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
		14 January 2015

1. SIR STEPHEN SILBER:
2. Introduction
3. Maciej Jaroszynski appeals against the decision of District Judge Purdy sitting at Westminster Magistrates' Court on 6 November 2014 ordering his extradition to Poland pursuant to an European Arrest Warrant issued by the Circuit Court in Torun, Poland on 23 August 2012. It was certified in this country by the Serious Organised Crime Agency on 14 February 2013.
4. The Appellant's surrender had been sought pursuant to a conviction warrant which relates to three separate convictions.
5. The first conviction occurred on 1 October 2009 when the Appellant committed an offence of drink driving for which he received a 9 month sentence of imprisonment conditionally suspended for 2 years. It was activated later.
6. The second conviction was on 10 and 13 November 2009, when the Appellant was convicted of two offences of drink driving. The court in Poland imposed a sentence of 1 year and 6 months' imprisonment conditionally suspended for 5 years. The Appellant has the entirety of that sentence to serve as it was activated on 1 March 2011.
7. The third conviction occurred on 19 February 2010 when the Appellant was convicted for assaulting two police officers and a sentence of 8 months' imprisonment conditionally suspended for 3 years was imposed. It has been activated and he has 7 months and 27 days left to serve. In total, the Appellant has 2 years 10 months and 27 days to serve.
8. He has six convictions in the United Kingdom for offences of theft and breaches of court orders imposed between 16 September 2011 and 29 July 2013. He has spent 6 months in custody in the United Kingdom.
9. The Appellant raises two grounds of appeal. The first relates to the first two offences of drink driving which it is said were not extradition offences as they did not constitute offences under English law and therefore cannot be subject to an extradition order.
10. The second ground is that extradition of the appellant to Poland is not a proportionate interference with the Appellant's right to a private and family life as well as interference with the rights of his partner, Jade Docherty, who is almost 19, and his daughter, S, who is 16 months old.
11. In essence, the Respondent says that the drink driving offences are extradition offences as the measurements provided by the Polish authorities demonstrate the Appellant's alcohol contents was above the drink driving limit in England and Wales.
12. It is also said that the District Judge was correct to order extradition because the public interest in his extradition is greater than the interference with the Appellant's private and family lives in the light of his fugitive status and his limited involvement in the family life since his remand in custody in July 2014.
13. The Decision of the District Judge
14. The matter was dealt with by the District Judge who gave detailed reasoning, but he was only dealing with the Article 8 point because the other point that the drink driving offences were not offences for which the appellant could be extradited was not raised below, but it obviously can be raised here.
15. The District Judge had the benefit of seeing the Appellant give evidence and being cross – examined. Also, he had the benefit of having the evidence of Jade Docherty and the evidence of a consultant doctor psychiatrist Dr Samuels who had dealt with the position of Jade Docherty. There was also Social Services material in front of him.
16. The District Judge made a number of findings. First, he was entirely satisfied so that he was sure that the Appellant left home actively intending to evade the recently activated prison sentence and so he was fugitive.
17. Second, he found that Jade Docherty was plainly a vulnerable person. He stressed that the intervention in her life of her stable sister, Stacey Ballantyne, who lived in Watford, was essential. He found that Jade Docherty had coped with the position since July 2014 without any support from the Appellant and is likely to continue to do so.
18. He noted that there was an allegation of delay. His conclusions were that Jade Docherty and S were in a stable environment. He concluded that the experts were confident of her ability to cope, even though she would have wanted the Appellant's emotional and practical support.
19. He concluded that it would be appropriate to grant the order for the extradition.
20. Were the drink driving offences were extradition offences?
21. The case for the Appellant is that there are no English equivalents to the drink driving offences contained in the European Arrest Warrants and therefore, on the face of them, they would not constitute any offences.
22. There were, as I indicated, three of those offences. Counsel for the appellant focuses on the offence which occurred on 10 November 2009 where the results were the lowest which were recorded; her reasoning, which was very sensible, was that if she were to lose on that point she would then also lose in respect of that point for the other drink driving offences.
23. She notes that it was stated that the Appellant had 0.57 grams of milligram in alcohol in breath. It is said by the Respondent, as I will seek to show, that that would be the equivalent of 57 milligrams in 100 millilitres of breath which would exceed the limit in England of 35.
24. In order to explain the context of this, it is necessary to consider the statutory provisions, starting with section 10 of the Extradition Act. Sub- section (2) says:

