Circuit of Lodz (Poland) v

In extradition proceedings, the judicial authority bears the burden of establishing dual criminality to the criminal standard. The court must be sure that the conduct described in the European Arrest Warrant would constitute an offence in the relevant part of the United Kingdom. Where the warrant contains materially inconsistent descriptions, and the ambiguity leaves it uncertain whether the conduct involved prohibited ammunition or an excluded cartridge case, the requirement is not satisfied. The requested person must then be discharged in respect of that offence.

The judicial authority appealed against District Judge Fanning’s decision to discharge the requested person in respect of a Polish conviction European Arrest Warrant offence involving possession of a firearm or ammunition without a licence. The warrant variously referred to a cartridge case and to a pepper-spray round. The district judge considered that the descriptions were contradictory and that he could not be sure that the item constituted an extradition offence under English law.

The requested person also sought permission to appeal on grounds concerning the independence of the Polish judiciary and Article 8. Those applications were considered in the context of pending linked cases before the Divisional Court.

1. Appeal dismissed. The judicial authority had to establish, under section 65(3)(b) of the Extradition Act 2003, that the conduct described in the warrant would constitute an offence under the law of the relevant part of the United Kingdom. The applicable burden was on the judicial authority and the standard was beyond reasonable doubt.
2. Under section 1(1)(b) of the Firearms Act 1968, possession of applicable ammunition without a firearms certificate is an offence. Section 1(4)(c) excludes certain small blank cartridges. Accordingly, an undischarged pepper-spray round could satisfy dual criminality, whereas a residual cartridge case from an already discharged round could fall within the exclusion.
3. The warrant’s reference in one passage to a cartridge case, contrasted with its reference elsewhere to ammunition or a round, created a material ambiguity. In ordinary English usage, a cartridge case is distinct from an undischarged cartridge. The district judge was therefore entitled, and obliged, to conclude that he could not be sure which item had been possessed. The requested person was properly discharged in respect of offence 2.
4. The requested person’s remaining application for permission to appeal on section 2 of the Extradition Act 2003, and the renewed application on Article 8 grounds, were adjourned to a rolled-up hearing after judgment in the linked Divisional Court cases of Wozniak and Schlavicz. Those judgments were likely to be determinative of the section 2 issue, while the Article 8 circumstances might meanwhile change.

• High Court (Administrative Court): The appeal against the district judge’s discharge decision was dismissed. The requested person’s remaining permission applications were adjourned to a rolled-up hearing.
• District Judge (Magistrates’ Court): By judgment dated 27 March 2020, District Judge Fanning found that the warrant was ambiguous and discharged the requested person in respect of offence 2.
• Permission stage: Johnson J granted permission to the judicial authority to appeal on 24 July 2020 and refused permission on the Article 8 ground. The Article 8 application was renewed before the present court.