The Hon. Mr. Justice Lloyd Jones :
- This is an appeal by Mariusz Artur Sitek ("the Appellant") pursuant to Section 26, Extradition Act 2003 against an extradition order made by District Judge Rose at the City of Westminster Magistrates' Court on 8th March 2011 ordering the return of the Appellant to Poland.
- The Appellant is a Polish national aged 27. His extradition is sought by the Circuit Court of Swidnica, Poland, pursuant to two European Arrest Warrants ("EAWs"). The first warrant was issued on 9th March 2010 and seeks the return of the Appellant for the purpose of prosecuting him for six Offences. The second warrant was issued on 10th December 2010 and seeks the return of the Appellant for the purposes of executing a sentence of one year's imprisonment for one Offence of handling stolen goods.
- The Appellant makes no challenge in respect of the second warrant. The appeal is limited to Offences 2-5 on the first warrant. The only issue which arises on this appeal is whether Offences 2-5 in the first warrant, if committed in England and Wales would constitute offences under the law of England and Wales within the meaning of the double criminality provisions in section 64(3), Extradition Act 2003.
History of proceedings.
- On 19th June 2007 the District Court of Swidnica, Poland, issued a decision in relation to the provisional detention of the Appellant for the purpose of prosecution. On 9th March 2010 the District Court issued the first warrant for the arrest of the Appellant. That warrant was certified by the Serious Organised Crime Agency ("SOCA") on 29th April 2010.
- The second warrant was issued on 10th December 2010 and certified by the Serious Organised Crime Agency on 28th January 2011.
- On 8th January 2011 the Appellant was arrested pursuant to the first warrant. On 10th January 2011 he was produced at the City of Westminster Magistrates' Court and remanded in custody. On 4th February 2011 he was arrested on the second warrant. Following a full hearing, on 8th March 2011 District Judge Rose ordered his return to Poland on both warrants.
Legal framework
- Section 10 of the Extradition Act 2003 provides:
"(1) This section applies if a person in respect of whom a Part 1 warrant is issued appears or is brought before the appropriate judge for the extradition hearing.
(2) The judge must decide whether the offence specified in the Part 1 warrant is an extradition offence.
(3) If the judge decides the question in subsection (2) in the negative he must order the person's discharge.
(4) If the judge decides that question in the affirmative he must proceed under section 11."
- Section 64 of the 2003 Act provides in relevant part:
"(1) This section applies in relation to conduct of a person if—
(a) he is accused in a category 1 territory of the commission of an offence constituted by the conduct, or
(b) he is alleged to be unlawfully at large after conviction by a court in a category 1 territory of an offence constituted by the conduct and he has not been sentenced for the offence.
…
(3) The conduct also constitutes an extradition offence in relation to the category 1 territory if these conditions are satisfied—
(a) the conduct occurs in the category 1 territory;
(b) the conduct would constitute an offence under the law of the relevant part of the United Kingdom if it occurred in that part of the United Kingdom;
(c) the conduct is punishable under the law of the category 1 territory with imprisonment or another form of detention for a term of 12 months or a greater punishment (however it is described in that law)."
The relevant offences
- Box E of the first warrant describes Offences 2-5 in the following terms:
"2. Between August 2005 and the day of 22.03.2006, the exact date unknown, in Swidnica, in the province of Dolny Slask, he acquired software in the form of computer games called Patrician III, Mortal Kombat 4, Worms Armageddon and others, which he should and could have assumed, on the basis of the attendant circumstances, to have been obtained by means of a prohibited act, in contravention of licence, and thus he caused the loss at the amount of PLN 4,160 to the detriment of the distributors of the said software, i.e. CD Projekt, Canega and Stowarzyszenie PRO represented by LEGE ARTIS SERVICE with its registered office in Warsaw;
this is an act from Art. 293§1 of C.Pen. In conjunction with
Art. 291§1 of C.Pen.
3. Between August 2005 and the day of 22.03.2006, the exact date unknown, in Swidnica, in the province of Dolny Slask, he acquired p2p audio files recorded into MP3 with the traits of illegal copying, which he should and could have assumed, on the basis of the attendant circumstances, to have been obtained by means of a prohibited act, in contravention of licence, and thus he caused the loss at the amount of PLN 1,804 to the detriment of the distributors of the said files represented by ZPAV with its registered office in Warsaw;
this is an act from Art. 293§1 of C.Pen. In conjunction with
Art. 291§1 of C.Pen.
