Neutral Citation Number: [2009] EWHC 2753 (Admin)

CO/5267/2009 
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION 
THE ADMINISTRATIVE COURT 
Royal Courts of Justice 
Strand
London WC2A 2LL 

Friday, 9 October 2009 
 
B e f o r e: 

MR JUSTICE KEITH
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Between: 
LUCZAK 
Appellant

v 

DISTRICT COURT IN SIERADZ, POLAND 
Respondent 
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Computer‑Aided Transcript of the Stenograph Notes of  
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MS REBECCA HILL (instructed by KAIM TODNER) appeared on behalf of the Appellant
MS ALISON WILKES (instructed by the Crown Prosecution Service) appeared on behalf of the Respondent
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J U D G M E N T
1.	MR JUSTICE KEITH:  On 19 March 2009, the appellant, Andrzej Luczak, was arrested at his home in Darlington pursuant to a European arrest warrant issued by the respondent, the District Court in Sieradz, Poland, on 15 April 2008.  The warrant had been certified by the Serious Organised Crime Agency on 27 January 2009.  Extradition hearings took place at the City of Westminster Magistrates' Court.  On 26 May 2009, Senior District Judge Workman ordered that Mr Luczak be extradited to Poland.  He now appeals against that order.  Collins J ordered that the appeal could be heard by a single judge.
2.	The warrant related to two offences.  The first offence alleged that between 22 July 1996 and 20 July 1999, "acting with the intention to foil [the] carrying out [of] an executive title issued by the Inland Revenue," and "executive titles issued by the Social Insurance Institution", the appellant had "in the course of pending enforcement proceedings ... alienated the attached movable property", namely a television set and a video cassette recorder, "thereby making it impossible to satisfy the creditors".  This offence was described in the warrant as; an offence against "economic relations" contrary to Article 300 §2 of the Penal Code.  The second offence related to the appellant's persistent failure to meet his maintenance obligations towards his daughter.  On 21 June 2001, he was sentenced to six months imprisonment for the first offence, and to 12 months imprisonment for the second, making 18 months imprisonment in all, conditionally suspended for four years.  That sentence became final on 28 June 2001, which was the date when he was treated as having been convicted of these offences.  He did not comply with the conditions attached to the suspension of his sentence, and on 5 July 2005 the enforcement of his suspended sentence was ordered.
3.	Poland has been designated as a category 1 territory pursuant to section 1 of the Extradition Act 2003 ("the Act").  Part 1 of the Act therefore applied to these proceedings.  Section 10(2) of the Act required the judge at the extradition hearing to decide whether the offences specified in the warrant were extradition offences.  Since Mr Luczak was alleged to have been unlawfully at large following his conviction, and since he had been sentenced for the offences, the section of the Act which stated what constituted an extradition offence in Mr Luczak's case was section 65.  Section 65 sets out a variety of different circumstances in which conduct constitutes an extradition offence, and the set of conditions which were relevant to Mr Luczak's case are those set out in section 65(3) which provides: 
"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) a sentence of imprisonment or another form of detention for a term of 4 months or a greater punishment has been imposed in the category 1 territory in respect of the conduct."
It was conceded on behalf of the respondent that the offence of failing to pay maintenance did not amount to an extradition offence, since it did not satisfy the requirement of dual criminality in section 65(3)(b).  The sole issue for the district judge was whether the first offence satisfied the requirement of dual criminality in section 65(3)(b).
4.		The most authoritative authority on the application of the test of dual criminality is the case of Norris v Government of the United States of America [2008] UKHL 16.  The issue which had to be decided was whether the assessment should be based on an examination of the elements of the foreign offence, or whether the court simply had to determine whether the conduct complained of, if it had occurred within the relevant part of the UK, would have amounted to a criminal offence.  The House of Lords concluded at [91] that the conduct test was the appropriate test; the relevant conduct "being that described in the documents constituting the request ..., ignoring ... mere narrative background but taking account of such allegations as are relevant to the description of the corresponding United Kingdom offence". 