"Initial stage of extradition hearing

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

25. Section 65 of the Act defines an "extradition offence" in respect of a person who has been sentenced with sub- section (3) setting out the conditions that have to be satisfied before an offence or conduct can constitute an "extradition offence". Sub-

section (3) states a number of requirements, of which the relevant requirement is sub- section (b) which states that:

"The offence 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. It is common ground between counsel in deciding whether an offence is an "extradition offence" that the correct test was set out by the Appellate Committee of the House of Lords in Norris v United States of America [2008] UKHL 16 at paragraph 91 which states:

"The committee has reached the conclusion that the wider construction should prevail. In short, the conduct test should be applied consistently throughout the 2003 Act, the conduct relevant under Part 2 of the Act being that described in the documents constituting the request (the equivalent of the arrest warrant under Part 1), ignoring in both cases mere narrative background but taking account of such allegations as are relevant to the description of the corresponding United Kingdom offence. Had Mr Norris's appeal failed on the first issue the extradition order on count 1 would have stood."

27. The court is also entitled to make certain assumptions, because in Zak v Poland [2008] EWHC 470 (Admin) the Divisional Court stated:

"Thus, I would reject the submission that the requesting authority has to identify or specify in terms the relevant mens rea of the English offence. In my view, it is sufficient if it can be inferred by the court from the conduct that is spelled out in the warrant and further information. That seems to me to accord fully with the reasoning in Norris (the essential part of which I have quoted) and the decision in that case."

28. To substantiate her submission, Miss Bhatt relies on two other statutory provisions. First, section 206 of the Extradition Act which she says means that the burden of proof is on the judicial authority to show that this is an extradition offence and also that I have to be sure.
29. The other provision to which she drew my attention is section 5 of the Road Traffic Act which deals with the offence of "driving or being in charge of a motor vehicle with alcohol concentration above the prescribed limit":

"(1) If a person -

(b) drives or attempts to drive a motor vehicle on a road or other public place, or

(c) is in charge of a motor vehicle on a road or other public place, after consuming so much alcohol that the proportion of it in his breath, blood or urine exceeds the prescribed limit he is guilty of an offence."

