England and Wales High Court (Administrative Court) Decisions

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

		Royal Courts of Justice Strand London WC2A 2LL
		25 July 2012

1. MR JUSTICE BEAN: Edgars Veiss appeals against an order of District Judge Purdy, on 22 August 2011, that he be extradited to Latvia pursuant to a European arrest warrant dated 18 March 2011. The warrant specified two charges of which he had been convicted, and one of which he stands accused.
2. A number of points were taken in the notice of appeal, some of which have not been pursued before me. One, for example, was that the Prosecutor General's Office of the Republic of Latvia is not a judicial authority. That was disposed of by the decision of the Supreme Court in Assange v Sweden and Mr Henley, for the appellant, has not pursued it.
3. Another point was that a mixed warrant such as this one, including both an accusation offence and a conviction offence, is itself flawed. This argument was rejected by Lloyd-Jones J in Ciesielski v District Court in Kalisz, Poland [2011] EWHC 1503, and by Mitting J in Zacharski v Regional Court in Lublin, Poland [2011] EWHC 2386. Mr Henley appeared for Mr Zacharski and has been able to inform me that, while Mitting J certified that the mixed warrants issue was a point of law of public importance fit for the consideration of the Supreme Court, he refused leave in the usual way, and the Supreme Court itself has refused leave as well. In the light of that Mr Henley rightly did not feel able to pursue the point before me. Had he done so I would have rejected it following the decisions of Lloyd-Jones J and Mitting J.
4. The point which has been argued before me concerns the accusation offence only and involves the dual criminality requirement of section 4 of the Extradition Act 2003. It was not taken before the District Judge. Mr Stansfield argued, in reliance on the judgment of Sir John Thomas P in Koziel v Poland [2011] EWHC 3781 (Admin), that I should not allow it to be taken before me. But I consider that it would be wrong to prevent it from being raised on the merits in this court.
5. That is for two reasons. Firstly, I consider that the case of Hoholm v Norway [2009] EWHC 1513 (Admin) is a decision of the Divisional Court, binding on me, that this court should generally allow a point of law in an extradition case requiring no new evidence to be raised on appeal for the first time, certainly if it involves a tenable argument that the requirements of the statute (such as dual criminality) are not made out.
6. Secondly, in this case the point of law hinges, at least to some extent, on a relevant previous decision of this court, namely that of Ouseley J in Rozakmens v Latvia [2010] EWHC 3500 (Admin). If either advocate below had been aware of the decision in Rozakmens it would have been their professional duty to bring it to the attention of the District Judge. The duty to make the court aware of relevant case law lies as much on the advocate for the requesting State as on the advocate for the fugitive, all the more so where (as here)the previous case involved the same requesting State.
7. Mr Henley, who appeared in Rozakmens, would certainly have brought it to the attention of the District Judge in this case had he been there, but he was not there. He has told me, and I accept, that the solicitor who appeared for Mr Veiss below was unaware of the decision in Rozakmens, and I will make the same assumption in favour of the solicitor who represented the Latvian authorities.
8. Accordingly I have allowed the argument about dual criminality to be raised on its merits.
9. The conduct specified in the arrest warrant in relation to the accusation offence is, so far as material, as follows:
10. "Edgars Veiss operated a vehicle without a driving licence (the vehicle driving licence has not been acquired according to specific procedures) while being under the influence of alcohol, and namely:
11. on 11 June 2009 ... Edgars Veiss operated the vehicle ... without a driving licence which had not been acquired according to specific procedures, while being under the influence of alcohol, with alcohol concentration in breath 0.95%o, where he was stopped. By his actions Edgars Veiss committed the criminal offence provided for in Section 262 Paragraph 2 of the Criminal Law."
12. Later in the warrant section 262 of the Latvian Criminal Law is set out. Subsection (2) creates an offence of operating a vehicle under the influence of alcohol or drugs "where the defendant does not have a vehicle driving licence (the vehicle driving licence has not been acquired or taken away according to specific procedures)". Subsection (1) has the same offence, but without the aggravating feature of the driver having no licence. The subsection (1) offence involves repetition within a one-year period. Each of them carries a maximum sentence of two years.
13. To get one point out of the way: Mr Henley first submitted that the recital of the conduct of the warrant does not even make it clear that Mr Veiss is accused of driving the vehicle without a licence. This is because of the use of the words "without a driving licence which had not been acquired according to specific procedures". He submits that this does not make it clear whether Mr Veiss had no licence, or a licence which had somehow been inappropriately acquired. This is a point which was not only not raised before the District Judge, but was not in the notice of appeal, nor in the skeleton argument served in advance of the hearing, and I would therefore be extremely reluctant to allow it to be raised.
