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
		24/02/2017

The Honourable Mr Justice Blake:

1. On the 5 August 2016 District Judge McPhee discharged the respondent Mr Kolman, on one offence contained in a European Arrest Warrant issued in April 2016. This offence was described as endangering others under the influence of an addictive substance (alcohol). The particulars of the conduct given in box E are as follows:-

"On 5 September 2008 at 11:45 pm Miroslav Kolman was checked by the Metropolitan Police … whilst driving a motor vehicle …; he was driving the car despite the fact that he was not the holder of a driving licence and the breath test with the Drager device showed 1.51 per mille of alcohol, i.e. it has been proven that he had ethanol in his blood at the concentration of 1.52g/kg."

2. No issue arose below about the equivalent offence of driving whilst disqualified, but the judge was not satisfied that sufficient particulars had been provided to undertake a calculation to transpose the Czech reading of alcohol in the body into the English equivalent to ensure that it established an offence of driving over the limit permitted in England and Wales.
3. There had been a prior history in this case on the same point. On the 14 January 2016 District Judge Qureshi discharged Mr Kolman on an earlier arrest warrant for the same offence. At that stage, the particulars given in the warrant were limited to the reading of breath from the Drager device and did not include the words following 'alcohol' quoted above. Judge Qureshi considered that there was insufficient information to make the transposition.
4. Judge McPhee concluded that the words that had been added to the new European Arrest Warrant did not sufficiently clarify the matter. Indeed by referring to ethanol in his blood where the earlier part of the description refers to a breath test with a Drager device, the new words merely added to the confusion. The judge found that in any event the reference to 1.52g/ kg suffered the same difficulty for transposition as the 1.51 mille. He referred to the recent decision of the Divisional Court in the case of Jankowski v District Court Wroclaw (Poland) [2016] EWHC 747 (Admin).
5. This is an appeal by the requesting state from the judge's decision. In cogent submissions, Mr Smith for the requesting state acknowledges that it raises a new point not previously considered by the numerous authorities on the vexed question of transposition of excess alcohol in extradition cases. He submits that the doctrine of judicial notice should have required the District Judge to receive further information from which he could have performed the calculation that would have enabled him to compare the Czech sample in terms of grams per litre with the requirements of English law expressed in micrograms per millilitre.
6. It is common ground that to demonstrate that there is an extradition offence the requesting state needed to show that the conduct described in the warrant resulted in more than 80 milligrams of alcohol per 100 millilitres of blood, or in case of samples of breath or urine the other limits specified under the Road Traffic Act, 1988. It is equally common ground between the parties to this appeal that the words added to the 2016 warrant "i.e. it had been proven that he had ethanol in his blood at a concentration of 1.5 g/kg." was information that could and should have been relied on by the District Judge to indicate that a blood analysis had been made, despite the earlier reference to the breath test.
7. Mr Smith contends that conversion of grams of alcohol per kilogram of blood into milligrams per 100 millilitres of blood is an arithmetical exercise but acknowledges that in order to perform the arithmetical calculation the specific gravity of blood is required to be known as it is different from the specific gravity of water. It seems that at the hearing before him the requesting state had provided an extract from a book called Medical Physiology: Principles for Clinical Medicine, fourth edition by Rodney A Rhoades and David R Bell. The extract indicates as follows:-

"Density is defined as mass per unit volume and relative density with respect to water is called specific gravity. The specific gravity of pure water is 1.0003/mL and that for whole blood is approximately 1.050g/ml. The exact value depends on the number of blood cells present and the composition of the plasma. In venous blood it is slightly higher when a person is standing compared to sitting. The density of blood plasma is approximately 1.025g/mL. The density of individual blood cells varies according to cell types and ranges from 1.115 to 1.070g/mL. "

8. It is then contended that if this information had been accepted the calculation could have been made in the following way:

i. 1.51 grams per kilogram is 1510 milligrams per kilogram.

ii. A litre of blood weighs 1.050 kilograms.

iii. A kilogram of blood is therefore 0.95238 litres (to the nearest five decimal places).

iv. 1510 milligrams multiplied by 0.95328 litres = 1438.09524 (to the nearest five decimal places).

v. The concentration of alcohol in Kolman's blood was therefore 1438.09524 milligrams per litre.

vi. This amounts to 143.80952 milligrams per 100 millilitres (to the nearest five decimal places).

