Neutral Citation Number: [2011] EWHC 1338 (Admin)
Case No: CO/13005/2010
IN THE HIGH COURT OF JUSTICE
ADMINISTRATIVE COURT

Royal Courts of Justice
Strand, London, WC2A 2LL

Date: 23/03/2011

Before :

MR. JUSTICE BEAN
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Between :

	THE QUEEN ON THE APPLICATION OF SOLTYSIAK	Claimant	
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	JUDICIAL AUTHORITY OF POLAND	Defendant	

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Mr Jones  appeared on behalf of the Claimant
Mr Sternberg (instructed by CPS Extradition Unit) appeared on behalf of the  Defendant

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Judgment

Mr Justice Bean : 

1.	On 14 December 2010 District Judge Grant, sitting at the Westminster Magistrates' Court, ordered the appellant's extradition to Poland pursuant to Part 1 of the Extradition Act 2003.  He was to be returned to serve a sentence of 1 year that had been imposed by the Polish District Court on 14 June 2005 for two offences of violence and also a sentence of 1 year 6 months imposed by the same court on 26 May 2006 for two offences of being in possession of material that had been created in breach of Polish copyright law.  No issue was raised before the District Judge as to whether the copyright offences were extradition offences as defined by the Act.  That is, however, the subject of the appeal.  There is no appeal against the District Judge's decision to order extradition in respect of the offences of violence.
2.	The first question I have to decide is whether the extradition offence issue can be raised for the first time on appeal.  The appellant was represented before the District Judge by a duty solicitor who, in a frank and helpful witness statement has said, and I accept, that she did not spot the point which is sought to be raised before me.  Nor did the District Judge.  It involves a fairly detailed examination of copyright law and is not an area with which one would expect even the district judges authorised to hear extradition requests or the duty solicitors attending the City of Westminster Magistrates' Court to be aware.
3.	For the Polish authorities, Mr Sternberg resisted the application to raise the extradition offence issue for the first time on appeal.  He referred to the decision of the Divisional Court in Szombatheley District Court and Others v Roland and Kalman Fenyvesi [2009] EWHC 231 (Admin) in which the President, Sir Anthony May, emphasised the importance of litigants producing all their evidence and advancing their whole case at first instance.  That was a case concerning fresh evidence and the meaning of the phrase found in sections 27 and 104 of the Act:
"Evidence... that was not available at the extradition hearing."
4.	This court applied the principles of the doctrine in Henderson v  Henderson to applications to call fresh evidence on appeal in an extradition case, but that is not the issue here. 
5.	In Hoholm v Norway [2009] EWHC 1513 (Admin) the Divisional Court, Stanley Burnton LJ and Wilkie J, had to decide exactly the question which is raised before me.  The fugitive in that case had appeared before a Senior District Judge at Westminster Magistrates' Court, who ordered her extradition to Norway.  There was no argument before him that the requirement of double criminality was not satisfied.  In the Divisional Court the requesting government argued that it was too late for the matter to be raised for the first time on appeal and referred to the Fenyvesi case and the subsequent decision in Kalniets v Latvia [2009] EWHC 534.  Stanley Burnton LJ said that the procedural issue, as he described it, did not appear to have been decided before.  After referring to Fenyvesi and noting that it was a fresh evidence case rather than a case about a fresh point of law, he went on, at paragraphs 18 and 19:
"In the present case the appellant does not seek to adduce any new evidence.  Her case has been made by reference to the documents before the District Judge.  Her appeal is therefore not affected by the requirement that new evidence should not have been available at the extradition hearing.  If, contrary to my view, the double criminality issue was 'raised' before the District Judge, she was entitled to argue before this court that that requirement was not satisfied.  Section 104 does not in terms compel the court to allow an appellant to raise an issue that was not raised at the extradition hearing.  
Its provision is negative, precluding the court from allowing an appeal if the applicable statutory conditions are not satisfied.  However, it seems to me to be significant that section 104 distinguishes between a new issue and new evidence.  I would therefore hold that where an issue is available to be raised by an appellant on the evidence adduced at the extradition hearing, she is in general, if not always, entitled to raise that issue on appeal to this court even though the issue was not raised at that hearing.  
In any event, I see no good reason why the appellant should not be permitted to argue the issue before this court.  Extradition is an infringement of liberty, and while the court is concerned to ensure that those who are the subject of conforming requests for extradition are lawfully extradited, the legal requirements for extradition are safeguards that must be observed."
6.	The conclusion of the Divisional Court in that case is that the issue raised on behalf of the appellant on her appeal was: 
"…one that would have resulted in the District Judge deciding the question of whether the offence specified in the request for her extradition was an extradition offence differently, and if he had so decided that question, he would have ordered her discharge."  
7.	Her appeal was therefore allowed.  
8.	I observe that in that case the decision to allow the new point to be raised on appeal was part of the ratio of the case, because had the court not so decided they could not have allowed the appeal.  
