Margiela v Circuit Law Court In Swidnica Poland

For double criminality under the Extradition Act, the court applies a conduct test. It asks whether the conduct described in the European Arrest Warrant would have constituted an offence under the law of the relevant part of the United Kingdom when it occurred. The court may draw inferences from the warrant, including in relation to mens rea, but an inference must be the only reasonable inference, rather than merely a possible one. Where the description necessarily supports the elements of a domestic offence, the requirement is satisfied even though the warrant does not use the technical language of domestic law.

The appellant appealed against an order made by District Judge Nicholas Evans on 13 January 2012 requiring his extradition to Poland. The European Arrest Warrant concerned two convictions and sought his surrender to serve outstanding custodial sentences. The appeal focused on one conviction concerning the concealment of a military identity document belonging to another person.

The central issue was whether the conduct described in the warrant would have constituted an offence under the law of the relevant part of the United Kingdom, so satisfying the double-criminality requirement. The respondent relied principally on handling stolen goods and alternatively on theft.

1. The appeal was dismissed. The district judge had been wrong to treat the issue as merely academic, but the issue was determined on its merits.
2. The applicable approach is a conduct test. The court does not compare the legal elements of the foreign offence with those of a domestic offence. It considers solely whether the conduct described in the warrant would have constituted a domestic offence. The conduct must also have been criminal under United Kingdom law at the time it was committed, as explained in [2005] UKHL 67 and [2008] UKHL 16.
3. Inferences may be drawn from the description in the warrant. However, an inference concerning the necessary mens rea must be the only reasonable inference available from the alleged facts. A merely possible inference is insufficient: [2011] EWCA 2849 (Admin).
4. The warrant stated that the appellant concealed a military identity document issued in another person’s name and had no right of disposal over it. Those facts necessarily supported the inference that the document was stolen, that the appellant knew or believed it was stolen, and that he acted dishonestly in retaining it. The conduct therefore constituted handling stolen goods contrary to section 22(1) of the Theft Act 1968.
5. Alternatively, the conduct constituted theft contrary to section 1 of the Theft Act 1968, on the basis of dishonest stealing by retention. It was sufficient that the conduct constituted either offence.

1. High Court (Administrative Court): District Judge Nicholas Evans ordered extradition on 13 January 2012. Mr Justice Lloyd Jones dismissed the appeal.