allow the appeal and remit to the sheriff to proceed as accords.