England and Wales High Court (Administrative Court) Decisions

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

		Royal Courts of Justice Strand, London, WC2A 2LL
		6th November 2014

Mr Justice Irwin :

1. This is the appeal of Marcin Aleksander Grabowski against the decision of District Judge Purdy in the Westminster Magistrates' Court on 14 August 2014. The matter proceeded by way of an uncontested extradition hearing and the Appellant's extradition to Poland was ordered. No transcript of judgment was before me. The Court was informed that the Appellant was legally represented before the Magistrates' Court and that no evidence or argument was presented as to why he should not be extradited.

Background

2. The Appellant is 33 years old and is a Polish national.
3. It is alleged in the European Arrest Warrant that on 27 August 2008 the Appellant kicked the door of a florist's shop in Lipno, Poland, smashing the glass and causing damage work PLN420 (then worth £100.44). It is next alleged that on 30 August 2008 in Lochocin, Lipno Commune, the Appellant "acting jointly and in concert with [two others] took for a short term use a car, make Audi 80 … by which he acted to the detriment of Rafal Sadowski". The third charge is that on 30 August 2008 in Lochocin he "was driving a car, make Audi 80 … on the public road, while intoxicated about 0.65 per mille of alcohol level in the blood". The fourth offence alleged is that on 31 August 2008 in Lochocin "he took for a short term use the car, make Audi 80 … then he abandoned the vehicle in a damaged condition in the place of Bialowiezyn, Lipno Commune by which he acted to the detriment of Rafal Sadowski". The fifth, and last, offence is that on 31 August 2008, in Lochocin and Bialowiezyn "he was driving a car, make Audi 80 … on the public road, while intoxicated about 1,7 per mille of alcohol level in the blood".
4. Poland has been designated as a category 1 territory for the purposes of the Extradition Act 2003 ["the 2003 Act"] and the proceedings against the Appellant are regulated by that Act.
5. On 18 August 2009, the District Court in Lipno ordered the Appellant's pre-trial arrest. By then he was in England. On 9 June 2009, the Appellant pleaded guilty before the Huddersfield Magistrates to an offence of driving a motor vehicle with excess alcohol on 9 November 2008 and to further offences of driving without a driving licence and using a vehicle whilst uninsured. He was disqualified from driving for 22 months and fined.
6. The European Arrest Warrant was issued on 6 March 2014. On 4 June 2014 the Polish authorities notified the National Crime Agency ["NCA"] that the Appellant was wanted. Checks in early June indicated that the Appellant was likely to be in the UK and on 11 June a copy of the EAW was received from Poland. It was subsequently returned for non compliance with UK requirements on 25 June, but resubmitted on 7 July 2014 in amended form. It was certified by the NCA on the same day. The wording of the warrant in respect of each offence is as set out above.
7. On 13 August 2014 the Appellant was arrested and on the following day produced for the hearing before DJ Purdy. On the same day his extradition was ordered and he was admitted to conditional bail. Mr Henley for the Appellant seeks to make submissions and, indeed, introduce evidence not advanced before the District Judge. He says that the third and fifth offences, the "drink driving" offences, should be barred from extradition because they do not fulfil the dual criminality requirement in Sections 10 and 64 of the 2003 Act. That being a matter of which the District Judge was required to be satisfied, Mr Henley argues that the absence of objection at the time cannot debar him from appeal. He makes the same point, in essence, in relation to the offences of taking and using a car. Mr Henley further seeks to argue that the extradition would be disproportionate pursuant to Section 21A of the 2003 Act, and his position is that argument is open to him also, since the District Judge was required to be satisfied that extradition would not be disproportionate.
8. Mr Henley further seeks to argue that extradition would be disproportionate and a breach of the Appellant's rights under Article 8 of the European Convention of Human Rights. Here he seeks to introduce evidence which was not before the District Judge, a step which he submits is consistent with the approach of the courts laid down by the Divisional Court in Szombathely City Court and others, v Fenyvesi and another [2009] EWHC 231 (Admin).

