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
		10 March 2016

LORD JUSTICE SIMON:

1. This is an appeal against the decision of District Judge Snow made on 1 September 2015 at Westminster Magistrates' Court to extradite the appellant in respect of a conviction European Arrest Warrant ("EAW") issued by the District Court in Wroclaw, Poland. The EAW was issued on 2 November 2011 and certified by the National Crime Agency on 18 November 2015. The EAW was issued in relation to the appellant's conviction for an offence of driving with excess alcohol, and it sought his return to serve the remaining portion of a sentence of one year's imprisonment imposed on 1 April 2014. Box F of the EAW notes that the appellant was originally given a suspended sentence of two years, and that the sentence was activated in part because he did not report to prison and a subsequent search for him was unsuccessful.
2. The district judge was faced with three arguments as to why the appellant should not be extradited. The first argument was a formal complaint that there was non-compliance with the information requirement set out in section 2(6)(c) of the Extradition Act 2003. That argument was not pursued before the district judge and nothing further need be said about it.
3. The third argument, founded on section 21 of the Extradition Act, was that the extradition was incompatible with the appellant's rights under Article 8 of the European Convention on Human Rights. The judge considered this argument and the facts upon which it was founded at paragraphs 19 to 29 of his decision, and concluded at paragraph 31 that it was not disproportionate to order the appellant's extradition on human rights grounds. Permission to appeal against this finding was refused.
4. It is the second argument that is raised on this appeal. The appellant argued before the district judge that he could not be satisfied that the offence specified in the EAW was an extradition offence, and must consequently order his discharge. Poland is a category 1 territory and therefore part 1 of the Act applies. Section 10 applies to part 1 cases and section 10(2) requires that the judge decide whether the offence specified in the part 1 warrant is an extradition offence. If he decides that it is not, then under section 10(2) he must order the requested person's discharge.
5. Section 65 defines an extradition offence in the case of a person who has been sentenced:

"(1)This section sets out whether a person's conduct constitutes an 'extradition offence' for the purposes of this part in the case where the person-

(a) has been convicted in a category 1 territory of an offence constituted by the conduct; and

(b) has been sentenced for the offence.

(2) The conduct constitutes an extradition offence in relation to the category 1 territory if the conditions in subsections (3), (4) or (5) are satisfied."

6. On this appeal, the relevant section is subsection (3)(b):

"(3) The conditions in this subsection are that ...

(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."

7. The argument before the district judge and on this appeal is whether the conduct described in the warrant constituted an offence under the laws of England and Wales, and at the centre of the argument is the articulation of what can now be understood as the blood alcohol content of the sample taken from the appellant. Box E of the EAW described the offence as being committed on 31 January 2004:

" ... while being under the influence of alcohol -- BAC at 0.25 per cent -- he drove a truck ... "

8. Although the English translation is expressed in this way, the Polish original has 2.5‰. It is common ground that the simple symbol ‰ means "per mille" or "pro mille"; in other words, it is an expression of a part per thousand in contrast to a percentage figure, which is a part per hundred. It is therefore clear that 0.25 per cent is the equivalent of 2.5‰. However, that of itself does not make clear what this is a measurement of.
9. In order for there to be an extradition offence, whether under section 4 of the Road Traffic Act 1988, driving when under the influence, or sections 5, driving with an alcohol concentration above the prescribed limit, the reading of alcohol in the blood would have to be 80 milligrammes or more of alcohol in 100 millilitres of blood; see section 11(2)(b) of the Road Traffic Act.
10. It seems to have been accepted before the district judge that he could not simply treat the figure of 2.5‰ as a figure of milligrammes of alcohol per millilitres of blood. In any event, the district judge's ruling records that he adjourned the hearing so as to allow the Judicial Authority to clarify the reading. The authority replied in a letter of 8 June 2015 that the appellant:

"Was in the state of insobriety, 2.5‰ in his blood."

11. The letter also included a medical report that simply states:

"2.5‰ of alcohol was found in the submitted sample."

12. The respondent, by Ms Iveson, invited the judge to carry out a calculation based on the common ground that ‰ represented one part in a thousand. She submitted that 1‰ was the equivalent of 1 gramme of alcohol per litre of blood, so that 2.5‰ was the equivalent of 2.5 grammes per litre blood, and as the district judge expressed it at paragraph 12 of his ruling:

"If both figures are divided by 100, it established that the requested person had 250 milligrammes of alcohol in 100 millilitres of blood. The legal limit in England is 80 milligrammes of alcohol in 100 millilitres of blood."

13. Mr Williams for the appellant challenged this approach, submitting that there was no proper basis for the assertion of 1‰ equalled 1 milligramme of alcohol in 100 millilitres of blood. In short, he submitted there was no evidence as to what the figure of 2.5 related to. A unit value related to blood was required. The respondent referred the district judge to the decision of the Administrative Court in Grabowski v Regional Court of Wloclawek, Poland [2014] EWHC 3602 (Admin), a case in which the Judicial Authority had provided further information which was admitted by the High Court, to the effect that the expression of 0.60 per mille was in fact a calculation of 65 milligrammes of alcohol to 100 millilitres of blood, and that 1.7 per mille was in fact a concentration of 170 milligrammes to 100 millilitres of blood.
14. At paragraph 16 of the ruling, the district judge concluded:

"The decision in the case would have been aided by a simple statement from the Judicial Authority as to the meaning of the figure."

