Ben Joyes secures discharge due to lack of dual criminality and retrial rights in Poland

In a recent judgment, District Judge Robinson (DJ), sitting at Westminster Magistrates’ Court (WMC), discharged Mrs S, a Polish national living in the UK.

Mrs S was sought to serve a cumulative sentence of two years’ imprisonment for nine fraud and false documentation offences dating back to 2010-2013.

The extradition request stated that Mrs S had prevented a “Labour Inspector from carrying out his/her official duties” by failing to produce documentation. The CPS argued that this portion of the conduct amounted to an offence under section 31(5)(a) of the National Minimum Wage Act 1998, which concerns the intentional obstruction of an officer seeking to exercise a power under the Act. However, the DJ found that there was no evidence “that the Labour Inspector was engaged in minimum or other wage related enquires such as would be equivalent to the purposes of the National Minimum Wage Act 1998.” Mrs S was discharged under section 10 of the Extradition Act 2003 Act for want of dual criminality.

The retrial matter turned on whether Mrs S had been present or deliberately absent from the separate proceedings that preceded the imposition of the cumulative sentence. Box (d) of the extradition request stated that Mrs S had appeared in person at the trial resulting in the decision; this statement, the CPS argued, was “clear and unambiguous” and applied to all relevant hearings. Although Mrs S did not give evidence, her legal team served Polish court records that suggested one of the underlying judgments was issued as a “default decree”. The default decree did not state that Mrs S was present at the hearing. Having admitted this “cogent, reliable, objective evidence", the DJ discharged Mrs S under section 20 of the 2003 Act because the CPS had “failed to prove, that [Mrs S] was present when convicted, deliberately absent from trial or had the necessary retrial rights for the underlying cases.”

Mrs S was represented by Ben Joyes of 9BR. Ben was instructed by John Molleskog and Morgan Luchinski of Taylor Rose MW.