The Dual Criminality Test: The Drink Driving Offences

9. Section 64 of the 2003 Act sets out the test by which court should decide whether a person's conduct constitutes an "extradition offence". The relevant part of the Section here is the wording in Section 64(3)(b), which reads:

"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."

It is trite law that this test is satisfied by an examination of the "conduct" concerned, not an examination of the "equivalent offence". See Norris v USA [2008] 1 AC 920.

10. The wording set out in the offences contained within Section E of the European Arrest Warrant, as quoted above, is conceded by the Respondent to be insufficient to prove to the criminal standard that, when he drove on those two occasions, the Appellant had exceeded the UK drink drive limit pursuant to Section 5 of the Road Traffic Act 1988. The particulars as there expressed do not satisfy any of the prescribed limits as defined in Section 11(2) of the Road Traffic Act 1988, which are respectively 35mg of alcohol in 100ml of breath, 80mg of alcohol in 100ml of blood or 107mg of alcohol in 100ml of urine. Hence the information on the face of the warrant cannot show that the conduct complained of would satisfy the dual criminality test in respect of the statutory limits of excess alcohol.
11. However, "drink drive" offences can be prosecuted in the United Kingdom under Section 4 of the Road Traffic Act 1988, where the relevant allegation is that the defendant was driving "whilst unfit through drink". A number of authorities have addressed whether wording in a European Arrest Warrant similar to this can satisfy the dual criminality test by establishing that the conduct could be prosecuted under Section 4 of the 1988 Act. In the case of R (Rozakmens) v Judicial Authority of Latvia [2010] EWHC 3500 (Admin), Ouseley J was concerned with an EAW where the allegation was "while being under the influence of alcoholic beverages" the appellant drove his car and when detained "the amount of alcohol in his breath … during first check was 0.71 per mille but, during second check, 0.75 per mille". In the course of submissions the Court was taken to the phrase in the statute "unfit to drive" and then to the decision of R v Hawkes (1931) 22 Cr App Rep 172. In that case the Court of Criminal Appeal confirmed that the relevant question for a jury considering this offence was whether "the appellant was under the influence of drink to such an extent as to be incapable of having proper control of the vehicle" (emphasis added). Ouseley J considered that for that reason an EAW which neither established a level of alcohol in the bloodstream beyond the level prescribed by English law, nor established the additional ingredient of unfitness to drive the vehicle could not pass the dual criminality test. On that ground the appeal against extradition succeeded.
12. In Wars v Lublin Provincial Court Poland [2011] EWHC 1958 (Admin) the Divisional Court was concerned with a similar problem. The relevant offence before that court was described as "driving a car … in a public road, while being in the state of inebriation/2.13%". The Court observed that unsuccessful attempts had been mounted "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". The District Judge in that case had distinguished the case from Rozakmens on the basis that "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. 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". The Divisional Court agreed. Extradition proceeded on that basis.
13. A similar problem arose before Blake J in the case of Thomasz Lis v Regional Court in Rzeszow, Poland [2014] EWHC 3226 (Admin). In that case the relevant EAW alleged that the Appellant was driving a car whilst "being intoxicated". Here again the requesting Authority argued that this was the equivalent of being unfit to drive through drink. Blake J analysed the earlier authority, including Hawkes, Rozakmens and Wars. His judgment continued as follows:

"23. It seems to me that the central question is whether the inference can be drawn from the facts revealed in the information before the District Judge and this court that the appellant was so under the influence of alcohol as to be unfit to drive. If it can, the dual criminality test is met; but it if cannot, it is not. As I understand the law, whilst sharing the surprise expressed by Ouseley J, it is not sufficient to be unfit that one is under the influence of alcohol, one either needs to know how much alcohol was influencing the driver and draw the conclusion that the quantity was such as to indicate unfitness or one needs some evidence of the way the driver was behaving or of the driving or the degree of control of the vehicle from which that conclusion can safely be drawn.

