Kricka v County Court In Varazdin, Croatia

For accusation warrants, conduct constitutes an extradition offence where the statutory requirements concerning territoriality, corresponding domestic criminality and punishment are satisfied. The court examines the alleged conduct rather than the requesting state’s offence label. The conduct must establish the necessary domestic mens rea to the criminal standard. A possible inference is insufficient: the facts must impel the inference that the requested person acted with the required mens rea. Detailed and complex transactions may satisfy that standard where the warrant and further information, read together, compel an inference of dishonesty. Once sufficient particulars are supplied, the court may determine dual criminality by reference to the substance of the conduct.

The appellant appealed against District Judge Grant’s order of 27 October 2017 requiring her extradition to Croatia under three European Arrest Warrants. The appeal concerned only the first warrant, relating to eight alleged offences. Permission was granted on whether offences 1–3 and 5–7 complied with section 2 of the Extradition Act 2003, and whether they were extradition offences under sections 10 and 64.

After further information was provided, the appellant accepted that the section 2 particulars were sufficient. The remaining issue was whether the conduct alleged in offences 1–3 and 5–7 amounted to extradition offences, principally by satisfying the dual-criminality requirement.

1. Outcome. The appeal was dismissed. Offences 1–3 and 5–7 were extradition offences within sections 10 and 64 of the Extradition Act 2003. It followed that no Article 8 issue remained.
2. For an accusation warrant, the court had to be satisfied that the conduct met the applicable conditions in section 64(3) or section 64(5). The relevant principles were established by Alexander and Di Benedetto v Italy [2017] EWHC 1392 (Admin), in light of Goluchowski v Poland [2016] UKSC 36 and Bob-Dogi C-241/15. The issuing judicial authority could provide missing information to establish the validity of an otherwise deficient warrant.
3. The court had to assess conduct, not the label attached to the offence in Croatia. The burden rested on the issuing authority, and the issue had to be proved to the criminal standard: Mauro v Government of the United States of America [2009] EWHC 150 (Admin). Under Assange v Swedish Prosecution Authority [2011] EWHC 2849 (Admin), the facts had to impel, rather than merely permit, the inference that the appellant acted with the necessary mens rea.
4. Applying that approach, the warrant and further information, read together, established an impelled inference of dishonesty. The alleged transactions were recorded as loans although they were not genuine loans; property said to repay a debt was not transferred; invoices were issued for services never provided; and money withdrawn or transferred was not repaid. The complexity of the transactions did not prevent the conduct from being definitively characterised as dishonest.
5. The court rejected the argument that failure to repay money could only be dishonest if an intention not to repay existed at the moment of the original transaction. The information concerning offences 5–7, read with the earlier material, impelled the inference that dishonesty existed from the outset. Each relevant offence therefore satisfied dual criminality.

• High Court (Administrative Court): The appeal against District Judge Grant’s extradition order of 27 October 2017 was dismissed. The court held that offences 1–3 and 5–7 in the first European Arrest Warrant were extradition offences.