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
		26th February 2013

1. MR JUSTICE CRANSTON: This is an appeal under Part 1 of the Extradition Act of 2003 ("the 2003 Act"). The appellant challenges the decision of District Judge Evans on 11th January 2013 to extradite him to Poland under an European arrest warrant. The warrant is an accusation warrant. It was issued by the District Court in Kalisz for Poland on 25th May 2009. It was certified here on 17th October 2011. Extradition is sought in relation to three offences set out at box E of the warrant:

"I. Between July 2003 and July 2004 in Ociaz, Municipality of Nowe Skalmierzyce, while being an owner of an LPG station, responsible for work safety and hygiene, he failed to meet that responsibility and admitted employees: Marcin Snioch, Mariusz Gruszczynski and Jaroslaw Nowostawski, to operate a gas distributor without proper training or qualifications and used the station without statutory licences or safeguards thereby exposing the said employees to immediate risk of life or serious injury.

II. Between July 2003 and October 2004 in Ociaz, Municipality of Nowe Skalmierzyce, while being an owner of an LPG station and performing duties within the labour law and social security, he maliciously and repeatedly violated his employees' right resulting from the employment relationship and social security in that he failed to enter into applicable contracts of employment with Marcin Snioch, Mariusz Gruszczynski and Jaroslaw Nowostawski even though their work demonstrated all characteristics of the employment relationship. Furthermore, he failed to report the aforementioned individuals for the social security purposes.

III. Between July 2003 and August 2004 in Ociaz, Municipality of Nowe Skalmierzyce, he produced an immediate risk of explosion of flammable materials in form of car gas fuel in that he used gas distributors at the LPG station without inspecting the technical condition of the power system and lighting system at the said station thereby posing life and health risk to a great number of people and extensive damage risk to property."

2. The issue in this case is whether the third offence mentioned in the extradition warrant is an offence under the dual criminality provision (section 64(3)(b) of the 2003 Act) in that it is conduct which would constitute an offence if it occurred in the United Kingdom. The appellant contends that the conduct particularised in offence III could not have been an offence here.
3. The judge found that all three offences are extradition offences pursuant to section 64(3) of the 2003 Act. It was accepted that offence I would be an offence contrary to sections 2(2)(a) and (c) and section 33 of the Health and Safety at Work Act of 1974 ("the 1974 Act") and offence II would be an offence contrary to section 114(1) of the Social Security Administration Act of 1992. The judge also found that offence III was an offence contrary to sections 3 and 33 of the 1974 Act.
4. Section 2 of the 1974 Act provides:

"(1) It shall be the duty of every employer to ensure, so far as is reasonably practicable, the health, safety and welfare at work of all his employees."

And without prejudice to the generality of that duty, subsection (2) provides:

"... the matters to which that duty extends include in particular -

(a) the provision and maintenance of plant and systems of work that are, so far as is reasonably practicable, safe and without risks to health ...

(c) the provision of such information, instruction, training and supervision as is necessary to ensure, so far as is reasonably practicable, the health and safety at work of his employees."

Section 3 covers the general duties of employers and the self-employed to persons other than their employees. It reads:

"(1) It shall be the duty of every employer to conduct his undertaking in such a way as to ensure, so far as is reasonably practicable, that persons not in his employment who may be affected thereby are not thereby exposed to risks to their health or safety.

(2)It shall be the duty of every self-employed person to conduct his undertaking in such a way as to ensure, so far as is reasonably practicable, that he and other persons (not being his employees) who may be affected thereby are not thereby exposed to risks to their health or safety."

Section 33 of the Act creates offences to enforce these duties in the Act.

5. In order to determine whether Poland has satisfied the dual criminality test for the offences alleged, the conduct test requires the court to look at the conduct alleged against the appellant and then to analyse whether it constitutes an offence in the United Kingdom: Norris v Government of the United States of America [2008] UKHL 16, [2008] 1 AC 920. The House of Lords in that case also said that the conduct to be assessed for the purpose of the dual criminality exercise is the conduct alleged against the accused within the request (paragraph 91).
6. In the course of her judgment in the Divisional Court in Boudhiba v Central Examining Court No 5 of the National Court of Justice, Madrid [2006] EWHC 167 Admin, [2007] 1 WLR 124, Smith LJ said by way of obiter dictum:

"I should mention at this stage that neither party sought to argue before us that the district judge ought to have considered each alleged offence separately. It is not clear that she did so. I am satisfied that this should be done."