4. Between August 2005 and the day of 22.03.2006, the exact date unknown, in Swidnica, in the province of Dolny Slask, he acquired audio files with the repertoire of Polish and foreign music, and with the traits of illegal copying, which he should and could have assumed, on the basis of the attendant circumstances, to have been obtained by means of a prohibited act, in contravention of licence, and thus he caused the loss at the amount of PLN 407.97 to the detriment of the distributors of the said files represented by ZAIKS with its registered office in Warsaw;
this is an act from Art. 293§1 of C.Pen. In conjunction with
Art. 291§1 of C.Pen.
5. Between August 2005 and the day of 22.03.2006, the exact date unknown, in Swidnica, in the province of Dolny Slask, he acquired software such as Windows XP Professional operating system, MS Office 2000 Premium, Photoshop Elements 4.0 and others, which he should and could have assumed, on the basis of the attendant circumstances, to have been obtained by means of a prohibited act, in contravention of licence, and thus he caused the loss at the amount of PLN 5,322 to the detriment of the distributors of the said software represented by HETMAN with its registered office in Gdansk;
this is an act from Art. 293§1 of C.Pen. In conjunction with
Art. 291§1 of C.Pen."
- On behalf of the Appellant Mr. Atlee submits that these offences are not extradition offences within section 64(3) because the conduct would not constitute an offence under the law of England and Wales if it occurred there. On behalf of the Respondent Miss Rafter submits that the conduct described in Offences 2-5 if it occurred in England and Wales would constitute the offence of acquisition of criminal property contrary to section 329, Proceeds of Crime Act 2002.
- In considering these submissions the starting point is Norris v United States of America [2008] UKHL 16; [2008] 1 AC 920. Here the House of Lords considered whether the crimes for which extradition is sought under the Extradition Act 2003 are, for the purpose of the double criminality rule, to be defined in terms of conduct or the elements of the foreign offences. The essential question was whether the court was required to make a comparison between the conduct alleged against the accused abroad and an offence here (the conduct test) or whether it was required to look for a necessary correspondence between the elements of the offence abroad and the offence here (the offence test). The House of Lords concluded that the wider construction should prevail and that the conduct test should be applied consistently throughout the 2003 Act. The court looks at the conduct complained of in the warrant not at whether the ingredients of the Polish offence have a precise equivalent under English law. The question for consideration in this case is, therefore, whether the conduct described in the warrant, in respect of each offence, would constitute an offence if committed in England and Wales.
- It is not necessary that all of the elements of the corresponding offence in England and Wales should be specified in terms in the description of the offence in the warrant. It is open to the court to draw inferences from the description of the conduct abroad when considering whether the conduct described would amount to an offence here. In Zak v Regional Court of Bydgoszcz, Poland [2008] EWHC 470 (Admin) the Divisional Court (Richards LJ and Swift J) the appellant had been charged with unintentional receiving. The description of the offence in the warrant alleged that the appellant "should and could have suspected" that the mobile phone he received had been obtained by a prohibited act. That description was subsequently supplemented by further information provided by the judicial authority describing in some detail the circumstances of the acquisition.
- In Zak it was argued on behalf of the respondent that the conduct, had it occurred in England and Wales, would have constituted the offence of possession of criminal property contrary to section 329, Proceeds of Crime Act, 2002 or receiving stolen goods contrary to section 22 of the Theft Act, 1968. However the mental element of each of those corresponding offences was different from that described in the warrant. In particular, for the purposes of section 329 of the Proceeds of Crime Act a defendant must know or suspect that the property constitutes or represents a person's benefit from criminal conduct. The Divisional Court accepted a submission that the mental element of the offence was a matter of inference to be drawn from the objective facts. The judicial authority had drawn the inference appropriate for the requirements for the offence of Polish law, namely that the appellant ought to have known or suspected that the item was stolen. However the objective facts were equally capable of supporting the inferences relevant to the ingredients of the corresponding English offences, that is that the appellant did in fact know or believe that the telephone was stolen (section 22, Theft Act) or know or suspect that it was criminal property (section 329, Proceeds of Crime Act).
