Crown wins appeal against sheriff’s ruling that European Arrest Warrant did not state a crime in Scots law

Miroslaw Lisek was convicted of stealing sewing machines after failing to return the items, which had been the subject of a leasing agreement.

The sheriff ruled that the conduct described in the warrant issued by a judge of the Regional Court in Radom, Poland did not show the necessary mens rea for a criminal offence, but the High Court of Justiciary Appeal Court ruled that it did and the sheriff should have held the offences in the EAW to be extradition offences.

Lord Brodie, Lady Clark of Calton and Lord Turnbull heard that legal description of the offence in the Polish penal code was “stealing a thing entrusted” or “appropriation”.

Following a full extradition hearing on 1 December 2016, the sheriff at Edinburgh held that the offences specified in the EAW were not extradition offences and accordingly, in terms of section 10(3) of the Extradition Act 2003, ordered the respondent’s discharge.

The sheriff observed that while the word “stolen” was used, the narrative in the EAW did not describe events which showed the necessary mens rea for theft, adding that it was not enough that the description is capable of describing a criminal offence known to Scots law; the description must “impel such a description”.

Although it was speculative, the sheriff considered that there were a variety of possible explanations for failure to return goods, most of which did not require criminal intent: loss or destruction of the goods without fault of the hirer, in a fire or in transit for example; a liquidator preventing removal of goods pending clarification of title; theft by a third party; contractual breach disentitling the owner to demand redelivery; or the hirer having a right of retention.

However, the Lord Advocate acting on behalf of the Polish judicial authority, sought leave to appeal on the ground that the sheriff erred in fact and law in finding that the conduct described in the EAW describing the offences of which the respondent was convicted in Poland did not constitute an extradition offence.

The advocate depute submitted that the sheriff had failed to consider the conduct narrated in the EAW as constituting the offences in contravention of the Polish Penal Code and then properly to undertake an assessment as to whether it would constitute an offence under the law of Scotland. Had he done so he should have concluded that what was narrated would constitute the crime of theft, the necessary mens rea being “readily inferred” from the narrative of fact.

On behalf of the respondent it was argued that in terms of section 65(3)(b) of the Act the question was whether the conduct narrated in the EAW constituted a crime under the law of Scotland and there was “no reference to dishonesty” in the narrative.

To answer that question in the affirmative the narrative had to “impel” that conclusion, with reference to Assange v Swedish Prosecution Authority EWHC 2849 (Admin) and the decision of King J in Gruszka v Regional Court in Opole and Circuit Court in Swidnica, Poland EWCA 2564 (Admin).

But the appeal judges ruled that the sheriff erred and allowed the appeal.

Delivering the opinion of the court, Lord Brodie said: “We suppose the sheriff to be right about his various imagined examples but all of them are just that, imagined, or as he puts it, ‘speculative’. There is no reason whatsoever to suppose that, to take one of the sheriff’s examples, the machinery referred to in the EAW had been destroyed by an accidental fire. It would be different if any of the sheriff’s imagined examples appeared on the face of the EAW; if, for example, the description of the offence of which the appellant had been convicted disclosed that a conviction had followed despite the machinery having been accidentally destroyed by fire or that the appellant had otherwise been convicted on a basis which included him being prevented from returning the machinery by force majeure.

“However, that is not the case; what we have in the EAW is a description of conduct which would constitute a relevant charge of theft under the law of Scotland. Just because one can imagine good defences to that charge on certain factual hypotheses, none of which can be said to apply, does not make the charge irrelevant. To put it another way, what section 65(3)(b) requires is consideration of the conduct described in the warrant, not consideration of entirely imaginary conduct which has nothing to do with the facts of the case as presented to the executing court.”

“We are not therefore persuaded by any of the reasons which led the sheriff to conclude that the offences of which the respondent had been convicted were not extradition offences. What he had to decide was whether the conduct set out in the EAW would constitute an offence under the law of Scotland if it occurred in Scotland. It was submitted on behalf of the Polish judicial authority that it did, the offence being theft. We agree with that submission.”

He added: “When considering what is the appropriate inference to draw from given direct facts one must look to the given facts and to no others. In the present case… the conduct described in the EAW both constituted that actus reus of theft and, as a matter of inevitable inference, demonstrated the mens rea of theft. We accordingly answer the question posed by the sheriff at the end of his note in the affirmative. He did err. He should have held the offences in the EAW to be extradition offences. We shall therefore grant leave to appeal, allow the appeal and remit to the sheriff to proceed as accords.”