However, there is later authority that the court is entitled to look at the whole of the European arrest warrant when assessing dual criminality. In Kopycki v Provincial In Lodz, Poland [2012] EWHC 744 Admin, the European arrest warrant had referred to two offences: participating in an organised criminal group and trading in drugs as part of that group. It gave particulars of the circumstances of which the appellant had allegedly committed the offences. The District Judge found that the information contained in the description of the first offence was insufficient for her to conclude that the conduct alleged would have amounted to an offence if committed in the United Kingdom. On appeal, Calvert-Smith J held that, when considering the sufficiency of the descriptions in a European arrest warrant of the offences which the requested person was alleged to have committed, the warrant was to be read as a whole. Information in any part could be used to work out what it was he was alleged to have done and by the requested country's court to do the same to help to decide whether the offence alleged was an extradition offence:

"31. I agree with the submissions of Mr Harbinson. The warrant is to be read as a whole. If the age, sex or nationality of the requested person was an essential element of an offence, its omission from box E could, in my judgment, be cured by a look, for instance, at box A. Likewise, information in box F, if it assists in answering questions posed either by section 2(4)(c) or by section 10(2) and 64(3)(b) must also be admissible. By the same token, therefore, information in any part of box E may be used by a requested person to work out what it is he is alleged to have done, and by the requested country's court to do the same and to help that court decide whether the offence alleged is indeed an extradition offence.

32. There is more ... than a bare statement of the offence. Using both the descriptions within box E and the additional material in box F there is, in my judgment, just sufficient to satisfy the requirements of section 2(4)(c) and section 10 and 64(3)(b) in respect of both offences."

7. That is the ratio of Calvert-Smith J's judgment and I should apply it unless I think it wrong. I do not. My view is fortified by a more recent decision of Collins J in Pelka v Judge Radomir Boguszewski Regional Court In Gdansk Poland [2012] EWHC 3989 Admin, at paragraphs 11 and 15, where Collins J endorsed the approach of Calvert-Smith J in the earlier decision.
8. In thorough and cogent submissions, Mr Clyndes firstly seeks to distinguish the approach of Calvert-Smith J and Collins J in these authorities and contends that in this case the particulars in offences I and II cannot be parachuted into offence III as set out in the warrant. In his submission, the offences in Calvert-Smith J's case were such that it was easier to cross-refer the particulars in one offence to that of the other. Given the nature of the offences under the Health and Safety at Work Act 1974 here, it was not possible to adopt the same approach.
9. Mr Clyndes separately contended that the conduct in offence III could not be an offence contrary to section 3 of the Health and Safety at Work Act because it might not be reasonably practicable for the appellant to have conducted the investigations set out in the particulars, and thus the appellant would have a defence under section 3 which would not exist in Polish law. In his submission, it is conceivable that Poland has adopted health and safety laws which impose strict liability. He helpfully referred to the decision of Stark v The Post Office [2000] ICLR 1013, where in this jurisdiction the Court of Appeal held that under the Provision and Use of Work Equipment Regulations of 1992, an absolute obligation was imposed on the employee. In his submission, public policy in Poland might be such that a similar approach has been adopted in the law in relation to the risks which are posed by dangerous equipment such as that found at LPG stations. Moreover, Mr Clyndes referred to the principle in our law that there must be a real risk, as opposed to a hypothetical risk: see R v Porter [2008] EWCA Crim 1271, at paragraph 16 of the judgment of Moses LJ for the court. In Mr Clyndes' submission, it could be inferred that the Polish authorities, for sound public policy reasons, might have decided to impose strict liability, without reference to risk, due to the potential consequences of an explosion at an LPG station. That was another reason, in his submission, that the appellant might have a defence under United Kingdom law which does not exist under Polish law.
10. Quite apart from there being no evidence before the court on Polish law, my task -- consistently with the decision of the House of Lords in Norris -- is simply to assess whether the conduct described in the warrant constitutes an offence in this jurisdiction. In my view, the two issues raised by Mr Clyndes, namely reasonable practicability and hypothetical risk, can only be determined following an assessment on the evidence. In other words, on the facts does the appellant have a defence that it was not reasonably practicable, or on the facts was there a real risk or a hypothetical risk? Under the system operating for the European arrest warrant there is no obligation for a requesting state like Poland to provide that evidence, and that has not been done in this warrant. In my view, it is not within my jurisdiction to address these issues. They are for the Polish court when it considers the evidence in this case.
11. As far as the third argument, namely that it is not possible to refer to the particulars in offences I and II when considering offence III, to my mind that argument is foreclosed by the decisions in Kopycki and Pelka. In this case it is plain from the particulars of the offence that the alleged offences overlapped in time and they occurred at the same LPG station. From the particulars in offences I and II, it is obviously the case that the appellant was the owner of the LPG station and that he employed the three persons named in those particulars. Given that offence III is said to have been committed at that same time over the period 2003 to 2004, the clear inference is that the appellant was the owner and employer at the material time.
12. In my view, the judge was correct to find that dual criminality was made out. Examining the warrant as a whole, the appellant was the owner and employer at the LPG garage and thus the conduct, if it had been committed in this country, could have been an offence pursuant to sections 3 and 33 of the 1974 Act. Consequently, it is plain that a duty would exist under section 3 of the Act. I dismiss the appeal.
13. MR CLYNDES: My Lord, can I just raise one matter. Can I ask for the usual assessment of costs in this matter.
14. MR JUSTICE CRANSTON: Yes.