- Richards LJ expressed his conclusions as follows:
"14. Miss Kapila's submissions have made me hesitate about the right decision in this case. The conduct described in the warrant and in the further information does not, in terms, include the elements of knowledge, belief or suspicion as to the mobile telephone being stolen or being criminal property. An allegation of actual knowledge might indeed involve in Poland a different offence from that charged there, namely an offence of intentionally receiving stolen property.
15. However, it appears to me that actual belief or actual suspicion are consistent with the Offence of unintentional receiving that is charged in Poland, but they are simply unnecessary for that offence since the relevant Polish law looks at whether the appellant could and should have suspected, rather than at whether he actually did suspect or believe. In those circumstances, if the conduct alleged is such that actual belief or suspicion can properly be inferred from it, then I am inclined to the view that it does not matter that such actual belief or suspicion is not spelled out in terms in the warrant or further information.
16. Thus, I would reject the submission that the requesting authority has to identify or specify in terms the relevant mens rea of the English Offence. In my view, it is sufficient if it can be inferred by the court from the conduct that is spelled out in the warrant and further information. That seems to me to accord fully with the reasoning in Norris (the essential part of which I have quoted) and the decision in that case.
17. Here the matters set out in the warrant and further information do provide a proper basis for the inference that the appellant believed that the mobile telephone was stolen or suspected that it was criminal property. To use language similar to that deployed by Auld LJ in Norris, the conduct alleged includes matters capable of sustaining the necessary finding of belief or suspicion for the purposes of the relevant offences under English law."
- Zak was decided shortly before the decision of the House of Lords in Norris. I note that Zak was not cited in the House of Lords in Norris. However, the approach of the Divisional Court in Zak is entirely consistent with the decision in Norris. Contrary to the submission of Mr Atlee, I am unable to find anything in the decision of the Committee in Norris which would require that the description of the conduct in the warrant expressly include all the elements of the corresponding Offences in England and Wales. That was simply not an issue in Norris. Furthermore, contrary to the submission of Mr Atlee, Zak does not say that you need to consider only the actus reus of the Offence. On the contrary, the court examined at length whether the conduct described in the warrant gave rise to an inference of the mens rea which would render the conduct criminal if committed in England and Wales.
- Zak was followed in Gdansk Regional Court v Ulatowski [2010] EWHC 2673 (Admin). There the Polish judicial authority sought the return of Mr Ulatowski on two charges of misappropriating money by withdrawing it from a bank account. It was not clear from the description of the offence whether the money had been obtained from a bank employee or from a machine. Accordingly Roderick Evans J. approached the question of double criminality on these alternative basis. He concluded that if the cash had been obtained from a bank employee his conduct, if performed in England and Wales, would have constituted the offence of obtaining a pecuniary advantage or services by deception. The description on the warrant did not allege dishonesty. However from the description of the conduct in the warrant and the further information which had been supplied, the judge concluded that dishonesty could be readily inferred. The judge further concluded that if the cash had been obtained from a cash machine, that conduct, had it taken place in England and Wales, would have constituted theft. Here, again, the judge felt able to infer dishonesty and the necessary intention from the further information provided by the judicial authority.
- I would also draw attention to the observations of Stanley Burnton J in Holmes v The Governor of Brixton Prison [2004] EWHC 2020 (Admin) that it is scarcely surprising that information provided by foreign courts and prosecution authorities, which establishes an offence or offences under their own law, does not address specifically the technical requirements of English law. I am in total agreement with his view that this consideration highlights the need for the court to consider the information provided for the purposes of extradition proceedings realistically rather than over-critically.
- On behalf of the Respondent Miss Rafter submits that in the case of each of the four offences (Offences 2-5) the conduct described would, if it took place in this jurisdiction, constitute the Offence of acquiring or possessing criminal property pursuant section 329 Proceeds of Crime Act 2002 ("POCA"). She submits that the software in the form of computer games (Offence 2) and Windows Operating system (Offence 5) and the audio files (Offences 3 and 4) are criminal property for the purposes of section 340 POCA 2002.
- Sections 329 and 340 POCA 2002 provide in relevant part:
"329 Acquisition, use and possession
(1) A person commits an offence if he—
(a) acquires criminal property;
(b) uses criminal property;
(c) has possession of criminal property.
