Adamczewski v District Court In Jelenia Gora Poland

For dual criminality under section 65(3) of the Extradition Act 2003, the conduct described in a European arrest warrant must establish, to the criminal standard, that the corresponding offence would have been committed in the United Kingdom. Where the English offence requires dishonesty or another mental element, that element need not be expressly stated if the facts compel the inference. It is insufficient that the facts merely permit, or are consistent with, the inference. Ambiguity in the warrant cannot be resolved by relying on matters outside its description. Payments made from an unfunded bank account may constitute a request for overdraft facilities and do not, without more, compel an inference of theft or other criminal conduct.

The appellant appealed against District Judge Coleman’s decision of 27 May 2014 at Westminster Magistrates’ Court ordering his extradition to Poland under a conviction European arrest warrant. The warrant sought his return to serve an eight-month sentence for conduct said to contravene article 286(1) of the Polish Penal Code.

The appellant argued that the warrant did not disclose an extradition offence and that extradition would disproportionately interfere with his rights under article 8 of the European Convention on Human Rights. The District Judge held that the conduct amounted to obtaining property by deception and that dishonesty could be inferred. The central issue on appeal was whether the warrant described conduct which would constitute an offence in England and Wales for the purposes of section 65(3) of the Extradition Act 2003.

1. Appeal allowed. The conduct described in the European arrest warrant did not satisfy section 65(3)(b) of the Extradition Act 2003.

2. The warrant was ambiguous about whether the appellant withdrew money from his account before purchasing goods or used the card directly with the retailer. It also failed to state whether he knew that there were no funds in the account. Later material could not supplement the conduct described in the warrant.

3. The approach in Zak v Poland [2008] EWHC 470 (Admin) and Assange v Swedish Prosecution Authority [2011] EWHC 2849 required the necessary mens rea to be inferable from the warrant. Under Assange, the facts had to impel the inference that the accused acted with the necessary mens rea. The inference had to be the only reasonable inference capable of being drawn.

4. The words in the warrant stating that the appellant acted intentionally, sought financial profit and caused the bank to misapply its property were ambiguous. They did not provide a firm basis for inferring dishonesty. The conviction under article 286(1) could not supply elements absent from the narrative description.

5. Payments from a bank account without sufficient funds or an agreed overdraft ordinarily amount to a request for overdraft facilities, which the bank may accept or refuse: Barclays Bank v WJ Simms & Cooke Southern Ltd [1981] QB 677. Although payment by cheque or card with knowledge of insufficient funds may in some circumstances constitute theft, the conduct here did not parallel Gdansk Regional Court (Polish Judicial Authority) v Ulatowski [2010] EWHC 2673 (Admin).

6. The description amounted only to payment by debit card in an insufficiently specified manner, resulting in goods being obtained and the bank not being paid. It did not compel an inference of criminal conduct to the criminal standard. The extradition order was therefore set aside.

• Westminster Magistrates’ Court: On 27 May 2014 District Judge Coleman ordered extradition to Poland under a conviction European arrest warrant.
• High Court (Administrative Court): The appeal was allowed. The District Judge’s conclusion that dual criminality was established was rejected.