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
		17th August 2017

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SIR ROSS CRANSTON:

Introduction

1. This is an appeal against a decision of District Judge Ezzat, dated 17^th February 2017, to order the appellant's extradition to Hungary pursuant to five European Arrest Warrants. I note that the proceedings have involved some delay. Partly, that was because two of the five warrants were withdrawn and then replaced.
2. The appeal before this court concerns two of those five warrants: the first warrant and the fourth warrant.

The warrants

3. EAW 1 was issued on 22^nd June 2016 by the District Court of Pápa, Hungary and certified by the National Crime Agency on 9^th August 2016. It is an accusation warrant. It seeks the surrender of the appellant to prosecute him for a number of offences. The warrant states at box B that it was based on a domestic arrest warrant. Box C then states that the maximum length of custodial sentence which may be imposed is up to five years.
4. It then has three indents. The first refers to a theft on one count committed in respect of a "greater value in a business-like manner (as a habitual offence)" in contravention of s.316(1) of the Criminal Code qualified by virtue of ss.(b) and (c) of s.316(2). The second indent refers to three counts committed in respect of an offence of "minor value in a business-like manner (as a habitual offence)" and "on one count continuously" contravening s.316(1) and qualified by virtue of s.316(2c) to (f). The third indent refers to felony on one count committed in respect of a "smaller value in a business-like manner (as a habitual offence)" contravening s.316(1) and qualified by virtue of s.316(4)(b/1) and s.316(2).
5. Box E of the warrant then states that the indictment covers seven offences but "the qualification refers to only five". Box E continues and sets out five particulars of offending, numbered 1, 2, 3, 4 and 7. The first is that over several days in January 2011 the appellant acted as a lookout while others stole batches of cables from inside a site. The value is given in Hungarian currency, but the equivalent value in sterling is over £2,000. The second set of particulars is that in March 2011 the appellant entered a back yard surrounded by fences and stole "two parts of an extension". The equivalent value is stated at some £14.50. The third particulars refer to a theft in the summer of 2011 when the appellant climbed through fences into a back yard and stole two wheels, two batteries and three parts of catalysts to the value of some £245. The fourth particulars refer to the appellant in the summer of 2011 climbing through fences and entering a back yard and stealing a 40-metre extension, brass cable and aluminium, to the equivalent value of some £90. What is numbered seven in terms of particulars refers to offending in March and April 2012 where the appellant and others climbed into a plot and stole construction waste worth approximately £40.
6. The fourth European Arrest Warrant, the other warrant subject to appeal in this case, was issued on 23^rd June 2016 by the Szombathely District Court. It was certified by the National Crime Agency on 7^th July 2016. Again, it is an accusation warrant and it seeks the appellant to prosecute him for a number of thefts from three shops: a Tesco store, a Penny Market store and a Lidl store. That offending is said to have occurred between 7^th and 18^th September 2014. I shall return to the details of that warrant shortly.
7. The remaining grounds of appeal in summary are, firstly, that the first European Arrest Warrant contains insufficient particulars of the accusation and maximum sentence, and there is confusion about the number of offences and the corresponding maximum sentences for each offence. In relation to EAW 4, the ground of appeal is that there are insufficient particulars of the accusation and sentence, again due to confusion about the applicable number of offences and the corresponding maximum sentences.
8. When the district judge considered these matters and whether these warrants fell short of the requirements of s.2 of the Extradition Act 2003, in relation to the first European Arrest Warrant he concluded in short form, considering the text as a whole, that there were sufficient details about the offences so as to satisfy the requirements under s.2(4c). The number of offences contained in the warrant was, it is said, five, and those five offences have maximum sentences of two years' imprisonment:

"If I am wrong about that, the offences will carry a maximum sentence of five years. Irrespective of which figure is correct I remain satisfied that the offences are extradition offences."

9. In relation to EAW 4, he said that there was no challenge to that warrant and proceeded to order extradition in relation to it.