…
340 Interpretation This section has no associated Explanatory Notes…...
(2) Criminal conduct is conduct which—
(a) constitutes an offence in any part of the United Kingdom, or
(b) would constitute an offence in any part of the United Kingdom if it occurred there.
(3) Property is criminal property if—
(a) it constitutes a person's benefit from criminal conduct or it represents such a benefit (in whole or part and whether directly or indirectly), and
(b) the alleged offender knows or suspects that it constitutes or represents such a benefit.
(4) It is immaterial—
(a) who carried out the conduct;
(b) who benefited from it;
(c) whether the conduct occurred before or after the passing of this Act.
(5) A person benefits from conduct if he obtains property as a result of or in connection with the conduct.
…
(9) Property is all property wherever situated and includes—
(a) money;
(b) all forms of property, real or personal, heritable or moveable;
(c) things in action and other intangible or incorporeal property.
..."
- At the hearing before me it was not in dispute that the first warrant alleges in respect of Offences 2-5 that the appellant acquired and was in possession of the items. The issues in dispute were (a) whether the items would be criminal property within section 340 POCA; and (b) whether the conduct described in the warrant includes the mental element necessary to establish an offence contrary to section 329 POCA. These matters will now be considered in turn.
Criminal property
- In order to make good her submission Miss Rafter must demonstrate that the items referred to in the description of the offences are criminal property. She submits that the criminal conduct in this case is conduct contrary to section 107(1) Copyright Designs and Patents Act 1988 which provides:
"107 Criminal liability for making or dealing with infringing articles, &c.
(1) A person commits an offence who, without the licence of the copyright owner—
(a) makes for sale or hire, or
(b) imports into the United Kingdom otherwise than for his private and domestic use, or
(c) possesses in the course of a business with a view to committing any act infringing the copyright, or
(d) in the course of a business —
(i) sells or lets for hire, or
(ii) offers or exposes for sale or hire, or
(iii) exhibits in public, or
(iv) distributes, or
(e) distributes otherwise than in the course of a business to such an extent as to affect prejudicially the owner of the copyright, an article which is, and which he knows or has reason to believe is, an infringing copy of a copyright work."
- The District Judge concluded that in the case of all four Offences the property had been illegally made or obtained in contravention of licence and that, if committed in England, this conduct would be criminal by virtue of section 107 Copyright Designs and Patents Act 1988. It was on this basis that he concluded that the property was criminal property within section 340.
"The Judicial Authority contends that all four of the offences set out in the request particularise property such as computer games, audio files and software that have been illegally obtained or made "in contravention of licence". In this jurisdiction such conduct is prohibited by section 107 Copyright, Designs and Patents Act 1988 if a person knows or has reason to believe it is an infringing copy of a copyright work. Thus, the items listed represented the benefit of criminal conduct, acquisition or possession of which is an offence under section 329 if the defendant knows or suspects that to be the case. The maximum sentence for that offence in this jurisdiction is fourteen years imprisonment."
- On behalf of the appellant Mr. Atlee submits that the conduct described in the warrant does not, either expressly or by permissible inference, allege any of the various forms of the offence created by section 107.
- Miss Rafter seeks to make good her submission in alternative ways. First, she submits that in order for the appellant to have acquired these items, another person must have made them for sale or hire (contrary to section 107(1)(a)) or must have distributed them in the course of a business (contrary to section 107(1)(d)(iv)) or must have distributed them otherwise that in the course of a business to such an extent as to affect prejudicially the owner of the copyright (contrary to section 107(1)(e)). She submits that the court can conclude, by inference from the matters described in the warrant, that the prior history of the items in question must, in each case, have involved the commission of one or other of the forms of dealing with infringing articles made criminal by section 107(1). In this way the items are properly regarded as a person's benefit from criminal conduct or they represent such a benefit.