5.	The warrant contained the following additional information about the first offence: 
"On 17 June 1996, the Inland Revenue in Sieradz issued against the sentenced, Andrzej Luczak, an enforcement title in view of his failure to meet the liabilities towards the State Treasury by way of VAT.  On grounds of the executive title dated 22 July 1996, the authorised enforcement officer levied an attachment on movable property belonging to the sentenced.  The person concerned was appointed a supervisor of the attached property and he was instructed of a ban on selling the attached moveables.  The procedure was carried out in the presence of the sentenced [signature on the record].  On 20 July 1999, the enforcement officer established that the accused did not possess either the 'Philips' TV set or the 'Panasonic' video cassette recorder.  The sentenced did not explain the way he had disposed of the property.  The above circumstances made it impossible to satisfy the claims of the State Treasury.  The findings were based on documentary evidence and explanations of the accused [offence against economic relations]." 
6.	The information in the warrant about the first offence is a little difficult to follow, bearing in mind the difficulties in translation and the use of terms of art.  But as Richards LJ said in Tatjana Sidlauskaite v The Prosecutor General's Office of the Republic of Lithuania [2006] EWHC 3486 (Admin) at [9]‑[10]: 
"... this is an area where, for the reasons given [by Auld LJ in Fofana and Belise v Deputy Prosecutor Thubin Tribunal de Grande Instance de Meaux, France [2006] EWHC 744 (Admin) at [39]], it seems to me one should not be too astute to look for technical points concerning the precise meaning to be given to individual words used in the warrant.
I see no inconsistency between that and ... the importance of an accurate and fair description of the conduct constituting the offence alleged and for the need for the courts to be vigilant to ensure that the extradition procedures are strictly observed.  One can adopt an appropriate degree of strictness and vigilance without getting caught up in fine points of technicality as to the precise meaning of words used."
Reading the warrant as a whole, what Mr Luczak was alleged to have done was to default in his liability to pay VAT.  The Inland Revenue took steps to enforce the debt.  An officer authorised to enforce the debt "levied an attachment" on Mr Luczak's movable property, including a television set and a video cassette recorder.  Mr Luczak was instructed that he was prohibited from selling them, but he disposed of them nevertheless. 
7.	The respondent's case on these facts is that Mr Luczak's conduct, if it had occurred within England and Wales, would have amounted to an offence of theft.  Section 1(1) of the Theft Act 1968 provides: 
"A person is guilty of theft if he dishonestly appropriates property belonging to another with the intention of permanently depriving the other of it..."
What constitutes "property belonging to another" is dealt with by section 5, section 5(1) providing, so far as is material: 
"Property shall be regarded as belonging to any person having possession or control of it, or having in it any proprietary right or interest..."
The question for the judge, therefore, was whether the levying of an attachment on Mr Luczak's movable possessions by the officer authorised to enforce the debt would, in England and Wales, have meant that he had a proprietary right or interest in Mr Luczak's possessions.  The judge dealt with that issue as follows: 
"The property had been made the subject of an executive title of attachment which gave rise to the ban on the selling of the attached items.  An analogous situation would be the selling of items seized and in walking possession of a United Kingdom bailiff.  The attachment of the items was carried out in the presence of the defendant.  By disposing of the items the defendant would have been defeating the attachment and depriving another of his interest in the property."
8.	Ms Rebecca Hill for Mr Luczak accepts that where a bailiff is in walking possession of a debtor's possessions, the legal title to those possessions passes from the debtor to the bailiff.  However, if that title is to pass, the bailiff has to have taken walking possession of the debtor's possessions lawfully.  She contends that in order to take walking possession of the debtor's possessions lawfully, the bailiff's entry into the debtor's premises must be peaceful, and the debtor has to have signed and accepted a walking possession agreement.  The facts set out in the warrant do not reveal whether the authorised officer's entry into Mr Luczak's premises was peaceful or what it is that he signed for.  He could, for example, simply have been acknowledging that he was the owner of the items to which "the attachment" related. 
