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
		18 January 2012

1. MR JUSTICE LLOYD JONES: The appellant, Ruslans Spitans, appeals against the extradition order made against him by District Judge Zani on one ground. That is that the second offence contained in the warrant -- an offence of using a psychotropic substance, namely methamphetamine contrary to section 253(1) of the Criminal Law of Latvia -- is not an extradition offence.
2. The point was not taken below and, as a result, the District Judge's ruling deals very briefly with the question as to whether this offence is an extradition offence. He simply records that it is and that the requirements of the statute are satisfied.
3. The background to the matter is that the surrender of Mr Spitans is requested by the Judicial Authority, the Riga Regional Court, Latvia, pursuant to a European Arrest Warrant in respect of an accusation of two offences. The first is possessing narcotic and psychotropic substances for the purposes of distribution. The second is using substances without a physician's designation. The warrant was issued on 5 October 2003 and certified by the Serious Organised Crime Agency on 29 November 2010.
4. District Judge Zani found that the two offences were extradition offences under 64(2) and 64(3) respectively.
5. The warrant at box (e) describes two offences. The first offence is that which the District Judge refers to as possession with intent to supply of various quantities of drugs, which are specified in considerable detail, and ends with the words "committed a criminal offence provided for in Section 253(1) of the Criminal Law".
6. It is accepted on behalf of the appellant that that is an extradition offence and there is no appeal in respect of that charge.
7. The second offence is described in the paragraph that follows in the following terms:

"While being charged with administrative liability on 12 October 2007 for use of psychotropic substance methamphetamine without a physician's designation on 25 June 2007 - repeatedly within one year without a physician's designation, in the place and time not precisely established during the pre-trial investigation, in the period of time until 4 January 2008, Ruslans Spitans used narcotic substances marihuana and heroine, psychotropic substance amphetamine, when he was detained under the influence of narcotic substances in the sentence execution place in Matisa prison."

8. That is said to be an offence contrary to 253(1) of the Criminal Law of Latvia.
9. Section 10 of the Extradition Act 2003 reads as follows:

"10. Initial stage of extradition hearing

(1)This section applies if a person in respect of whom a Part 1 warrant is issued appears or is brought before the appropriate judge for the extradition hearing.

(2)The judge must decide whether the offence specified in the Part 1 warrant is an extradition offence.

(3)If the judge decides the question in subsection (2) in the negative he must order the person's discharge.

(4)If the judge decides that question in the affirmative he must proceed under section 11."

10. Sections and 64(2) and (3) Extradition Act 2003 read as follows:

"64. Extradition offences: person not sentenced for offence

...(2)The conduct constitutes an extradition offence in relation to the category 1 territory if these conditions are satisfied—

(a)the conduct occurs in the category 1 territory and no part of it occurs in the United Kingdom;

(b)a certificate issued by an appropriate authority of the category 1 territory shows that the conduct falls within the European framework list;

(c)the certificate shows that the conduct is punishable under the law of the category 1 territory with imprisonment or another form of detention for a term of 3 years or a greater punishment.

(3)The conduct also constitutes an extradition offence in relation to the category 1 territory if these conditions are satisfied—

(a)the conduct occurs in the category 1 territory;

(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;

(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)."

11. The appellant accepts that the first offence is an extradition offence because it falls within 64(2). However, he disputes that the second offence satisfies the requirements of the Extradition Act. Although the first two requirements of section 64(2) are satisfied in the case of the second offence, the third is not. The maximum sentence under section 253(1) of the Criminal Law of Latvia appears to be one of 2 years' imprisonment. For the conduct described in the second offence in box (e) of the warrant to fall within section 64(3) it must constitute an offence under the law of the relevant part of the United Kingdom if it had occurred there. The test to be applied is whether the conduct complained of, if proved, would constitute an offence in this jurisdiction. See the observations of Maurice Kay LJ in Mauro v Government of the United States of America [2009] EWHC 150 (Admin) at paragraph 9.
12. The respondent submits that the alleged used of controlled drugs -- namely marijuana, heroin and amphetamine -- would amount to the offence of possession of prohibited drugs contrary to section 5 of the Misuse of Drugs Act 1971 had it occurred in this jurisdiction.
13. The appellant, in response, relies on Hambleton v Cullinan [1968] 2 QB 427. There, informations were preferred against defendants alleging that they had in their possession a substance specified as a prohibited drug. Each defendant had given a urine sample and each sample was found to contain amphetamine. The justices were of the opinion that none of the defendants was in possession of the amphetamine powder found in the urine.
14. The Queen's Bench Divisional Court dismissed the appeal of the prosecutor and held that the amphetamine powder, having been consumed and having changed its character, it was impossible to say that the defendants were in possession of it within the meaning of that statute under section 1 of the Drugs Prevention and Misuse Act 1964.
15. Lord Parker CJ said that he was quite satisfied that the justices were right. He distinguished the case from a situation where a person might consume something by putting it in his mouth or swallowing it, such as a diamond or a gold ring, in order to conceal it, where nevertheless he might be in possession of it. It seemed to him that in a case of this sort, however, where something is literally consumed and changes its character, it is impossible to say that a man is in possession of it within the meaning of the Act. In other words, the case decides that traces of drugs, or more accurately metabolites of a prohibited drug found in a defendant's urine, are not evidence that the defendant was in possession of the prohibited drug at that time. To this extent the case supports the appellant.
16. However, Lord Parker went on to say this:

