Krzysztof Omylski v District Court in Gliwice (Poland)

For dual criminality under the Extradition Act 2003, the court examines the conduct alleged or described in the warrant and asks whether it would constitute an offence in the relevant part of the United Kingdom. The foreign and domestic offences need not correspond in form or be identically labelled.

Where an element required by domestic law is also a necessary element of the foreign offence, the factual description need only be capable of supporting an inference that the element is present. An irresistible inference is required only where domestic law requires an element which is not a necessary element of the foreign offence. The court may recharacterise conduct as a different domestic offence, including a POCA offence, if its substance satisfies dual criminality.

The applicant appealed against an order of District Judge Tempia dated 1 October 2019 directing extradition to Poland under a European Arrest Warrant. The warrant concerned convictions for dealing with jewellery belonging to a third party and sold to that party’s detriment. Extradition was also ordered for attempted theft, which was not challenged.

The appeal concerned whether the two disputed offences satisfied dual criminality under the Extradition Act 2003. The applicant argued that the warrant did not allege that the jewellery had been obtained through criminal conduct and did not identify the required mental element. The respondent applied to adduce further information explaining the Polish offence.

1. The respondent’s further information was admitted. For a respondent seeking to clarify an issue of fact or law on an extradition appeal, the governing approach is the interests of justice, having regard to the public interest in extradition. The considerations identified in Szombathely City Court v Fenyvesi remain relevant but are not the governing test. The material clarified an otherwise unclear issue of Polish law.
2. Dual criminality requires examination of both the legal elements of the relevant foreign and domestic offences and the factual conduct described in the warrant. A conviction warrant differs from an accusation warrant because conviction necessarily involves satisfaction of the foreign offence’s legal elements, although the conduct description must still be considered.
3. The irresistible-inference principle applies where domestic law requires an element which is not a necessary element of the foreign offence. Where the element is necessary under both legal systems, the factual description need only be capable of supporting the relevant inference. That qualification applies to all elements, not merely mens rea.
4. The further information established that obtaining property by means of a prohibited act was a necessary element of the Polish offence under art.291(1) of the Penal Code. The warrant and further information were capable of supporting the inference that the jewellery had been obtained through a prohibited act. The actus reus objection therefore failed.
5. The Polish description of intentional dealing, including predicting that the property might have been obtained through criminal activity and accepting that possibility, identified suspicion rather than a lesser mental state. Read with the warrant’s reference to an intention taken in advance, it was capable of supporting the mens rea required for an offence under s.329 of the Proceeds of Crime Act 2002.
6. The conduct could properly be recharacterised as a POCA offence rather than a Theft Act offence. The District Judge’s conclusion on dual criminality was correct, although for a different reason. The appeal was dismissed.
7. By agreement under s.36(3)(b) of the Extradition Act 2003, the relevant period for extradition was directed to commence on 29 April 2020.

• High Court (Administrative Court) — [2020] EWHC 836 (Admin): appeal dismissed; the District Judge’s conclusion on dual criminality upheld on the alternative POCA basis.
• Westminster Magistrates’ Court — District Judge Tempia ordered extradition on 1 October 2019.