Dual criminality is a concept extradition practitioners will be very familiar with. Under s64/65 or s137/138 of the Extradition Act 2003, there is a need for the conduct described within the warrant to amount to an offence within the UK. Three recent High Court decisions in this area highlight however that the issue is one which is highly fact-dependent and cannot be taken for granted in relation to any set of offences.
In Cukierski v Poland [2020] 1 WLUK 140 the Appellant was contesting the District Judge’s decision that conduct described as insulting police officers by ‘using words commonly regarded as abusive’ was an extradition offence. The Appellant relied upon the case of Ragan v Poland [2011] EWHC 3628 Admin to argue that insulting police officers as recognised in the Polish penal code is not an offence in this jurisdiction. The Court, however, found that it would satisfy the requirements under s5 of the Public Order Act 1986, as they could properly infer that the words would cause alarm or distress. The Court highlighted a number of factors within this EAW which distinguished Ragan; firstly that the words were beyond insulting and were abusive, secondly the RP’s conduct, including violence, while saying the words, and thirdly the context of the words being used in an attempt to prevent an arrest. In light of these the Court found that they could be certain of all aspects of the s5 offence and dismissed the appeal.
The case of Troka v Albania [2020] 1 WLUK 79 partially concerned dual criminality in a part 2 case where the specific intent of the English offence was missing from its Albanian equivalent. Here the Court applied again the principal in Assange v Sweden [2011] EWHC 2849 (Admin) that such a defect can be remedied where the foreign offence, if proven, would led to an inevitable inference that the additional intent required by the English offence would be present. This time the relevant English legislation was s22(1)(b) of the Sexual Offences Act 1956 on procuring a woman to leave the UK intending her to become an inmate of, or frequent, a brothel. The equivalent Albanian offence did not require the intent to be formed at the point of leaving the UK.
The Court ruled that there was insufficient evidence for an inevitable inference to be drawn that the requisite intent would have been present. The appeal was therefore allowed in that respect. This then led to a common consequence of a successful dual criminality argument, which was the issue of disaggregation of a combined sentence. This case was subsequently remitted back to the Magistrates’ Court to address the issue of disaggregation in line with the case of Brodziak v Poland [2013] EWHC 3394.
The third case, Kalinowski v Poland [2019] EWHC 3734 (Admin), involved a slightly more complex factual scenario. Here the RP was sought by Poland on an accusation warrant for an offence committed in Slovenia. The RP had allegedly stabbed the victim in the abdomen with a large knife, causing a lesion on his liver.
As the allegation had taken place in Slovenia and not in the category 1 territory s64(4) of the Act applied, this requires that;
‘(4) The conditions in this subsection are that
(a) the conduct occurs outside the category 1 territory;
(b) in corresponding circumstances equivalent conduct would constitute an extra-territorial offence under the law of the relevant 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.’
While sections (a) and (c) were satisfied for the offence, the relevant extraterritorial offence was that of attempted murder. The RP argued that attempted murder was not made out on the facts, due, in part, to the following reasons: the charge in Poland was a lesser one of causing ‘medium’ bodily harm, the framework list was not ticked for murder or GBH, information from the JA stated that the only threat to the victim’s life was ‘if he had not been aided the wound would have caused him to die’, and that an intent to kill is not the only reasonable inference that could be drawn from the facts.
The Court found that both the Polish jurisdiction’s categorisation of the offence and whether or not the framework list was ticked was irrelevant. However, the Court did accept that it was not an inevitable inference that there was an intent to kill, finding that there could equally be an intent to cause GBH, and therefore quashed the order for extradition.
The above cases show just some of the range of different issues that can arise within the context of dual criminality and the need to be alert to which section of the Act governs the facts in each EAW. As is demonstrated by these cases, this is an area which is not decided by the label given to the offence in either jurisdiction but the specific facts of each request.
John Crawford is a specialist in criminal and extradition work with additional experience of acting in family and regulatory cases. John’s extradition practice includes both part 1 and part 2 warrants, including requests from the United States and Albania. He has particular experience in relation to s2 arguments on the legality of warrants, as well as under s25 in relation to requested persons’ health.
John’s extradition practice includes both part 1 and part 2 warrants, including requests from the United States and Albania. He has particular experience in relation to s2 arguments on the legality of warrants, as well as under s25 in relation to requested persons’ health.
