England and Wales High Court (Administrative Court) Decisions

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

		C0/12302/2009 Royal Courts of Justice Strand London WC2A 2LL
		25th February 2010

1. MR JUSTICE McCOMBE: This is (in form) an appeal by Mr Ndricin Sinani, whom I will call the appellant, under Section 103 of the Extradition Act 2003 from a decision of District Judge Riddle sitting at the City of Westminster Magistrates' Court on 5 October 2009 to send the case to the Secretary of State for the purposes of the appellant's extradition to Norway to face charges concerning his alleged complicity in the importation and supply of narcotic substances consisting of hashish, amphetamines, cocaine and MDMA, otherwise known as ecstasy.
2. The appeal arises in substance, however, from a ruling made by District Judge Purdy on 8 July 2009 that the request by the respondent government specified extradition offences within the meaning of the Act. The appellant challenges that ruling. In substance the complaint is that the material before the court did not satisfy Section 137 of the Act and in particular did not satisfy section 137(2)(c), to which I shall turn.
3. The background facts alleged by the requesting government appear from its request as follows, and I shall only quote part of the relevant grounds for alleging the offences. It is specified under two paragraphs, headed (i) and (ii). I quote in part:

"During the period prior to and up to 15 November 2007, he was an accessory to the importation on Thursday 15 November 2007 by [two named people] in a Volvo car of approximately 29.87kg of hashish; 9.889kg of amphetamines, 3.031 kg of cocaine, and 10,760 tablets containing the active narcotic ingredient MDMA from the Netherlands into Norway, by pre-arranging to meet the couriers who were arriving with the narcotics, and by receiving the narcotics."

And secondly:

"For having illegally conveyed or stored narcotics, or complicity therein the offence is deemed to be aggravated, as particular importance is attached to the sort of substance involved, its quantity and the nature of the offence."

A little later on the same page of the request it is stated that:

"The offences in Counts I a), I b) and I c) carry a maximum penalty of 21 years' imprisonment."

4. The short facts essentially were that Mr Sinani, the appellant, was observed making contact with the two named parties arriving in a car and helping them to move the narcotics into a flat. The police intervened, seized several people including Mr Sinani, and found the drugs in the possession of group. As the request made clear, other persons had been charged and convicted of offences in relation to these matters.
5. This particular appellant was also remanded in pre-trial detention after his arrest. However on 13 August 2008 he managed to escape from detention and ultimately ended up in the United Kingdom.
6. On 9 March 2009 the formal extradition request was sent to this country's government, and on 1 May 2009 the arrest warrant was issued. On 2 June the appellant was arrested and appeared before the Magistrates' Court on the following day.
7. The request which I have summarised above has annexed to it a copy in translation of section 162 of the Norwegian Criminal Code under which the alleged offences arise. This is in the following terms in translation:

"Whoever illegally produces, imports, exports, acquires, keeps, sends or passes on substance which according to rules pursuant to law are deemed to narcotics, shall be punished for narcotics offences by fines or up 2 years' imprisonment."

It goes on to deal with the aggravating nature of certain types of that offence also specified in the request.

8. The objection that is taken by Miss Powell on the appellant's behalf, in well argued written submissions and in attractive supplementary oral submissions this morning, is that this extract from the code fails to list the substances which according to law were deemed at the time of the alleged offences to be illegal narcotics within the meaning of this provision. Indeed it seems at the hearing before the District Judge on the first occasion it was adjourned for further material on this point to be obtained. The result was two letters dated 30 June and 3 July respectively from a police prosecutor in Norway, by the name of Mr Morren Stene and from an acting Deputy General in the Royal Ministry of Justice and police, Mr Torrun Bolstad, also endorsed by another named higher executive officer. The first letter stated this:

"What is defined as a narcotic drug according To section 162 of the Norwegian Penal Code is set out in The List of Narcotic Drugs. The List is issued by the Norwegian Medicines Agency pursuant to Section 2 of the Medicines Act. Attached is a printout of Sections 1 and 2 of the Medicines Act. In the attachment we have also included the relevant sections of the List of Narcotic Drugs. All the mentioned provisions had the equivalent wording in 2007, and have had it for several years prior to that time."

