Godlewski v Polish Judicial Authority
| Jurisdiction | England & Wales |
| Judge | Mr Justice Cranston |
| Judgment Date | 22 June 2016 |
| Neutral Citation | [2016] EWHC 2404 (Admin) |
| Court | Queen's Bench Division (Administrative Court) |
| Date | 22 June 2016 |
| Docket Number | CO/166/2016 |
[2016] EWHC 2404 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
THE ADMINISTRATIVE COURT
Royal Courts of Justice
Strand
London WC2A 2LL
Mr Justice Cranston
CO/166/2016
Malcolm Hawkes (instructed by MacMillan Williams) appeared on behalf of the Appellant
Amanda Bostock (instructed by CPS Extradition) appeared on behalf of the Respondent
This is an appeal against the decision of District Judge Ashworth to order the appellant's extradition to Poland pursuant to a European Arrest Warrant issued on 17 August 2012 and certified by the National Crime Agency that same day.
The one ground of appeal concerns whether the District Judge was in error in concluding that the conduct described in the EAW constituted an extradition offence under section 10 of the Extradition Act 2003 (the "2003 Act"). The offence is described in the warrant as follows:
"In September 2002 in Buczkowice, after he had collected the goods in the form of small flower pots and big plant pots from the … Trade and Production Enterprise Prosperplast General Partnership … on the basis of the VAT Invoice No 00913/02 with the deferred terms of payment till 22nd May 2002, he made only partial payment, neither having paid the remaining amount due nor having returned the goods in order to gain material benefit, he appropriated a movable property entrusted to him, causing damage amounting to 76,843.45 PLN/zlotych …"
That amount is equivalent, on Mr Hawkes' calculation, to some £13,000 according to the exchange rates at the time.
The warrant seeks the appellant's return to serve a sentence of 18 months' imprisonment that was imposed on 18 April 2006. The appellant had been summoned to appear at the trial, but he did not attend and was convicted in his absence. The sentence was suspended for four years and he was ordered to pay a fine. However, the warrant states, on 3 August 2008 the suspended sentence was activated because of the appellant's failure to pay the fine, to remain at the address and to perform an obligation imposed on him. He was required to attend prison on 15 November 2010 but did not do so. There was a wanted notice issued in September 2011 and then, as I have said, the European Arrest Warrant was issued the following year. One reason for the delay in executing that warrant was that it was believed that the appellant was in Germany.
The appellant's offence is under article 284(2) of the Polish Penal Code. Article 284 (as translated) is set out in the warrant:
"Article 284(1) Whoever appropriates someone else's movable property or property rights shall be subject to the penalty of deprivation of liberty for up to 3 years.
(2) Whoever appropriates a movable property entrusted to him shall be subject to the penalty of deprivation of liberty for a term between 3 months to 5 years."
The framework list of offences in the warrant was not ticked and thus the issue of dual criminality arose. The CPS Extradition Unit asked the Polish authorities to address that issue asking, amongst other questions, the following:
"Was there anything dishonest about the way in which the requested person committed the offence? This could include words or conduct which was untrue or misleading."
On 1 October 2015, the Polish authorities responded to this question as follows:
"18. Dishonest behaviour of the convicted man involved picking up the goods, i.e. plant pots from the aggrieved person, taking advantage of the opportunity to pay for the goods at a later date, and then, despite the fact that the payment date had expired, he paid only a part of the outstanding debt. Furthermore, he did not return the goods for which he had not paid to the aggrieved person".
In addressing the issue of dual criminality, the District Judge recorded that both parties agreed that the only admissible evidence on this issue were the contents of the warrant and of the further information. The District Judge said this:
"In my evaluation of the wording of the EAW alone, it demonstrates an offence of dishonesty. The accusation is that he obtained goods, failed to pay for them, 'in order to gain material benefit, he appropriated a movable property entrusted to him'.
Taking goods and neither paying for them, nor returning them 'in order to gain material benefit' impels only one conclusion — that the action is dishonest.
It may be that the [appellant] had a defence to put forward, but that is a matter for the Polish Court, not for me.
I am sure that the description of the offence as contained in the EAW and paragraph 18 of the Further Information (starting as it does with the word 'dishonest') amounts to theft as it alleges a dishonest act."
The requirement for an extradition offence in section 10 of the 2003 Act is that the conduct set out in the EAW must constitute the offence under our law had the offending occurred here. In Assange v Swedish Prosecution Authority [2011] EWHC 2849 (Admin) the President of the Queen's Bench Division, Sir John Thomas, said that it was not necessary to identify in the...
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