24. It is not sufficient that an inference could be drawn that if one is inebriated one is unfit to drive. No doubt there are circumstances when such an inference could be drawn but the question is whether that is the only inference that can be drawn applying the criminal standard to the dual criminality test, see Assange v Swedish Prosecution Authority [2011] 2849 (Admin) at [57]:

"However, the facts set out in the EAW must not merely enable the inference to be drawn that the Defendant did the acts alleged with the necessary mens rea. They must be such as to impel the inference that he did so; it must be the only reasonable inference to be drawn from the facts alleged."

…

27.  With respect to the Divisional Court in Wars, I conclude that it does not apply the approach in Assange. I therefore prefer the decision of Ouseley J, who had to inquire as to whether that was the inevitable or only reasonable inference that could be drawn from those facts and applying the law as he understood it to be and as is subject to the commentary in Archbold cited earlier in this judgment. I conclude that it was not open to the District Judge to conclude that the only inference was that the appellant at the time he was driving this vehicle on 6 November 2009 was so intoxicated as to be unfit to drive a car. He might well have been but we would require further information from the Polish authorities before such a conclusion could safely be reached.

28.  For those reasons, applying what is consistently stated to be the English law on unfit through drink or drugs, I conclude that the description of the conduct contained in the warrant, which is the only source of information, is insufficient to meet the double criminality test and this appeal should be allowed on that ground in respect of that charge. To this extent this appeal succeeds."

14. The essential reasoning of Blake J in Lis, based on Assange, is that there must be a compelling inference, the "inevitable or only reasonable inference" that the Appellant was so intoxicated as to be unfit to drive. I adopt that reasoning. With very great respect to the Divisional Court who decided Wars, it seems to me that following the decision in Assange the reasoning in Lis is to be preferred. That conclusion is augmented by the true situation as revealed by subsequent information concerning the first of the two drink driving offences contained in the EAW in this case.
15. That further information is contained in a letter dated 16 October 2014, translated some days later. The letter has been placed before me and I have read it de bene esse. With some diffidence, Mr Henley has submitted that I should not receive this in evidence. He says that this material could have been before the District Judge. This information should have been before the District Judge and its introduction now would breach the approach laid down in Fenyvesi. Part of Mr Henley's diffidence in this submission derives from the fact that he seeks to introduce fresh evidence of his own. He draws the distinction between the Respondent, an official body with responsibilities to provide full information to the Court and possessed of no human rights within the meaning of the ECHR, and the position of his client, an individual who does possess Convention rights and in respect of whom the High Court has a continuing obligation to ensure that Convention rights are protected.
16. In reply on this point, and in support of his application that I should receive this information, Mr Gibbins submits that on a proper interpretation of the reasoning in Fenyvesi, this clarification should be received. This fresh evidence is capable of being "decisive". There is an explanation as to why the material was not made available before the District Judge. The decision in Lis was handed down by Blake J on the same day as the decision from DJ Purdy. He cannot have had it in mind. The most authoritative statement of the law on equivalence at the date when the District Judge gave his decision was Wars. That also would have been the understanding of the requesting judicial authority. In the light of the decision in Lis it would be appropriate for me to receive further information which may resolve the difficulty. In this context it is "material to consider whether or when the party knew the case he had to meet" within the language of paragraph 32 of Fenyvesi. Further, Mr Gibbins submits that I should receive this evidence because, aside from being decisive, it is also very short and very far indeed from requiring "a full re-hearing in this court" within the terms of paragraph 33 of Fenyvesi.
17. I have concluded that it is preferable that I should receive the explanatory evidence. The salient points can be very simply recorded. They are as set out in the letter follows:

"1. The expression in Section 3 of the European Arrest Warrant as "0.65 per mille" is in fact the concentration of 65mg of alcohol/100ml for blood and approximately 28.40mg/100ml for exhaled air.

2. The expression in Section 5 of the European Arrest Warrant as "1.7 per mille" is in fact the concentration of 170mg of alcohol/100ml for blood and approximately 74.40mg/100ml for exhaled air."