- I consider that it can be inferred from the matters spelled out in the descriptions of the offences that the items would be a person's benefit from offences contrary to section 107(1). In each case the warrant alleges that the items were obtained by a prohibited act. (I read these statements as referring to an obtaining prior to the alleged acquisition by the appellant.) In each case it is alleged that that prior obtaining was in contravention of a licence. In each case it is alleged that a loss has been caused to the distributors of the items. In this regard I also draw attention to the value placed on the items in the description of the Offences; while not on a massive scale, these are, with the exception of Offence 4, not insubstantial quantities of infringing articles. Furthermore, in the case of Offences 3 and 4 there is the further averment that the items bore "traits of illegal copying". To my mind, these features make clear that the items were not the product of permissible copying and, further, provide a proper basis for concluding that, in corresponding circumstances, the items would be the benefit of criminal conduct contrary to section 107. The mere possession of the items by a person prior to the acquisition by the appellant would be sufficient to constitute a benefit. Furthermore, it would not matter whether the conduct was performed by the person from whom the appellant acquired the items or by some earlier party (section 340(4)).
- For an offence contrary to section 107 to be made out it would also be necessary to establish that the person dealing in the manner prohibited "knows or has reason to believe" that the article is an infringing copy of a copyright work. This causes no difficulty here as each of the descriptions in the warrant alleges that the appellant "should and could have assumed" in the circumstances that it had been obtained by means of a prohibited act in contravention of licence. It should and could have been equally obvious to any other person dealing in the items. The descriptions of Offences 3 and 4 include the additional averment that the items bore "the traits of illegal copying". The various features of the descriptions identified above permit the inference that a person dealing with the items would have reason to believe that they infringed copyright.
- Alternatively Miss Rafter submits that these matters referred to in the warrant, when considered in conjunction with the allegations in the warrant that in each case the appellant "should and could have assumed on the basis of the attendant circumstances" that they had been obtained by means of a prohibited act in contravention of licence, give rise to an irresistible inference that the items came from criminal conduct. In this regard she relies on Anwoir [2009] 1 WLR 980, a case concerned with section 328 POCA. In considering what the prosecution had to prove in order to show that property derives from a crime for offences under POCA Latham LJ stated:
"We consider that in the present case the Crown are correct in their submission that there are two ways in which the Crown can prove the property derives from crime, (a) by showing that it derives from conduct of a specific kind or kinds and that conduct of that kind or kinds is unlawful, or (b) by evidence of the circumstances in which the property is handled which are such as to give rise to the irresistible inference that it can only be derived from crime." (at para. 21)
For the reasons given above, I consider that the matters alleged in the descriptions of the offences give rise to the irresistible inference that the items were derived from crime for the purposes of section 340, POCA.
"Knows or suspects"
- Property is criminal property within section 340 only if the alleged offender knows or suspects that it constitutes or represents such a benefit. This requirement of knowledge or suspicion is a different standard from the requirement for the Offences alleged contrary to Polish law that a Defendant should and could have assumed that the goods had been obtained by prohibited act and in contravention of licence. The warrant merely makes the allegation appropriate for the alleged Polish offences. I am unable to accept the submission of Miss Rafter that the allegation that the Appellant "should and could have assumed" is the equivalent of the requirement of knowledge or suspicion under sections 329 and 340 POCA. That statute requires a subjective state of mind: for the offence to be made out it must be shown that a defendant knew or suspected the true nature of the goods. In particular suspicion involves appreciation of a possibility which is more than fanciful that the relevant fact exists. (See Da Silva [2007] 1 WLR 303 – a decision on the meaning of "suspecting" in the Criminal Justice Act 1988 - per Longmore LJ at paras. 16, 17.) By contrast, the averment in the warrant is of a failure to meet an objective standard: it is sufficient that the appellant should have appreciated the true nature of the goods.
- The question for consideration therefore is the same as that facing the Divisional Court in Zak: whether the mens rea of a corresponding English offence (in this case the offence contrary to sections 329, Proceeds of Crime Act) can be inferred from the conduct spelled out in the warrant.
- In Zak the Court had the advantage of further information provided by the Judicial Authority. That included particular matters of primary fact which were capable of giving rise to an inference of belief or suspicion for the purposes of the relevant offences under English law; for example, the purchase price of the phone was one third of its true value and it was bought without any documentation, charger, packaging or receipt from an unknown person. By contrast, in the present case the conduct alleged to constitute the Polish offences is stated at a much higher level of generality. The question is whether, nevertheless, knowledge or suspicion can properly be inferred from these general statements in the warrant.
