Mikolajczak v District Court In Kalisz, Poland

For dual criminality under Part 1 of the Extradition Act 2003, the court must identify the conduct described in the European arrest warrant and ask whether that conduct would constitute an offence in the relevant part of the United Kingdom. The court may disregard narrative background, but must take account of allegations relevant to the description of the corresponding UK offence. Where several offences are included in a conviction warrant, extradition may proceed if the total sentence satisfies the statutory threshold and other listed offences satisfy the dual-criminality requirements. An individual offence which does not itself qualify need not defeat extradition where it formed part of the aggregate sentence.

The appellant challenged his extradition to Poland under a conviction European arrest warrant. The warrant concerned four sets of offences and imposed sentences of eight months, two years, two years and three years. One offence was described as stealing telephone impulses by using other persons’ telephone numbers to obtain credit and make calls.

The district judge held that the offence satisfied the dual-criminality requirement in section 65(3)(b) of the Extradition Act 2003. On appeal, the issues were whether the described conduct constituted an offence under UK law and, if not, whether extradition could nevertheless proceed because the other offences satisfied the statutory requirements.

1. The appeal was dismissed. The appellant could therefore be extradited in respect of the qualifying offences. There was no order as to costs, save for detailed assessment of his publicly funded costs.

2. Under section 65(3) of the Extradition Act 2003, dual criminality is assessed by reference to the conduct described in the warrant, applying the conduct test stated in Norris v Government of the United States of America [2008] UKHL 16. The court must first identify the conduct complained of. Narrative background may be ignored, but allegations relevant to the corresponding UK offence must be considered.

3. The wording of the warrant was ambiguous. The court proceeded on the likeliest reading: the appellant obtained credit on his SIM card by using other persons’ numbers, and used that credit to make calls. That conduct did not amount to obtaining services by deception under section 1 of the Theft Act 1978. The conduct appeared to involve obtaining credit rather than services, and the alleged deception was directed at a machine rather than a human mind. Section 11 of the Fraud Act 2006 could not apply retrospectively.

4. The offence was consequently not an extradition offence. However, the appellant received a single sentence for that offence and three other offences. Following the reasoning in Kucera v District Court of Karvina, Czech Republic [2009] 1 WLR 806, and preferring Zboinski v Circuit Law Court in Swidnica, Poland [2011] EWHC 558 (Admin) to Tokarski v Circuit Court in Swidnica, Poland [2012] EWHC 2247 (Admin), the court held that extradition need not fail merely because one offence within the aggregate sentence did not satisfy dual criminality. The appeal was therefore dismissed because the remaining offences qualified.

1. High Court (Administrative Court): dismissed the appeal against the district judge’s extradition decision.

2. District judge: held that the offence concerning the telephone impulses satisfied the dual-criminality requirement under section 65(3)(b) of the Extradition Act 2003.