18. The effect of that information is perfectly clear. The first reading of blood alcohol means that the Appellant, on the relevant occasion, was below the prescribed maximum level of blood alcohol for driving in the United Kingdom. Not only is there no basis (following Lis) for concluding he was unfit through drink, but it is clear that this reading is not the equivalent of driving whilst above the prescribed limit.
19. Mr Gibbins argues that, even with that clarification, this conduct should be taken to be the equivalent of driving whilst unfit through drink. He argues that the analysis in Wars is to be preferred to that in Lis, and carries the greater weight of a decision of the Divisional Court. The term "intoxicated" is sufficient to indicate "unfitness" through drink, not merely that the driver has consumed, and is to some degree affected by, drink. That must be placed beside the level of alcohol consumed, as now clarified. Mr Gibbins also argued that the circumstances of the driving, as revealed by the Appellant's statement, should be taken into account. However, that argument falls away since I have declined to admit the statement.
20. With respect to Mr Gibbins, I reject these arguments. There is no necessary inference from the word "intoxication" as to the degree of intoxication or the extent of its effect.
21. Therefore I find this conduct is not equivalent to an offence in the United Kingdom. It offends against the dual criminality rule and the appeal must succeed in relation to this offence.
22. On the other hand, the explanation of the second drink driving offence makes it a clear equivalent of driving whilst above the prescribed limit for alcohol in the blood. The argument as to unfitness through drink falls away.

Dual Criminality: The "Taking and Driving" Charges

23. Mr Henley similarly argues that the "taking and driving" charges in the EAW also fail the dual criminality test. Here too he submits that the absence of argument below cannot preclude argument on an appeal, since the District Judge had the obligation of satisfying himself that the relevant charges pass the dual criminality test. Here too Mr Henley argues that the guidance of the Court of Appeal in Assange emphasises the requirement that the offence described in the EAW must specify conduct which will impel the inference of actions which amount to a criminal offence in the United Kingdom. I do not understand Mr Gibbins to disagree.
24. The second and fourth charges on the EAW are in similar but not identical terms. The essential words in charge 2 read:

"On 30 August … acting jointly and in concert with [two others] took for a short term use a car … by which he acted to the detriment of Rafal Sadowski."

The key words in the fourth charge read:

"On 31 August 2008 … he took for a short term use the car … then he abandoned the vehicle in a damaged condition… by which he acted to the detriment of Rafal Sadowski."

25. It is agreed that the equivalent offence in English law is that set out in Section 12 of the Theft Act 1968 which, in its salient parts, reads:

"(1) Subject to subsections (5) and (6) below, a person shall be guilty of an offence if, without having the consent of the owner or other lawful authority, he takes any conveyance for his own or another's use or, knowing that any conveyance has been taken without such authority, drives it or allows himself to be carried in or on it.

…

(6) A person does not commit an offence under this section by anything done in the belief that he has lawful authority to do it or that he would have the owner's consent if the owner knew of his doing it and the circumstances of it."

