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
		9th June 2011

1. 1.1. MRS JUSTICE SWIFT: The appellant in this case is a Polish national. He appeals against the decision of Senior District Judge Riddle to order his surrender, that decision having been made on 20th April 2011. The proceedings are based on a European Arrest Warrant ("the warrant") issued by the respondent judicial authority, the Lublin Provincial Court in Poland, on 25th July 2006, and certified by the designated authority, the Serious Organised Crime Agency ("SOCA") on 18th September 2009.
2. 2.1. Poland is designated a category 1 territory pursuant to section 1 of the Extradition Act 2003 ("the Act") meaning that Part 1 of the Act applies.
3. 3.1. The appellant is a convicted person and the warrant relates to a sentence of four years' imprisonment which was imposed following his conviction for two offences. The first offence was a domestic burglary committed in January 2002. The second offence, committed in April 2002, is described in the English translation of the warrant as "driving a car ... in a public road, while being in the state of inebriation/ 2.13%". This offence was said to be "against safety of traffic, article 178a paragraph 1 of the Criminal Code/ driving a car in the state of inebriation".
4. 4.1. Efforts have been made to clarify the meaning and the precise equivalent level in UK terms of the "2.13%" which appears in the warrant, but those efforts have been unsuccessful.
5. 5.1. In respect of both offences, the appellant was sentenced to four years' imprisonment, of which there remains a balance of three years three months and 13 days to serve.
6. 6.1. The grounds of appeal, which were prepared by solicitors, were very brief and very general, alleging merely that the Senior District Judge should have reached a different conclusion on the facts.
7. 7.1. The state of play today is that Mr Ben Cooper appears for the appellant, having been instructed late in the day and not having had an opportunity of a conference with the appellant, who is not present today. The defendants are represented by Ms Mary Westcott. There is no skeleton argument from Mr Cooper but he has said succinctly and frankly today that he is unable to advance submissions in support of this appeal and indeed is unable to support the submissions which were made in the lower court. Ms Westcott has submitted a detailed skeleton argument opposing the appeal.
8. 8.1. At the extradition hearing, there were essentially two issues. The first of those was whether the conduct of driving in the state of inebriation specified in a warrant constituted an extradition offence within the meaning of the Act. For these purposes, section 65(3) of the Act provides that conduct constitutes an extradition offence in relation to a category 1 country if
9. 9.1. "(a) the conduct occurs in the category 1 territory (there is no dispute as to that in this case;
10. 10.1. (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; and

(c) a sentence of imprisonment or another form of detention for a term of four months or a greater punishment has been imposed in the category 1 territory in respect of the conduct."

11. 11.1. The appellant contended in the court below that the conduct specified in the warrant and in the subsequent information provided by the judicial authority was too uncertain and ambiguous for the court to be satisfied that the appellant would have been over the alcohol limit for driving in the UK or that his conduct would have constituted an offence under the law of the UK had it been committed here, so that the condition of dual criminality required by section 65(3)(b) was not satisfied.
12. 12.1. The second issue was whether, if extradition could not be ordered on the driving offence, the court could properly find that a term of four months' imprisonment or more had been imposed in respect of the burglary offence. The appellant argued that, since an aggregate sentence was imposed for the two offences, the court could not be certain that the burglary offence fulfilled condition (c) of section 65(3).
13. 13.1. I shall deal with the first issue. It is clear from the authorities that, in considering the issue of dual criminality, the court must have regard to the conduct specified in the warrant, not the offence. In the case of Mauro v Government of the United States of America [2009] EWHC 150 (Admin), Maurice Kay LJ said at paragraph 4:

"It is plain that the question that arises ... is not whether the American offence is on all fours with a comparable offence in this jurisdiction but whether the conduct alleged to give rise to the American offence would constitute an offence in this country. This was made clear in relation to the similar provision applicable to Part 1 cases in Cando Armas [2005] UKHL 67."

