Jankowski v District Court Wroclaw (Poland)
| Jurisdiction | England & Wales |
| Judge | Lord Justice Simon,Mr Justice Flaux |
| Judgment Date | 10 March 2016 |
| Neutral Citation | [2016] EWHC 747 (Admin) |
| Docket Number | CO/4239/2015 |
| Court | Queen's Bench Division (Administrative Court) |
| Date | 10 March 2016 |
[2016] EWHC 747 (Admin)
Lord Justice Simon
Mr Justice Flaux
CO/4239/2015
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
THE ADMINISTRATIVE COURT
Royal Courts of Justice
Strand
London WC2A 2LL
Mr D Williams (instructed by JD Spicer Zeb) appeared on behalf of the Claimant
Ms F Iveson (instructed by Crown Prosecution Service) appeared on behalf of the Defendant
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.
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.
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.
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.
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."
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."
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 …"
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.
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.
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."
The letter also included a medical report that simply states:
"2.5‰ of alcohol was found in the submitted sample."
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...
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