Krzysztof Omylski v District Court in Gliwice (Poland)

This is an extradition appeal for which Laing J gave permission on 19 December 2019. Extradition in this case was sought by the District Court in Poland pursuant to a European Arrest Warrant (EAW) issued on 16 April 2013, certified on 1 May 2015. District Judge Tempia ordered the appellant’s extradition on 1 October 2019. The sole issue for the appeal is whether offences 1 and 2 in the European Arrest Warrant satisfy the requirement for ‘dual criminality’ in the Extradition Act 2003. On another offence (attempted theft) no issue arises and there is no appeal. Therefore, as it was put by Mr Swain for the respondent, the appellant will be extradited in any event, in relation to that aspect of what is a conviction warrant.

The requirement of ‘dual criminality’ arises as a result of the definition in the 2003 Act of an “extradition offence”. That is a term defined in various places in the statute, depending on the category of case with which the Court is concerned. In the present case, the section that has been identified as relevant for the purposes of this conviction warrant is s.65 and in particular s.65(3)(b). That provision describes as a necessary condition 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”. It is worth also having in mind that s.2(4) and s.2(6) deal respectively with accusation warrants and conviction warrants. In the case of the former, the section spells out that the information contained in the warrant has to particularise “the conduct alleged to constitute the offence …”. Section 2(6) refers to the relevant prescribed information as being “particulars of the conviction”. However, as I have already explained, when one gets to s.65, it is “the conduct” with which the Court is concerned, even in relation to a conviction warrant.

The rationale for the dual criminality requirement was identified in Norris v. United States of America (Norris no.1) [2008] UKHL 16 [2008] 1 AC 920 at para.88: “… the underlying rationale of the double criminality rule that a person’s liberty is not to be restricted as a consequence of offences not recognised as criminal by the requested state …”

A helpful source for key and well-established legal principles in relation to dual criminality is Cleveland v. United States of America [2019] EWHC 619 (Admin) [2019] 1 WLR 4392 at para.21. There it is explained by reference to authority that: “… a court should not consider whether the elements of the offence in an extradition request correspond with the elements of an English offence.” I will need to return to that because, stated in unqualified terms, it sounds like a prohibition against examining the elements of offences domestically and in the foreign jurisdiction. However, that is not what is meant. There is no prohibition and it can be helpful, and indeed may be necessary, to examine those elements, as indeed Cleveland went on to explain.

Paragraph 21 of Cleveland goes on to say: “Instead the Court should consider whether the alleged conduct, if it had occurred in the United Kingdom, would amount to an offence under English law.” The points are then made that: “Where … the request alleges multiple offences, each one needs to be considered separately, but need not be assigned to a reciprocal offence under English law. Where the alleged conduct relevant to a number of offences is closely interconnected, it does not matter whether that conduct would be charged in this jurisdiction in the same manner as in the requesting state … There is no legal requirement for the [requesting state] to demonstrate a prima facie case in respect of any of the offences detailed in the indictment, nor is it for the court to examine the evidential strengths and weaknesses of the prosecution case.”

The relevant context for the single issue that arises on this appeal is as follows. The EAW in section “E. Offence(s)” (at para.2.1) describes the two relevant offences, in respect of which the appellant was convicted and sentenced. They are both described as the selling of jewellery, belonging to a third party, sold to the detriment of that third party, constituting an offence according to Art.291(1) of the Penal Code. In each case, the EAW says “acting with an intention taken in advance”.

The appellant’s position, as identified in two paragraphs in the grounds of appeal (para.22 and para.23), involves two points being taken about what is said to have been a deficiency in that description in the warrant so far as the principle of dual criminality is concerned. One objection goes to what is still known by a Latin phrase in English and Welsh law, actus reus; and the other to another Latin phrase, mens rea. The first objection, para.22 of the grounds, is that the EAW does not allege anywhere that the property was in fact stolen. It talks about property belonging to a third party, sold to the detriment of that third party. The second objection, para.23 of the grounds of appeal, is a different objection, namely that the EAW does not state that the requisite intention existed on the part of the appellant. To simply say, as it does, “acting with an intention taken in advance” does not say to what that intention relates or what that intention was said to be. For example, acting with intention could be acting, intending to sell jewellery – it could even be acting, intending to sell jewellery belonging to a third party. But, when examining the relevant criminality in domestic law, the relevant mens rea for a handling offence would be ‘knowing or believing the jewellery to be stolen’, and the relevant mens rea for a Proceeds of Crime Act (POCA) offence, would be ‘knowing or suspecting that the jewellery was stolen or was criminal property’. In the light of those claimed problems with the EAW, the appellant’s case on this appeal was that the District Judge could not be satisfied on the question of dual criminality.