9.	In contrast is the case of Mehtab Khan v the United States of America [2010] EWHC 127 (Admin), again a decision of the Divisional Court, on which Mr Sternberg relied.  In that case, the fugitive had the good fortune to be represented by leading counsel at the hearing before the District Judge.  A point had been available to be argued.  Leading counsel took a deliberate decision not to argue the point, since he was of the view it would not succeed.  He argued other points.  The District Judge, however, ordered extradition.  On appeal, Mr Khan instructed a different and equally distinguished QC who raised the point before the Divisional Court.  They held that the point was a bad one, but before doing so Griffith Williams J (with whom Thomas Lj agreed) had referred to the Hoholm issue in these terms:
"39.  As it is a pre‑condition for the admission of fresh evidence that it either did not exist at the time of the extradition hearing or was not at the disposal of the party wishing to adduce it and could not with reasonable diligence have been obtained, it follows that the party seeking to rely upon it must satisfy the court that there is a good reason or excuse for not calling that evidence at that extradition hearing.  (See Miklis v Lithuania).  For my part I would have considered that a similar pre‑condition will apply when an issue is raised that was not raised at the extradition hearing.  [He then cited paragraph 19 of the judgment in Hoholm, which I have already read out]."
10.	Griffith Williams J said that he found the distinction which Stanley Burnton LJ had drawn between a new issue and new evidence difficult to follow.  He went on at paragraphs 42 to 44 to say this:
"42.	  Section 104 provides the conditions which must be satisfied before an appeal may be allowed; it provides powers to allow an appeal, inter alia on the ground of material which was not available at the extradition hearing; as a matter of construction, I consider that an issue "raised that was not raised at the extradition hearing" and evidence "that was not available at the extradition hearing" mean new issues or new evidence and so an issue "not raised at the extradition hearing" means an issue which, for whatever reason could not then be raised. I see no reason for restricting the calling of fresh evidence to evidence that was not available at the extradition hearing while allowing a party to raise any issue which could have been raised but which for good or bad reason was not raised. The Court is concerned with the correctness of the decision of the District Judge on the material before her; it should be only in special circumstances that the Court is invited to overrule a decision on the grounds of either fresh evidence or an issue which could have been raised in the Magistrates' Court but was not. 
43.	  This is entirely consistent with the principles identified in Fenyvesi above; there is nothing in the wording of section 104(4) which requires any departure from the requirement save in special circumstances. The parties cannot return to court to advance arguments they could have put forward at first instance but chose not to do so. As Ms Cumberland submitted, the approach is also consistent with the need for extradition cases, governed by the Act to be conducted expeditiously and within tight time limits.
44.	  This was a matter which could have been raised in the Magistrates' Court and was not because experienced leading counsel decided, in my judgement properly, that it was unarguable; there has been no change in the appellant's circumstances or in any other matter relevant to an issue of forum conveniens and so I would refuse permission for it to be raised."
11.	As I have said, the Divisional Court in Khan held that the new point was a bad one; so in my view their observations are not part of the ratio of the decision.  I therefore consider that I am bound by Hoholm.  In any event, I consider that Hoholm was correctly decided.  
12.	I note that section 27 of the 2003 Act says, in sub-section (2), that:
"The court may allow the appeal only if the conditions in sub‑section (3) or the conditions in sub‑section (4) are satisfied."  (emphasis added) 
13.	Sub‑section (3) provides:
"the conditions are that ‑
(a) The appropriate judge ought to have decided the question before him at the extradition hearing differently.
(b) If he had decided the question in the way in which he ought to have done, he would have been required to order the person's discharge."
14.	Sub‑section (4) provides:
"The conditions are that ‑
(a) an issue is raised that was not raised at the extradition hearing or evidence is available that was not available at the extradition hearing.
(b) the issue or evidence would have resulted in the appropriate judge deciding a question before him at the extradition hearing differently. 
(c) if he had decided the question in that way he would have been required to order the person's discharge."
15.	It is important to note that sub‑sections (3) and (4) are alternatives.  
16.	Mr Jones, for the appellant, does not need to get to sub‑section (4).  He is entitled to argue, and does argue, that the District Judge ought to have decided the question before him at the extradition hearing differently, and if he had so decided, he would have been required to order Mr Soltysiak's discharge on the copyright offences.  
17.	The District Judge decided, admittedly without argument to the contrary, that this was an extradition offence.  If he had not done so, he would not have been able to order extradition.  Thus, as in Hoholm (as made clear in the concluding paragraph of that judgment), if the point is a good one, the appellant is entitled to succeed on the grounds that the District Judge ought to have decided the question differently.
18.	I am in no doubt that it is open to an appellant to argue on appeal to this court that the offence for which extradition is sought is not an extradition offence as defined by section 64, even if that point of law was not spotted before the Magistrates' Court.  I say so both as a matter of interpretation of section 27 and following the decision in Hoholm.  I am also in no doubt that until or unless this issue is resolved authoritatively, possibly by a three judge Divisional Court or perhaps by a still higher court, it is the duty of advocates to ensure that this court, when it is sought to raise a point of law not taken below, is made aware of both Hoholm and Khan.
