Balaz v District Court of Zvolen (Slovakia)
| Jurisdiction | England & Wales |
| Judge | Mr Justice William Davis |
| Judgment Date | 05 July 2021 |
| Neutral Citation | [2021] EWHC 1862 (Admin) |
| Court | Queen's Bench Division (Administrative Court) |
| Docket Number | Case No: CO/252/2020 |
[2021] EWHC 1862 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
Royal Courts of Justice
Strand, London, WC2A 2LL
Mr Justice William Davis
Case No: CO/252/2020
Malcolm Hawkes (instructed by West Midlands Solicitors) for the Applicant
Stefan Hyman (instructed by CPS Extradition Unit) for the Respondent
Hearing date: 22 nd June 2021
Approved Judgment
Gabriel Balaz is a Slovak national. Since 2015 he has been living and working in the United Kingdom. He has a partner with whom he lives. They have a young daughter.
On 1 April 2019 the Judicial Authority in the Slovak Republic issued an accusation European Arrest Warrant (“EAW”) in respect of Mr Balaz. It was certified by the NCA on 12 May 2019. Mr Balaz was arrested on that day.
Extradition proceedings were heard in the Westminster Magistrates' Court in November 2019 and January 2020. On 21 January 2021 District Judge (Magistrates' Courts) Deborah Wright handed down her written reasons in which she ordered the extradition of Mr Balaz pursuant to the EAW.
Mr Balaz appeals against that order on a limited basis by permission of Mrs Justice Farbey. Permission to appeal initially was refused on the papers by Mr Justice Johnson. The single ground on which Mr Balaz has permission is whether his extradition is sought in respect of an extradition offence.
The conduct which was said to constitute an offence was set out by the District Judge in paragraph 3 of her reasons. She summarised the position and quoted the terms of the EAW.
The warrant relates to an offence of fraud, said to have been committed in the period up to 12th September 2017. The Framework list has been ticked under the category of swindling. In broad terms, the requested person is said to have placed an advertisement on a website which induced four people from the Slovak Republic to travel to Germany to meet the requested person where they paid him the sum of £1000 in exchange for the promise of work and accommodation. It is alleged that the requested person, having received the money, disappeared immediately after without providing any work. The actual wording used in Box (e) of the EAW, setting out the details of the alleged wrongdoing, needs to be examined when looking at the arguments:
“The accused in the unspecified time in the period until 12 September 2017 at the unspecified place on the website www.praca.eu published a false advertisement offering work in the warehouse in Berlin, Federal Republic of Germany. Ivan Urban, date of birth 7 February 1996……. replied to the advertisement on 12 September 2017 and communicated by mail and phone with the accused who used to the name nom Bolzman and agreed on the conditions of the arrival to the Federal Republic of Germany, including meeting with the presumed coordinator, Mr Heyduk and including job details for Ivan Urban and later also jobs for other persons……..[3 people named]. On 17 September 2017 these four persons arrived to Berlin, Federal Republic of Germany at the guesthouse Laabs….. Where they all met with the accused named Mr Heyduk, they signed the working and accommodation contracts and Ivan Urban gave the accused cash amounting to €1000, which covered the price of accommodation for all four persons. After the accused received the money, he has left and the aggrieved party could not contact him anymore; he has failed to provide the agreed job and the financial means he has used for his own purposes by which he has misled the aggrieved party and caused damage to Ivan Urban amounting to €1000.”
The offence charged was as follows:
Fraud
(1) Any person who enriches himself or other to the detriment of another .person's property through misrepresentation of another person or through taking advantage of another person's mistake, and thus causes small damage to the property of another, shall be liable to a term of imprisonment of up to two years.
As I have said the EAW was issued by the Judicial Authority in the Slovak Republic. The place where the conduct took place is very much in issue. The most likely place in which the relevant conduct occurred was Germany. Thus, the District Judge had to address whether the matter in respect of which Mr Balaz's extradition was sought was an extradition offence. This required consideration of Section 64(4) of the Extradition Act 2003:
(4) The conduct also constitutes an extradition offence in relation to the category 1 territory if these conditions are satisfied–
(a) the conduct occurs outside the category 1 territory;
(b) in corresponding circumstances equivalent conduct would constitute an extra-territorial offence under the law of the relevant part of the United Kingdom punishable with imprisonment or another form of detention for a term of 12 months or a greater punishment.
(c) the conduct is punishable under the law of the category 1 territory with imprisonment or another form of detention for a term of 12 months or a greater punishment (however it is described in that law);
The critical issue was whether the equivalent conduct in this jurisdiction would constitute an extra-territorial offence under the law of England and Wales.
The District Judge found that the extra-territoriality requirement was met on two bases. The first basis proceeded on the premise that the conduct set out in the EAW was equivalent to the offence of fraud contrary to Section 1 of the Fraud Act 2006. From there the District Judge moved to consider the effect of the Criminal Justice Act 1993 as amended. Section 1 of that Act sets out the offences to which the Act applies. One such offence is the offence of fraud. It is classified as a Group A offence. Section 2 of the Act is as follows:
(1) For the purposes of this Part, “relevant event”, in relation to any Group A offence, means ….any act or omission or other event (including any result of one or more acts or omissions) proof of which is required for conviction of the offence.
(1A) In relation to an offence under section 1 of the Fraud Act 2006 (fraud), “relevant event” includes–
(a) if the fraud involved an intention to make a gain and the gain occurred, that occurrence;
(b) if the fraud involved an intention to cause a loss or to expose another to a risk of loss and the loss occurred, that occurrence.
(2) For the purpose of determining whether or not a particular event is a relevant event in relation to a Group A offence, any question as to where it occurred is to be disregarded.
(3) A person may be guilty of a Group A offence if any of the events which are relevant events in relation to the offence occurred in England and Wales.
Section 4 of the Act is in these terms:
In relation to a Group A or Group B offence—
(a) there is an obtaining of property in England and Wales if the property is either despatched from or received at a place in England and Wales; and
(b) there is a communication in England and Wales of any information, instruction, request, demand or other matter if it is sent by any means—
(i) from a place in England and Wales to a place elsewhere; or
(ii) from a place elsewhere to a place in England and Wales.
The District Judge analysed the conduct with which she was concerned. She concluded that relevant events had occurred in the Republic of Slovakia, namely that property had been despatched from that country and that a communication had been sent to that country. Thus, the offence of fraud would have been an extra-territorial offence under the law of England and Wales. By that route Section 64(4)(b) was satisfied.
In the appeal the Judicial Authority does not seek to support that reasoning. I consider that this concession is properly made. First, the offence of fraud by false representation as committed within this jurisdiction is complete once a false representation is made dishonestly with the requisite intent. The reference to an obtaining of property is not apposite. Second, by reference to Section 2(1A) of the 1993 Act the gain or loss of 1,000 euros did not occur in the Republic of Slovakia. For Section 4 of the 1993 Act to give jurisdiction the relevant property i.e. 1,000 euros would have had to have been despatched from the Republic of Slovakia. The District Judge found that the complainants had travelled from...
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Szilard Bellencs v Hungary
...does not matter for the purposes of assessing whether the requirement for dual criminality has been met: Balaz v Slovenia [2021] EWHC 1862 (Admin) at paras 15 – 16. Mr Justice William Davis J (as he then was) observed that to “go beyond the simple equivalence of conduct and UK offence woul......