9. For present purposes the problem of transposition of calculation of volume of alcohol in blood or other bodily measurements for the purposes of the European Arrest Warrant go back to the case of Rozakmens v Latvia [2010] EWHC 3500 (Admin) decision of Mr Justice Ouseley. In that case the warrant was expressed in terms of findings on a Lion Portable device for alcohol checking. They were 0.71 per milli up to 0.75 per milli. It was the appellant's contention that that was insufficient information to enable a court to conclude whether the UK limit had been exceeded. That proposition was accepted and accordingly examination was given to the offence of driving and being in charge when under the influence of drink or drugs. It was concluded that such a route was not available in the light of the earlier decision of R v Hawks 22 Crim App R 172 stating that the prosecution had to prove not only driving under the influence of drunk but that the proper control of the vehicle was impaired by drink.
10. The authority of Rozakmens was followed by Mr Justice Bean in Edgars Veiss The Prosecutor General Office for the Republic of Latvia [2012] EWHC 2460 (Admin) a decision given on 25 July 2012. At paragraph 15 his Lordship noted that in the light of the decision of Mr Justice Ouseley it was common ground that it was :

"not the appropriate for counsel in effect to give evidence as to how one can do the conversion of the Latvian measurements."

11. Grabowski v The Regional Court of Wloclawek, Poland [2014] EWHC 3602 (Adminwas decided by Mr Justice Irwin who followed this line of authority. However, he had before him further information from the Polish State to the effect that:

"the expression in Section 3 of the European Arrest Warrant as "0.65 per mille" is in fact the concentration of 65mg of alcohol/100 millilitres of blood and approximately 28.50 milligrams/100 millilitres of exhaled air."

There was another reading of 1.7 per milli which gave a reading of 170 milligrams of alcohol to a 100 millilitres of blood. On that information Irwin J was able to conclude that in the first sample the measurement was below the minimum required in the UK law but in the second the limit was comfortably exceeded.

12. In the case of Jankowski the District Court Wroclaw (Poland) [2016] EWHC 747 (Admin) a Divisional Court considered whether a district judge was entitled to have regard to the information given in Grabowski to complete the evidential picture and remove any ambiguity as to the information given in the European Arrest Warrant. Lord Justice Simon giving the judgement of the court said as follows:

"While I can see why the District Judge relied on the evidence given in Grabowski.. , 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 authorities as to the meaning of the figures in the EAW. In my view, the matter could have not only been made clear by evidence, it should have been made clear by evidence from the judicial authorities. The judicial authority was given the opportunity to clarify the significance of the figures in the EAW and failed to do so.

In the absence of such clarifying evidence, I do not accept that the finding of fact in one case can definitely be read across to another case as was done here. On the contrary, there is a high judicial authority that the circumstances 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 18^th Edition 3-20 in the speech of Lord Wright in which all the members of the House of Lords agreed, in Lazard Brothers & Co v Midland Bank [1932]AC 297 to 298. The strictness of this rule is reflected in the criminal context Archbold 2016 edition at 10-61."

13. The edition of Archbold at the same paragraph states as follows:

"Courts may take judicial notice of matters which are so notorious or clearly established or susceptible of demonstration by reference to a readily obtainable and authoritative source that evidence of their existence is unnecessary… When a Court takes judicial notice of a fact it finds …that the fact exists although its existence is not established by evidence."

14. In my judgment, the authorities make it clear that:

i) This is not an issue in which evidence was unnecessary; on the contrary evidence was necessary to prove the equivalent offence.

ii) Such evidence could not be proved by judicial notice acquired by referring to another case where the relevant facts have been proved, although mathematical calculations are unlikely to vary from case to another.

iii) Nor could it be proved by reliance on calculations performed by counsel.

15. Krajewski v Poland [2016] EWHC 3241 (Admin) is the most recent case on the topic. Mr Justice Collins observed at [7]–[9] that there was no direct evidence which established the proper basis upon which the transposition exercise can be carried out and the translation made. He decided to follow the state of the law declared by the Divisional Court that had been convened for the purpose of determining it. Despite recognising that in the case of Lazard Brothers (cited in Jankowski) there was indeed a dispute of expert evidence whereas in this class of case there was none, he said as follows:

"In fact it will not be necessary for more to be done than the correct basis of translating Polish levels into our levels to be stated which can then be put before the court routinely in all cases. The same approach can apply to other countries. I gather there is a slight difference even in approaching it on a basis of mille because in some other countries viscosity (if that is the right word) of blood as compared to water is taken into account. There may thus be albeit a relatively marginal difference when one translates. It depends upon the precise basis in each country. But for the future, in order to avoid wasting time and money which has resulted in the exercise that has been carried out in so many cases, and in this one too, that evidence should be obtained and used in the way that I've indicated. It would not be difficult and it would avoid all these problems."

