Gdansk Regional Court v Ulatowski
| Jurisdiction | England & Wales |
| Judge | Roderick Evans J |
| Judgment Date | 26 October 2010 |
| Neutral Citation | [2010] EWHC 2673 (Admin) |
| Court | Queen's Bench Division (Administrative Court) |
| Docket Number | Case No: CO/8035/2010,CO/8035/2010 |
| Date | 26 October 2010 |
[2010] EWHC 2673 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
Before: Mr Justice Roderick Evans
Case No: CO/8035/2010
Miss M Westcott (instructed by The Crown Prosecution Service) for the Appellant
Mr J Blake (instructed by Lawrence & Co) for the Respondent
Hearing date: 5 th October 2010
Mr Justice Roderick Evans:
The Proceedings
This is an appeal against a decision of District Judge Purdy made on 21 st July 2010 at the City of Westminster Magistrates’ Court. The District Judge considered whether the offences specified in a European Arrest Warrant (EAW) seeking the extradition of the respondent to Poland were extradition offences for the purposes of the Act. He concluded that the offences were not extradition offences and discharged the respondent pursuant to s.10(3) of the Act.
The sole issue in this appeal is whether that decision of the District Judge is correct i.e. whether the conduct described as constituting the two offences to which the EAW relates would constitute an offence under the law of England and Wales (see s.65(3)(b) of the Act).
Background
The EAW was issued on 21 st May 2009 by Anna Hodysz, a judge at the District Court dedicated to the Regional Court in Gdansk. The decision on which the warrant is based is described as a valid judgment of the District Court in Gdynia dated 30 th June 2003 and the penalty imposed by the court is 3 1/2 years imprisonment of which all but one day remains to be served.
The detailed description of the two offences given in the warrant is as follows:
“(a) In the period from November 2000 to January 2001 in Gdynia, in a premeditated action taken together with Katarzyna Ulatowski and with the intention of misappropriating it, he drew PLN 63,542.89 in cash from the savings and settlement account number 10201853–401458–270–41 maintained by the Polish Public Savings Bank, Branch 1 in Gdynia to the detriment of that bank.
(b) In the period from July 2000 to January 2001 in Gdynia in a premeditated action taken with the intention of misappropriating it, he drew PLN 252,500.86 in cash from the account number 10201853–625346–270–1 maintained by the Polish Public Savings Bank, Joint Stock Company, Branch 1 in Gdynia i.e. property of substantial value, to the detriment of the Polish Public Savings Bank.”
Under the heading “Nature and legal classification of the offences” on the EAW appear references to the Polish Penal Code as follows:
“Article 278.1 of the Penal Code in conjunction with Article 12 of the Penal Code and Article 294.1 of the Penal Code (penal Code Act of 6June 1997: Journal of Laws No. 88, it.553).”
The provisions of the main articles referred to are to be found (in translation) in the Judicial Authority's Opening Note prepared for the hearing before the District Judge. No exception has been taken to the translation:
Article 278.1
“Whoever, with the purposes of appropriating, wilfully takes someone else's moveable property shall be subject to the penalty of deprivation of liberty for a term of between 3 months and 5 years.”
Article 294.1
“Whoever commits the offence specified in Article 278.1….with regard to property of considerable value shall be subject to the penalty of deprivation of liberty for a term of between 1 and 10 years.”
The EAW was certified by the designated authority, the Serious Organised Crime Agency, on 6 th March 2010 in accordance with s.2(7) and (8) of the Act and the certificate states that the warrant is seeking the arrest of the respondent “for two offences of fraud”. “Fraud” is one of the “framework offences” listed in the Council Framework Decision of 13 th June 2002 as being one of the offences sufficiently serious to warrant extradition without the need to meet the dual criminality test. The list of these “framework offences” is set out in the EAW but despite the content of the certificate, all the offences in that list, including fraud, are struck through as not being applicable. The dual criminality test must, therefore, be applied.
Following sight of the EAW the Crown Prosecution Service made a request to the Polish Judicial Authority for further information. They sought answers to the following questions:
(i) Whose accounts was the money taken from re both offences?
