Gruszka v Regional Court in Opole & Circuit Court in Swidnica, Poland
| Jurisdiction | England & Wales |
| Judge | Mr Justice King |
| Judgment Date | 13 May 2015 |
| Neutral Citation | [2015] EWHC 2564 (Admin) |
| Docket Number | CO/1610/2015 |
| Court | Queen's Bench Division (Administrative Court) |
| Date | 13 May 2015 |
[2015] EWHC 2564 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
THE ADMINISTRATIVE COURT
Royal Courts of Justice
Strand
London WC2A 2LL
Mr Justice King
CO/1610/2015
Mr M Hawkes (instructed by Lansbury Worthington) appeared on behalf of the Appellant
Mr A dos Santos (instructed by the Crown Prosecution Service Extradition Unit) appeared on behalf of the Respondent
This is an appeal against the decision of District Judge Coleman on 2 April 2015 to order the appellant's extradition to Poland pursuant to three warrants. EAW 1 is a conviction warrant; EAW 2 is a conviction warrant; and EAW 3 is an accusation warrant.
The first issue taken on this appeal is an issue which was not raised below. It is conceded by Mr dos Santos that the appellant is entitled to raise it. The appellant does not seek to introduce fresh evidence. He relies solely on the wording of the warrant. This is a concession properly made when one has regard to section 27(4)(a) of the Extradition Act 2003.
The issue raised is that the offences set out in EAWs 1 and 2 are not extradition offences and the warrants are therefore invalid. It is common ground that under section 10 of the Act, the judge had to decide whether the offences specified in the warrant were extradition offences, and if he decided that question in relation to any offence in the negative, he had to order the person's discharge. The question as to what is an extradition offence for these purposes is answered by section 65 of the Act. (In this case, the European Framework list was not ticked in relation to either offence)
The material provision is section 65(3):
"The conduct also constitutes an extradition offence… if the conditions are satisfied.
(a)…
(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)…"
The short point taken is that when one looks at the particulars of conduct relied on in each of the respective warrants that conduct does not disclose an offence in England and Wales. It is well established that this court concentrates on the conduct, not on the label attached to the offence in the law of the requesting country. I take each of the warrants in turn.
It is convenient to start with EAW 2. This was a warrant issued by the Circuit Law Court in Swidnica on 4 November 2011, and seeks the return of the appellant to serve 8 months 3 days remaining to be served of a 1 year sentence imposed in respect of his conviction on an offence contrary to section 2861, an offence against property, of the Polish code.
Mr Hawkes in his skeleton argument summarises the conduct alleged as being that between 4 April and 8 September 2000, the appellant fraudulently obtained £4,894.28 PLN and fraudulently attempted to obtain 500 PLN by presenting six cheques at an identified bank Zachodni Bank at Ziebice, Poland. It is said, according to Mr Hawkes' summary, that the appellant presented the cheques despite knowing that the appellant did not possess the funds in his account, thereby causing the bank a loss. The actual wording in the warrant in section E is:
"The circumstances in which the offence(s (were) committed:
From the 4th of April 2000 to the 8th of September 2000 in Bielany Wroclawskie and in Zabkowice Slaskie, acting with an aforethought intent, fraudulently did he obtain money at the amount of PLN 4,894.28 as well as fraudulently did he attempt to obtain the amount of PLN 500 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 4,984.28 on his account, which was to the detriment of Bank Zachodno S.A. Bank Branch in Ziebice, as follows:
• on the 1st of April 2000 in Zabkowice Slaskie, at the Bank Zachodni S.A. he presented cheque no. 0001191802 of the Bank Zachodni S.A. Bank Branch in Ziebice for encashment and on the basis thereof received the amount of PLN 1,000;
• on the 3rd of April 2000 in Zabkowice Slaskie, at the Bank Zachodni S.A. he presented cheque no. 0001191803 of the Bank Zachodni S.A. Bank Branch in Ziebice for encashment and on the basis thereof received the amount of PLN 1,000;
• on the 5th of April 2000 in Zabkowice Slaskie, at the PKO BP bank he presented cheque no. 0001191804 of the Bank Zachodni S.A. Bank Branch in Ziebice for encashment and on the basis thereof received the amount of PLN 500;
• on the 8th of April in Zabkowice Slaskie, at the Bank Zachodni S.A. he presented cheque no. 0001191805 of the Bank Zachodni S.A. Bank Branch in Ziebice for encashment and on the basis thereof received the amount of PLN 1,000;
• on the 11th of April 2000 in Bielany Wroclawskie, at the PKO BP 3rd Bank Branch he presented cheque no. 0001191805 of the Bank Zachodni S.A. Bank Branch in Ziebice for encashment and on the basis thereof received the amount of PLN 500;
• on the 15th of April 2000 in Zabkowice Slaskie, at the Bank Zachnodni S.A. he presented cheque no. 0001191806 of the Bank Zachodni S.A. Bank Branch in Ziebice for encashment and on the basis thereof received the amount of PLN 1,000;
• on the 8th of September 2000 in Bielany Wroclawskie, at the PKO BP Bank 3rd Bank Branch he presented cheque no. 0001191809 of the Bank Zachodni S.A. Bank Branch in Ziebice for encashment of PLN 500 but he failed to achieve his aim due to a stop payment instruction on the cheque;
this is an act specified in Art.286 section 1 of C.Pen. and Art.13 section 1 of C.Pen. in conj. with Art.286 section 1 of C.Pen in conj with Art.11 section 2 of C.Pen. in conj. with Art.12 of C.Pen.
