CASE SUMMARY: Kalinowski v Poland [2019] 12 WLUK 263

Background facts

The appellant (“K”) appealed against an order for his extradition to the respondent requesting state, Poland, to face charges of causing “medium” bodily harm. The alleged offending took place in Slovenia but involved Polish citizens.

K had stabbed the victim in the abdomen with a long knife. The victim was successfully treated at hospital. The EAW for K stated that but for this treatment the victim would have died. As the offence did not take place in Poland, in order to constitute an extradition offence for the purpose of extradition to the category 1 territory, the offending conduct would need to satisfy the requirements of s.64(4) Extradition Act 2003. Those requirements are that (a) the conduct occurs outside the category 1 territory; (b) equivalent conduct would constitute an extra-territorial offence under UK law; (c) the conduct was punishable under the law of the category 1 territory by at least 12 months’ imprisonment.

It was not in dispute that requirements (a) and (c) were satisfied. The issue in this case was whether the offence contained in the EAW constituted an extra-territorial offence under UK law. Grievous bodily harm, with or without intent, is not an extra-territorial offence. For the conduct in this case to satisfy the extraterritoriality requirement of s.64(4)(b), it would have to be capable of constituting an offence of attempted murder. The district judge considered that had the conduct occurred in the UK, it would have been considered an offence of attempted murder.

Court’s decision and reasoning

Allowing the appeal and quashing the extradition order:

1. The mens rea for attempted murder is intention to kill. The Polish authorities maintained that an intention to kill was present. The High Court disagreed. The victim was stabbed once, and the appellant had not pursued him. The appellant is not charged with attempted murder in Poland and the EAW itself refers to “medium” bodily harm.
2. The High Court ruled that where an offence in a foreign territory did not include an essential element of the offence, such as mens rea, that element could only be inferred if it was an inevitable corollary or inference from the conduct described (Cleveland v United States [2019] EWHC 619 (Admin)). In this case, intention to kill could not be said to be an inevitable inference form the appellant’s conduct. It was more likely that the intent was to cause grievous bodily harm, falling below the requisite mens rea of the extra-territorial offence of attempted murder. Thus, the requirement in s.64(4)(b) was not satisfied and the appellant’s conduct did not constitute an extraditable offence.