What the District Judge did was to begin by recognising at para.39 that these two offences could be classified either as handling stolen goods under the Theft Act or as a criminal property offence under s.329 of POCA. In the later analysis, the District Judge firmly nailed her colours to the mast of “handling” and concluded that she was satisfied as to dual criminality because of the description in the warrant. She held that it described the relevant intention for handling, and she so held as a matter of what she described as an “impelled inference”, or the only reasonable inference to be drawn from the facts alleged. I will need to come back to the ‘irresistible inference’ principle and how it applies. The appellant says that the District Judge’s conclusion cannot stand on either of the two footings - the actus reus or the mens rea objections - either of which would be fatal, and therefore that the appeal must succeed.

There is before me an application on the part of the respondent to adduce fresh evidence in the form of further information dated 31 January 2020. That further information specifically addresses Art.291(1) of the Penal Code describing that provision and then giving a commentary in relation to it – that information provided by the Deputy President of the Fifth Criminal Division of the Regional Court, Regional Court Judge Pachla. The application is resisted by Mr Williams for the appellant.

In the end, there was common ground as to the way in which the Court should approach that application to adduce further evidence, as has been clarified by the Divisional Court, Hickinbottom LJ and Green J, in September 2017 in FK v Germany [2017] EWHC 2160 (Admin), at paras 31-40 in particular. This application, made by a respondent, is not governed by the test previously set out by the Divisional Court in the case of Szombathely City Court & Ors v Fenyvesi & Anor [2009] EWHC 231 (Admin) at paras 28-32. The Fenyvesi approach looks at whether evidence was available; the need for a good reason for the material not having been made available to the District Judge; the need to show either that the evidence did not exist at the time of the hearing before the District Judge, or that it was not at the disposal of the party wishing to adduce it, who could not, with reasonable diligence, have obtained it; as well as considering whether, if the evidence had been adduced, the result would have been different. That approach does not apply to a respondent seeking to adduce further evidence to illuminate the position before the Appeal Court. A broader approach applies, based on the inherent jurisdiction and applying a test of the interests of justice, albeit with the Fenyvesi approach as being a relevant factor as one of several material considerations. That is the approach to be adopted and the approach that everybody agrees I should be adopting on this application. It was, in fact, already obvious from Fenyvesi that paras 28-32 were describing the position of an appellant seeking to invoke the fresh evidence-based ground of appeal in s.29(4) of the Act. Indeed, para.35 of Fenyvesi went on specifically to consider the position of the respondent (or “defendant” as they are there described). But, in any event, it is clear that FK is the decision of this Court that governs the approach to be taken. There is absolutely no reason not to apply it.

In FK, one of the points that is explained (para.38) is how and why there is the asymmetry (or lack of coincidence) in the approach to fresh evidence, as between an appellant and a respondent. That is the position, having regard to the public interest considerations arising in the extradition context. It is also so, in particular, given that the exclusion of relevant material from a respondent which could straighten out a question of fact or a question of law is something that could then lead to a further round of delay and curative action through the reissuing of an EAW with the gap-plugging information included within it.

Mr William says I should refuse the application to adduce the fresh evidence. He says the respondent had a straightforward opportunity to adduce this sort of material before the District Judge and chose not to pursue that opportunity. He says that dual criminality, and the fact that the description in the EAW in this case fell foul of, or did not go far enough to satisfy, dual criminality was specifically raised on 7 August 2019 in this case. He says that after that happened there were two adjournments: one on that date for the appellant to be able to take some steps; and the second adjournment, one specifically sought by the respondent on 28 August 2019, following which the District Judge hearing took place on the 16 September 2019. It would be unfair and inappropriate, says Mr Williams in essence, for the respondent now to be given the opportunity that they did not take and could have taken; it would not be in the interests of justice, and significant weight should be given to the availability factor from Fenyvesi. Mr Williams also submits that the fresh evidence is not evidence which is capable of being determinative in this case. So far as that last point is concerned, I will come back to deal with the substance of the matter later in this judgment, so I will put it to one side for now.