30. Miss Bhatt then referred to the decision of Ouseley J in the case of Rozakmens v Latvia [2010] EWHC 3500 (Admin) in which he had to consider the argument about dual criminality where the conduct alleged was the Appellant was driving his car in Latvia while under the influence of beverages. The amount of alcohol on his breath was said to be "0.71" per mile.
31. Ouseley J accepted that the conduct alleged did not correspond either to section 5 of the Act,, which is the breathalyser offence, nor to section 4 of that Act which dealt with driving while unfit. Dealing with section 5, he held 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. .
32. The matter came up again in the case of Edgars Veiss v Le Paelite Prosecutor General Office Republic of Latvia [2012] EWHC 2460 which referred again to the case of Rozakmens which Bean J, as he then was, decided that he would follow.
33. In that case, the Appellant was charged with an offence of driving where the relevant particulars of the offence was that he was driving under the influence of alcohol as he had an alcohol concentration in breath of 0.95 per cent when he was stopped. The similarity between that case and the decision in Rozakmens is clear and he followed that decision.
34. More recently, in the case of Grabowski v Regional Court In Wloclawek, Poland [2014] EWHC 3602, the court had to deal with an offence which the judge concluded one of which was the clear equivalent of driving whilst above the prescribed limit for alcohol in the blood.
35. In that case, there was explanatory evidence explaining what the English equivalent was to the statement of the European Arrest Warrant of the amount of alcohol in blood and in the exhaled air. That, according to Irwin J indeed showed that so far as one of those offences was concerned it was the clear equivalent of driving whilst above the prescribed limit for alcohol in blood.
36. Thus, the issue that has to be determined in this case is whether and in what circumstances it is possible to convert what is said in a Polish offence into what would be an English offence.
37. It seems clear to me that I am able (if not obliged) to take judicial notice of what the conversion rates are between the different measurements. There are undisputed factors as to what they actually are.
38. The lowest reading of 10 November, which was as I indicated was 57 millilitres of alcohol in the breath, can be converted the Polish measurement in milligrams to micrograms being the English equivalent by multiplying it by a thousand. So the 0.57 milligrams of litre of alcohol in the exhaled breath becomes 570 English micrograms.
39. Similarly, it is possible to convert the Polish measurement of litres to the English equivalent of millilitres by dividing it by a thousand. So the position is that the 0.57 milligrams litres of alcohol in exhaled air converts into 57 micrograms in 100 millilitres of breath, which is substantially in excess of the English legal limit of 35 micrograms of alcohol in 100 millilitres of breath.
40. It therefore follows that this calculation shows that the offence committed on 10 November would indeed have constituted, in the words of section 65(3) of the Extradition Act, "an offence under the law of England and Wales".
41. Miss Bhatt with common sense has focused on this offence because she realistically accepted if she failed on her section 10 point on this offence, she would automatically fail on the other offences where the amounts concerned of alcohol in the appellant's breath were higher. The consequence of that is that the section 10 point fails.
42. The Article 8 Issue
43. . The law in respect of this is not in dispute at all. It can be derived from the leading authorities of Norris v Government of United States No 2 [2010] UKSC 9 and HH v Deputy Prosecutor of the Italian Republic, Genoa [2012] UKSC 25.
44. HH at paragraphs 9, 30 and 32 establishes that the question is always whether the interference with the private and family lives of the extraditee and other members of the family is outweighed by the public interest in extradition.
45. In addition as was made clear in HH by Baroness Hale at paragraph 9:

"There is a constant and weighty public interest in extradition: that people accused of crimes should be brought to trial; that people convicted of crimes should serve their sentences; that the United Kingdom should honour its treaty obligations to other countries; and that there should be no "safe havens" to which either can flee in the belief that they will not be sent back."