14. However, in any event, it seems to me to have no merit. The translation from the Latvian in the section of the warrant setting out the conduct is clearly a little inept on the face of it. It has one negative too many. It probably ought to say "without a driving licence which had been acquired according to specific procedures". I note that the text of the Latvian statute has the phrase "(the vehicle driving licence has not been acquired or taken away according to specific proceedings)" which makes it clear, as would be the position in this country, that the offence of driving without a valid driving licence is constituted either if the individual concerned has never had one, or if he has been disqualified from driving. The latter case of course involves another more serious offence, but it does involve driving without a valid licence. Anyhow I decline to allow this point to be raised: as I have indicated, I consider it to have no merit. I turn therefore to the points of substance.
15. In Rozakmens v Latvia Ouseley J had to consider the argument about dual criminality where the conduct alleged was that the appellant was driving his car in Latvia while being under the influence of alcoholic beverages (the amount of alcohol in his breath was said to be 0.71 per mille). That case concerned section 262(1) of the Latvian Criminal Law, rather than section 262(2), the aggravating factor of driving without a valid licence not being alleged.
16. Ouseley J accepted that the conduct alleged in the warrant did not correspond either to section 5 of the Road Traffic Act 1988, the breathalyser offence, nor to section 4, driving whilst unfit. As to section 5, he held that the court would need to be clear that the Latvian measurements could be translated to an English measurement satisfactorily in order to hold that the section 5 offence would be made out if the conduct had occurred in England, and gave reasons, which I need not recite, for the conclusion that this was not clear.
17. I am not prepared to depart from that decision of Ouseley J and in the light of it Mr Stansfeld, for the Latvian authorities, accepted that it would not be appropriate for him in effect to give evidence as to how one should do the conversion of the Latvian measurements.
18. So far as section 4 is concerned, Ouseley J upheld the submission that the Court of Criminal Appeal, in the 1931 authority of R v Hawkes 22 Cr App R 172, had drawn a distinction between driving whilst under the influence of alcohol and driving while unfit to drive through drink or drugs. Therefore an allegation that the appellant, Mr Rozakmens, was driving "while under the influence of alcohol beverages" did not constitute the equivalent of the section 4 offence. Like Ouseley J, were it not for the decision in Hawkes I would have regarded it as obvious that the two tests are, to all intents and purposes, the same; but like him I am bound by the decision.
19. I therefore conclude that were it not for the Norris argument, to which I shall come in a moment, Mr Henley's appeal would succeed.
20. The Norris argument which Mr Stansfeld has put before me runs as follows. In the well-known case of Norris v the Government of the USA [2008] 1 AC 920 the House of Lords decided that for the purposes of examining the dual criminality requirement it is the conduct set out in the warrant that must be compared with the English offence. It is not the foreign offence alleged in the warrant which must be compared with the English offence.
21. The defendants were accused of giving false evidence to the grand jury in Pennsylvania and thereby obstructing a criminal investigation into price fixing. The House of Lords noted that there is no longer any such thing in English law as a grand jury, but there are other bodies conducting criminal investigations. The House held that although price fixing is not in itself an offence under English law it can, when combined with other aggravating elements, lead to English law offences such as fraud, or conspiracy to defraud, being committed. They found that had Mr Norris done in England what he was alleged to have done in counts 2 to 4 of the United States indictment, with the intention of obstructing an investigation being carried out by a duly appointed body in England into possible criminal conduct in relation to price fixing, he would have been guilty of offences of obstructing (or conspiring to obstruct) justice, which could have attracted sentences of 12 months' imprisonment or more. The House held that the offences were therefore extradition offences. The dual criminality requirement was made out and Mr Norris was duly extradited.
22. In the present case Mr Stansfeld submits that even if I am against him (as I have indicated I am) on the Rozakmens point, the requirements of section 64 are nonetheless satisfied. Section 64(1)(a) says that the section applies in relation to conduct of a person if he is accused in a category 1 territory of the commission of an offence constituted by the conduct. Mr Stansfeld says that the "conduct" is the whole of the conduct alleged in the relevant section of the warrant. The offence on which he relies is the offence of driving without a valid licence. That is an offence in English law. It is only part of the conduct alleged in the relevant section of the warrant, but it is nonetheless included in it. I accept Mr Stansfeld's submission that Norris decides this point in his favour.
23. Going on to section 64(3), the conditions to be satisfied are as follows:
24. "(a)the conduct occurs in the category 1 territory [Latvia];" (There is no dispute about that.)
25. "(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;"
26. The conduct, he says, does constitute the English offence of driving without a valid driving licence. Whatever else it may also constitute or not constitute, it does constitute that offence. I agree.
27. Finally, subsection (c):
28. "(c)the conduct is punishable under the law of the category 1 territory with imprisonment or another form of detention for a term of 12 months or a greater punishment (however it is described in that law)."