I am satisfied that it is appropriate to admit this further evidence and I allow the application to do so. I am satisfied that it is in the interests of justice, in this case, for the Court to have the further information containing the description of the provision of the code and the commentary from the appropriate judicial authority as to its nature. In my judgment, this is a case that falls squarely within the description at the end of para.40 of the FK case, in that paragraph the Divisional Court said this: “Although whether admission of the evidence is in the interests of justice will be quintessentially dependent upon the circumstances of the particular case involving an exercise of judgment by the court, where the new evidence sought to be admitted merely confirms a factual finding made by the district judge, or clarifies an issue of fact or law that might otherwise be ambiguous or unclear, it may be straightforward to persuade the court that it is in the interests of justice to admit it.” In my judgment, this is material which clarifies an issue of law which is otherwise unclear. I have said that the nature of the material is to describe what the offence under their Code is, and what the components of it required by Polish law are.

One of the consequences of this material is that the respondent can no longer maintain the analysis of the District Judge in this case. That means that, whether or not the fresh evidence is put forward to the Court, the respondent would not be in a position to submit to this Court that the District Judge has safely analysed this offence under the criminal Code by equating it to the handling of stolen goods. That is because the Respondent knows from the further material that a mental element (mens rea) less than ‘knowing or believing’ can be sufficient as a matter of Polish law. It is obviously quite right, on any view, that in a case like this the Court should be made aware that an approach taken by the District Judge is unsafe. The real question is whether it could be right to stop there and not to be aware of the rest of the contents of the substantive description of the law and be in a properly illuminated position. In my judgment, that would not be right or just in the circumstances of this case. The Court should not be in the dark in relation to this matter.

Nor, in my judgment, is it unfair for the respondent to be permitted to put this forward in the light of the District Judge’s findings, notwithstanding that the dual criminality point arising out of the warrant had been raised prior to two adjournments. This is a point of substance relating to a point about Polish law, authoritatively described. It leaves the appellant in the position, through Mr Williams, of being able to address the point on its substance, as he has done.

As I have said, as part of his resistance to the application Mr Williams has submitted that, as a matter of substance, this material is not capable of being determinative. That goes to the central issue of substance on this appeal. I have explained that, given that it has the new material, the respondent cannot defend the District Judge’s approach. That means, given the position or respondent is now in in the light of this material, unless this material is capable of being determinative, the appeal must succeed. All of which fortifies my conclusion that it is right and just that the Court should have this material and should be in a position to evaluate it one way or the other to see whose position it supports.

I am satisfied for all those reasons, and by reference to the public interest in extradition cases, having regard to the point in para.38 of FK about reissuing - or as Mr Swain puts it, in a case like this where extradition is going to proceed on the other matter anyway, “seeking consent to add” - that the appropriate course in the interests of justice is to allow the application, and I do so.

I turn then to the critical question of what the material shows, and whether it goes far enough to discharge the respondent’s responsibility to make good the dual criminality condition so as to support – albeit by the alternative of a POCA route – the correctness of the District Judge’s conclusion on that dual criminality issue.

It is agreed between the parties that it can, in principle, be proper and appropriate to characterise (or recharacterize) as a POCA offence an offence which otherwise might have been sought to be characterised as a Theft Act offence. One looks to the substance rather than to the labelling. In that regard, it suffices for me to mention that cited to me was the case of Swierk v Poland [2019] EWHC 1686 (Admin) where that is exactly what happened. There was such a recharacterisation where (as here) a district judge was wrong in a conclusion reached. The recharacterisation involved invoking POCA. That can be seen in paras 17-26 of that judgment. Very sensibly and properly, Mr Williams did not seek to submit to the contrary.

It has also been recognised, and nobody has questioned, that an important part of dual criminality involves looking at the ‘conduct test’. I have already referred to para.21 of Cleveland. The point is also made in that judgment at para.50 where the ‘conduct test’ is described as: “… examining the conduct alleged against the requested person as a whole to see whether it falls within the scope of an English offence.”

