District Court in Litomerice, Czech Replublic v Miroslav Kolman
| Jurisdiction | England & Wales |
| Judge | The Honourable Mr Justice Blake |
| Judgment Date | 24 February 2017 |
| Neutral Citation | [2017] EWHC 302 (Admin) |
| Docket Number | Case No: CO/4063/2016 |
| Court | Queen's Bench Division (Administrative Court) |
| Date | 24 February 2017 |
[2017] EWHC 302 (Admin)
The Honourable Mr Justice Blake
Case No: CO/4063/2016
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
Royal Courts of Justice
Strand, London, WC2A 2LL
Joel Smith (instructed by CPS Extradition Unit) for the Appellant
Emilie Pottle (instructed by Hayes Law) for the Respondent
Hearing dates: 15 February 2017
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."
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.
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.
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).
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.
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.
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."
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).
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.
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."
Grabowski v The Regional Court of Wloclawek, Poland [2014] EWHC 3602 (Admin) was 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.
In the case of Jankowski the District Court...
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Romanian Judicial Authority v Ionut-Victor Chelu
...has arisen, but the principles were helpfully set out by Blake J in District Court in Litomerice, Czech Republic v Miroslav Kolman [2017] EWHC 302 (Admin). In that case the level of the alcohol found in the blood of the requested person was expressed in the warrant as 1.52 grams per kilogr......