"But before leaving the matter, I confess that I myself can see no reason why in another case the time when the possession was said to have taken place should not be a time prior to the consumption, because as it seems to me the traces of, in this case, amphetamine powder in the urine is at any rate prima facie evidence - which is all the prosecution need - that the man concerned must have had it in his possession, if only in his hand prior to raising his hand to his mouth and consuming it. Accordingly, it seems to me that the possible difficulty that the decision in this case raises for the police does not arise in practice because the date of his possession can always be laid prior to the consumption. That is at page 432, letters B to D."

17. In the context of the present case, the question for consideration therefore is whether the conduct alleged in the warrant would necessarily constitute an offence contrary to the laws in force in this jurisdiction if committed here.
18. On behalf of the appellant, Mr Jesurum accepts that it is possible to infer from the conduct described in charge 2 in the warrant that there was a prior possession but he says that that is not a necessary inference and it is not possible therefore to conclude that the conduct in question would constitute the offence of possession of prohibited drugs if committed here. He gives examples of situations in which such an inference could not be drawn, for example the administration of drugs by another, which would not involve prior possession. For present purposes, it is enough for me to say that I consider that that is not a entirely fanciful example.
19. In response, Mr Sternberg submits that in the circumstances of the present case it is appropriate for the court to look at the conduct described in charge 2 in the context of the warrant as a whole and in particular in the light of the conduct alleged in charge 1. He says that when it is read in that context it becomes a necessary inference from the conduct described in charge 2 that the appellant was in possession of the drugs.
20. Charge 1 is set out in very specific terms. It alleges that in a time and place not precisely established, the appellant illicitly acquired from an unidentified person quantities of drugs, it describes the containers in which they were wrapped and it says that he had them in his possession at the sentence execution place of Matisa prison. It then goes on to allege that whilst he was there on 4 January 2008 at about 00.15 am, for the purpose of surrendering those drugs to another person, namely to distribute them, he packed them into an empty cigarette packet with the cell number on it for whom it was meant and lowered it with a string through the cell window, with the intention that it should be collected one floor down, trying to surrender it to a person not identified but whose nickname was identified and whose cell number was identified. It appears from the description in charge 1 that he was unsuccessful in that intention.
21. Mr Sternberg says that when the second charge is read in the light of the first charge it becomes a necessary inference that he was in possession of the drugs described in the second charge and indeed he draws attention to the fact that the drugs were of the same type.
22. The difficulty with Mr Sternberg's argument is that count 2 alleges the place where the offence was committed -- that is the same place that is identified in count 1 -- but the period of time during which the offence is said to have been committed is, on my reading of charge 2, a period between 25 June 2007 and 4 January 2008. Therefore, whilst it may well be a possible inference from the description of the conduct set out in charge 2 that it occurred at the same time as the offence described in charge 1, that is not a necessary inference.
23. I have come to the conclusion that there are insufficient particulars in the warrant to conclude that it is necessary to draw the inference for which Mr Sternberg contends, even when one considers charge 2 in conjunction with charge 1. The outcome for which he contends is one possible inference, it may be a likely one but it is not an inevitable one. Furthermore, I do not consider that in the particular circumstances of this case it is appropriate to interpolate other conduct which is not particularised in the warrant in order to satisfy the requirements of the statute.
24. Accordingly, for these reasons I have come to the conclusion that the second charge is not a charge of an offence within the statute and, accordingly, the appeal must succeed in relation to charge 2 only. The order of the magistrates will stand in relation to charge 1.

MR JESURUM: My Lord, I am grateful. In view of that, I suspect that there are no consequent orders that your Lordship need make, save to say that it may not be a material point but an appeal was lodged in respect of count 1 and it was Mr Spitans' intention to advance grounds himself in relation to count 1 but he has declined to be produced today, and I understand from instructing solicitors that he appreciates that the consequence of that will be his extradition, but an appeal was formally lodged in respect of both.

MR JUSTICE LLOYD JONES: Is it appropriate therefore for me to dismiss the appeal that was lodged on human rights grounds?

MR JESURUM: My Lord, yes. It is not advanced today and the consequence would be that it would have to be dismissed.

MR JUSTICE LLOYD JONES: Mr Sternberg?

MR STERNBERG: My Lord, I agree. I think it is necessary to dismiss the appeal on that.

MR JUSTICE LLOYD JONES: Very well, I do that. I dismiss the appeal which was previously advanced on human rights grounds, which has not been put before me today. Thank you both very much.