In my judgment, it is helpful when addressing this issue of dual criminality to have two things in mind.

It is obvious that, so far as that second (factual) point is concerned, there is going to be a difference between an accusation warrant and a conviction warrant.

I said earlier that I would come back to the question of ‘irresistible inference’. That is a principle found in some of the cases where the courts are considering the factual point, what is being said against the individual in fact. The ‘irresistible inference’ principle is all about whether the factual description of the case against the individual, particularly in the case of an accusation warrant, impels the inference that a relevant element of domestic UK law can also be taken as one satisfied in the case against the relevant individual as brought in the requesting state’s criminal jurisdiction. Assange v Swedish Prosecution Authority [2011] EWHC 2849 (Admin) at para.57 is perhaps the best-known description of the ‘irresistible inference’ principle.

In this case, where Mr Williams’ two objections rely on what he says are two unrepaired deficiencies, one as to actus reus and the second as to mens rea, it is going to be necessary to examine each objection in turn. Either would suffice for him to succeed. With that introduction, I then turn to the fresh evidence read alongside the warrant in order to examine the picture that it presents against the framework of dual criminality.

So far as actus reus is concerned, Mr Williams says that the fresh evidence is not capable of being determinative, essentially, for two reasons. Firstly, he submits that the crux of the fresh evidence is a description of mens rea, and that it does not identify – even as an element of the Polish crime – the actus reus of the property having been stolen or obtained by a criminal act. Secondly, he submits that, even if it does do that, it needs to go further. It needs to go as far as being material which, when read with the contents of the EAW, constitutes a description, factually, against the appellant, such that an ‘irresistible inference’ is that the actus reus element is present in this case.

Mr Williams makes the latter submission in the face of the Cleveland case which, he accepts, qualifies the ‘irresistible inference’ principle in circumstances where the relevant issue has been shown to be an essential element of the foreign crime. Cleveland, he accepts, holds that – where that is the case – an ‘irresistible inference’ is not required as to the factual description, even in an accusation warrant case. It is enough that the inference is one capable of being drawn on the basis of what is being alleged. The nub of that can be seen from the end of para.62 of Cleveland. Mr Williams’s submission is that that is an approach that applies only to the mental element, which is what para.62 of Cleveland is addressing; and that it does not apply to other elements of a crime such as an actus reus element as to whether property was stolen or the product of criminal activity.

For all of those reasons, and relying on what he identifies as a ‘first principle’ - that the onus is on the respondent to satisfy the Court on a relevant aspect of dual criminality to the criminal standard – Mr Williams says there are two problems so far as actus reus is concerned: first, not a necessary element of Polish law on the fresh evidence properly understood; and second, not an irresistible inference in this case on the basis of the materials read together.

I cannot accept either of those submissions.

In my judgment, it is clear that what Cleveland is deciding is that an irresistible inference from the factual description is required, but only required, where the relevant element in the domestic (UK) crime is not also a necessary element of the foreign crime under the foreign law. If as a matter of the foreign criminal law it is a necessary element of the foreign crime, then all that is needed is that the inference is capable of being drawn from the description against the individual in the particular case. It is very clear, in my judgment, that that principled conclusion extends not just to mens rea but also to the other elements of offending. I accept the submissions of Mr Swain that that is clear from the way Cleveland is reasoned. It is clear from the fact that the Court speaks throughout of the elements of an offence, and not just mens rea. It is clear from the fact that para.59 gives mens rea as an example of an element. It is clear from the fact that para.62. is giving the mental element as an illustration of a distinction. So, mens rea is illustrative only. The critical distinction is the one that the Court is drawing in the passages that immediately precede para.62, and it is then an analysis that is repeated in para.83 of the judgment.

Moreover, in my judgment, that must be right as a matter of principle. It is impossible to identify a reason of principle, and none has been identified, that would lead to a different outcome so far as one element is concerned but not so far as another is concerned. Take the paradigm example of an accusation warrant. One can see – having regard to the underlying rationale of the dual criminality requirement – that if you have a case in which the foreign law would allow a crime to be established without an element necessarily being proved, and if domestic UK law would require that element to be proved, then there is a gap. That gap can only safely and protectively be filled by being satisfied that, in the particular case, the gap does not prejudice the individual. That will be when the way in which the case is factually put, on the evidence, supports irresistibly the inference that the element that English law would require, but the foreign law does not require, is in fact an element that is being advanced and necessarily advanced against the individual. That is what Cleveland is about, and that was what Assange was about. The factual picture necessarily (through irresistible inference) addresses a problem from the legal picture.