The list is then enclosed and it includes the items of which complaint is made here.

9. The second letter is in the following terms:

"The narcotic substances referred to in our request for extradition of Mr Sinani were unlawful according to Norwegian law between July 2007 and December 2007."

10. On those materials Miss Powell submits that it does not appear explicitly when in 2007 the relevant provisions were in force and that the dates to which the second letter refers are not expressly referred to in the statement relied upon, nor do they appear in the statutory extracts provided. She makes the further point that certain formalities as to the authentication of the documents are not complied with within the meaning of Section 202 of the Act. I would say immediately I do not accept that last point; insofar as information was required in those letters they appear to satisfy the conditions set out in Section 202.
11. Miss Powell places substantial reliance upon the decision of this court, constituted of Sedley LJ and Beatson J, in Bentley [2005] EWHC 1078 (Admin). The main facts of that case being these: an extradition request from the United States sought Mr Bentley's surrender for charges alleging that he conspired with a Florida resident to import into the United States and supply MDMA. The issue is whether the Government had proved to the District Judge that MDMA was in fact a banned substance at the material time in the United States. The affidavit of the prosecutor asserted MDMA was a controlled substance and exhibited statutory material. However the statute which was produced appeared to have expired on 1 February 1987 and so it was said by the appellant in that case that the Crown had not proved that the substance was controlled in the relevant period between 2003 and 2004. On that state of affairs this court allowed Mr Bentley's appeal, Sedley LJ saying at paragraph 11 of the judgment the following:

"It was not open to the district judge, although one understands why as a practical matter he took this course, to presume the existence of a critical fact which had not only not been proved but had been called into doubt by the deponent for the United States government."

12. He then refers to certain further detailed submissions which I need not repeat. Of course, that decision was, as the court recognised, counter-intuitive. Sedley LJ typically gave very cogent reasons why this result had been reached in that case, and pointed out why it is that a rigorous approach has to be applied to the requirements of paragraph 11. In the last sentence of paragraph 17 he said this:

"Since Parliament has delegated to the executive the power to include any states it thinks fit - a power it exercised generously - the need for rigour at this elementary level is far more than merely technical."

13. That principle has been endorsed in subsequent cases, for example in the case presided over by my Lord, Laws LJ, in Welsh v the Secretary of State [2007] 1 WLR 1281 in the judgment given by Ouseley J, with which my Lord agreed, at paragraphs 12 and 13, and in Hasmi v the United States of America [2007] EWHC 564 (Admin), where Scott Baker LJ made similar points.
14. We were referred by Mr Lloyd for the Government in his written argument and in further submissions this is morning to the decision of the House of Lords in Norris v the United States [2008] 1 AC 920. In that case their Lordships were concerned with whether this Act required the courts to use what is known as the "conduct test" or the "offence test" in applying Section 137. Miss Powell has submitted that on close analysis of this case one can see that their Lordships were concerned in particular in that case with the provisions of section 137(2)(b) of the Act rather than (c) of that same sub-section, with which we are directly concerned. For my part, I would have been inclined to think, as Mr Lloyd submits, that that case may have wider application than simply the provisions of section 137(2)(b). It is not necessary so to decide for the purposes of today.
15. In my judgment the original request in this case, whether read alone or as supplemented by the later documents, establishes the following propositions: first, the conduct specified in the request was in the category two territory; secondly, the conduct so specified is criminal in this country and is punishable with imprisonment for 12 months or more; and thirdly, the conduct specified in the request is expressly stated as to be so punishable in Norway. That, to my mind, clearly satisfies the requirements of section 137(2)(c). To require more seems to me, if Norris applies, to get close to applying the "offence test" and requiring an examination of the detailed provisions of foreign law which this court and the House of Lords has always eschewed. In contrast with the position of Bentley, there is nothing contradictory of the statements in the request in any of the legal material produced. Accordingly the ruling of the District Judge of the appeal was in my view correct. This appeal, notwithstanding the attractive submissions of Miss Powell, must be dismissed.
16. LORD JUSTICE LAWS: I would agree. Thank you very much for your submissions.