9.	I understand where both the judge and Ms Hill are coming from, but all of this assumes that when the officer authorised to enforce the debt "levied an attachment" on Mr Luczak's movable possessions, the levying of that attachment was equivalent to a bailiff taking walking possession of a debtor's possessions.  That was the assumption made by the judge, but we simply do not know whether that assumption was correct.  For all we know, the reference to the officer levying an attachment on Mr Luczak's movable possessions could simply have meant that Mr Luczak's movable possessions had been identified as those of his possessions which could be sold to realise sums to satisfy his debt to the Revenue.  That would not necessarily have meant that a property right or interest in those possessions had passed from Mr Luczak to the officer authorised to enforce the debt or to Mr Luczak's creditors; nor would it necessarily have meant that the officer authorised to enforce the debt had possession or control of his possessions.  That, I am told, was the wider argument which Ms Hill addressed to the judge, which he does not appear to have considered in his judgment.
10.	Ms Alison Wilkes for the respondent contends that the use of terms in the warrant such as "enforcement title" and "executive title", and the fact that Mr Luczak was told that he could not dispose of his possessions, enables the court to infer that the levying of an attachment involves in some way the passing of the property in Mr Luczak's possessions to the officer authorised to enforce the debt.  The officer authorised to enforce the debt must therefore have acquired some special interest in Mr Luczak's possessions, equivalent to the special interest found by the Divisional Court in Rose v Matt [1951] 1 KB 810.  I understand that argument, but to draw an inference  of that kind from the few hard facts in the warrant is, I believe, a step too far.
11.	In approaching the case in this way, I do not believe that I have disregarded Richards LJ's injunction not to be "too astute to look for technical points concerning the precise meaning to be given to individual words in the warrant".  The difficulty is that we simply do not know what the words "levied an attachment" were intended to convey.  It may be that the enforcement process to which Mr Luczak was subjected did indeed involve the passing of the property in the television set and the video cassette recorder to the officer authorised to enforce the debt, but it is not possible on the material provided by the authorities in Poland to say that that is the case. 
12.	For these reasons, I have concluded that the judge ought to have decided the question of whether the first offence amounted to an extradition offence differently.  I therefore allow Mr Luczak's appeal, and I quash the order for his extradition to Poland.
13.	Is there any other order that you seek?
14.	MS HILL:  My Lord, I am most grateful.  I believe I must ask for a legal aid assessment.
15.	In addition, there is an issue which I am not sure if your Lordship can assist me with, but I raise, in case you can.  Unfortunately there was an oversight, in that the application for the legal aid order to be extended to this court from the Magistrates' Court was not made until the beginning of this week, and I believe that the Administrative Court office indicated that it was likely that it could be backdated from the date of the matter coming up to this court.  But the representation order only gives a date, I believe, of earlier this week.
16.	Does your Lordship know of any power to backdate that?
17.	MR JUSTICE KEITH:  I do not know.
18.	MS HILL:  So be it.  I certainly cannot ask you to speculatively do that.  I will have to look into it and, if appropriate, ask that the matter be listed.  I am grateful.
19.	MR JUSTICE KEITH:  If it is of any assistance, I can say that this is an appropriate case for the representation order to be extended to cover this appeal, but whether or not I have power to order that a representation order be backdated to cover work done prior to the date on which the representation order was made, I do not know.
20.	MS HILL:  Unfortunately, we are not as good on costs as we perhaps should be, so I shall look into it, my Lord.  I am grateful.
21.	MR JUSTICE KEITH:  That deals, then, with legal aid costs.  Is there any other order that you seek? 
22.	MS HILL:  No.
23.	MR JUSTICE KEITH:  Very well.  Thank you both for your help.
(2.43 pm)
(The court adjourned)