This week’s Digest considers two judgments. The first, handed down by the Court of Appeal (Criminal Division), considers the interpretation of s, 4(2) of the Theft Act 1968 and the circumstances wherein land can be property for the purposes of s. 1(1) thereof. The second is a judgment of the Divisional Court and considers the correct approach to be taken on appeal against extradition where the warrant, pursuant to which extradition has been ordered, has been amended.
R v. Gimbert [2018] EWCA Crim 2190
The judgment, available here, was handed down by Davis LJ on 10.10.2018.
This was an appeal against conviction on the basis that the transfer of a house under an invalid Power of Attorney could not constitute theft for the purpose of s. 1(1) Theft Act 1968 because of the exception in s. 4(2). The appeal was allowed for two reasons: (i) the owner of the property had herself signed the transfer in any event; and (ii) as the appellant was not acting as an authorised representative, the exception in s. 4(2) applied. The Court also dealt with a renewed application for leave to appeal against a conviction for conspiracy to defraud. That application was refused; the judge was right not accede to the applicant’s submission of no case to answer.
The issue in this case was how to interpret s. 4(2) of the Theft Act 1968 (“TA”); that is, the circumstances under which theft of land may properly be charged. The facts disclosed that the appellant, John Gimbert (“JG”), had taken dishonest advantage of his cousin, Janette, in his position as her attorney and had transferred property away from her to both himself and his family. The theft charges against him related to a property, 80 Malcolm Close (“the Property”), as well as sums of money. The appellant sought to appeal against his conviction on count 2 of the indictment, which related solely to his theft of the Property. JG’s case was that the facts of the case did not give rise in law to the offence of theft on the basis that ‘land’ generally, by virtue of s. 2(2) TA does not constitute property capable of being stolen for the purposes of s. 1(1) TA.
The appeal was allowed and the conviction on count 2 quashed for two reasons:
- The Enduring Power of Attorney under which JG was purportedly acting was never registered, as is required by the Mental Capacity Act 2005. Further, Janette’s signature itself appeared on the transfer in favour of JG’s son. Thus, the fact that JG had (ostensibly) a power of attorney at the time of the transfer had no direct causal relevance to its actual execution because it was Jannette herself who executed the transfer.
- Given the fact that JG was acting neither as an expressly appointed trustee in relation to the transfer nor as a personal representative of Jannette the relevant exception, i.e. s. 4(2), applied such that Property constituted land that was not capable of being stolen.
The Court also had before it a renewed application for permission to appeal brought by JG’s son, the individual in whose favour the transfer of the Property had been executed. He had been convicted, with JG, on a count of conspiracy to defraud and sought leave to appeal on the ground that, at trial, the judge should have acceded to a submission of no case to answer on that count.
The application failed. The trial judge had referred to the relevant principles (Galbraith, etc) and had reminded himself of Welham v. Director of. Public Prosecutions [1961] AC 103 and other such cases. The judge’s conclusion in rejecting the submission of no case to answer was reasoned and there was no proper basis for the Court of Appeal to interfere.
Ulaszonek v. Polish Judicial Authority [2018] EWHC 2618 (Admin)
The judgment, available here, was handed down by Whipple J on 08.10.18.
The issue in this case was, when the EAW pursuant to which extradition is ordered is amended by another EAW, reducing the offences for which the extradition is sought, must the appeal against extradition be allowed and the requesting judicial authority issue fresh proceedings on the basis of the amended warrant. In Whipple J’s view, the answer was no; the Court had the power to allow an appeal in part but dismiss it in respect of offences in respect of which extradition was still sought. The effect was, essentially, to trim the EAW.
This was an appeal against an order extraditing the appellant granted by DJ Baraitser. The extradition was granted on the basis of mixed European Arrest Warrant (“EAW”), issued in 2006, which sought the appellant’s extradition for one accusation matter and five conviction matters. In June 2018, the Polish authorities produced an altered version of the original EAW, which now sought the appellant’s extradition on the basis of the same accusation matter, but only one of the previous five conviction matters. Correspondence between the Issuing Judicial Authority and the CPS revealed that the EAW had been partly amended.
The appellant’s case was that the EAW on which his extradition had been ordered was so defective, because of the subsequent amendments, as to an impermissible basis on which to order extradition. In oral argument, the appellant concentrated on two propositions: (i) there was no such thing as an amended warrant; and (ii) as a matter of fairness, the appellant was entitled to have his challenge to the new warrant heard afresh since the court had no power to allow an appeal ‘in part’. The right answer here was then to quash the extradition order and invite the Polish authorities to commence proceedings for the appellant’s extradition on the basis of the new warrant.
The appeal was allowed in part. The judge accepted the fact that the Polish authorities no longer sought extradition on the same basis as they did before; the basis had narrowed. This did not, however, render the EAW invalid. By operation of the Extradition Act (Multiple Offences) Order 2003 (SI 2003/3150) (“the 2003 Order”), the court was at liberty to allow this appeal in part, in relation to those offences specified in the original EAW which have now been excised by amendment and order release in relation to those offences only (s. 27(5) Extradition Act 2003, as amended by the 2003 Order; Lewicki v Preliminary Investigation Tribunal of Napoli, Italy [2018] EWHC 1160 (Admin), [43]). It could, however, dismiss the appeal in all other respects. The effect of this is to trim the extradition order. This was, in Whipple J’s view, the appropriate approach in this case. Accordingly, the appeal was allowed to a limited extent, but otherwise dismissed such that the extradition order was not discharged.
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