Sitek v Circuit Court In Swidnica, Poland

For double criminality under the Extradition Act 2003, the court applies a conduct test. It asks whether the conduct described in the European Arrest Warrant would constitute an offence in England and Wales, rather than whether the foreign offence has precisely corresponding legal elements.

The court may draw reasonable inferences from the warrant, including inferences about mens rea. However, inferences cannot be based solely on general assertions, particularly where the English offence requires a subjective state of mind. Conduct alleging that files bore traits of illegal copying was sufficient to support knowledge or suspicion. General assertions that goods should and could have been recognised as unlawfully obtained were insufficient.

The appellant challenged an extradition order made by District Judge Rose at Westminster Magistrates’ Court on 8 March 2011. Poland sought his extradition under two European Arrest Warrants. The appeal concerned only Offences 2–5 in the first warrant.

The issue was whether the conduct described in those offences would constitute offences under the law of England and Wales for the purposes of section 64(3) of the Extradition Act 2003. The respondent relied principally on acquiring or possessing criminal property contrary to section 329 of the Proceeds of Crime Act 2002.

1. Disposition. The appeal was allowed in respect of Offences 2 and 5. The appellant was discharged and the extradition order was quashed in relation to those offences. The appeal was dismissed in respect of Offences 3 and 4. Extradition therefore remained available for Offences 3 and 4 and the other unchallenged offences.
2. Under section 64(3)(b) of the Extradition Act 2003, the court applies the conduct test identified in Norris v United States of America [2008] UKHL 16. The question is whether the conduct alleged in the warrant would constitute an offence here, not whether the elements of the foreign offence correspond precisely with an English offence.
3. The court may draw inferences from the conduct described and need not insist that every element of the corresponding English offence is expressly stated. The approach in Zak v Regional Court of Bydgoszcz, Poland [2008] EWHC 470 (Admin) was consistent with Norris. Extradition information should be considered realistically rather than over-critically, as explained in Holmes v The Governor of Brixton Prison [2004] EWHC 2020 (Admin).
4. The descriptions of the goods, their unlawful copying or acquisition, the losses caused and the quantities involved permitted the inference that the items represented a benefit from criminal conduct contrary to section 107(1) of the Copyright, Designs and Patents Act 1988. The property could therefore fall within section 340 of the Proceeds of Crime Act 2002.
5. Sections 329 and 340 of the Proceeds of Crime Act 2002 require subjective knowledge or suspicion. The Polish formulation that the appellant should and could have assumed the unlawful origin of the goods stated an objective standard and was not equivalent to knowledge or suspicion. Suspicion involves appreciation of a possibility which is more than fanciful, applying Da Silva [2007] 1 WLR 303.
6. For Offences 3 and 4, the allegation that the files bore traits of illegal copying, read with the other allegations, supported an inference of knowledge or suspicion. For Offences 2 and 5, the warrant gave no particulars of the attendant circumstances, so the necessary mens rea could not properly be inferred. The approach in Gdansk Regional Court v Ulatowski [2010] EWHC 2673 (Admin) and the alternative reasoning discussed in Anwoir [2009] 1 WLR 980 did not alter that conclusion.

• High Court (Administrative Court): The court partly allowed the appeal against the extradition order made by District Judge Rose on 8 March 2011. It quashed the order only in respect of Offences 2 and 5.
• Westminster Magistrates’ Court: District Judge Rose ordered the appellant’s return to Poland on both European Arrest Warrants.