Adamczewski v District Court In Jelenia Gora Poland [2014] EWHC 2958 (Admin)

[2014] EWHC 2958 (Admin)Case No CO/2475/2014
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
THE ADMINISTRATIVE COURT
Venue Royal Courts of JusticeDate Friday, 8 August 2014
Strand
London WC2A 2LL
B e f o r e:
MR JUSTICE CRANSTON
Between
RAFAL ADAMCZEWSKIAppellantv
Between
DISTRICT COURT IN JELENIA GORA 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 M Westcott (instructed by Wainwright Cummins LLP) appeared for AppellantMr N Hearn (instructed by the Crown Prosecution Service Extradition Unit) appeared for Respondent
J U D G M E N T
[1]MR JUSTICE CRANSTON: This is an appeal against the decision of District Judge Coleman made on 27 May 2014 at the Westminster Magistrates' Court. He ordered the appellant's extradition to Poland on a conviction European Arrest Warrant. That had been issued out of the District Court in Jelenia Gora, Poland on 10 March 2009. The appellant's extradition is sought to serve a sentence of imprisonment of 8 months.[2]The warrant describes the offence as falling within Article 286(1) of the Polish Penal Code, which reads, in translation:
"One who aims at deriving material advantage through making another person misapply own or someone else's property as a consequence of deliberate misinformation or taking advantage of one's misunderstanding of steps being taken, is subject to the imprisonment for the period of 6 months up to 8 years."
The conduct is described as follows:
"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 ..."
The warrant states that the appellant had previously been sentenced in 1999 for breaches of section 279(1) and 286(1) of the Penal Code. The Framework List marked in the warrant indicates that the conduct can be categorised as money laundering and carries a maximum sentence of at least 3 years' imprisonment.[3]Before the District Judge it was contended on behalf of the appellant that the European Arrest Warrant did not disclose an extradition offence. It was also submitted on behalf of the appellant that extradition would amount to a disproportionate interference with his and his family's rights under Article 8 of the European Convention on Human Rights.[4]The District Judge considered the background. The appellant had been present at the time of his conviction but failed to surrender to prison in September 2003 when required to do so. He also recorded that through his lawyers the appellant had unsuccessfully applied for a pardon in 2008.[5]The appellant in his written proof of evidence explained that the debt to the bank had been assigned to another financial institution and that he had more than repaid it the amount owing.[6]The District Judge considered the application of section 65 of the Extradition Act 2003 ("the 2003 Act"). Subsections (2) and (3) read as follows:
"(2)The conduct 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 and no part of it occurs in the United Kingdom; (b)a certificate issued by an appropriate authority of the category 1 territory shows that the conduct falls within the European framework list; (c)the certificate shows that a sentence of imprisonment or another form of detention for a term of 12 months or a greater punishment has been imposed in the category 1 territory in respect of the conduct. (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)a sentence of imprisonment or another form of detention for a term of 4 months or a greater punishment has been imposed in the category 1 territory in respect of the conduct."
[7]The District Judge concluded that the Polish authorities must have considered that money laundering was the correct box to tick rather than fraud and "it is not for this court to question that decision or to impose on Poland our own understanding and definition of those words. It is not a manifestly wrong categorisation as it involves money and dishonesty". It is now accepted that the conduct described in this warrant goes nowhere near meeting the definition of money laundering. In Poland that would be very similar to the definition in England and Wales as a result of the Money Laundering Directive 2005/60/EC. It is also accepted that the judge had mistakenly thought that section 65(2) of the 2003 Act applied. That is not the case since the sentence imposed was less than 12 months. The District Judge continued as follows:
"If I am wrong in that decision, I have considered the wording used in the EAW to describe the conduct proven against [the appellant]. ... The point is made that the conduct alleged, which amounts to deliberately and dishonestly overdrawing your own bank account, would probably be dealt with as a civil matter in the UK. That does not mean it could not also amount to a criminal act, if the prosecuting authorities decided to take proceedings. That is a matter of practice and policy in each individual state."
The District Judge therefore concluded that the conduct set out in the warrant amounted to an offence in England and Wales of obtaining property by deception and that he could infer dishonesty. He therefore found that dual criminality had been made out. The judge then considered the age of the offence, which was some 12 years old, that there had been delay and the evidence in relation to Article 8. Nonetheless, he concluded that extradition would not be disproportionate in this case.[8]In Zak v Poland [2008] EWHC 470 (Admin), Richards LJ considered whether Poland was required to specify the relevant mens rea in a warrant compared with the equivalent English offence. That was a case which involved offending akin to the handling of stolen goods. Richards LJ pointed out that the conduct as described in the warrant did not expressly include the elements of knowledge, belief or suspicion. He said this:
"15. However, it appears to me that actual belief or actual suspicion are consistent with the offence of unintentional receiving that is charged in Poland, but they are simply unnecessary for that offence since the relevant Polish law looks at whether the appellant could and should have suspected, rather than at whether he actually did suspect or believe. In those circumstances, if the conduct alleged is such that actual belief or suspicion can properly be inferred from it, then I am inclined to the view that it does not matter that such actual belief or suspicion is not spelled out in terms in the warrant or further information. 16. Thus, I would reject the submission that the requesting authority has to identify or specify in terms the relevant mens rea of the English offence. In my view, it is sufficient if it can be inferred by the court from the conduct that is spelled out in the warrant and further information. That seems to me to accord fully with the reasoning in Norris ... and the decision in that case."
[9]Subsequently, in Assange v Swedish Prosecution Authority [2011] EWHC 2849, the then President of the Queen's Bench Division, recorded that the appellant in that case had accepted that it was not necessary to identify in the description of the conduct the mental element or mens rea required under the law of England and Wales for the offence. Consistently with Zak, the President stated that it was sufficient if it could be inferred from the description of the conduct set out in the warrant. At paragraph 57 he said this:
"However, the facts set out in the EAW must not merely enable the inference to be drawn that the Defendant did the acts alleged with the necessary mens rea. They must be such as to impel the inference that he did so; it must be the only reasonable inference to be drawn from the facts alleged. Otherwise, a Defendant could be convicted on a basis which did not constitute an offence under the law of England and Wales, and thus did not satisfy the dual criminality requirement."
[10]Gdansk Regional Court (Polish Judicial Authority) v Ulatowski [2010] EWHC 2673 (Admin) involved offending somewhat similar to that in this case. The conduct set out in the European Arrest Warrant involved two offences. The first was committed November 2000 to January 2001. The conduct was described as:
"... in a premeditated action taken together with [a co-defendant] and with the intention of misappropriating it, he drew ... cash from the savings and settlement account ... maintained by the Polish Public Savings Bank ... to the detriment of that bank."
[11]The second offending was described in similar terms and covered a period from July 2000 to January 2001. The offending ceased when the bank closed the account. In further information provided by the Polish authorities it was stated that the Polish court was aware of the appellant acting to the detriment of the bank and against the bank customer contract. In the course of his judgment, Roderick Evans J concluded that dishonesty and necessary intention could be inferred from the information available and that he was satisfied that withdrawing cash from the machine would amount to the offence of theft.[12]In his carefully crafted submissions on behalf of the respondent, Mr Hearn contends that the conduct described in the European Arrest Warrant in this case would constitute offences of theft under the Theft Act 1968. He submits that dishonesty can be inferred from the description of the conduct set out in the warrant. He prays in aid the conviction under Article 286(1) of the Polish Criminal Code. In his submission, it is impossible to think of offending under that section which would not involve dishonesty. He contends that the description of the conduct compels the inference that the appellant's conduct was dishonest. The warrant states that the appellant was "acting intentionally in continuity of action", and that he caused the bank to "misapply its property" and that he acted to "obtain financial profit". Consequently, section 65(3) of the 2003 Act is satisfied and the situation parallels that in Gdansk Regional Court v Ulatowski.[13]I cannot accept those submissions. Firstly, it is not clear to me from the conduct described what the appellant is said to have done. There is an ambiguity as to whether he used the card to draw money from his account and then pay for the goods mentioned in the warrant or whether he used the card directly with the retailer to obtain the goods. Moreover, the description of the conduct in the warrant does not inform us as to whether or not he knew that he had no money in his account. Whatever he may have said subsequently cannot be used to supplement the information in the warrant itself.[14]Secondly, 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 v WJ Simms & Cook Southern Ltd [1981] QB 677).[15]I accept that 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 (see Smith's Law of Theft, Ninth Edition, at 153). However, the conduct set out 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 dishonesty. Even if one can draw anything from the conviction under Article 286(1), the elements of that offence are not included in the narrative description of the conduct set out in the warrant.[16]Thus, in my view, the judge was wrong to draw the inference of dishonesty given what is set out in the warrant. The test in Assange v Swedish Prosecution Authority is not met: as Mr Hearn rightly conceded, I must be satisfied to the criminal standard that an offence would be constituted in this jurisdiction. Here, the conduct set out is simply of payment by use of a debit card effected in a way which is not clearly specified but which resulted in the claimant obtaining goods and the bank not being paid. To my mind, that description does not impel an inference of criminal conduct as required by section 65(3)(b) of the 2003 Act. On that basis I allow the appeal.[17]MR HEARN: My Lord, there was just one correction, which was in respect of section 65(3). When you were dealing with the District Judge having dealt with that section you referred to it requiring a sentence of 3 years, when in fact it is 12 months.

MR JUSTICE CRANSTON: Thank you very much.

Cited in 3 later judgments