Bzik v Circuit Court In Swidnica Poland

For extradition purposes, the requesting state must establish an equivalent English offence to the conduct described in the warrant. Possession of a small quantity of infringing discs does not, without more, establish possession in the course of a business under section 107(1)(c) of the Copyright, Designs and Patents Act 1988. Section 329 of the Proceeds of Crime Act 2002 does not ordinarily convert the acquisition of a small number of infringing copies for private use into an equivalent offence, particularly where the copyright legislation excludes private and domestic possession from criminal liability. The warrant must contain sufficient facts to permit the court to conclude, to the criminal standard, that the business requirement is met.

An accusation European Arrest Warrant was issued by the Circuit Court in Swidnica, Poland, alleging that the appellant had accepted infringing music, film and computer-programme discs for profit. Westminster Magistrates' Court ordered extradition after rejecting objections based on inadequate particulars under section 2 of the Extradition Act 2003 and the absence of an extradition offence under section 10.

On appeal, the central issue was whether the conduct alleged would amount to an equivalent offence under English law, principally under section 107 of the Copyright, Designs and Patents Act 1988 or section 329 of the Proceeds of Crime Act 2002.

1. The appeal was allowed. The warrant adequately specified the alleged time and place of the offence to the extent that the requesting state could do so. The two Polish provisions identified in the warrant, read together, provided for a maximum sentence of five years, not ten.
2. Section 329 of the Proceeds of Crime Act 2002 did not provide an equivalent English offence on these facts. Parliament had directed that legislation at dealing with criminal property on a significant scale, not ordinary private possession of a small number of infringing copies. That conclusion was reinforced by the exclusion in section 107 of the Copyright, Designs and Patents Act 1988 of possession for private and domestic use.
3. In any event, section 329 required proof that the property had been acquired for inadequate consideration. The warrant did not allege that the appellant had accepted the discs for inadequate consideration. That omission would independently prevent section 329 from supplying an equivalent offence.
4. If the appellant had been importing the discs, section 107(1)(b) could provide an equivalent offence. If he had been exporting them, the relevant provision was section 107(1)(c). That provision required proof of possession of an infringing copy, knowledge or reason to believe that it was infringing, possession in the course of a business, and possession with a view to committing an act infringing copyright.
5. The first, second and fourth requirements were sufficiently supported. The warrant did not, however, establish to the criminal standard that the possession was in the course of a business. Although very substantial numbers, or repeated possession of copies of the same work, might justify that inference, the quantities alleged here did not inevitably do so. The warrant therefore failed to establish an equivalent offence.

• High Court (Administrative Court): The appeal from the extradition order was allowed for failure to establish an equivalent English offence.
• Westminster Magistrates' Court: District Judge Snow ordered extradition on 20 March 2012.