England and Wales High Court (Administrative Court) Decisions

IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
DIVISIONAL COURT

		Royal Courts of Justice Strand London WC2A 2LL
		3rd November 2009

1. LORD JUSTICE ELIAS: This is an appeal against a decision to extradite the appellant, Mr Hubner, to the Czech Republic. The Republic is a Category 1 territory pursuant to the Extradition Act 2003, and accordingly Part 1 of that Act applies.
2. The conduct which was relied upon in the European Arrest Warrant, essentially, is that in October 2004 the appellant is alleged to have filled his car with fuel in a petrol station and to have left without paying. He had affixed to his car a stolen registration plate. The value of the petrol was a little over £20. He was subsequently convicted and sentenced to five months' imprisonment and his extradition is now sought to serve that sentence.
3. He had earlier been convicted of two thefts in the previous three years. On the first occasion he was given a sentence of four months, suspended for a year. The offence for which extradition is now sought was in fact committed during the course of that year.
4. The only argument now relied upon by Mr Fidler, who acts on his behalf, is that the offence is too trivial and that, properly analysed, the court ought not to have extradited in the circumstances. Mr Fidler accepts that unlike the Extradition Act 1989, there is no express exception allowing a court to refuse to extradite simply because the offence is considered to be too trivial. His submission is, however, that if one applies Rule 1 of the Criminal Procedure Rules, this requires any court dealing with any criminal matter to have regard to the overriding objective. That requires that criminal cases be dealt with justly and it would be unjust, having regard to the gravity of this offence, for Mr Hubner to be extradited.
5. Rule 1.1 of the Criminal Procedure Rules indicates what dealing with criminal cases justly means. Mr Fidler relies, in particular, upon paragraph (g) which says that dealing with a case justly involves dealing with a case in ways that take into account:

"(i) the gravity of the offence alleged,

(ii) the complexity of what is in issue,

(iii) the severity of the consequences for the defendant and others affected, and

(iv) the needs of other cases."

By Rule 1.3 it is provided:

"The court must further the overriding objective in particular when --

(a) exercising any power given to it by legislation (including these Rules) . . . "

6. Mr Fidler submits that these rules apply in principle to extradition cases, and there is no doubt that that is correct. There is authority to that effect from Lord Phillips when he was Lord Chief Justice in the case of R (on the application of the Government of the United States of America) v Bow street Magistrates' Court [2006] EWHC 2256. At paragraph 77 the Lord Chief Justice said this:

"The Criminal Procedures Rules apply to extradition hearings to the extent that they contain provisions relevant to such hearings. The Rules impose upon the court a duty to manage the case and upon the parties a duty to assist the court, so that the overriding objective is achieved."

Then at paragraph 76 he pointed out that extradition proceedings are criminal proceedings, albeit of a very special kind.

7. I accept, therefore, that the overriding objective does, in principle, apply to the proceedings. Nonetheless, it does seem to me, with due respect to Mr Fidler, that this argument is wholly misconceived. The purpose of the Criminal Procedure Rules is to deal with what the title suggests, namely matters of procedure. The court must, in the exercise of all its procedural powers, including those given by legislation, have in mind the overriding obligation to deal with cases justly. But this principle cannot affect the way in which the substantive law is interpreted. First, it is plainly not for rules made by the Statutory Rules Committee to modify or change an Act of Parliament. That is what, in effect, Mr Fidler is suggesting here. He says that there should be an additional exception under the Act for cases where extradition will not be required, namely where the offence is considered by the court to be too trivial. Second, the rules, as I have said, are only intended to be procedural. They are not seeking to regulate the manner in which principles of law must be interpreted or construed.
8. Mr Fidler accepted that the consequence of his submission is rather startling. It would mean in any criminal trial the court can conclude, in particular circumstances, that it would be unjust to give full effect to what Parliament has enacted and therefore an abuse of process, and it could exercise powers given by Rule 1 of the Criminal Procedure Rules to do what it considered was just in the particular case. The judges may indeed like to have that power, but, however august the individuals who make up the Criminal Procedure Committee, I am afraid they do not have the power to override what Parliament has enacted.
9. In this case the Extradition Act makes detailed provision for defining extraditable offences and they include an offence where somebody has been in prison for four months or more. Once that criterion is met and the other conditions are satisfied, it would be a very unusual case for extradition to be refused for abuse of process. Plainly, it could occur if there was evidence that the extradition was sought for an improper purpose or in bad faith or something of that nature, but, in my judgment, there is no question that the court cannot simply refuse to extradite because an offence is trivial. That was also the view of Richards LJ sitting in the Divisional Court in the case of Zak v Regional Court of Bydoszcz [2008] EWHC 470 (Admin).
10. It follows that in my judgment there is no self-standing and independent power which the courts have to refuse to extradite because the offence is trivial. I would only add that the real issue, perhaps, is not that the crime is trivial but rather that the sentence which has been imposed is considered to be disproportionate. But that is far from clear to me. However minor the particular act of theft, it plainly was at least the third in a succession of minor thefts and it is not to me plain that the offence in context was trivial or that the sentence was manifestly disproportionate or unjust. For these reasons, I would dismiss this appeal.
11. MR JUSTICE DAVID CLARKE: I agree.
12. MR FIDLER: Thank you very much, my Lord.