15. I would add that that is entirely right. This matter need never have got any further if the Judicial Authority had explained clearly what the calculation was by reference to the test for an extradition offence. He continued:

"However, I am satisfied that I can rely on the information provided by the Judicial Authority in Grabowski. It would be so extraordinary for the unit value to mean different things in different parts of the same country, and I am satisfied that I can properly discount the possibility. I am satisfied that the reading in this country would be 250 milligrammes in 100 millilitres of blood. I am certain so that I am sure that the offence is an extradition offence within the meaning of section 10 and section 65(3) of the Extradition Act."

16. It is against that conclusion that the appellant appeals with the permission of the single judge, who took the view that the question of whether a legal authority, Grabowski, could be relied on for a proposition of fact rather than law was properly arguable.
17. On this appeal, Mr Williams for the appellant submitted in his skeleton argument that the court had repeatedly made clear that it is for the requesting state to provide the information which enables the Magistrates' Court to determine whether the EAW relates to an extradition offence, and it is not for a district judge to extrapolate or second guess from information which is inadequate for the purposes; see for example Rozakmens v Latvia [2010] EWHC 3500, Ouseley J, and Edgars Veiss v Le Paelite Prosecutor General Office Republic of Latvia [2012] EWHC 2460, Bean J.
18. He accepted that it is open to the court to ask for further information to clarify an ambiguity in an European Arrest Warrant; see for example Dabas v Spain [2007] UKHL 6 at 49. That had been done in the present case. However, the letter of 8 June 2015 had provided no evidential basis for determining that this was an extradition offence. It was for this reason that the district judge had been driven, at the urgings of the respondent, to rely on the factual findings in Grabowski. However, he submitted that it was not open to take judicial notice of evidence in another case of how the figure per mille should be related to a figure per millilitre of blood.
19. Ms Iveson for the respondent submitted that the further information given in the letter of 8 June 2015 made clear that the measurement of 2.5‰ related to blood alcohol levels and that the district judge was entitled to rely on the further information which was provided in Grabowski, to the effect that 1.7 per mille was in fact a concentration of 170 milligrammes of alcohol per 100 millilitres of blood. It followed that he was entitled to conclude that 2.5 per mille was a concentration of 250 milligrammes of alcohol per 100 millilitres of blood, well above the domestic limit. As she put it in paragraph 44 of her skeleton argument:

"It is submitted that the learned judge could be satisfied to the criminal standard that the offence met the dual criminality requirement, based on the information before him in the instant case and the further information provided in the case of Grabowski."

20. In Grabowski the requesting state provided, albeit not until the hearing of the appeal, evidence that:

"1. The expression in section 3 of the European Arrest Warrant as '0.65 per mille' is in fact the concentration of 65 milligrammes of alcohol/100 millilitres of blood ...

2. The expression in section 5 of the European Arrest Warrant as '1.7 per mille' is in fact the concentration of 170 milligrammes of alcohol/100 millilitres of blood (see paragraph 17 in Grabowski)."

21. That enabled the court in that case to conclude that the first reading was below the limit provided in section 11 the Road Traffic Act and therefore not an extradition offence, and that the second reading was above the limit and therefore it could be satisfied that the dual criminality test was met and the offence constituted an extradition offence.
22. While I can see why the district judge relied on the evidence given in Grabowski to fill in the gaps in the EAW in this case, I am quite clear that it was impermissible to do so. As the district judge observed, the matter could have been made clear by a simple statement from the Judicial Authority as to the meaning of the figures in the EAW. In my view, the matter not only could have been made clear by evidence, it should have been made clear by evidence from the Judicial Authority. The Judicial Authority was given the opportunity to clarify the significance of the figures in the EAW and failed to do so.
23. In the absence of such clarifying evidence, I do not accept that findings of fact in one case can legitimately be read across to another case as was done here. On the contrary, there is high judicial authority that the circumstance that a fact has been proved in one case does not enable the court to take judicial notice of it in another case; see Phipson on Evidence 18th Edition 3-20 and the speech of Lord Wright, with which all other members of the House of Lords agreed, in Lazard Brothers & Co v Midland Bank [1933] AC 289 at 297-298. The strictness of this rule is reflected in the criminal context in Archbold 2016 edition at 10-61.
24. This is not a case in which evidence was unnecessary; on the contrary, evidence was necessary and could not be found by referring to another case or cases where the facts had been proved. To this extent, I disagree with the approach of Sir Stephen Silber in Jaroszynski v Polish Judicial Authority [2015] EWHC 335 (Admin) at paragraph 33.
25. I should add that Ms Iveson made a late application for the matter to be adjourned so that confirmation could be obtained from the requesting state. In my judgment, that application was made much too late and I would refuse it.
26. For these reasons, I would allow the appeal under section 26(3)(a) of the Extradition Act, quash the order of the appellant's extradition and order his discharge.

MR JUSTICE FLAUX: I agree.