|[Home] [Databases] [World Law] [Multidatabase Search] [Help] [Feedback]|
England and Wales High Court (Administrative Court) Decisions
You are here: BAILII >> Databases >> England and Wales High Court (Administrative Court) Decisions >> Mikolajczak v District Court In Kalisz, Poland  EWHC 432 (Admin) (07 March 2013)
Cite as:  EWHC 432 (Admin)
[New search] [Context] [View without highlighting] [Printable RTF version] [Help]
QUEEN'S BENCH DIVISION
Strand, London, WC2A 2LL
B e f o r e :
| Mariusz Mikolajczak
|- and -
|District Court in Kalisz, Poland
Mr Nicholas Hearn (instructed by the Crown Prosecution Service) for the Respondent
Hearing date: 1 March 2013
Crown Copyright ©
Mr Justice Keith:
"… between 1 November and 12 December 2005 in Kalisz, as a continuing offence, he stole telephone impulses in this way that using a telephone he got into a telecommunication system located in the basement of a block of flats at 52 Asnyka Street and then phoning from private numbers he dialled 0-300900900 he charged his SIM card of his mobile phone for the total amount of 306.90 PLN and thus:
- between 1 and 26 November 2005 and 4 and 12 December 2005, phoning from the number 753 62 39 twenty-one times he managed to charge his SIM card for the total amount of 207.60 PLN acting to the detriment of Ms Marianna Mazurek and TP SA;
- between 20 and 25 November 2005 and then between 7 and 7 [sic] December 2005, phoning from a private number 766 32 20 eight times he charged his SIM card for the total amount of 79.20 PLN acting to the detriment of Mr Jerzy Lewnadowski and TP SA;
- between 20 to 21 November 2005, phoning from a private number 766 2646 he charged his SIM card twice for the amount of 19.80 PLN, acting to the detriment of Ms Arleta Fingas and TP SA."
"The conduct … constitutes an extradition offence in relation to the category 1 territory if these conditions are satisfied –
(a) the conduct occurs in the category 1 territory;
(b) the conduct would constitute an offence under the law of the relevant part of the United Kingdom if it occurred in that part of the United Kingdom;
(c) a sentence of imprisonment or another form of detention for a term of 4 months or a greater punishment has been imposed in the category 1 territory in respect of the conduct."
The issue for the district judge was whether the offence of stealing telephone impulses in the way Mr Mikolajczak was alleged to have stolen them satisfied the requirement of dual criminality in section 65(3)(b). It is contended that the district judge was wrong to rule that it did.
"(1) A person who by any deception dishonestly obtains services from another shall be guilty of an offence.
(2) It is an obtaining of services where the other is induced to confer a benefit by doing some act, or causing or permitting some act to be done, on the understanding that the benefit has been or will be paid for."
There are two difficulties with this argument. First, it is questionable whether the use which Mr Mikolajczak made of other people's phone numbers amounted to the obtaining of services. They amounted rather to the obtaining of credit, and it was that credit which was used to obtain services. Secondly, I do not believe that Mr Mikolajczak could be said to have done that by deception. As was noted in the 11th edition of Smith & Hogan's Criminal Law (which was published in 2005) at pp 754-755:
"… it has long been established that 'to deceive is … to induce a man to believe that a thing is true which is false, and which the person practising the deceit knows or believes to be false'. Deceit can therefore be practised only on a human mind (Davies v Flackett  RTR 8). Where D obtains property or a pecuniary advantage as the result of some dishonest practice on a machine, without the intervention of a human mind, he cannot be guilty of an obtaining offence … There is a similar problem where the machine does not produce goods but provides a service. If the service is dishonestly obtained without deceiving a human being, there can be no obtaining offence … In Holmes  EWCA 2020 (Crim) the court observed that Davies v Flackett is not a binding authority for the proposition that deception of a machine or computer is not a deception, but accepted that the prevailing view is that it is not possible to deceive a machine. The court regarded this as regrettable, and urged a new offence of theft or some cognate offence to deal with the problem."
That was why the Law Commission proposed "that it should be an offence to obtain a service dishonestly – whether by deceiving a person, giving false information to a machine, manipulating a machine without giving it false information, or by any other dishonest means". That proposal saw the light of day in section 11 of the Fraud Act, but that came too late to make what Mr Mikolajczak did an offence.
"A person who –
(a) dishonestly obtains an electronic communications service, and
(b) does so with intent to avoid payment of a charge applicable to the provision of that service,
is guilty of an offence."
What I did not know at the time of the hearing was how an "electronic communications service" was defined in the 2003 Act, and therefore whether making phone calls on other people's lines amounted to the obtaining of such a service. Nor did I know whether this section of the 2003 Act had come into force by December 2005. Of course, this offence might not have covered Mr Mikolajczak's conduct, bearing in mind that he obtained credit, and it was that which he used to obtain the services. But I need not consider that further, because Mr Hearn took the pragmatic view that if Mr Mikolajczak's conduct could not have amounted to the offence of obtaining services by deception, he was not going to argue that the requirement of dual criminality had been satisfied.
"The first two offences listed would both be crimes in England and Wales. Thus they satisfy the dual criminality test in section 65(3)(b) of the Act. Turning to section 65(3)(c), it is not possible to tell what specific sentence has been attributed to either of the first two offences. At first sight this omission may be thought to be fatal, as held by this court in Wiercinski. However, such an approach would raise technical obstacles to extradition between the UK and Poland and thus would tend to thwart the objectives of the Framework Decision.
In my view it is implicit in the reasoning in the House of Lords in Pilecki [i.e. Pilecki v Circuit Court of Legnica, Poland  1 WLR 325] that the court should disregard the fact that individual offences, listed in the European arrest warrant, do not satisfy the definition of 'extradition offence' if (a) the total sentence exceeds four months and (b) some of the offences listed satisfy the requirements of section 65. In this regard I agree with the reasoning of Swift J in Kucera at paragraphs 51 to 57 of her judgment. Accordingly, I shall follow the decision of this court in Kucera. I shall not follow the decision in Wiercinski."
"Nevertheless, the point is academic for the purpose of extradition of this appellant because the other two offences recited in the warrant carry a penalty sufficient to pass the test as laid down by this court in Zboinski  EWHC 558 (Admin) and recited in paragraphs 39 to 40 of that case following the reasoning of the House of Lords in Pilecki cited in the judgment.
The penalty here exceeds four months and two of the offences satisfy the requirements of section 65."
Irwin J was therefore purporting to follow Zboinski. The difficulty is that Irwin J went on to say:
"Therefore the appeal succeeds only to the extent that the extradition here will be in relation to the first and second offences on the second European Arrest Warrant only. To that extent the appeal succeeds."
If he had been following Zboinski, the appropriate course for him to have taken would have been to dismiss the appeal.