The first warrant

10. Ms Westcott submits in relation to the first warrant that it is ambiguous as to the number of offences included and as to the corresponding maximum sentences. She refers to box C, to which I have referred, in particular the second indent which she contends identifies four offences, making six in total. She also submits that it is not clear that the maximum penalty is five years for each offence, whether there be five, six or seven offences, in light of the provisions of Hungarian law set out in the warrant. Article 360 of the Hungarian Criminal Code makes reference to lower maximum sentences: two years and three years, with the value of the theft being one of the relevant factors. In all, she submits that it is, as she puts it in her written submission, necessary to engage in "impermissible guesswork" about fundamental aspects of the warrant, and that the district judge was incorrect in concluding without giving adequate reasons, in particular as to the maximum sentences which this appellant faces.
11. In my view, the first European Arrest Warrant is understandable in the light of Article 360 of the Hungarian Criminal Code, to which I will return in a moment. The warrant states clearly that the maximum sentence is five years' imprisonment in box C, and that to me, as I will explain in a moment, is correct. Box E states clearly that there are five – not six, not seven – offences. It states that there are seven offences on the indictment but only five of these qualify for extradition, and that seems to be clear enough. The particulars are then given for five offences, reinforcing the point that the warrant deals with five offences.
12. Box E sets out the text of Article 360 of the Hungarian Criminal Code, theft. Article 360(1) defines theft in a way which would be familiar to lawyers in many jurisdictions. As an aside, we know from the fourth EAW that Article 360 was the article governing theft under the previous version of the Hungarian Criminal Code. Under the new version, to which EAW 4 relates, theft is now dealt with under Article 370 of the new version of the Code.
13. To return to Article 360, the translation we have is clunky, and understanding is hampered by the right-hand side of the warrant being missing in transmission. For the Judicial Authority, Ms Brown has explained that the Crown Prosecution Service sought on several occasions to obtain the full version of the English translation of the warrant, but that was not forthcoming. In my view, this is quite unacceptable behaviour on the part of a Judicial Authority, albeit that mutual respect must be accorded.
14. However, it is clear enough to me that box E, when read along with box C, evidences that Article 360 of the then version of the Hungarian Criminal Code divided theft into four categories (using the terminology in our translation): theft involving considerable value, theft involving greater value, theft involving smaller value and theft involving minor value. The value determines the maximum penalty, in some cases the minimum penalty. First, Article 316(5a) states that the punishment for theft of considerable value things is from one to five years. That article does not arise in our case.
15. Secondly, Article 316(4) states that greater value theft attracts a sentence of up to three years but Article 316(5b) adds that the punishment shall be one to five years if "the theft committed in respect of a greater value is committed in the manner defined by subsection (2), paragraph (a) to (d)". Subarticles (2a) to (d) are thefts which are committed (a) as part of a criminal conspiracy; (b) at the scene of public danger; (c) in a business-like or commercial manner as a habitual offence; and (d) with violence against a thing, including where theft protection (I imagine, for example, an alarm) is disabled. In other words, the maximum punishment for theft of greater value is escalated to five years if these aggravating features are evident.
16. Thirdly, as regards theft of smaller value things, Article 316(2) specifies a sentence of up to two years. However, Article 316(4b) states that the maximum sentence is up to three years if smaller value theft is committed (1) in a manner defined in Article 316(2a) to (d), which I just referred to; (2) the thing is a museum piece, in other words a cultural object; (3) it involves a religious object; (4) if it is an object in memory of the dead, in a cemetery or a burial site; and (5) it involves precious metals, alloys or objects subject to a metal-trade permit.
17. Finally, for minor value thefts Article 316(2) provides for a punishment of up to two years if committed in the four ways I have already referred to in Article 316(a) to (d), but additionally committed in the various additional ways set out in Article 316(e) to (i), for example by entering property by deception.
18. To my mind, all this makes sense. Article 316 set out in the warrant is clear about the categories of theft, how the maximum punishment for each may be escalated by aggravating features, and in some cases a minimum sentence also triggered by aggravating features.
19. In EAW 1 in this case, box C sets out the different counts and where they fall in terms of categorisation. The second indent refers to three counts of a minor value theft, and the phrase which I referred to earlier, namely "and on one count continuously", is in my view simply one of those three counts which is aggravated in an additional manner from the other two counts of minor value theft. As I have said, box E is clear that there are five offences, and, marrying the different parts of the warrant together, it seems to me clear that the first set of particulars involve a greater value theft, that particulars for 2, 4 and 7 involve a minor value theft, and 3 involves considerable value theft.
20. Albeit that the district judge's reasoning was truncated, it seems to me what the EAW provides makes clear to the appellant what offences he is accused of and what the maximum penalty in relation to each of those five offences the Hungarian court can impose.

EAW 4

21. EAW 4, however, is less easy to understand. Box E of the warrant states at the outset:

"This warrant relates to in total: 1-1 offence on one count, respectively."

