Balint v Municipal Court In Prague, Czech Republic

For a European arrest warrant, the alleged conduct must be described with reasonable clarity and detail. The court should allow for differences between criminal pleading systems and for translation. It need not require the location of every ATM or computer terminal if the harmful effect was felt in a specified category 1 territory. For dual criminality, the court examines the substance of the alleged conduct rather than the legal ingredients of the foreign offence. Mens rea need not be stated expressly if it can reasonably be inferred. Prolonged personal use of entrusted company money and concealment may establish dishonesty and an intention permanently to deprive.

The appellant challenged an order made by District Judge Evans at the City of Westminster Magistrates’ Court for his extradition to the Czech Republic under a European arrest warrant. He argued that the warrant failed to provide sufficient particulars under section 2(4)(c) of the Extradition Act 2003, and that the alleged conduct did not satisfy dual criminality under section 64(3)(b).

The warrant alleged that, while acting as an agent and secretary, he withdrew entrusted company funds through payment cards and ATMs in several countries, retaining part of the money and concealing the loss through unauthorised credit contracts. The central questions were whether the description was sufficiently clear and detailed, and whether the conduct would amount to theft in England or Wales.

Appeal dismissed. The extradition order stood.

1. Description of conduct. Section 2(4)(c) required a reasonable degree of clarity and detail about the alleged conduct, but not the specificity expected in an English indictment. The court had to allow for different methods of particularising offences and for translation from another language.
2. The warrant adequately identified the period, the appellant’s position of trust, the withdrawals, the relevant accounts, the sums involved, the repayments and the alleged concealment. It was unnecessary to identify the location of every ATM. The withdrawals had their effect on company accounts held in Prague, so the description satisfied section 2.
3. Dual criminality. Following Norris v Government of the United States of America [2008] UKHL 16, the court considered the essence of the alleged acts and the substance of the criminality, rather than comparing the elements of Czech embezzlement with English theft. The warrant did not need expressly to state dishonesty if it could be inferred from the conduct.
4. The prolonged use of entrusted company money for personal benefit supported an inference of dishonesty. Repayment of about two thirds did not alter the character of the conduct, since repayment could form part of an attempt to conceal a shortfall. The conduct also supported an inference of an intention permanently to deprive the company. Under section 6 of the Theft Act 1968, a hope of later repayment was no defence, applying R v Fernandes [1996] 1 Cr App R 175.
5. The alleged conduct would therefore constitute theft in England or Wales. The dual criminality requirement in section 64(3) of the Extradition Act 2003 was satisfied.

• City of Westminster Magistrates’ Court: District Judge Evans held that the warrant sufficiently described the offence, that dishonesty could be inferred, and that the conduct would amount to theft. An extradition order was made.
• High Court (Administrative Court): The appeal was dismissed and the extradition order stood.