Mariusz Artur Sitek v Circuit Court in Swidnica, Poland

JurisdictionEngland & Wales
JudgeThe Hon. Mr. Justice Lloyd Jones
Judgment Date27 May 2011
Neutral Citation[2011] EWHC 1378 (Admin)
Docket NumberCase No: CO/2239/2011,CO/2239/2011
CourtQueen's Bench Division (Administrative Court)
Date27 May 2011

[2011] EWHC 1378 (Admin)

IN THE HIGH COURT OF JUSTICE

QUEEN'S BENCH DIVISION

ADMINISTRATIVE COURT

Royal Courts of Justice

Strand, London, WC2A 2LL

Before:

The Hon. Mr. Justice Lloyd Jones

Case No: CO/2239/2011

Between:
Mariusz Artur Sitek
Appellant
and
Circuit Court in Swidnica, Poland
Respondent

Mr Julian Atlee (instructed by Atlee Chung & Company) for the Appellant

Miss Lauren Rafter (instructed by Crown Prosecution Service) for the Respondent

Hearing dates: 20 th and 24 th May 2011

The Hon. Mr. Justice Lloyd Jones
1

This is an appeal by Mariusz Artur Sitek ("the Appellant") pursuant to Section 26, Extradition Act 2003 against an extradition order made by District Judge Rose at the City of Westminster Magistrates' Court on 8 th March 2011 ordering the return of the Appellant to Poland.

2

The Appellant is a Polish national aged 27. His extradition is sought by the Circuit Court of Swidnica, Poland, pursuant to two European Arrest Warrants ("EAWs"). The first warrant was issued on 9 th March 2010 and seeks the return of the Appellant for the purpose of prosecuting him for six Offences. The second warrant was issued on 10 th December 2010 and seeks the return of the Appellant for the purposes of executing a sentence of one year's imprisonment for one Offence of handling stolen goods.

3

The Appellant makes no challenge in respect of the second warrant. The appeal is limited to Offences 2–5 on the first warrant. The only issue which arises on this appeal is whether Offences 2–5 in the first warrant, if committed in England and Wales would constitute offences under the law of England and Wales within the meaning of the double criminality provisions in section 64(3), Extradition Act 2003.

History of proceedings.

4

On 19 th June 2007 the District Court of Swidnica, Poland, issued a decision in relation to the provisional detention of the Appellant for the purpose of prosecution. On 9 th March 2010 the District Court issued the first warrant for the arrest of the Appellant. That warrant was certified by the Serious Organised Crime Agency ("SOCA") on 29 th April 2010.

5

The second warrant was issued on 10 th December 2010 and certified by the Serious Organised Crime Agency on 28 th January 2011.

6

On 8 th January 2011 the Appellant was arrested pursuant to the first warrant. On 10 th January 2011 he was produced at the City of Westminster Magistrates' Court and remanded in custody. On 4 th February 2011 he was arrested on the second warrant. Following a full hearing, on 8 th March 2011 District Judge Rose ordered his return to Poland on both warrants.

Legal framework

7

Section 10 of the Extradition Act 2003 provides:

"(1) This section applies if a person in respect of whom a Part 1 warrant is issued appears or is brought before the appropriate judge for the extradition hearing.

(2) The judge must decide whether the offence specified in the Part 1 warrant is an extradition offence.

(3) If the judge decides the question in subsection (2) in the negative he must order the person's discharge.

(4) If the judge decides that question in the affirmative he must proceed under section 11."

8

Section 64 of the 2003 Act provides in relevant part:

"(1) This section applies in relation to conduct of a person if—

(a) he is accused in a category 1 territory of the commission of an offence constituted by the conduct, or

(b) he is alleged to be unlawfully at large after conviction by a court in a category 1 territory of an offence constituted by the conduct and he has not been sentenced for the offence.

(3) The conduct also constitutes an extradition offence in relation to the category 1 territory if these conditions are satisfied—

(a) the conduct occurs in the category 1 territory;

(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 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 relevant offences

9

Box E of the first warrant describes Offences 2–5 in the following terms:

"2. Between August 2005 and the day of 22.03.2006, the exact date unknown, in Swidnica, in the province of Dolny Slask, he acquired software in the form of computer games called Patrician III, Mortal Kombat 4, Worms Armageddon and others, which he should and could have assumed, on the basis of the attendant circumstances, to have been obtained by means of a prohibited act, in contravention of licence, and thus he caused the loss at the amount of PLN 4,160 to the detriment of the distributors of the said software, i.e. CD Projekt, Canega and Stowarzyszenie PRO represented by LEGE ARTIS SERVICE with its registered office in Warsaw;

this is an act from Art. 293§1 of C.Pen. In conjunction with

Art. 291§1 of C.Pen.

