Bzik v Circuit Court In Swidnica Poland [2012] EWHC 1308 (Admin)

Case No CO/3187/2012[2012] EWHC 1308 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
THE ADMINISTRATIVE COURT
Venue Royal Courts of JusticeDate Wednesday, 2 May 2012
Strand
London WC2A 2LL
B e f o r e:
MR JUSTICE MITTING
Between
BZIKAppellantv
Between
CIRCUIT COURT IN SWIDNICA POLANDRespondent
Computer-Aided Transcript of the Stenograph Notes ofWordWave International LimitedA Merrill Communications Company165 Fleet Street London EC4A 2DYTel No: 020 7404 1400 Fax No: 020 7404 1424(Official Shorthand Writers to the Court)
Miss R Kapila (instructed by Kaim Todner) appeared for AppellantMr M Grandison (instructed by the Crown Prosecution Service) appeared for Respondent
J U D G M E N T
[1]MR JUSTICE MITTING: An accusation European Arrest Warrant was issued out of the Circuit Court in Swidnica on 24 May 2011 for a single offence of "accepting" for the purpose of making profit (or, in the original translation of the warrant, in order to gain a financial benefit) 3 music CDs, 75 film discs and an unspecified number of computer program discs, all of which had been produced in breach of copyright belonging to owners in Warsaw. The offence was alleged to have occurred in summer 2004 and then on 21 September 2004 in Golínsk, a border crossing.[2]At retail value, that is to say the price that would be paid for legitimate discs, the items were worth a little over £1,300 Sterling. The offence is punishable with 5 years' imprisonment. The warrant was certified by SOCA on 5 December 2011. The appellant was arrested on 6 December and brought before Westminster Magistrates' Court on the same day.[3]On 20 March 2012, District Judge Snow ordered the appellant's extradition following a contested hearing in which two basic grounds were raised: first, the warrant did not provide adequate particulars of the offence and of the sentence that might be imposed on conviction, an objection raised under section 2 of the Extradition Act 2003; secondly, the offence was not an extradition offence, an objection raised under section 10.[4]As to the first ground of objection, the particulars required are set out in section 2(4) of the 2003 Act, which requires that the information to be given is:
"(a) particulars of the person's identity; (b) particulars of any other warrant issued in the category 1 territory for the person's arrest in respect of the offence; (c) particulars of the circumstances in which the person is alleged to have committed the offence, including the conduct alleged to constitute the offence, the time and place at which he is alleged to have committed the offence and any provision of the law of the category 1 territory under which the conduct is alleged to constitute an offence; (d) particulars of the sentence which may be imposed under the law of the category 1 territory in respect of the offence if the person is convicted of it."
[5]I can deal with that objection shortly. The time and place are specified to the extent that the Polish authorities were able to specify them, in particular on 21 September 2004 at Golínsk. The requesting state is not required to specify in the warrant that which it cannot specify, namely when, if it does not know, infringing copies of copyright items were accepted by the appellant.[6]This warrant adequately specifies, to the extent that the requesting state can, when and where the offence was committed. The appellant can be in no doubt that fundamentally it arises out of what was discovered in his car when he was stopped in Golínsk on 21 September 2004, and what may have been retrieved from his flat on what was no doubt a subsequent search.[7]As far as the particulars of the maximum sentence are concerned, the warrant identifies two provisions of Polish criminal law: first, a section in the penal code, and secondly a section in the Copyright and Kindred Matters Act, which each provide for a maximum sentence of 5 years' imprisonment. Miss Kapila submits that may amount in total to 10, or it may be 5. In my judgment, the position is obvious: the general criminal code and the specific sentence in the specific Act are to be construed together and provide for a maximum sentence of 5 years.[8]Of greater substance and difficulty is the submission under section 10. The offence is not one in the Framework list. Accordingly, it only amounts to an extradition offence if there is an equivalent offence in English law. Two possible candidates have been advanced: first, section 107 of the Copyright, Designs and Patents Act 1988, and secondly section 329 of the Proceeds of Crime Act 2002. Mr Grandison, who appears for the requesting state, initially submitted that the equivalent section was section 107. He initially put the case on the basis that the warrant established that the goods were being imported into Poland at Golínsk so that an offence would have been committed under English law if the importation had been into the United Kingdom.[9]Section 107 of the 1988 Act provides that a person commits an offence who, without licence of the copyright owner:
"(b) imports into the United Kingdom otherwise than for his private and domestic use ... an article which is, and which he knows or has reason to believe is, an infringing copy of a copyright work."
[10]The district judge pointed out that, on the particulars set out in the warrant and supplemented by further information provided by the requesting state, it was not established whether at Golínsk the appellant was importing or exporting the discs found in his motorcar.[11]The alternative possibility that the appellant would have been guilty of an equivalent offence under section 107(1)(c) was not canvassed. That provides that a person commits an offence who, without licence of the copyright owner:
"(c) possesses in the course of a business with a view to committing any act infringing the copyright ... an article which is, and which he knows or has reason to believe is, an infringing copy of a copyright work."
[12]Instead, Mr Grandison relied on section 329 of the Proceeds of Crime Act 2002. As is well known, that Act was enacted to deal with those who dealt in the proceeds of criminal conduct, in particular money laundering and kindred offences. The target of the Act is not the ordinary citizen who might come by small items of criminal property, but those who come into possession of criminal property on a significant scale.[13]Mr Grandison submitted, and the district judge ultimately accepted, that because the discs said to be found in the appellant's car must have been produced by someone in circumstances in which, if the production had occurred in the United Kingdom an offence under section 107 would have been committed, so subject to statutory defences the appellant would, if the conduct had occurred in the United Kingdom, have acquired criminal property and so committed an offence under section 329.[14]That is an argument which persuaded Lloyd Jones J in Sitek v Circuit Court in Swidnica, Poland [2011] EWHC 1378 (Admin) to uphold a warrant in similar circumstances. In paragraph 25 of his judgment, he observed:
"I consider that it can be inferred from the matters spelled out in the descriptions of the offences that the items would be a person's benefit from offences contrary to section 107(1). In each case the warrant alleges that the items were obtained by a prohibited act. (I read these statements as referring to an obtaining prior to the alleged acquisition by the appellant.) In each case it is alleged that that prior obtaining was in contravention of a licence. In each case it is alleged that a loss has been caused to the distributors of the items. In this regard I also draw attention to the value placed on the items in the description of the Offences; while not on a massive scale, these are, with the exception of Offence 4, not insubstantial quantities of infringing articles. Furthermore, in the case of Offences 3 and 4 there is the further averment that the items bore 'traits of illegal copying'. To my mind, these features make clear that the items were not the product of permissible copying and, further, provide a proper basis for concluding that, in corresponding circumstances, the items would be the benefit of criminal conduct contrary to section 107. The mere possession of the items by a person prior to the acquisition by the appellant would be sufficient to constitute a benefit. Furthermore, it would not matter whether the conduct was performed by the person from whom the appellant acquired the items or by some earlier party."
He went on to consider knowledge or reason to believe that the article was an infringing copy.[15]The number and value of items that he was considering were of the same order as those that are specified in this warrant. But his reasoning, if correct, applies to a smaller number of items, even ultimately a single item. I baulk at the suggestion that a teenager commits an offence under section 329 by acquiring from a friend a copy of a disc which he knows is an infringing copy, a set of circumstances which must obtain in thousands, perhaps hundreds of thousands, of households up and down the country.[16]I cannot conceive that Parliament intended by section 329 of the Proceeds of Crime Act to make such conduct a criminal offence. That is especially so when it has been careful in section 107 of the Copyright, Designs and Patents Act 1988 to exclude from accusations of criminality the possession of items which do infringe copyright for private and domestic use. Accordingly, and contrary to the judgment of the district judge and the reasoning of my brother judge, I do not agree that section 329 provides an equivalent offence to that charged in the warrant.[17]Miss Kapila makes a further point, which on the facts is a good one. Section 329 requires it to be proved to the criminal standard that the infringing item was acquired for inadequate consideration (see Hogan v Director of Public Prosecutions [2007] EWHC 978 (Admin)). The warrant does not allege that the appellant "accepted" these items for inadequate consideration. For an offence to be established under section 329 under English law, such an averment would be necessary. Accordingly, and even if I did not conclude as I do that section 329 does not provide an equivalent offence on the facts, I would have held that Miss Kapila's point was good.[18]All then stands or falls on section 107. It is inescapable that the appellant must either have been driving out of Poland or driving into Poland when he was stopped at Golínsk. If he was driving into Poland, then section 107(1)(b) provides an equivalent offence; if he was driving out, then an offence could only have been committed under section 107(1)(c). That requires that the following elements are established: that the individual is in possession of an infringing copy; that he has reason to believe or knows that it is an infringing copy; that he possesses it in the course of a business; and that he does so with a view to committing any act infringing copyright.[19]No difficulty arises about possession or knowledge or belief, or that the appellant was in possession of the items with a view to committing an act infringing copyright. The difficulty arises with the final requirement, that he was doing so in the course of a business. This is ultimately a matter of judgment, but Miss Kapila reminds me correctly that it is for the requesting state to establish to the criminal standard that that is what the warrant alleges. In the case of the discovery of very substantial numbers of infringing copies, in particular of infringing copies of the same work, that inference could readily be drawn to the criminal standard. But the scale of items recovered here, only some 75 discs of films and three of music and an unspecified but presumably not enormous number of computer programs, is not such as to lead inevitably to that inference. It is not clear from the warrant whether the discs of films were of the same films. One of the groups of items recovered was 27 films with the same copyright owner, but the warrant does not specify whether they were the same films.[20]This case is very much at the borderline. It may well be that the appellant did have these items in his possession in the course of a small-scale business conducted with a view to profit of selling or distributing infringing copies, but it does not inevitably follow that he was. I accept Miss Kapila's point that the warrant must make it clear that the scale of activity, possibly its regularity, is such that a judge hearing an extradition appeal can be sure that the appellant had these items in his possession in the course of a business.[21]Accordingly, and for that narrow reason, I am not satisfied so as to be sure that there is an equivalent English offence to that identified in the warrant. It follows that this appeal must be allowed.[22]MISS KAPILA: My Lord, can I ask only for the usual order in relation to legal aid?[23]MR JUSTICE MITTING: Yes. Public funding assessment of the appellant's costs. Do you have a representation order?[24]MISS KAPILA: I have no idea. I am just going along with the standard practice of asking for an order without even knowing if it is necessary.

MR JUSTICE MITTING: If you need it, you can have it, whatever it may be.

[26]MISS KAPILA: I am very grateful.[27]MR GRANDISON: Thank you, my Lord. Might I raise one point. It is something I need to obtain further instructions on, but if there were an issue as regards to certifying an application to certify a point, I believe I have to request the court either remand the appellant on bail or in custody. Can I ask that bail continues as before, the 14-day period, and of course it will fall by the wayside if no application is made or if the application to certify points is refused.[28]MISS KAPILA: No observations, my Lord.[29]MR JUSTICE MITTING: Agreed. Then bail will be continued for 14 days.