CASE SUMMARY: Swierk v Poland [2019] EWHC 1686 (Admin)

Background facts

The appellant appealed against an order for his extradition to Poland to serve a custodial sentence for an offence of unintentionally receiving stolen goods. An EAW was issued in May 2011 and the appellant was arrested in the UK in June 2018. The appellant had resisted his extradition at the hearing on the grounds that the offence did not constitute an extradition offence for the purposes of the Extradition Act 2003, s.10.

Grounds of appeal

As the analogous offence under UK law (Theft Act 1968, s.22) required a subjective awareness that the goods in question were stolen, the appellant argued on appeal that his conduct could not amount to an offence under UK law as required by s.65(3)(b) of the 2003 Act.

Court’s decision and reasoning

The court dismissed the appeal.

1. Where an essential ingredient under English law, requisite mens rea in this case, was missing from the offence for which extradition was sought, the requirement of double criminality was nonetheless satisfied where the court concluded that the ingredient would be the inevitable consequence of proving the matters alleged to constitute the foreign offence (Assange v Sweden [2011] EWHC 2849 (Admin) and Cleveland v US [2019] EWHC 619 (Admin)).
2. In this case, there was insufficient information to lead to the inevitable inference that the appellant had known the goods were stolen. However, the respondent was entitled to rely on the Proceeds of Crime Act 2002, s.329(1), for which a defendant is only required to suspect that the property acquired constituted a benefit from criminal conduct, as an alternative offence as the basis for the extradition.