Soltysiak, R (on the application of) v Judicial Authority of Poland

An appellant may raise on appeal a point of law showing that the extradition offence requirement was not satisfied, even where the point was not taken before the magistrates’ court. Sections 27(3) and 27(4) of the Extradition Act 2003 provide alternative routes to allowing an appeal. The court applied the approach in Hoholm v Norway, while treating contrary observations in Mehtab Khan v the United States of America as obiter. For dual criminality, possession of infringing films or computer programmes with an intention to supply later did not amount to distribution under section 107 of the Copyright, Designs and Patents Act 1988. The alleged conduct was not shown to constitute an offence under English law and the appeal succeeded on those charges.

The claimant appealed against an order of the Westminster Magistrates’ Court directing his extradition to Poland under Part 1 of the Extradition Act 2003. The extradition concerned sentences for violence and for possession of illegally copied computer programmes and films. No issue had been raised below concerning whether the copyright offences were extradition offences.

The appeal challenged the copyright charges only. The court first considered whether the legal issue could be raised for the first time on appeal. It then considered whether the conduct alleged in the European arrest warrant would amount to an offence in England, applying the statutory requirement of dual criminality.

1. New point on appeal. The appeal was allowed in respect of the copyright offences. The issue could be raised even though it had not been argued before the District Judge. Sections 27(3) and 27(4) of the Extradition Act 2003 are alternative provisions. The claimant relied on section 27(3): the District Judge ought to have decided the extradition-offence question differently and, on that footing, would have been required to order discharge.
2. The court was bound by Hoholm v Norway and considered it correctly decided. In that case, the conclusion that the new legal issue could be raised formed part of the ratio because the appeal could not otherwise have succeeded. The observations in Mehtab Khan v the United States of America suggesting a similar precondition for a new issue were not part of that decision’s ratio, since the point raised there was held to be bad.
3. Dual criminality. The relevant question was whether the conduct alleged in the warrant would have amounted to an offence had it occurred in England. The requesting State’s statutory wording did not need to be identical to the English provision, consistently with Norris v United States of America.
4. Section 107(1)(e) of the Copyright, Designs and Patents Act 1988 criminalised distribution of an infringing copy in the specified circumstances. Simple possession, or possession with intent to supply, was not equivalent to distribution. The wording that the claimant possessed the films while acting for material benefit alleged possession with an intention to supply later, not distribution.
5. The alternative reliance on sections 329 and 340 of the Proceeds of Crime Act 2002 did not establish the necessary offence. Although the material could prima facie represent a benefit from criminal conduct, there was insufficient basis to conclude that the claimant knew or suspected that fact. The court was not satisfied that either copyright charge was an extradition offence under section 64. The claimant was discharged on those charges, while the extradition order relating to the violence offences remained in force.

• High Court (Administrative Court): The appeal against the order for extradition was allowed in respect of the two copyright offences, and the claimant was discharged on those charges. The extradition order relating to the violence offences stood.
• Westminster Magistrates’ Court: District Judge Grant ordered extradition on 14 December 2010 under Part 1 of the Extradition Act 2003.