29. Subsection (c) does not say that the English offence is punishable with at least 12 months' custody. If it did that would defeat Mr Stansfeld on this charge, because driving without a valid driving licence is not imprisonable at all, let alone for 12 months. The subsection requires that the conduct is punishable with at least 12 months' imprisonment under Latvian law. It does not impose a further requirement that the conduct is also punishable under English law with 12 months' imprisonment or more. Some provisions in the Extradition Act do, for example section 64(4) and section 64(5), and some corresponding sections in Part 2. But under section 64(3) the conduct need only be punishable with imprisonment for 12 months or more under the law of the requesting State.
30. So in my opinion Mr Stansfeld has made out his case. The requirements of section 64(1) and section 64(3) are satisfied. It follows that I would reject the argument raised in this court for setting aside the warrant. I uphold the decision of District Judge Purdy in respect of each of the three offences and dismiss this appeal.
31. ---------------------------------------------------------------
32. MR HENLEY: My Lord, given the intensity of the argument, and I think some considerable doubt that you had during the argument, I would ask for a certified question to the Supreme Court and permission to appeal. It seems to me, although in part it is dealt with in Norris, the nub of the issue where a substantial part of the conduct is effectively struck out and the minor part of the conduct is left, has really not been decided fully by Norris and therefore it is a matter of general public importance. I would ask that you certify a question. You may be reluctant to grant permission, but clearly if you refuse permission we would then renew in front of the Supreme Court.
33. MR JUSTICE BEAN: I would certainly not contemplate granting permission. I would be minded to give you a period of time during which to submit a draft certified question, which I would then consider on the papers. Mr Stansfeld, do you want to say anything about that?
34. MR STANSFELD: My Lord, all I would ask is for an opportunity to respond to the proposed question specified by my learned friend. Until the question is proposed there is little to add.
35. MR JUSTICE BEAN: I am going to be away from this building from tomorrow until September, but I will be back in touch by email on 21 August. At the end of the hearing please ask my clerk to give you an email address to which submissions can be sent.
36. Mr Henley, how long do you need?
37. MR HENLEY: The Act tells me how long I need and that is 14 days. I have no option. Of course I can email them to you directly, that is not a problem, but I will have to submit it through the Court Office so that it stops the clock. If they do not receive it within 14 days then they can extradite because of the various provisions about time for extradition. So it will be done within 14 days.
38. MR JUSTICE BEAN: If you do submit the application, do I have to make a further order, or does that stop the clock until I have ruled on the application?
39. MR HENLEY: That stops the clock. Theoretically you could go away for a year and come back, but I am sure my Lord will not. It effectively stops the clock. We have done what we have to do. I have had certified questions thought about in two or three months, but that is the exception. You are not required by the Act to make your decision in any particular time frame. Once you have made your decision that will be given as an order. Then there are all sorts of consequent provisions with regard to time, provisions with regard to what happens thereafter.
40. MR JUSTICE BEAN: I will say that you have 14 days to lodge a draft question to certify and Mr Stansfield has 14 days in which to respond. Then I will issue a decision through the Court Office as soon as possible thereafter.
41. MR HENLEY: Yes, that would be fine. Of course, as with any certified question you can redraft the question as you see fit.
42. MR JUSTICE BEAN: The principal decision will be whether to certify the point, and if so whether in your language or amended language.
43. MR HENLEY: Yes. The only other thing that I would ask is that I have the normal order with regard to public funding and detailed assessment.
44. MR JUSTICE BEAN: Yes, certainly.
45. MR HENLEY: I am obliged.
46. MR JUSTICE BEAN: Mr Stansfeld, there was, I think, somewhere in the papers a question of costs from an earlier hearing, or is that wrong?
47. MR STANSFELD: My Lord, there was an earlier hearing in which this matter in March was listed before King J. He certainly considered costs and gave my learned friend a period in which to write in to justify why he should not be subject to a wasted costs order. I was ordered to put in the valuation of those costs, which I did submit to the court.
48. MR JUSTICE BEAN: Do you want to say anything about this issue?
49. MR STANSFELD: It is a matter for the court. It is not something that I think would be appropriate for me to comment on.
50. MR JUSTICE BEAN: Thank you very much.
51. (Ruling on wasted costs)
52. MR JUSTICE BEAN: At an earlier hearing King J ordered that counsel and solicitors acting for the appellant should show cause in writing why a wasted costs order should not be made against them resulting from the adjournment of a hearing on 2 March 2012. Counsel for the Crown Prosecution Service was asked to, and did, quantify those costs at £313.98.
53. I have read the letter of the appellant's solicitor of 6 March and the representations of Mr Henley of 4 March. Having read them I am quite satisfied that it would not be right to make a wasted costs order in this case and I therefore say no more about it.
54. Thank you both for your considerable assistance.