19.	I turn then to the substantive issue of whether the copyright offences on which Mr Soltysiak's extradition is sought are indeed extradition offences.  As stated in the arrest warrant, they are as follows: the first alleges that on 28 July 2005 in Klobuck in the province of Silesia he was in possession of illegally copied computer programmes which had been earlier purchased in an undetermined place and at an undetermined time.  The warrant then goes on to list several hundred items of software.  The second charge reads:
"on 28 July 2005 in Klobuck in the province of Silesia, acting to gain material benefit he possessed the following illegally copied films purchased earlier in an undetermined place and at an undetermined time..."
20.	The warrant then goes on to list a large number of films, some of which are very well known films which have been shown in cinemas in this country and no doubt in Poland.  
21.	The question that I have to decide (and which the District Judge would have had to decide if he had had the advantage of the arguments addressed to me) is whether the conduct alleged in the warrant would amount to an offence had it occurred here.  It is not necessary that the terms of the requesting State's criminal statute and the terms of the English criminal statute should be identical; see Norris v United States of America.  
22.	Mr Sternberg has two alternatives on which to rely: the first is section 107 of the Copyrights, Designs and Patents Act 1988.  This is headed "criminal liability for making or dealing with infringing articles".  The provision on which Mr Sternberg relies is sub‑section (1)(e):
"a person commits an offence who, without the licence of the copyright owner, distributes otherwise than in the course of a business, to such an extent as to affect prejudicially the owner of the copyright, an article which is and which he knows or has reason to believe is an infringing copy of a copyright work."
23.	Other provisions of section 107(1) create an offence of making such an article for sale or hire; importing it into the UK other than for the individual's private and domestic use; possessing it in the course of a business with a view to committing any act infringing the copyright or selling or doing certain other acts in the course of a business.  Simple possession of an infringing article is not an offence, nor is possession with intent to supply.  Mr Sternberg accepts that, but he argues that the wording of the arrest warrant, at any rate in the case of the films, is sufficient to amount to an allegation of distribution.  That was, as will be recalled, an allegation that Mr Soltysiak possessed the illegally copied films "acting to gain material benefit."  
24.	I think it is putting too much emphasis on the word "acting" to say that it amounts to distribution.  It seems to me that the warrant amounts to an allegation of possession with the intention of supplying later on, and that does not amount to the same thing as distribution.
25.	Mr Sternberg's alternative, which applies to both charges and on which he laid much greater emphasis, is section 329 of the Proceeds of Crime Act 2002, that is possession of criminal property.  In order to decide that, one has to go to section 340 of the same Act, which defines criminal property.  By section 340(3):  
"Property is criminal property if ‑
(a) it constitutes a person's benefit from criminal conduct or it represents such a benefit in whole or in part and whether directly or indirectly.
(b) the alleged offender knows or suspects that it constitutes or represents such a benefit."
26.	Sub‑section (4) says that it is immaterial who carried out the conduct or who benefited from it.  Sub‑section (5) provides that a person benefits from conduct if he obtains property as a result of or in connection with the conduct, and sub‑section (8) provides that if a person benefits from the conduct his benefit is the property obtained as a result of or in connection with the conduct.
27.	Mr Jones concedes that the films do, prima facie, constitute somebody's benefit from criminal conduct.  It does not have to be shown who benefitted, and there is an irresistible inference that somewhere up the line, between the creation of the original films and programmes and Mr Soltysiak, there was somebody who benefitted from it.  But, he submits, there is no evidence that Mr Soltysiak knew or suspected that the films or programmes constitute or represent such a benefit.
28.	This is a difficult issue and I am troubled by the fact that Mr Sternberg and Mr Jones, both of whom have researched the matter, have been unable to find any domestic criminal case in which possession of copyright infringing material with intent to supply, but without any evidence of such supply or distribution having occurred, has been held to be an offence in English law.  It is a very well known phenomenon, about which there is great concern and which has been the subject of legislation as recently as last year, creating various civil remedies; but it would be amazing if possession with intent to supply were to be a criminal offence without there being any prosecutions and convictions tested on appeal in this country in the 9 years since the enactment of the statute (or perhaps slightly less since the relevant sections came into force).
29.	I am not satisfied that the conduct alleged against Mr Soltysiak in the two charges in the European Arrest Warrant to which I have referred amounts to extradition offences as defined by section 64.  In other words, I am not satisfied that the dual criminality requirement of the statute is met.  
30.	I shall therefore allow the appeal against the order for extradition on those two charges and order that Mr Soltysiak be discharged in respect of those charges.  
31.	As I have said, the extradition in respect of the offences of violence will stand.
32.	MR JONES:  My Lord, my one application is for an order for legal aid assessment. 
33.	MR JUSTICE BEAN:  Yes, certainly.  Thank you both very much.