Marek Cholewinski v Regional Court in Nowy Sacz, Poland
| Jurisdiction | England & Wales |
| Judge | Mr Justice Bean |
| Judgment Date | 30 October 2013 |
| Neutral Citation | [2013] EWHC 3648 (Admin) |
| Date | 30 October 2013 |
| Court | Queen's Bench Division (Administrative Court) |
| Docket Number | CO/9495/2013 |
[2013] EWHC 3648 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
THE ADMINISTRATIVE COURT
Royal Courts of Justice
Strand
London WC2A 2LL
Mr Justice Bean
CO/9495/2013
Mr S Fidler (instructed by Stephen Fidler & Co) appeared on behalf of the Appellant
Mr D Sternberg (instructed by CPS Extradition Unit) appeared on behalf of the Respondent
The appellant appeals from a decision of District Judge Coleman sitting at the Westminster Magistrates' Court ordering his extradition on 7 out of 8 offences specified in a conviction warrant issued by a Polish Regional Court on 28 March 2008.
The District Judge declined to order his extradition on Charge 1 for the simple reason it was not an extradition offence, an offence not being known to English Law, namely failure to make maintenance payments.
Nothing arises in this court in respect of that decision, nor does any issue arise in this court as to the District Judge's decision to order extradition on charges 2 to 4, and 6 to 8. The issue is in relation to charge 5.
The relevant paragraph of the European Arrest Warrant reads as follows:
"In the period from March 2001 to June 19, 2004, in an undetermined place, being an agent for Towarzyztwo Ubezpeiczeniowe "Samopomoc" [insurance company] he concealed documentation in the form of 120 insurance policies of this company ie TPL insurance policies of the serial numbers starting from DA1503551 to DA1503600, from 1707951 to DA1708000: AutoCasco policies with serial numbers starting from DB 0269325 to DB 0269329, from DB 0268951 to DB 0268955 and general policies with serial numbers starting from BD 0054011 to BD0054020 of which he had no right of sole disposal."
Mr Stephen Fidler, for the appellant, challenges the decision to order extradition on this charge on two grounds. The first is that the warrant does not indicate that the offence took place in Poland. On the contrary, it says that it occurred "in an undetermined place".
I accept the submission of Mr Daniel Sternberg for the requesting State authorities that the simple answer to this is to be found in the terms of section 2 of the 2003 Act. In the case of an accusation warrant s.2(4)(c) requires the information given in the warrant to include particulars of the time and place at which he is alleged to have committed the offence. In the case of a conviction warrant, however, the place of the offence need not be specified (see different wording of s.2(6).
Mr Fidler's second point, however, is far more substantial. He submits that the dual criminality requirement is not satisfied in respect of this charge. There is no specific offence of concealment of an insurance policy in English law. The District Judge considered that the matter could be classified as an offence either under s.1 or s.20 of the Theft Act 1968.
Section 1 creates the offence of theft which is committed when a defendant dishonestly appropriates property belonging to another with the intention of permanently depriving the other of it. The difficulty about seeking to place this case under that section is that the warrant gives no particulars of what it is that the appellant was found to have been planning to do with the insurance policies which he concealed.
One can speculate that he might have been concealing them with a view to altering them and then perhaps making or assisting others to make false claims. He may have had some grudge against his employers of which we know nothing. All that the warrant says is that he concealed the policies of which he had no right of sole disposal. It does not seem to me that the requesting State has shown that the policies were concealed by him with the intention of permanently depriving his employers of them.
I turn, therefore, to s.20 which was the primary basis on which the District Judge reached his decision. Section 20 of the Theft Act 1968, as it stood at the time of the commission of these offences, and at the time of the issue of the warrant, provided by...
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Grzegorz Kolasinski v District Court in Gorzow Wielkopolski, Poland
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