(ii) What actions did Mr Ulatowski make in order to withdraw the money?
(iii) Did he make any misleading statements?
(iv) Had he been informed that he was not to withdraw the money from the accounts?
(v) Is it alleged he was dishonest in making the withdrawals?
Further information about the offences is set out in a letter dated 9 th April 2010 from Anna Hodysz. The information provided is as follows:
“1. The account number 10201851–401458–270–41 belonged to Bartlomiej and Katarzyna Ulatowski and it was their checking and current account opened by the said persons in 1995. There were two Visa Classic Debit Cards issued to accompany the account, one for Katarzyna Ulatowski and the other one for Bartlomiej Ulatowski and the owners committed themselves to making monthly contributions. The last monthly payment was made in December 2000. Additionally on 16 th November 1999 the account owners signed with PKO Bank Polska SA an agreement for revolving credit facilities, the limit of which amounted to 20,000 zloty. That amount constituted the admissible overdraft that the named persons were allowed to draw on their account and on which interest was accrued in accordance with a credit agreement. The level of the overdraft allowed was exceeded in November 2000 and since January 2001, as a result of withdrawals of money being made by the named persons by means of their debit cards, the amount overdrawn amounted to 63,542.89 zloty.
2. The account number 10201853–625346–270–1 was opened in Oddzial PKO Bank Polska SA on 5 th December 1999 for the current servicing of a trade and service company named Kodeks-Bis, the owner of which was Bartlomiej Ulatowski. To this account a European MasterCard Debit Card was issued with a limit of 50,000 zloty on a monthly basis. The said person was obliged to settle the debit balance created, but from July 2000 until February 2001 he feigned that obligation by paying into the account the total amount of 156,448 zloty, with the payments being made, however, only in the period from July and November 2000. On the other hand, over the same period i.e. from July 2000 to February 2001, he withdrew from the account 409,126.26 zloty.
In the opinion of the court, he was aware of acting to the detriment of the bank and against the provisions of the agreement relating to that account. He maintained the banks view on him as a good debtor by making payments to the account, yet despite the deepening debit on the account, he did not close the account and by doing so he committed a larceny of money. In both cases it is the bank that closed the account.”
It will be seen that in relation to the first offence the account number is somewhat differently described in the translated version of the additional information from the number given in the EAW. It is plain from looking at the original Polish version that this is merely a typographical error. In relation to the second offence the additional information gives a different and larger figure for the sum withdrawn from the account and extends the period to February 2001. However, the parties agree that nothing turns on these differences.
The hearing before the District Judge
In its opening note the judicial authority argued that the respondent's conduct, had it occurred in England and Wales, would have amounted to theft contrary to s.1 of the Theft Act 1968. That submission was maintained in the judicial authorities closing submissions but it was also submitted that the conduct would have amounted to obtaining a pecuniary advantage by deception contrary to s.16 of the 1968 Act.
On behalf of the requested person the District Judge was referred to Kohn (1979) 69 Cr App R 395 and Preddy [1996] AC 815 it was argued that the withdrawal of sums of money from one's own bank account in excess of an agreed overdraft did not constitute theft; while the balance in an account is a chose in action and is “property”, it is the property of the person in whose account that chose in action lies. In this case the money was withdrawn from the requested person's own account and was not, therefore, “property belonging to another.”
Having heard argument the District Judge concluded:
“The prosecution do not deny this area of substantive domestic law has been fraught with difficulties especially at the material time of the instant conduct. To my mind Blackstone's is wise in counselling against theft charges. The enactment of the Fraud Act 2006 “solved”, if that is the correct expression, many of the difficulties that bank credits and chose in action were found to have caused the substantive criminal law of theft. As I read the conduct specified in the instant EAW the complaint is not of a fraud ab initio but of manipulating the account to try and maintain credit facilities by drawing more than agreed and paying in somewhat less. I feel driven to conclude on the instant information the particularised conduct is not such as, at the material time, would/could have been an offence charged under the law in this jurisdiction.”
The Appeal
It is common ground between the parties that:
(a) before extradition can be ordered the court must be satisfied to the...
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