14. 14.1. In Nanarova v Czech Republic [2009] EWHC 2710 (Admin), Cranston J said at paragraph 23:

"The warrant must be approached, firstly, against the backdrop of cooperation demanded by our membership of the European Union, and in this particular case set out in the Framework Directive given effect to in the United Kingdom by the 2003 Act. Secondly, as Lord Bingham pointed out in the Armas decision, the court must focus on the conduct complained of and relied on in the warrant, not the niceties of the Czech offence. Thirdly, in assessing the wording and content of the warrant, allowance has to be made for the fact that the substantive and procedural criminal law varies across the European Union. That is the point that Auld LJ made in Fofana v Thubin [2006] EWHC 744 Admin, where at paragraph 39 he said:

'Providing that the description in a warrant of the facts relied upon as constituting an extradition offence identifies such an offence and when and where it is alleged to have been committed, it is not, in my view, necessary or appropriate to subject it to the requirements of specificity accorded to particulars of, or sometimes required of, a court in an indictment or an allegation in a civil pleading in this country. Allowance should be made for the fact that the description, probably more often than not, was set out in a language other than English, requiring translation for use in this country, and that traditions of criminal "pleading" vary considerably from one jurisdiction to another.'"

15. 15.1. The respondent submits that the Senior District Judge was justified in finding that the conduct specified in the warrant in this case would have amounted to the offence of driving whilst unfit to drive through drink or drugs contrary to section 4 of the Road Traffic Act 1988. Section 4(5) provides that:

"For the purposes of this section, a person shall be taken to be unfit to drive if his ability to drive properly is for the time being impaired."

16. 16.1. Before the Senior District Judge, It was argued on behalf of the appellant that the contents of the warrant were not sufficient to establish that the appellant's ability to drive properly was impaired at the relevant time. The Senior District Judge rejected that argument, saying:

"In this case the allegation is that the defendant drove 'while being in the state of inebriation'. Now inebriation means drunk. That was the meaning understood by the parties in court. It is also the primary meaning attributed in the Oxford Dictionary and in Websters.

...

Really the point is simple. I have no doubt that if, in this jurisdiction, a court were satisfied that the defendant had been driving while inebriated, the inescapable conclusion would be that he was unfit to drive. In short the conduct complained of in this case would also amount to an offence here."

17. 17.1. The Senior District Judge distinguished between the current case and the case of Rozakmens v Judicial Authority of Latvia [2010] EWHC 3500 (Admin). In Rozakmens, the warrant alleged an offence of "driving under the influence of alcohol". Ouseley J expressed considerable sympathy with the respondent's submission that it was inevitable that, if someone drove under the influence of drink, he was driving whilst unfit to do so. However, he felt himself bound by the decision of the Court of Criminal Appeal in the case of R v Hawkes (1931) 22 Cr.App.R 172, a decision in respect of section 15 of the Road Traffic Act 1930. That decision was to the effect that, in order to establish unfitness to drive, the prosecution had to prove not only the influence of drink but also that proper control of the vehicle was impaired by the drink. Ouseley J found that there was no conduct alleged in the warrant which showed impairment or unfitness as opposed to influence.
18. 18.1. As the Senior District Judge pointed out, the conduct complained of in this case was not driving under the influence of alcohol, but driving whilst in a state of inebriation, i.e. is drunkenness. Thus the cases of Rozakmens and Hawkes, which were, as the Senior District Judge pointed out, decided in the context of the different definition of "unfit to drive" then prevailing, are not directly on the point in this case.
19. 19.1. Given the conduct alleged in the warrant, I consider that the Senior District Judge was quite right in finding that, if a UK court were satisfied that a defendant had been driving whilst inebriated i.e. whilst drunk) its conclusion would inevitably be that he was also unfit to drive and that section 65(3)(b) of the Act was therefore satisfied. In view of my finding in relation to this first issue, it is not necessary to proceed to consider the second issue relating to the effect of the aggregate sentence.
20. 20.1. I consider that this appeal should be dismissed.
21. 21.1. LORD JUSTICE AIKENS: I agree that this appeal should be dismissed for the reasons given by my Lady.