It then sets out under (i), (ii) and (iii) particulars in relation to conduct on a considerable number of occasions, possibly seven on one count. I note at this point that the particulars are clear. However, box E then continues as follows:

"The felony of theft on one count involving a minor value and committed continuously as a habitual offence on a commercial scale as a co-principle (CC s.370(1); CC ss.(ba) of item (b) of s.370(2).

The misdemeanour of theft on one count committed partly as a co-principle on a commercial scale and involving a petty offence value (CC s.370(1); ss.(bb) of item (b) of s.370(2)."

It then goes on to set out s.370 of the new version of the Hungarian Criminal Code.

22. The Hungarian Judicial Authority provided further information dated 21^st September 2016 in relation to this fourth warrant. It stated that the offences brought against the appellant were as follows:

"Committing theft on a single count in breach of s.370(1) and (3) b and ba of the Hungarian Criminal Code where the theft involved a minor value, was committed in criminal association with accomplices, on a commercial scale and on multiple counts, classified as a misdemeanour;

Committing theft on two counts in breach of s.370(1) and (2) b and bb of the Hungarian Criminal Code specified at a value below 50,000 HUF, committed on a commercial scale and partly in criminal association with accomplices."

In other words, the further information states that the appellant is wanted in relation to three offences. It also states that in relation to one of those counts, the accusation is that the offending is not committed under s.370(1) and (2b) and (ba), but rather is s.370(1) and (3b) and (ba) of the Code.

23. In submitting that the warrant satisfies the provisions of s.2, Ms Brown contends that the further information makes quite clear that there are three separate counts involved; that the further information can be taken into account in providing the necessary clarity; that earlier, the warrant had made clear at box C what the maximum sentences were; and that the correction as to the provision of the Code for one count in the further information was not a wholesale change in the nature of the warrant. In her submission, it was possible that that typographical error could be corrected and that it did not undermine anything else in the warrant. This appellant in reading the particulars could well understand what he was accused of in relation to this thieving spree. All the requirements of the Act were met and his specialty rights would be protected in that the Judicial Authority could not add any further offences.
24. In Di Benedetto v Court of Palermo, Italy [2017] EWHC 1392 (Admin), Irwin LJ, in giving a judgment of both himself and Sweeney J, examined, inter alia, the extent to which it was possible to supplement information in a warrant through the provision of further information. At para.75 he said:

"The question in a given case whether the Court is faced with lacunae or a wholesale failure to provide the necessary particulars can only be decided on the specific facts."

25. In my view, this warrant, given its own particular facts, fails to meet the requirements of s.2. The indication in box C is that the maximum sentences are "2 years; 3 years". By itself, that does not indicate with any finality the number of offences being charged, although it might suggest that there is more than one.
26. Turning to box E, however, as I have said, it is said at the very outset and boldly that there is a total of "1-1 offence on one count" being dealt with in the warrant. Albeit that the detailed particulars of what I have described as a thieving spree are then set out numbered 1, 2 and 3, the warrant then goes on to state that there is a felony of theft on one count involving a minor value under 370(1)(ba) of item (b) and a misdemeanour of theft on one count involving a petty offence of 370(1), 370(2)(bb) of item (b); in other words, that there are two counts.
27. I accept Ms Brown's submission that it was up to the Hungarians to charge the particulars in the way that they choose and we must respect the different approaches to charging and different approaches to procedure operating in different jurisdictions; but doing the best I can, I cannot see how the three offences identified in the further information match with the details of the warrant as I have described it. Moreover, the felony on one count involving a minor theft is being charged according to the warrant under 370(2); the further information seeks to change that to 370(3). By itself that might not be fatal, but coupled with what I regard as the other defects in the warrant, I have concluded that this warrant is defective. The district judge was not called upon to address these issues which have been agitated before me and cannot be criticised for coming to a contrary conclusion.
28. Nonetheless, I allow the appeal in relation to EAW 4.

MS WESTCOTT: Your Lordship, just as a point of fact, he was asked to make a decision on EAW 4 in exactly the terms argued, and that's why that information was before him. He simply incorrectly recorded that it wasn't in issue. That's why I was looking at my learned friend earlier to check that she was in agreement, but we were both there at first instance.

SIR ROSS CRANSTON: I will correct the transcript in relation to that.

MS WESTCOTT: Unfortunately he did not hand down his judgment, otherwise we would have brought that up before him and asked him to correct it.

SIR ROSS CRANSTON: Yes, all right. But it obviously does not affect what I have said. Anything more on that, then?

MS WESTCOTT: I am most grateful, my Lord. If it assists Mr Milne, we can draft the order.

SIR ROSS CRANSTON: Yes, please. I am sure it will. Thank you very much.