Luczak v District Court In Sieradz, Poland

For dual criminality in extradition proceedings, the court must examine the conduct described in the warrant and supporting documents. It must disregard mere narrative background but consider allegations relevant to the corresponding United Kingdom offence. The description must nevertheless establish the necessary elements of that offence. Courts should avoid technical analysis of translated terminology, while remaining vigilant that the description is accurate, fair and sufficient. An unexplained reference to property being subject to an attachment does not necessarily establish that another person acquired possession, control or a proprietary interest in it. Where the material leaves that issue uncertain, the conduct cannot be treated as satisfying dual criminality.

The appellant was arrested under a European arrest warrant issued by the respondent Polish court. The warrant concerned two offences: disposal of attached movable property after tax-enforcement proceedings, and failure to meet maintenance obligations. The latter was conceded not to satisfy dual criminality under the Extradition Act 2003. The Senior District Judge ordered extradition in respect of the first offence, treating the alleged disposal of attached property as conduct amounting to theft in England and Wales. The appeal concerned whether the warrant sufficiently established that the attachment had created a proprietary interest, possession or control in another person.

1. Appeal allowed. The order for extradition was quashed.
2. Under section 65(3)(b) of the Extradition Act 2003, the court had to decide whether the conduct described in the warrant would constitute an offence under the law of England and Wales. The approach in Norris v Government of the United States of America [2008] UKHL 16 required application of the conduct test. The court was not to analyse the elements of the foreign offence in isolation.
3. The conduct described had to be read as a whole. The court should not be too astute to identify technical difficulties arising from translated terminology, consistently with the guidance in Tatjana Sidlauskaite v The Prosecutor General’s Office of the Republic of Lithuania [2006] EWHC 3486 (Admin), drawing on the reasoning in Fofana and Belise v Deputy Prosecutor Thubin Tribunal de Grande Instance de Meaux, France [2006] EWHC 744 (Admin). That approach did not dispense with the need for an accurate and fair description of the conduct or strict observance of extradition safeguards.
4. The warrant established that an enforcement officer had identified and attached the appellant’s television and video recorder, prohibited their disposal, and that the appellant later disposed of them. It did not establish what “levied an attachment” meant in Polish enforcement law. It was therefore uncertain whether any proprietary right or interest, possession or control had passed to the officer or creditors. The inference that the attachment was equivalent to a United Kingdom bailiff taking walking possession was unsupported. The comparison with Rose v Matt [1951] 1 KB 810 did not justify the inference.

1. City of Westminster Magistrates’ Court: the Senior District Judge ordered extradition on 26 May 2009.
2. High Court (Administrative Court): the appeal was allowed and the extradition order was quashed.