26. It is established law in England, in relation to the defence set out in Section 12(6), that it is for the Defendant to raise the issue of belief in consent by calling evidence or pointing to some evidence which tends to show that he held the necessary belief. Once the matter is raised by the defence in that way, the onus of proof lies on the prosecution (see R v MacPherson [1973] RTR 157 and R v Gannon [1987] 87 Cr App R 254).
27. The Appellant has made a statement concerning the events of these offences which I have read de bene esse. Without making a formal Fenyvesi application, Mr Henley invited me to take into account the contents of that statement in relation to this issue. Mr Gibbins submitted I should not. I have reached the view that I should not do so. No formal application was made and no argument put forward as to why such explanation in evidence could not have been laid before the District Judge. It seems to me that it could, and if relevant should. This material does not touch on the Appellant's Convention rights and does not engage the Court's continuing duty to have regard to the Appellant's Convention rights. Insofar as this material is relevant, if it were to be admitted it might well be necessary to test the material in cross-examination, a point made by Mr Gibbins. In any event, it would be most unlikely to be decisive, in my view.
28. The principal point made on behalf of the Appellant is that the recital of the ingredients of the offences in the EAW fails to mention whether Mr Sadowski consented to the taking or not. The language used "to his detriment" is said to be insufficient. Mr Henley argues that there are many hypothetical situations where a consensual taking of a vehicle will in fact be to the detriment of the owner. The vehicle taken with consent still deprives the owner of the use of the vehicle. It will often mean that the owner's fuel is used. Mere detriment does not imply lack of consent: the two concepts are discrete.
29. The written submissions from Mr Henley were delivered extremely late (and in breach of the directions). It is likely to be for that reason that Mr Gibbins' skeleton argument does not address any dual criminality argument in relation to the "taking and driving" offences. When drafting his initial skeleton Mr Gibbins was without any indication of what points would be taken. Even in his supplementary submissions of 27 October he understandably focussed on the "drink driving" charges which were the theme addressed fully by Mr Henley's written submissions dated 26 October. I repeat the point made more than once now in extradition proceedings: it is essential that parties comply with the directions given.
30. In his oral submissions, Mr Gibbins essentially makes three points. Firstly, he says that if Mr Henley's argument as to the meaning of "detriment" was right, then any lender of money, or any other object, including a motor vehicle, would suffer "detriment". He says this is an absurd use of language. Secondly, he says it is also absurd to think that the Polish offence could have been drafted or promulgated on such a basis, criminalising the loan of a car. Thirdly, the language of the warrant in each case makes it clear that it is the "taking" which is to the detriment of the owner, not the deprivation of use, or use of fuel or any consequential event.
31. It seems to me that Mr Gibbins is correct in these arguments. His third point is clearer from the language of the second charge, that relating to 30 August 2008: properly analysed, the language is "took … a car … by which he acted to the detriment of Rafal Sadowski". In the charge relating to 31 August 2008 the language is less clear, since there are two clauses reciting acts of the Appellant: firstly "he took … the car" and secondly "then he abandoned the vehicle in a damaged condition"; both clauses govern the consequences "by which he acted to the detriment of Rafal Sadowski". However, I take the view that the conduct described in the description of these offences carries a clear implication that the taking was without the consent of the owner. Without that clear implication the 30 August charge would be nonsensical. A consistent reading of the 31 August charge leads me to the same conclusion, since the second act of the Appellant seems to me to be an additional consideration. I am fortified in this interpretation by the "nature and legal classification of the offences" set out in the warrant. In each case, the nature and legal classification of the offence is recited as being "offence connected with annexation [emphasis added] of a motor vehicle for short term use as defined in Article 289, paragraph 1 of the penal code". The offence is thus the taking and not the consequences of the taking. The term "annexation" carries the clear implication of a lack of consent.

Interim Conclusion

32. It follows from the above that I will quash the decision of DJ Purdy and allow the appeal, at least to the extent that the third offence recited in the EAW fails the dual criminality test and there can be no extradition in relation to that offence. The test is passed in relation to the other offences.

Further Considerations

33. The Appellant does not seek to suggest that extradition should be refused on the grounds of passage of time, or on any point of validity of the EAW. He does submit that the Appellant's extradition would be disproportionate pursuant to Section 21A of the Extradition Act 2003 and that the extradition would be a disproportionate interference with his family's and his rights under Article 8 of the Convention.
34. The relevant part of Section 21A reads as follows:

"21A Person not convicted: human rights and proportionality

(1) If the judge is required to proceed under this section (by virtue of section 11), the judge must decide both of the following questions in respect of the extradition of the person ("D")—

(a) whether the extradition would be compatible with the Convention rights within the meaning of the Human Rights Act 1998;

(b) whether the extradition would be disproportionate.

(2) In deciding whether the extradition would be disproportionate, the judge must take into account the specified matters relating to proportionality (so far as the judge thinks it appropriate to do so); but the judge must not take any other matters into account.

