Dobryzynski v Regional Court Gliwice

In extradition proceedings, dual criminality is assessed by applying the conduct test. The court asks whether the conduct described in the European Arrest Warrant would constitute an offence in the relevant part of the United Kingdom. The court should ordinarily accept the issuing state’s classification unless an obvious inconsistency shows that the conduct does not amount to that offence. Inferences from the warrant must be compelled by the facts stated and must be the only reasonable inferences available. Under article 8, there is no requirement of exceptional circumstances. The court must balance the interference with private and family life against the public interest in extradition, giving that interest weight according to the seriousness of the offending and other circumstances.

The claimant appealed against District Judge Snow’s order at Westminster Magistrates’ Court for his extradition to Poland under a conviction European Arrest Warrant. The warrant concerned an aggregate sentence for non-payment of child maintenance and an alleged dishonest withdrawal of money from a bank account. The prosecution accepted that the maintenance conviction did not justify extradition.

The High Court considered whether the remaining offence satisfied the dual-criminality requirements of sections 10 and 65 of the Extradition Act 2003, and whether extradition would be disproportionate interference with the claimant’s article 8 rights. The District Judge had declined to determine dual criminality and had found extradition proportionate.

1. The appeal was dismissed. The District Judge had erred in refusing to determine the dual-criminality issue, but the High Court determined it for itself.

2. Under sections 10 and 65 of the Extradition Act 2003, the relevant question was whether the conduct set out in the European Arrest Warrant constituted an extradition offence. Following the conduct-based approach identified in Norris v The Government of United States of America [2008] UKHL 16, the court was not required to compare the technical elements of the foreign offence. It had to consider whether the described conduct would amount to a United Kingdom offence.

3. The facts in the warrant stated that the claimant acted with premeditated intent to obtain financial profit while knowing that he had no funds, and thereby dishonestly caused the bank to dispose of its property to its detriment. Those facts compelled the inference of the necessary mens rea. The warrant therefore described an extradition offence.

4. Assange v The Swedish Prosecution Authority [2011] EWHC 2849 (Admin) established that a possible inference was insufficient; the facts had to impel the inference, which had to be the only reasonable inference. The court should ordinarily accept the issuing state’s classification unless there was an obvious inconsistency. No such inconsistency existed here. The facts materially distinguished the case from Adamczewski v Poland [2014] EWHC 2958 and from the circumstances discussed in Ulatowski.

5. On article 8, the principles summarised in HH v Deputy Prosecutor of the Italian Republic of Genoa [2010] UKSC 25 applied. There was no test of exceptionality. The relevant exercise was a balance between the claimant’s private and family life and the substantial public interest in extradition. That public interest varied with the seriousness of the offence and could be reduced by delay, while family-life consequences could increase with time.

6. Extradition was proportionate. The remaining sentence was significant, the offence was serious, there had been no substantial culpable delay, and the evidence concerning the claimant’s wife was limited. The need to give effect to the extradition framework outweighed the article 8 interference.

• High Court (Administrative Court): The appeal from the order of District Judge Snow at Westminster Magistrates’ Court was dismissed.