Zak v Regional Court of Bydgoszcz Poland

For the double-criminality condition in section 64 of the Extradition Act 2003, the court assesses the conduct alleged in the European arrest warrant and any supplementary information. It does not require an exact correspondence between the foreign offence and an English offence.

The foreign authority need not expressly allege every element of the English offence. The court may infer the requisite mental element from the conduct particularised, provided that the material is capable of supporting that inference. Under article 8, proportionality remains the test. The seriousness of the alleged offence may be relevant, but extradition treaties carry great weight and ordinary family and private-life consequences will not ordinarily make extradition disproportionate.

The appellant was sought by Poland under a European arrest warrant for unintentional receiving of stolen property. The allegation concerned his purchase of a mobile telephone at a substantially reduced price, without documents, charger or packaging, from an unknown person.

A District Judge ordered extradition on 2 January 2008. No issues had then been raised for the appellant. On appeal under section 26 of the Extradition Act 2003, he contended that the described conduct did not amount to an extradition offence in England and Wales. He also relied on the low value of the item, his established family life in the United Kingdom, article 8 and section 14 of the 2003 Act.

The central issues were whether the requisite English mental element could be inferred from the warrant materials, and whether extradition would be disproportionate or oppressive.

1. Appeal dismissed. Lord Justice Richards, with whom Mrs Justice Swift agreed, held that the condition in section 64(3)(b) of the Extradition Act 2003 was met. Following Office of the King's Prosecutor (Brussels) v Cando Armas [2005] UKHL 67 and Norris v Government of the United States of America [2007] EWHC 71 (Admin), the inquiry concerns the conduct alleged, rather than a precise equivalence between the ingredients of the Polish offence and those of an English offence.
2. The requesting authority did not have to state expressly that the appellant knew, believed or suspected that the telephone was stolen or criminal property. It was sufficient if the detailed conduct alleged could properly support that inference. The very low price, absence of usual accompanying items or documentation, and purchase from an unknown person provided a proper basis for inferring belief that the telephone was stolen or suspicion that it was criminal property. The conduct was therefore capable of constituting handling stolen goods under section 22 of the Theft Act 1968 or possession of criminal property under section 329 of the Proceeds of Crime Act 2002.
3. Applying Jaso, Lopez and Hernandez v Central Criminal Court No.2 Madrid [2007] EWHC 1983 (Admin), the court held that article 8 required a proportionality assessment which gave great weight to the legitimate aim of honouring extradition treaties. The reference to striking and unusual facts did not create a separate exceptionality test. Although the relative seriousness of the alleged offence could be considered, the appellant's circumstances did not make extradition disproportionate.
4. The same circumstances did not make extradition unjust or oppressive by reason of delay under section 14 of the 2003 Act. The gravity of the offence could be relevant to oppression, consistently with Kakis v Government of the Republic of Cyprus [1978] 1 WLR 779, but it did not assist the appellant on the facts.

• High Court (Administrative Court): dismissed the appellant's appeal from the extradition order.
• District Judge: ordered the appellant's extradition on 2 January 2008.