16. It maybe that the reference to viscosity was introduced because Mr Smith who appears in the present appeal also appeared for the requesting state in Krajewski and had alerted Mr Justice Collins to the existence of this appeal.
17. It is common ground that where the information in the warrant contains all that is necessary to make a very simple arithmetical calculation by moving a decimal point across, it is open to the district judge to make that calculation; see the case of Podlas v Koszalin District Court (Poland) [2015] EWHC 908 (Admin) Divisional Court per Lord Justice Akins at [9]. It appears that judicial notice can be taken of how the metric system functions. Whilst finding no difficulty in that case, he accepted that a degree of caution is needed if the court makes its own calculations. Jankowski indicates that the degree of caution extends to finding the formula to make the calculation in another reported case.
18. In the present case however, it is not simply the question of moving the decimal point or making a simple calculation. The judge considering the case has also to acquire information about the viscosity of blood in order to make the calculation. That information was not contained in the warrant and the question is whether it can be supplied by the doctrine of judicial notice extended to making enquiries of reputable and authorative sources.
19. Phipson at paragraph 3-02 states as follows:

"Courts will take judicial notice of the various matters enumerated below. They fall into two broad categories. First, the concept covers matters being so notorious or clearly established or susceptible of demonstration by reference to a readily obtainable and authoritative source that evidence of their existence is unnecessary. Some factors are so notorious or so well established that to the knowledge of the court they may be accepted without further enquiry. Others may be noticed after enquiry such as after referring to works or reference or other reliable and acceptable sources. Judicial notice can save time and cost and promote consistency in decision making. Such matters do not require to be pleaded"

Elsewhere it was emphasised that the threshold for judicial notice is strict. At paragraph 3–17 numerous examples are given of facts that are notorious such as the standards of weight and measure.

20. One recent example of the doctrine cited by Phipson was Dosoruth v State of Mauritius [2004] UKPC 51 where Lord Hope said,

"Judicial notice could of course be taken of the fact that 21 December 1991 was a Saturday. It was not open to the Appellant Court to deal with the appeal on the basis that it was within judicial knowledge that the bank of the district council's offices was open that afternoon. This was because, as the Supreme Court has explained, such a fact is neither notorious nor beyond serious dispute although of common knowledge in Mauritius. In other words this is a fact that had to be established by evidence."

21. Historically the doctrine of judicial notice has been employed to supplement the law and save time where there are obvious facts incapable of dispute. There are strict limits to its reach and in the modern world when evidence is required on an uncontroversial topic it is usually supplied by the making of admission or receiving documentary hearsay rather than making use of the principle of judicial notice after investigation.
22. Summarising the core principles to be found in this review of relevant cases and materials, it seems to me that judicial notice enables judges to convert measurements into metric form (pounds into kilos) and the various computations of micrograms, milligrams and kilograms. These facts are so notorious as not to require proof. If a judge needed reminding of how the calculation is performed it is permissible to use a calculator or a conversion table in a diary or almanac.
23. This is not a case however limited to simple calculations and relationship between litres and millilitres, milligrams and kilograms. It also requires expert information about the viscosity of blood. This is not a notorious fact. There may be slight differences in viscosity in different circumstances. In the present case the differences would be immaterial but in a borderline case they may not be. It is a fact of a different kind that needs to be proved or admitted.
24. There is no reference to the text book by the District Judge in his ruling. At its highest, the doctrine of judicial notice suggested that there was a discretion to make further enquiry to establish any notorious fact. I do not consider that the judge was bound to admit such a document in this class of case given the body of learning to which reference has been made.
25. Whilst it might be convenient to receive further information in order for the court to make the calculation clear, that cannot be the decisive consideration, otherwise the information supplied by the Polish authorities in the case of Grabowski could have been absorbed by the doctrine of judicial notice but this development was rejected in Jankowski. It is not now contended that this approach is possible and I am not asked to depart from that decision.
26. District Judges in the City of Westminster Magistrates Court have a great many things to do in the hearing of cases under the EAW system including balancing and weighting competing factors in respect of Article 8 and examination of other statutory bars to extradition. In my judgment they should not also need to become part-time experts in bio-chemistry.
27. The solution to the problem has been repeatedly indicated by the courts of the United Kingdom that the information should be provided by the requesting state in the European Arrest Warrant itself. Where it has not been, possibly because when the warrant was issued it was not contemplated that the question would arise in the United Kingdom or other common law jurisdictions which use the methods identified in the Road Traffic Act, the certifying authority in the United Kingdom can readily identify when the UK court may require supplementary information, obtain it and provide as further information as was the case in Grabowski.
28. In my judgment, this is a more principled and consistent approach to be applied across the jurisdiction. It does not depend on the mathematical and medico-chemical skills of the judge or the foresight of counsel in bringing expert textbooks to court. It covers the marginal as well as the obvious case and the requested person can know what the position is before the hearing begins rather than in the course of it.
29. Despite Mr Smith's helpful and persuasive submissions, I therefore conclude that the judge was right to reach the conclusion to which he came. Accordingly this appeal is dismissed.