Zak v Regional Court of Bydgoszcz Poland

The appellant is the subject of a European arrest warrant, issued by a judicial authority in Poland. His extradition was ordered by District Judge Anthony Evans on 2nd January 2008 following a hearing at which the appellant was represented but no issues were raised on his behalf.

Subsequently the appellant, by this time acting in person, filed a notice of appeal under section 26 of the Extradition Act 2003. At a hearing before the Divisional Court on 31st January, a representation order was granted and the case was adjourned to allow the appellant to be properly represented on the appeal.

At today's adjourned hearing, Miss Kapila has appeared for the appellant and, in an excellent and succinct set of submissions, has raised three issues. The first of those issues is a submission that the conduct for which the appellant's extradition is sought does not constitute an extradition offence, because it does not meet the condition in section 64(3)(b) of the 2003 Act that”… 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.”

In order to explain that submission it is necessary to refer to the relevant part of the European arrest warrant, and to further information that has been provided by the requesting authority in respect of the warrant. The offence for which extradition is sought is described in the warrant as “unintentional receiving of stolen property”, contrary to Article 292, section 1 of the Polish Penal Code. The conduct is described in the warrant as follows:

“On the day of 2nd July 2003 in Inowrociaw he acquired from Michal Lewandowski a mobile telephone make Nokia 5510 worth of PLN 300.00 for the amount of c.a. PLN 100.00, about which, based on the surrounding circumstances, he should and could have suspected that it had been obtained by a prohibited act.”

That has been supplemented by further information provided by the judicial authority. I need refer only to what is said in a document dated 18th February 2008 which reads, in material part:

“The gathered evidence shows that the defendant should and could have assumed that the phone Nokia 5510 had been obtained in connection with a prohibited act because the purchase price amounting to PLN 100 was three times lower than its true value —PLN 300. Furthermore, the phone was sold without any documents, any loader [i.e. charger], packaging, the defendant did not know his business partner and no sale contract was made (even though such a sale contract was not required, in these circumstances it would have ensured a proper sale transaction). If the defendant had conducted in the existing objective circumstances exercising due care and attention, he would have made an assumption about the criminal origin of the phone. The defendant did not follow the pattern of conduct which can be expected from 'a typical citizen'.

Due to circumstances stipulated in paragraph 2 it can be stated that the defendant should and could have assumed that the phone was obtained in connection with a prohibited act.

At unintentional handling of stolen goods, an offender is unaware of a fact that the goods he deals with were obtained in connection with a prohibited act. However, in factual circumstances where an offender took action connected to the thing, he had possibility to assume that the thing was obtained in connection with a prohibited act. He could have made the assumptions about the origin of the phone on the basis of attendant circumstances during the purchase of a thing.

Attendant circumstances create opportunities and obligation for an offender to make assumptions that the thing he deals with was obtained in connection with a prohibited act. If attendant circumstances are so unusual that no conclusions referring to the origin of a thing can be drawn, then there are no grounds for any subjective attribution of an unintentional character of offence to an offender.

Obligation, as an element which identifies the type of fault and the level of intention in a prohibited act stipulated in article 292, is determined by a standard, an example (a model) presenting the level of requirements which can be expected from any person who performs his/her duties or activities related to his/her affiliation with his/her professional or social environment.

In order to attribute an unintentional character of offence to an offender it must be proved that while performing defined activities in concrete attendant circumstances he did not make assumptions about the criminal origin of a thing, which resulted from a certain failure in his conduct which can be defined as the violation of proper conduct in given circumstances. Describing the offender's conduct, the following thesis may be formulated: if he had conducted in given objective circumstances exercising due care and attention, then he would have made an assumption that the thing he purchased, accepted, or he helped in its disposal was obtained in connection with a prohibited act.

If an offender had known, thus had been fully aware that this deed results from a prohibited act —his conduct should be classified in accordance with Article 291, paragraph 1 of Criminal Code …”

The question is whether the conduct, as described in the warrant and supplemented in the further information, would constitute an offence under the law of England and Wales. It is common ground that one looks, for this purpose, at the conduct complained of or relied on in the warrant and the further information, not at whether the ingredients of the Polish offence have a precise equivalent under English law: see Office of the King's Prosecutor (Brussels) v Cando Armas [2005] UKHL 67, per Lord Bingham at paragraph 16 (referring to section 65, but the same must apply to section 64).

In Norris v Government of the United States of America [2007] EWHC 71 (Admin), [2007] 2 AER 29, the court had to decide whether the conduct alleged in a request under Part 2 amounted to an extradition offence, and in particular whether it amounted to an offence under English law. The US charge in that case arose under the Sherman Act and related to price fixing. Auld LJ, giving the leading judgment, stated at paragraph 27 that it was not a material averment under the US law to prove that the appellant and co-conspirators intended to defraud or deceive. One of the issues raised was whether the relevant offence under English law was that of conspiracy to defraud, which involved an element of dishonesty, and whether that offence was disclosed by the material relied on. The court held, following Cando Armas, that the focus had to be on the conduct relied on, not on the offence charged in the requesting state. At paragraph 124, Auld LJ summarised the position as it applied to that case as follows:

“Accordingly, it is immaterial whether dishonesty was a necessary constituent of the offence in the United States constituted by the conduct there, if the conduct alleged included acts or omissions capable of amounting to dishonesty here.”

In paragraph 126 he said:

“It was for the United States government simply to identify in the papers constituting part of its request information, of the conduct upon which it relied, and for the District Judge to consider whether, on that information, the conduct, if it had occurred here, would have constituted an offence here.”

In the present case, two offences under English law are relied on by the requesting authority: handling stolen goods contrary to section 22 of the Theft Act 1968, and possession of criminal property contrary to section 329 of the Proceeds of Crime Act 2002. In fact, only the first was relied on before the District Judge.

A person handles stolen goods contrary to section 22 of the Theft Act if, knowing or believing them to be stolen goods, he dishonestly receives them. The prosecution must prove knowledge or belief that the goods were stolen and must prove dishonesty. It is not sufficient that the circumstances would have put a reasonable man on enquiry or that he suspected that they were stolen and shut his eyes to the circumstances (see for example R v Grainge 59 Cr.App.R page 3, and R v Moys 79 Cr.App.R page 72). I note in passing that in Moys at page 75 the Lord Chief Justice said this:

“It is true that there were suspicious circumstances. As I have already indicated, the appellant told two conflicting stories as to the circumstances in which he had come into the possession of this animal. On the...