3. Between August 2005 and the day of 22.03.2006, the exact date unknown, in Swidnica, in the province of Dolny Slask, he acquired p2p audio files recorded into MP3 with the traits of illegal copying, which he should and could have assumed, on the basis of the attendant circumstances, to have been obtained by means of a prohibited act, in contravention of licence, and thus he caused the loss at the amount of PLN 1,804 to the detriment of the distributors of the said files represented by ZPAV with its registered office in Warsaw;

this is an act from Art. 293§1 of C.Pen. In conjunction with

Art. 291§1 of C.Pen.

4. Between August 2005 and the day of 22.03.2006, the exact date unknown, in Swidnica, in the province of Dolny Slask, he acquired audio files with the repertoire of Polish and foreign music, and with the traits of illegal copying, which he should and could have assumed, on the basis of the attendant circumstances, to have been obtained by means of a prohibited act, in contravention of licence, and thus he caused the loss at the amount of PLN 407.97 to the detriment of the distributors of the said files represented by ZAIKS with its registered office in Warsaw;

this is an act from Art. 293§1 of C.Pen. In conjunction with

Art. 291§1 of C.Pen.

5. Between August 2005 and the day of 22.03.2006, the exact date unknown, in Swidnica, in the province of Dolny Slask, he acquired software such as Windows XP Professional operating system, MS Office 2000 Premium, Photoshop Elements 4.0 and others, which he should and could have assumed, on the basis of the attendant circumstances, to have been obtained by means of a prohibited act, in contravention of licence, and thus he caused the loss at the amount of PLN 5,322 to the detriment of the distributors of the said software represented by HETMAN with its registered office in Gdansk;

this is an act from Art. 293§1 of C.Pen. In conjunction with

Art. 291§1 of C.Pen."

10

On behalf of the Appellant Mr. Atlee submits that these offences are not extradition offences within section 64(3) because the conduct would not constitute an offence under the law of England and Wales if it occurred there. On behalf of the Respondent Miss Rafter submits that the conduct described in Offences 2–5 if it occurred in England and Wales would constitute the offence of acquisition of criminal property contrary to section 329, Proceeds of Crime Act 2002.

11

In considering these submissions the starting point is Norris v United States of America [2008] UKHL 16; [2008] 1 AC 920. Here the House of Lords considered whether the crimes for which extradition is sought under the Extradition Act 2003 are, for the purpose of the double criminality rule, to be defined in terms of conduct or the elements of the foreign offences. The essential question was whether the court was required to make a comparison between the conduct alleged against the accused abroad and an offence here (the conduct test) or whether it was required to look for a necessary correspondence between the elements of the offence abroad and the offence here (the offence test). The House of Lords concluded that the wider construction should prevail and that the conduct test should be applied consistently throughout the 2003 Act. The court looks at the conduct complained of in the warrant not at whether the ingredients of the Polish offence have a precise equivalent under English law. The question for consideration in this case is, therefore, whether the conduct described in the warrant, in respect of each offence, would constitute an offence if committed in England and Wales.

12

It is not necessary that all of the elements of the corresponding offence in England and Wales should be specified in terms in the description of the offence in the warrant. It is open to the court to draw inferences from the description of the conduct abroad when considering whether the conduct described would amount to an offence here. In Zak v Regional Court of Bydgoszcz, Poland [2008] EWHC 470 (Admin) the Divisional Court (Richards LJ and Swift J) the appellant had been charged with unintentional receiving. The description of the offence in the warrant alleged that the appellant "should and could have suspected" that the mobile phone he received had been obtained by a prohibited act. That description was subsequently supplemented by further information provided by the judicial authority describing in some detail the circumstances of the acquisition.

13

In Zak it was argued on behalf of the respondent that the conduct, had it occurred in England and Wales, would have constituted the offence of possession of criminal property contrary to section 329, Proceeds of Crime Act, 2002 or receiving stolen goods contrary to section 22 of the Theft Act, 1968. However the mental element of each of those corresponding offences was different from that described in the warrant. In particular, for the purposes of section 329 of the Proceeds of Crime...

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