CASE SUMMARY: Balaz v District Court of Zvolen (Slovakia) [2021] EWHC 1862 (Admin)

Background Facts

The appellant Requested Person, Mr Gabriel Balaz, appealed against the decision of the District Judge to order his extradition to Slovakia, pursuant to a European Arrest Warrant (‘EAW’) – issued on 1 April 2019 – in respect of an offence of fraud. Mr Balaz was arrested in the UK on 12 May 2019, following certification of the EAW by the National Crime Agency (‘NCA’). The charge related to Mr Balaz’s placement of an advertisement on a website inducing individuals from the Slovak Republic to travel to Germany where they paid him a sum of 1,000 euros in exchange for the promise of work and accommodation.

Grounds of Appeal

The appellant was granted permission to appeal on a single ground, namely that his extradition had not been sought in respect of an extradition offence, per the Extradition Act 2003 (‘2003 Act’) section 64(4)(b), which required that equivalent conduct to that comprising the offence would, in corresponding circumstances, constitute an extra-territorial offence under UK law. The appellant’s submission was that in the UK, his conduct would be prosecuted as an offence of fraud as opposed to possession of criminal property, with the former lacking the requisite extra-territoriality.

Court’s decision and reasoning

In its judgment, the Administrative Court followed the reasoning of the Slovak Judicial Authority and accepted that the appellant’s ground of appeal was misconceived. The conduct set out in the EAW was equivalent to the offence of possession of criminal property, pursuant to section 329(1) of the Proceeds of Crime Act 2002, and the question of whether that was the offence with which Mr Balaz would have been charged had he been prosecuted in the United Kingdom was irrelevant. In response to the argument by the appellant that the wording in section 64(4)(b) should be read so as to include the words “that would be prosecuted” after ‘offence’, the court highlighted that to go beyond the simple equivalence of conduct and UK offences would involve investigation that is wholly outside the requirements of the extradition process.

Overall, whilst the Administrative Court upheld the order of the District judge, it disagreed with part of the basis upon which the order had been made. In her judgment, the District Judge had considered ‘equivalent conduct’ to be fraud, per section 1 of the Fraud Act 2006, which she assessed as having extra-territorial effect by way of sections 2 and 4 of the Criminal Justice Act 1993 (‘the 1993 Act’). On appeal, the Administrative Court set aside this conclusion, first, and for the purposes of section 2(1A) of the 1993 Act, because the gain or loss of 1,000 Euros did not actually occur in Slovakia.  Second, and per Section 4 of the 1993 Act, the Administrative Court concluded that there was no material available to the District Judge permitting an inference that 1,000 euros had been despatched from Slovakia to Germany.

Comment

The High Court provided helpful clarification on extra-territoriality in fraud offences in an extradition context. In particular, the court explained that it is only required to consider the simple question of whether the conduct in question gives rise to an equivalent offence in the UK rather than whether it would be charged as an offence in the same terms. This was sufficient for the purposes of section 64(4)(b) of the Extradition Act 2003. Whilst this re-affirms the basic principle that has been applied hitherto by the court when considering conduct and whether it constitutes an extradition offence, it also affirms that position in cases where there is extra-territorial reach.