Nature and legal classification of the offence(s):
Art.286 section 1 of C.Pen. — offence against property"
For present purposes, I concentrate on the opening words of those particulars which leads to the particulars of the individual instances when the appellant is alleged to have presented a cheque at his bank for encashment and on the basis thereof received a given amount of money. The words I concentrate on are these:
"[From 4 April 2000 to 8 September 2000 in identified places] acting with an aforethought intent, fraudulently did he obtain money at the amount of PLN 4,894.28 as well as fraudulently did he attempt to obtain the amount of PLN 5000 in the following way: while being aware that he did not have sufficient means in his bank account he made out six cheques which he later presented and cashed causing a debit balance of PLN 4,894.28 on his account, which was to the detriment [of the identified bank]."
The submission of Mr Hawkes is that this conduct as stated cannot amount to a recognised offence in this jurisdiction. In his skeleton argument developed before me, the following propositions are set out. First, the appellant is said to have written out cheques to the effect of requesting money to be paid from his account held at the bank he attended. Second, in presenting the cheque for the payment of cash the bank is in effect agreeing to the transaction. In other words, the funds have been withdrawn under a licence. Third, the conduct of going overdrawn without permission is not an offence of dishonesty or fraud in the UK sense. This is to be contrasted whereby goods are obtained through the presentation of a cheque which the purchaser knows will not be honoured. Finally at all times, submits Mr Hawkes, the bank could have refused the payment. There is no suggestion, he submits, that the payments were made under false pretences other than lacking the funds.
Mr Hawkes submits that that which is before this court is similar to that which was before the court in Adamczewski [2014] EWHC 2958 (Admin). The appellant there was also accused of an offence contrary to article 286(1) of the Polish Criminal Court. The conduct was described in the following terms:
"In the period between 15 January 2002 and 24 January 2002 in Kowary and Jelenia Gora, Lower-Silesian Province, acting intentionally in continuity of action and in order to obtain financial profit he caused to the bank PKO BP S.A. Department in Jelenia Gora to misapply its property in the amount of 9,057.12 zl (nine thousand and fifty-seven 12.100 PLN) as having possessed personal savings account no [and the number follows] in the said bank he used to take out money by the card VISA Elektron and used to pay for goods, however he had not possessed any financial means on the said account. He acted to the detriment of PKO BP S.A. Department in Jelenia Gora and he committed the abovementioned offence…"
Mr Hawkes relies on particular passages of Cranston J
where he said at paragraph 14:
"… it must be recalled that a basic feature of our law is that if parties make payments from their bank account without funds in the account, or without an agreed overdraft, that constitutes a request to the bank to provide overdraft facilities sufficient to meet the payment instruction. The bank has the option whether or not to comply with that request (see Barclays Bank… [1981] QB 677."
At paragraph 15:
"I accept it is possible in some cases for a person to be charged with theft where they make payment by writing a cheque or presenting a credit or debit card knowing they are not in funds… however, the conduct in the warrant in this case does not parallel that described in Gdansk Regional Court v Ulatowski. The phrases used to which Mr Hearn refers are at most ambiguous and not a firm basis from which to draw an inference of...
To continue reading
Request your trial
-
Yolanda Shakilla Cleveland v The Government of the United States of America
...that the decisions following Assange were correct, save for Gruszka v Regional Court in Opole and Circuit Court in Swidica, Poland [2015] EWHC 2564 (Admin). The relevant part of that decision was concerned with two warrants which gave rise to different arguments. EAW 1 alleged an offence o......
-
Darinka Kricka v County Court in Varazdin, Croatia
...under the law of England and Wales, and thus did not satisfy the dual criminality requirement…” 17 In Gruszka v Regional Court in Opole and Circuit Court in Swidnica, Poland [2015] EWHC 2564 (Admin) King J, at para 5, observed that: “It is well established that this court concentrates on th......
-
Godlewski v Polish Judicial Authority
...enable the dual criminality test was met. 9 In support of his submissions, Mr Hawkes cited the decision of Gruszka v Regional Court in Opole & Circuit Court in Swidnica, Poland [2015] EWHC 2564 (Admin). In that case one of the European Arrest Warrants was based on a conviction under article......
-
Andrzej Graczyk v District Court in Torun, Poland
...in this case the Respondent's case fails to satisfy the requirement He also seeks to derive assistance from the decision of King J in Gruszka v Poland [2015] EWHC 2564 which concerned the same statutory provision as the one on which the appellant was convicted. His point is that it was rele......