The position is very different in a case in which the legal picture means there is no doubt. And no gap. This is where the foreign criminal law is such that the Court can be quite satisfied that, in order for there to be a conviction in the foreign criminal court, the necessary element will need in an accusation case to be, or in a conviction case to have necessarily been, satisfied. There one looks to see – and, again, this is readily understandable in an accusation warrant case – that a case is factually being put that is capable of supporting that required element found in the law. You then leave it to the foreign state’s criminal authorities and criminal courts to make the decision, on the facts and on the merits, as to whether that inference capable of being drawn is an inference appropriately to be drawn in the individual case.

The critical point about Assange, explained by Holgate J in para.56 of his judgment in Cleveland, was that the Assange analysis about irresistible inference arose in a case where, given the way that the case was argued, it was obvious that the ‘absence of reasonable belief in consent’ was not an element of the Swedish offence of rape as a matter of Swedish criminal law. The legal picture was that there was a gap. It was against that backcloth that it became so important to identify whether absence of reasonable belief in consent was irresistibly to be inferred from the factual picture as to how the case was being put. As to that, there was a question about what material should be looked at in order to answer that question. But para.61, para.64, and para.83 of Cleveland are, in my judgment, clear as to the qualification of the Assange irresistible inference principle in a case where the Court is satisfied that the foreign law has the same requisite element, as a necessary element, and so there is no gap.

I leave to one side, because it does not arise in this case, whether and what role the factual description needs to have in a conviction warrant case. Everyone has proceeded on the basis that conviction and accusation warrants are treated in the same way, and the ‘conduct test’ has to be met, based on the factual picture. That is an assumption in the appellant’s favour.

Here, the further information constituting the fresh evidence, in my judgment, makes very clear indeed that the element of ‘property being obtained by means of a prohibited act’ is a necessary element of Art.291(1) of the Criminal Code. That is the legal picture. Article 291(1) is described in its heading, and no doubt in what is a shorthand, as “dealing in stolen property”. The provision speaks of “property obtained by means of a prohibited act”. The commentary repeats that “dealing in stolen property” is a conduct which occurs in respect of property “obtained by means of a prohibited act”. In my judgment, it is clear from that, a point that is then repeated later in the commentary, that there is a necessary actus reus element reflecting the element which would be required here under POCA. The legal position is thus that there is no gap.

So far as the factual position is concerned, I am quite satisfied, and indeed Mr Williams accepted, that if he was wrong about ‘irresistible inference’, the position is that what is said in the warrant and the further information, read together, is ‘capable’ of supporting the inference that factually what was said against the appellant in relation to these two charges of which he was convicted was that he was selling jewellery which had been obtained by means of a prohibited act. I have assumed, in the appellant’s favour, that this is necessary in a conviction warrant case where there is no gap as to the legal ingredients. It is satisfied.

That is therefore the end, in my judgment, for the objection based on actus reus.

I turn to mens rea. Mr Williams submits that the further information exposes a gap between Polish criminal law and the relevant UK criminal law which imperils his client and means that the respondent cannot meet the rigours of the dual criminality requirement.

The way the position is put in the further information is this:

“The offence of dealing in stolen property pursuant to art. 291 of the Penal Code can only be committed intentionally. Therefore, the said provision of law does not require the full awareness of the origin of the property, it is sufficient to predict that it might be obtained through a criminal activity and accepting this fact. The intention of obtaining a financial gain is not the feature of the offence of dealing in stolen property”

Mr Williams submits that that is broader and criminalises a wider category of conduct so far as mens rea is concerned than would the element of suspicion be for the purposes of POCA. On the basis of that legal problem, he submits that dual criminality is not satisfied in this case because there is nothing to support as an irresistible inference that anything narrower than that broad definition was what was factually said against the appellant in this case.

