Jevgenijs Horkovs v Prosecutor General Office of Latvia
| Jurisdiction | England & Wales |
| Judge | Sir Stephen Silber |
| Judgment Date | 09 March 2015 |
| Neutral Citation | [2015] EWHC 1050 (Admin) |
| Docket Number | CO/308/2015 |
| Court | Queen's Bench Division (Administrative Court) |
| Date | 09 March 2015 |
[2015] EWHC 1050 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
Royal Courts of Justice
The Strand
London
WC2A 2LL
Sir Stephen Silber
CO/308/2015
Miss Florence Iveson (instructed by Kaim Todner) appeared on behalf of the Appellant
Miss Rosemary Davidson (instructed by CPS Extradition Unit) appeared on behalf of the Respondent
Monday 9 th March 2015
Jevgenijs Horkovs challenges the decision of District Judge Snow, sitting at the Westminster Magistrates' Court on 21 st January 2015, to order his extradition to Latvia pursuant to an Accusation European Arrest Warrant. The Warrant was issued by the Prosecutor's General Office in the Republic of Latvia on 22 nd August 2014 and certified in this country by the National Crime Agency on 14 th October 2014. It relates to three allegations: theft of a handbag from a motor vehicle, theft and criminal damage in relation to a bank card, and acquisition of a firearm and ammunition. All of the offences were committed on 25 th April 2009.
The appellant's grounds of appeal (as amended) are: first, that pursuant to sections 10 and 65(3) of the Extradition Act 2003, the third offence in the European Arrest Warrant, which related to the charge of acquisition of a firearm and ammunition, is not an extradition offence; second, that pursuant to section 21 of the Extradition Act, the appellant's extradition to Latvia would amount to a disproportionate interference with his rights to a private and family life, as set out in article 8 of the European Convention on Human Rights; and third, that extradition would be disproportionate, taking into account the factors set out in section 21A(3) of the Act.
The respondent's submissions are: first, that the conduct described in the warrant would, if it occurred in this jurisdiction, amount to an offence of possession of a firearm pursuant to the doctrine of joint possession, and therefore it is an extradition offence; second, that it is not disproportionate for extradition to be ordered in respect of firearms offences; and third, that the appellant's extradition would be a proportionate interference with the appellant's private life.
I start with a consideration of whether the firearms offence is an extradition offence. Under section 64(3) of the 2003 Act an offence is an 'extradition offence' if:
"(a) the conduct occurs in the category 1 territory;
(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;
(c) the conduct is punishable under the law of the category 1 territory with imprisonment or another form of detention for a term of 12 months or a greater punishment."
When he dealt with these points, the District Judge explained in paragraphs 11 and 12 of his ruling that he applied the conduct test; that the conduct alleged was that the appellant, with another, acquired a pistol and nine bullets contrary to section 233 of the Penal Code; and that he was satisfied so that he was sure that such conduct, together with the other conduct alleged, is an extradition offence. In reaching that conclusion he had taken note of the submission that the appellant was alleged to have been a lookout, and that there was no evidence that he had knowingly acquired a firearm or ammunition.
The case for the appellant, which has been ably advanced by Miss Florence Iveson, is that the District Judge erred in finding that a firearms offence satisfied the requirements of dual criminality. It was argued at first instance that the offence could not be possession of a firearm, since it is clear from the description of the offence that the appellant was never in possession of either the gun or the bullets.
In order to understand this submission, it is necessary to look at Box (e) of the Warrant which reads:
"(e) Offences:
This warrant relates to in total 3(three) offences.
Description of the circumstances in which the offence(s) was (were) committed, including the time, place and degree of participation in the offence(s) by the requested person;
The criminal charges are brought against Jevgenijs Horkovs, because he committed concealed stealing (theft) of movable property of another repeatedly in the group of persons pursuant to prior agreement from a vehicle (1), as well as committed theft and destruction of payment mean of another (2), as well as committed acquisition of the firearm and firearm ammunition without respective authorisation (3) in the following circumstances:
J Horkovs, being person who has already previously committed theft, repeatedly committed the criminal offence. On April 25, 2009 at about 14.30 J Horkovs in the group of persons pursuant to the prior agreement with another person with intention to commit concealed stealing of movable property of another, while passing the car of M Ujmans Audi-A8, plate number CA 7755, parked in Riga, at Siguldas prospekts 6, noticed man handbag inside of car, and then to him occurred the intention related with theft of that handbag.
Implementing the joint criminal intention and benefiting the situation when nobody is observing their actions J Horkovs and another person approached the abovementioned car and acting in co-ordinated manner pursuant to the prior agreement J Horkovs stayed in close proximity of the mentioned car with purpose to observe the surroundings, but another person pulled the car door at driver's side, opened it and entered into the car, and then clandestinely and in the group with J Horkovs stole the handbag of M Ujmans for amount of 70 LVL, wherein the following belongings:
— immobilizer for car Audi-A8, plate number CA 7755, for amount of 46 LVL,
— wallet for amount of 200 LVL,
— a/s 'Parex banka' credit card issued to M Ujmans,
— two a/s 'Norvik banka' credit cards issued by M Ujmans,
— document's wallet for amount 100 LVL,
— money 550 LVL,
— key with remote alarm control device for car 'Bentley', plate number FT 6366, for amount of 700 LVL,
— firearm – pistol Cz-82, calibre 9*18, suitable for shooting, for amount of 300 LVL,
— firearm ammunition – 8 bullets magazine, calibre 9* 18, price of one bullet 0.50 LVL, for total amount 4LVL,
— immobilizer for car 'Bentley', plate number FT 6366, for amount 300 LVL
and then another person together with J Horkovs left the spot of crime and went to forest, but to the victim M Ujmans was caused the pecuniary damage for total amount of 2270 LVL, and thereby they illegally acquired the firearm and ammunition.
While being in forest and handling with stolen belongings another persona and J Horkovs destroyed the stolen a/s 'Parex banka' credit card issued to M Ujmans and both a/s 'Norvik banka' credit cards issued to M Ujmans, but stolen money they shared between themselves."
Miss Iveson argues that, in the light of what is said there, the appellant was never in possession of either the gun or the bullets. She complains that the District Judge must have found that the conduct was acquiring the firearm/ammunition without a licence, contrary to section 1 of the Firearms Act 1968, which is an alternative offence to possession. However, she submits that the offence could not be "acquiring" a gun without a licence since "acquiring" is strictly defined in section 57 of the Act as "hire, accept as a gift, or borrow". She submits that this could not have been a case of possession of a firearm because it is a strict liability offence. She accepts that mistake as to whether an item is a firearm, or even lack of direct knowledge...
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Yolanda Shakilla Cleveland v The Government of the United States of America
...the warrant was insufficient to satisfy the requirement for dual criminality. 71 In Horkovs v Prosecutor General Office of Latvia [2015] EWHC 1050 (Admin) the warrant alleged that the appellant had acquired a firearm and ammunition. The issue was whether the conduct described was sufficien......