Gdansk Regional Court (Polish Judicial Authority) v Ulatowski

For dual criminality in extradition proceedings, the court asks whether the conduct described in the European arrest warrant and supporting information would have constituted an offence in England and Wales at the relevant time. The requesting state need not establish guilt or identify a precise domestic equivalent of the foreign offence.

Dishonesty and the necessary intention may be inferred from the conduct described. Withdrawals beyond an agreed overdraft may constitute obtaining services or a pecuniary advantage by deception when made through a bank employee, and may constitute theft when cash is obtained from an automated machine. Technical uncertainty in domestic theft law does not justify an unduly critical reading of extradition information.

The Polish Judicial Authority appealed against a decision of District Judge Purdy at Westminster Magistrates’ Court. The District Judge had discharged the respondent under section 10(3) of the relevant extradition legislation, finding that the conduct described in the European arrest warrant did not satisfy the dual-criminality requirement.

The warrant alleged that the respondent withdrew money from two bank accounts beyond agreed credit or overdraft limits. The central issue was whether that conduct, if committed in England and Wales, would have constituted an offence under domestic law, including theft, obtaining services by deception, or obtaining a pecuniary advantage by deception.

1. Appeal allowed. The District Judge had wrongly concluded that dual criminality was not established. The order discharging the respondent was quashed, and the case was remitted with a direction to proceed as if dual criminality had been proved.
2. The court applied the agreed principles that the conduct must be shown to the criminal standard to have constituted an offence in England and Wales at the relevant time; the requesting state need not prove guilt; and the foreign offence need not have a precise domestic equivalent.
3. Where cash was obtained from a bank employee, the respondent obtained both services and a pecuniary advantage. The conduct described supported the inference that he deceived the employee into believing that he was entitled and authorised to withdraw the money. Dishonesty need not be stated in express terms if it can be inferred from the conduct described, following Zak and Poland 2008 EWHC 470 (Admin). The conduct therefore amounted to offences under section 1 of the Theft Act 1978 and section 16(2)(b) of the Theft Act 1968.
4. The court was prepared to assume, without deciding, that deception could not be practised on a machine. That assumption did not prevent the conduct from amounting to theft. The cash produced by the machine had never been in the respondent’s account and remained property belonging to the bank. A further debit on the account did not retrospectively create a proprietary right in the respondent. The reasoning in R v Kohn (1979) 69 Cr App R 395 supported that analysis, whereas the respondent’s reliance on Preddy [1996] AC 815 was rejected.
5. The court emphasised that extradition information should be read realistically rather than with excessive technicality, consistently with In re Holmes [2004] EWHC 2020 (Admin). The respondent was remanded on bail on the existing terms and required to surrender when called upon.

• High Court (Administrative Court): allowed the appeal against the decision of District Judge Purdy at Westminster Magistrates’ Court, quashed the discharge order and remitted the case for further proceedings.