Gesiewski v District Court In Bialystok, Poland

On an extradition appeal, fresh evidence which was available at the extradition hearing should not ordinarily be admitted. Evidence is available where it existed, was at the party’s disposal, or could have been obtained with reasonable diligence.

For dual criminality under the Extradition Act 2003, the court applies a conduct test based on the conduct described in the European Arrest Warrant. Where the warrant does not state the required mens rea expressly, an inference may be drawn only if the alleged facts impel it as the only reasonable inference. A substantial discrepancy between the purchase price and true value may satisfy that threshold for knowledge or suspicion that property represents the benefit of criminal conduct.

The appellant appealed against an order made by Senior District Judge Riddle at Westminster Magistrates’ Court on 23 March 2012, directing his extradition to Poland under a European Arrest Warrant. The warrant concerned five convictions, including robbery, buying stolen goods and assault.

Two grounds were advanced for the first time. The first challenged dual criminality in relation to the stolen-goods offence. The second alleged that extradition for the assault offence was barred by section 20. The appellant sought an adjournment to obtain evidence concerning his alleged conviction in absentia. The central issues were whether that evidence could be admitted and whether the conduct described in the warrant constituted an extradition offence under the Extradition Act 2003.

1. Fresh evidence. The proposed evidence concerning the assault conviction was available at the extradition hearing. It could have been obtained and placed before the district judge at that time. Applying the principle stated in Szombathely City Court & Ors v Fenyvesi & Anor [2009] EWHC 231 (Admin), the court refused an adjournment to obtain it. The claim was speculative and raised at a late stage.
2. Conduct test and dual criminality. Under section 10 of the Extradition Act 2003, the offence had to be an extradition offence within section 65. Under section 65(3)(b), the relevant question was whether the conduct alleged in the warrant would constitute an offence under the law of the relevant part of the United Kingdom. The court applied the conduct test identified in Norris v Government of the United States [2008] UKHL 16.
3. The court considered that the warrant’s description could support an inference about mens rea, consistently with Zak v Regional Court of Bydgoszcz, Poland [2008] EWHC 470 (Admin), and noted the observation in Holmes v Governor of Brixton Prison [2004] EWHC 2020 (Admin) that foreign material may not address the technical requirements of English law. However, an inference had to be impelled by the facts and be the only reasonable inference, as stated in Assange v Swedish Prosecution Authority [2011] EWCA 2849 (Admin).
4. The alleged purchase of a mobile telephone for one sixth of its true value irresistibly supported the inference that it was purchased with knowledge or suspicion that it represented the benefit of criminal conduct. The requirements of dual criminality were therefore satisfied. The appeal was dismissed, with detailed assessment of costs for legal-aid purposes.

• High Court (Administrative Court): On 31 May 2012, the court dismissed the appeal against the extradition order made by Senior District Judge Riddle at Westminster Magistrates’ Court on 23 March 2012.