Edgars Veiss v Le Paelite Prosecutor General Office Republic of Latvia
| Jurisdiction | England & Wales |
| Judge | MR JUSTICE BEAN |
| Judgment Date | 25 July 2012 |
| Neutral Citation | [2012] EWHC 2460 (Admin) |
| Date | 25 July 2012 |
| Court | Queen's Bench Division (Administrative Court) |
| Docket Number | CO/8263/2011 |
[2012] EWHC 2460 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
THE ADMINISTRATIVE COURT
Royal Courts of Justice
Strand
London WC2A 2LL
Mr Justice Bean
CO/8263/2011
Mr M Henley (instructed by Sharma Law Solicitors, London SE18 5EF) appeared on behalf of the Claimant
Mr J Stansfeld (instructed by the CPS) appeared on behalf of the Defendant
Neither counsel appeared below
Edgars Veiss appeals against an order of District Judge Purdy, on 22 August 2011, that he be extradited to Latvia pursuant to a European arrest warrant dated 18 March 2011. The warrant specified two charges of which he had been convicted, and one of which he stands accused.
A number of points were taken in the notice of appeal, some of which have not been pursued before me. One, for example, was that the Prosecutor General's Office of the Republic of Latvia is not a judicial authority. That was disposed of by the decision of the Supreme Court in Assange v Sweden and Mr Henley, for the appellant, has not pursued it.
Another point was that a mixed warrant such as this one, including both an accusation offence and a conviction offence, is itself flawed. This argument was rejected by Lloyd-Jones J in Ciesielski v District Court in Kalisz, Poland [2011] EWHC 1503, and by Mitting J in Zacharski v Regional Court in Lublin, Poland [2011] EWHC 2386. Mr Henley appeared for Mr Zacharski and has been able to inform me that, while Mitting J certified that the mixed warrants issue was a point of law of public importance fit for the consideration of the Supreme Court, he refused leave in the usual way, and the Supreme Court itself has refused leave as well. In the light of that Mr Henley rightly did not feel able to pursue the point before me. Had he done so I would have rejected it following the decisions of Lloyd-Jones J and Mitting J.
The point which has been argued before me concerns the accusation offence only and involves the dual criminality requirement of section 4 of the Extradition Act 2003. It was not taken before the District Judge. Mr Stansfield argued, in reliance on the judgment of Sir John Thomas P in Koziel v Poland [2011] EWHC 3781 (Admin), that I should not allow it to be taken before me. But I consider that it would be wrong to prevent it from being raised on the merits in this court.
That is for two reasons. Firstly, I consider that the case of Hoholm v Norway [2009] EWHC 1513 (Admin) is a decision of the Divisional Court, binding on me, that this court should generally allow a point of law in an extradition case requiring no new evidence to be raised on appeal for the first time, certainly if it involves a tenable argument that the requirements of the statute (such as dual criminality) are not made out.
Secondly, in this case the point of law hinges, at least to some extent, on a relevant previous decision of this court, namely that of Ouseley J in Rozakmens v Latvia [2010] EWHC 3500 (Admin). If either advocate below had been aware of the decision in Rozakmens it would have been their professional duty to bring it to the attention of the District Judge. The duty to make the court aware of relevant case law lies as much on the advocate for the requesting State as on the advocate for the fugitive, all the more so where (as here)the previous case involved the same requesting State.
Mr Henley, who appeared in Rozakmens, would certainly have brought it to the attention of the District Judge in this case had he been there, but he was not there. He has told me, and I accept, that the solicitor who appeared for Mr Veiss below was unaware of the decision in Rozakmens, and I will make the same assumption in favour of the solicitor who represented the Latvian authorities.
Accordingly I have allowed the argument about dual criminality to be raised on its merits.
The conduct specified in the arrest warrant in relation to the accusation offence is, so far as material, as follows:
"Edgars Veiss operated a vehicle without a driving licence (the vehicle driving licence has not been acquired according to specific procedures) while being under the influence of alcohol, and namely:
on 11 June 2009 … Edgars Veiss operated the vehicle … without a driving licence which had not been acquired according to specific procedures, while being under the influence of alcohol, with alcohol concentration in breath 0.95%o, where he was stopped. By his actions Edgars Veiss committed the criminal offence provided for in Section 262 Paragraph 2 of the Criminal Law."
Later in the warrant section 262 of the Latvian Criminal Law is set out. Subsection (2) creates an offence of operating a vehicle under the influence of alcohol or drugs "where the defendant does not have a vehicle driving licence (the vehicle driving licence has not been acquired or taken away according to specific procedures)". Subsection (1) has the same offence, but without the aggravating feature of the driver having no licence. The subsection (1) offence involves repetition within a one-year period. Each of them carries a maximum sentence of two years.
To get one point out of the way: Mr Henley first submitted that the recital of the conduct of the warrant does not even make it clear that Mr Veiss is accused of driving the vehicle without a licence. This is because of the use of the words "without a driving licence which had not been acquired according to specific procedures". He submits that this does not make it clear whether Mr Veiss had no licence, or a licence which had somehow been inappropriately acquired. This is a point which was not only not raised before the District Judge, but was not in the notice of appeal, nor in the skeleton argument served in advance of the hearing, and I would therefore be extremely reluctant to allow it to be raised.
However, in any event, it seems to me to have no merit. The translation from the Latvian in the section of the warrant setting out the conduct is clearly a little inept on the face of it. It has one negative too many. It probably ought to say "without a driving licence which had been acquired according to specific procedures". I note that the text of the Latvian statute has the phrase "(the vehicle driving licence has not been acquired or taken away according to specific proceedings)" which makes it clear, as would be the position in this country, that the offence of driving without a valid driving licence is constituted either if the individual concerned has never had one, or if he has been disqualified from driving. The latter case of course involves another more serious offence, but it does involve driving without a valid licence. Anyhow I decline to allow this point to be raised: as I have indicated, I consider it to have no merit. I turn therefore to the points of substance.
In Rozakmens v Latvia Ouseley J had to consider the argument about dual criminality where the conduct alleged was that the appellant was driving his car in Latvia while being under the influence of alcoholic beverages (the amount of alcohol in his breath was said to be 0.71 per mille). That case concerned section 262(1) of the Latvian Criminal Law, rather than section 262(2), the aggravating factor of driving without a valid licence not being alleged.
Ouseley J accepted that the conduct alleged in the warrant did not correspond either to section 5 of the Road Traffic Act 1988, the breathalyser offence, nor to section 4, driving whilst unfit. As to section 5, he held that 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, and gave reasons, which I need not recite, for the conclusion that this was not clear.
I am not prepared to depart from that decision of Ouseley J and in the light of it Mr Stansfeld, for the Latvian authorities, accepted that it would not be appropriate for him in effect to give evidence as to how one should do the conversion of the Latvian measurements.
So far as section 4...
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