So far as suspicion and POCA is concerned, both counsel have drawn my attention to commentary in the relevant textbooks of Archbold and Blackstone on the leading case of R v Da Silva [2006] EWCA Crim 1654. They are both agreed that what one gets from Da Silva, for the purposes of suspicion under POCA, is that suspicion means that the criminal accused thought it a possibility, more than fanciful, that the goods were stolen or the product of criminal activity. The commentary, by reference to Da Silva, goes on to distinguish as being “insufficient” … “a vague feeling of unease”. What is said is that, in this jurisdiction, trial judges directing juries ought to tell juries that suspicion is a matter for them to apply to the facts, using their own common sense.

I should say that I was at one point concerned as to whether this mens rea objection raised by Mr Williams went beyond the ambit of his skeleton argument, which I had certainly read as identifying as the issue, at para.15, the actus reus point. I am quite satisfied that it is appropriate to deal with this point on its substance, whether or not it does go beyond what was in the skeleton argument. I adopt that approach in very much the same spirit as I adopted the interests of justice approach to the application by the respondent to adduce further evidence. It is not appropriate to approach, as a technical matter, whether the substance of a point is or is not squarely covered within the skeleton. Nobody has been prejudiced and it is important to grasp the nettle in relation to all of the dual criminality aspects that arise on the materials, as this one plainly does.

But I cannot accept these submissions of substance which Mr Williams makes. It follows, in the light of my conclusion on the actus reus objection, that I agree with Mr Swain that this fresh evidence is not only capable of being determinative, it is determinative.

In this case, in my judgment, what the description of what the relevant judicial authority is doing in the further information of January 2020 is clearly, in substance, identifying an element of suspicion. That is, in my judgment, clearly what is being described in a passage that speaks of intentionality but not full awareness of the origin of the property sufficient to predict that it might be obtained through a criminal activity and, accepting this fact. I can test the matter against the way Mr Williams helpfully put it in his reply: he submitted that that formulation allows for a mens rea which is ‘no more than fanciful’. Or I can test it another way, by taking the formulation from the commentaries and Da Silva of “vague unease”. I cannot accept these descriptions of the element described by the Polish judicial authority. In my judgment, this is not the description of a situation where there is merely a ‘fanciful’ consideration of a possibility. It is not necessary, in examining information of this kind provided by the requesting state, to look for a technically identical linguistic formulation, nor is it fatal that the information provided by the requesting state may elaborate, in order to accurately encapsulate, a word which, in this jurisdiction, a directing judge might simply leave to a jury focusing on the question as a matter of substance. I am quite satisfied that what is described here is suspicion and does not extend further to the detriment of the appellant than suspicion. I am also satisfied that, viewing this alongside what was said in the EAW where it was repeated that the appellant had ‘acted with an intention taken in advance’, now that I have the clarification as to the nature of the intention – and the minimum that it would need to be in order to satisfy the elements of the Polish crime – what is said factually against the appellant is at least ‘capable’ of supporting the inference. I repeat, so far as mens rea is concerned, Mr Williams accepts that the Cleveland case establishes that ‘capability’ is all that would be required where a necessary element of the foreign crime has been identified.

It follows that, in rather the same way as occurred in the case of Swierk to which I have already referred, and based on the fresh evidence which I have allowed in application of the principle in FK, the District Judge’s conclusion in this case on dual criminality was correct. That was not for the reason that she gave, but rather by reference to the alternative classification (POCA) to which she had referred in an earlier passage in her judgment. For all those reasons for this appeal must be dismissed.

There is one further point that has been raised with me and it arises out of the present circumstances, so far as whether or not flights are currently taking place. Mr Williams properly draws to my attention that one thing that a Court dealing with an appeal, the effect of which is that the person is to be extradited, can do is to specify a later relevant period for the running of time limits for the extradition to take place. The relevant section is s.36(3)(b), and what it provides is that, if the relevant Court and the authority which issued the warrant agree a later date, and then the 10 days can start with a later date. Mr Swain has helpfully sought further information from the requesting state, and he has invited me to direct a date of 29 April 2020. Providing that I can be satisfied that that constitutes an agreement between the Court and the authority that issued the Part 1 warrant, in the circumstances, as they were described to me by Mr Williams, of current uncertainty and the sense for everybody, including his client, to know where they stand, I am minded to make a direction that the relevant period is to start from the date of 29 April 2020 in accordance with s.36(3)(b).