46. The weight to be attached to the public interest will vary and the delay since the offences were committed may diminish the weight to be attached to the public interest and increase the impact on private and family life as explained in HH at paragraph 8.
47. I also bear in mind that there has been no consideration of proportionality by the Polish courts before deciding to issue the European Arrest Warrant.
48. The Article 8 point is pursued by Miss Bhatt on the basis that the conclusion of the District Judge to which I have referred was wrong. She relies on the fact that Dr Samuels in his report of 12 September 2014 found that Miss Docherty's depression appeared to be perpetuated by ongoing uncertainty in relation to the future of her partner and concerns about the fact that if the Appellant were to be extradited she would be a sole carer. Dr Samuels noted that Miss Docherty regarded extradition as a significant loss which equated to the loss of her mother.
49. There is a report from Vasili Kapentantakis who accepted in the report of 10 October that if Miss Docherty became a single parent, a further parenting assessment was required. He believed it was likely to have an impact on her which was difficult to predict.
50. Miss Bhatt fortifies her point by referring to a witness statement of Miss Docherty which was put in today where she repeated that she suffered from depression. She does have her sister who has helped her a lot and they live together, but she pointed out that her sister has her own life and family and Social Services would like her to move separately.
51. She drew attention to the great unhappiness that she has had in her life with her uncles all dying when she was young, grandfather also dying when she was 8 and her mother dying when she was 11. Therefore, with her father not playing any part at all, she is desperately anxious the Appellant should be around. Miss Bhatt stresses that they together had a private life and if the Appellant were to be extradited, her quality of life and health would deteriorate even further. There has been a question of delay to which she referred as well.
52. To my mind, the starting point has to be the constant and weighty public interest in extradition proceedings so that the convicted person should be returned to serve their sentence and that the United Kingdom should honour its treaty obligations with the result there should not be any safe havens for convicts.
53. It is also noteworthy that the Appellant has to serve 2 years 10 months less the 6 months he has been in custody. So there is still over 2 and a quarter years outstanding, which in itself shows the seriousness of the offending.
54. It is also clear and not challenged that the Appellant was a fugitive. He left Poland knowing the criminal proceedings were outstanding.
55. It seems clear to me that even though the Appellant's surrender will cause hardship to him, Jade Docherty and their daughter, who is now about 16 months, the family's needs and particularly those of Jade are recognised by the Social Services and she will be supported by a multitude of family and Social Services.
56. The position that emerges is that although the extradition of the Appellant will have a serious effect on Jade Docherty and therefore on S, who will miss her father, this is not a case which gets anywhere close to reaching a case where the extradition could be held to be incompatible with the Article 8 rights of the Appellant, Jade Docherty and/or S.
57. I know this will be a great disappointment to the Appellant and to Jade Docherty, but at least she has the consolation of knowing that every point that could have been put forward has been argued with obvious skill and care by Miss Bhatt who has acted on her behalf.
58. But as I said, it is clear to me that this is a case in which the appeal must be dismissed and I therefore dismiss it.
59. Thank you very much indeed for your help.
60. MISS BHATT: My Lord, I wonder if I could raise just two queries.
61. In drafting the order, I wonder if I could volunteer myself so that an anonymity order in respect of the child could be - -
62. SIR STEPHEN SILBER: A what?
63. MISS BHATT: An anonymity order in respect of the child. I believe you named S. My understanding was that if a child is under 18, or 16 rather, that they should have their name - -
64. SIR STEPHEN SILBER: So what; you would like the child to be referred to as S?
65. MISS BHATT: If that is possible, my Lord.
66. SIR STEPHEN SILBER: Yes.
67. What is the other point?
68. MISS BHATT: Yes. My Lord, I appear in the Divisional Court on Tuesday and one of the arguments is the issue of the court carrying out translations. I think, my Lord, it would be helpful if the transcript of your judgment could be available by then. I think I ought to bring it to their attention. I am not sure - -
69. SIR STEPHEN SILBER: What is the case relating to?
70. MISS BHATT: The case will argue a section 20 conviction in absence, but there is a subsidiary point as to whether in that case District Judge Ikram was allowed or entitled to carry out - - I think ad hoc he carried out the calculations himself and decided that in fact it was an extradition offence.
71. SIR STEPHEN SILBER: Is it dealing with breathalysers?
72. MISS BHATT: My Lord, rather embarrassingly, it is my case, but I do not recall the exact - -
73. SIR STEPHEN SILBER: It would only be relevant if it was dealing with extradition. There is nothing I say that has any further effect on it. I do not think what I say is actually really taking the law any further. All I am doing is looking at what happened in Grabowski really.
74. MISS BHATT: My Lord, I only raise it as - -
75. SIR STEPHEN SILBER: I think the chance of me being able to correct it in time is pretty remote, I think, because they are a long way behind with transcribing. It normally takes about a week. But if I get it, I will do it as quickly as I can.
76. MISS BHATT: I am very grateful. Thank you.
77. SIR STEPHEN SILBER: If I do it and get it done in time, I will let you know.
78. MISS BHATT: Thank you.
79. SIR STEPHEN SILBER: Well, thank you both very much for a very interesting case which has been argued admirably by both sides. Thank you.