(3) These are the specified matters relating to proportionality—

(a) the seriousness of the conduct alleged to constitute the extradition offence;

(b) the likely penalty that would be imposed if D was found guilty of the extradition offence;

(c) the possibility of the relevant foreign authorities taking measures that would be less coercive than the extradition of D.

(4) The judge must order D's discharge if the judge makes one or both of these decisions—

(a) that the extradition would not be compatible with the Convention rights;

(b) that the extradition would be disproportionate.

(5) The judge must order D to be extradited to the category 1 territory in which the warrant was issued if the judge makes both of these decisions—

(a) that the extradition would be compatible with the Convention rights;

(b) that the extradition would not be disproportionate."

35. The Lord Chief Justice has recently issued a Practice Direction now forming "Part 17A Extradition: General Matters and Management of the Appeal" within Part 17 of the Criminal Procedural Rules. Paragraph 17A.3 indicates that where conduct alleged falls into the categories in the table at 17A.5 then, unless there are exceptional circumstances, a judge should generally determine that extradition would be disproportionate. One of the categories of offending within the table is "minor road traffic, driving and related offences". The examples given are driving offences where no injury, loss or damage was incurred to any person or property. Here the driving with excess alcohol offence, and both of the taking and driving offences, clearly fall outside the description of that category, and are of a different nature from the examples given. The damage to the door would, on its own, be regarded as an offence within the category in the table described as "minor criminal damage". However, as paragraph 17A4 makes clear, one of the "exceptional circumstances" rendering it appropriate to order extradition in respect of such a minor offence is "extradition [is] also sought for another offence".
36. For those reasons it appears to me that it would be clearly proportionate within the meaning of Section 21A of the Act to order extradition. The conduct alleged is sufficiently serious to justify extradition within Section 21A(3).
37. I therefore turn to the claim under Article 8. Here I do admit and consider the evidence of the Appellant and his sister, Magdalena Grabowski, as to the family circumstances. Both the Appellant and his sister live in the Macclesfield area. They live about 15 minutes' journey away from each other. Neither have any other family in England, or indeed in Poland, able to give assistance. The Appellant has no children. His sister has a son, now 8 years old, born in May 2006. The Appellant's sister was diagnosed as HIV positive in 2007. Although she is in touch with her child's father, the father plays little or no active part in looking after his son. The Appellant, on the other hand, has a close relationship with his sister and nephew, helps the child with his homework, often collecting him from school and dropping him off at home. Mother and son rely on the Appellant a good deal. The Appellant's sister's health means that she tires easily and has a number of medical appointments and medical treatments. The Appellant is in work and gives money to his sister some of the time.
38. On that basis it is said by Mr Henley that extradition would have a sufficient impact on the family life of the Appellant, and in particular on the family life of his nephew, so as to amount to a breach of Article 8 Convention rights.
39. I bear fully in mind the relevant principles laid down in Norris v Government of the United States of America (No 2) [2010] UKSC 9, and in particular HH v Deputy Prosecutor of the Italian Republic, Genoa [2012] UKSC 25. I bear in mind that although the offences for which extradition is sought are significant offences, they are not of maximum severity, as were those considered in the leading cases I have quoted.
40. I accept that there is a reasonably close family life between the Appellant, his sister and his nephew and that they do depend upon him at least to some degree for emotional, practical and financial support. The principal concern here is the family life of the child J. I bear in mind that the child's mother is his principal carer, that there is contact, to some continuing degree, with his father and that he does not live with his uncle. Close as they are, extradition would not mean a break between parent and child. Having considered these specific facts with care, I conclude that it would not a breach of the Article 8 rights engaged to order extradition in this case. The strong public interest in honouring the obligations of the United Kingdom and maintaining mutual extradition arrangements mean that such an effect as will result on the family life of the Appellant, and his nephew J, would be proportionate.

Conclusions

41. I therefore quash the decision of DJ Purdy for the reasons given. I decline to order extradition in relation to the "drink driving offence" on 30 August 2008 but I do order extradition in relation to the other four offences.