- Whereas all four statements of Offence with which we are concerned contain the same general allegation that the appellant should and could have assumed, on the basis of attendant circumstances, that the items had been obtained by means of a prohibited act, in contravention of licence, Offences 3 and 4 include an additional averment that the files acquired had "the traits of illegal copying". While no further particulars of these allegations are provided, these are to my mind statements of primary fact from which conclusions may be drawn, albeit stated once again at a level of considerable generality. I consider that this description of the files is a matter which is capable of sustaining the necessary finding of knowledge or suspicion for the purpose of the relevant Offence in English law, in particular when considered in conjunction with the other more general allegations contained in all four statements of Offence. Accordingly, I consider that in the case of Offences 3 and 4 the description does give rise to an inference of knowledge or suspicion as would be required under sections 329 and 340 POCA.
- Offences 2 and 5 cause me more difficulty. Here it is alleged in the warrant simply that the circumstances were such that the appellant should and could have appreciated certain matters. That tells us nothing about the circumstances in question other than that they give rise to the state of mind which is required if the offence contrary to Polish law is to be made out. In the absence of any particulars it is not possible to say whether those circumstances would also have supported the more demanding mens rea required for the offence contrary to POCA. While matters which would have led a reasonable man to appreciate that the goods were infringing copies would undoubtedly also be relevant to the existence of knowledge or suspicion, there is a limit to the extent to which it is legitimate to draw inferences from such general statements, in particular in a criminal matter. Accordingly, I am unable to conclude in the case of Offences 2 and 5 that the conduct alleged includes matters capable of sustaining the necessary finding of knowledge or suspicion for the purposes of the relevant Offence in English law.
Soltysiak
- Finally I should refer to the fact that during the course of the hearing before me there became available a copy of the judgment of Bean J in R (Soltysiak) v Judicial Authority of Poland (unreported, 23rd March 2011). That case also concerned double criminality under Part 1 of the Extradition Act 2003. The European Arrest Warrant in that case described two offences. The first alleged that the appellant had been in possession of illegally copied computer programmes which had been purchased earlier in an undetermined place and at an undetermined time. It then listed several hundred items of software. The second charge alleged that, acting to gain material benefit, he possessed illegally copied films purchased in an undetermined place and at an undetermined time. The warrant then listed a large number of films. The question for consideration was whether the conduct alleged in the warrant would amount to an offence if it had occurred here.
- The judicial authority argued first that the conduct alleged constituted an offence of distribution contrary to section 107(1)(e), Copyright, Designs and Patents Act 1988. Bean J observed that simple possession of an infringing article or possession of such an article with the intent to supply are not, in themselves, offences contrary to section 107. The judge considered that the description of the conduct in the warrant did not amount to an allegation of distribution. It merely amounted to an allegation of possession with the intention of supplying at a later date and that would not constitute an offence contrary to section 107.
- In the alternative the Polish judicial authority maintained that the conduct would constitute an offence contrary to section 329 Proceeds of Crime Act 2002. On behalf of the Appellant it was conceded that the films constituted somebody's benefit from criminal conduct. However it was submitted that there was no evidence that the appellant knew or suspected that the films or programs constituted or represented such a benefit. The judge said that he was troubled by the fact that counsel had been unable to find any domestic criminal case in which possession of copyright infringing material with intent to supply but without any evidence of such supply or distribution having occurred had been held to be a criminal offence in English law. He thought it would be amazing if possession with intent to supply would be a criminal offence without there being any prosecutions or convictions tested on appeal. In the circumstances he did not consider that the requirement of double criminality was satisfied.
- In the present case the alleged Offences contrary to Polish law are different. Furthermore, the description of the conduct alleged in Box E of the warrant is different from that in Soltysiak. In particular it includes allegations as to the state of awareness of the Appellant of the nature of the items. There were no such allegations in Soltysiak. As a result Bean J. did not have to consider the issues which arise in this case.
- For the reasons set out above, I consider that the requirement of double criminality under section 64(3)(b) is satisfied in respect of Offences 3 and 4 but not in respect of Offences 2 and 5.
- Accordingly, I would allow the appeal, order the Appellant's discharge and quash the order for his extradition in respect of Offences 2 and 5 only. I would dismiss the appeal insofar as it relates to Offences 3 and 4. The Appellant therefore stands to be extradited to Poland in respect of Offences 3 and 4 and the other offences alleged in the first warrant which have not been the subject of appeal. In addition he stands to be extradited to Poland on the second warrant.
