Marcin Aleksander Grabowski v Regional Court in Wloclawek, Poland
| Jurisdiction | England & Wales |
| Judge | Mr Justice Irwin |
| Judgment Date | 06 November 2014 |
| Neutral Citation | [2014] EWHC 3602 (Admin) |
| Docket Number | Case No: CO/3921/2014 |
| Court | Queen's Bench Division (Administrative Court) |
| Date | 06 November 2014 |
[2014] EWHC 3602 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
Royal Courts of Justice
Strand, London, WC2A 2LL
Mr Justice Irwin
Case No: CO/3921/2014
Martin Henley (instructed by Guney, Clark & Ryan) for the Appellant
Brian Gibbins (instructed by CPS Extradition Unit) for the Defendant
Hearing dates: 29 October 2014
This is the appeal of Marcin Aleksander Grabowski against the decision of District Judge Purdy in the Westminster Magistrates' Court on 14 August 2014. The matter proceeded by way of an uncontested extradition hearing and the Appellant's extradition to Poland was ordered. No transcript of judgment was before me. The Court was informed that the Appellant was legally represented before the Magistrates' Court and that no evidence or argument was presented as to why he should not be extradited.
Background
The Appellant is 33 years old and is a Polish national.
It is alleged in the European Arrest Warrant that on 27 August 2008 the Appellant kicked the door of a florist's shop in Lipno, Poland, smashing the glass and causing damage work PLN420 (then worth £100.44). It is next alleged that on 30 August 2008 in Lochocin, Lipno Commune, the Appellant "acting jointly and in concert with [two others] took for a short term use a car, make Audi 80 … by which he acted to the detriment of Rafal Sadowski". The third charge is that on 30 August 2008 in Lochocin he "was driving a car, make Audi 80 … on the public road, while intoxicated about 0.65 per mille of alcohol level in the blood". The fourth offence alleged is that on 31 August 2008 in Lochocin "he took for a short term use the car, make Audi 80 … then he abandoned the vehicle in a damaged condition in the place of Bialowiezyn, Lipno Commune by which he acted to the detriment of Rafal Sadowski". The fifth, and last, offence is that on 31 August 2008, in Lochocin and Bialowiezyn "he was driving a car, make Audi 80 … on the public road, while intoxicated about 1,7 per mille of alcohol level in the blood".
Poland has been designated as a category 1 territory for the purposes of the Extradition Act 2003 ["the 2003 Act"] and the proceedings against the Appellant are regulated by that Act.
On 18 August 2009, the District Court in Lipno ordered the Appellant's pre-trial arrest. By then he was in England. On 9 June 2009, the Appellant pleaded guilty before the Huddersfield Magistrates to an offence of driving a motor vehicle with excess alcohol on 9 November 2008 and to further offences of driving without a driving licence and using a vehicle whilst uninsured. He was disqualified from driving for 22 months and fined.
The European Arrest Warrant was issued on 6 March 2014. On 4 June 2014 the Polish authorities notified the National Crime Agency ["NCA"] that the Appellant was wanted. Checks in early June indicated that the Appellant was likely to be in the UK and on 11 June a copy of the EAW was received from Poland. It was subsequently returned for non compliance with UK requirements on 25 June, but resubmitted on 7 July 2014 in amended form. It was certified by the NCA on the same day. The wording of the warrant in respect of each offence is as set out above.
On 13 August 2014 the Appellant was arrested and on the following day produced for the hearing before DJ Purdy. On the same day his extradition was ordered and he was admitted to conditional bail. Mr Henley for the Appellant seeks to make submissions and, indeed, introduce evidence not advanced before the District Judge. He says that the third and fifth offences, the "drink driving" offences, should be barred from extradition because they do not fulfil the dual criminality requirement in Sections 10 and 64 of the 2003 Act. That being a matter of which the District Judge was required to be satisfied, Mr Henley argues that the absence of objection at the time cannot debar him from appeal. He makes the same point, in essence, in relation to the offences of taking and using a car. Mr Henley further seeks to argue that the extradition would be disproportionate pursuant to Section 21A of the 2003 Act, and his position is that argument is open to him also, since the District Judge was required to be satisfied that extradition would not be disproportionate.
Mr Henley further seeks to argue that extradition would be disproportionate and a breach of the Appellant's rights under Article 8 of the European Convention of Human Rights. Here he seeks to introduce evidence which was not before the District Judge, a step which he submits is consistent with the approach of the courts laid down by the Divisional Court in Szombathely City Court and others, v Fenyvesi and another [2009] EWHC 231 (Admin).
The Dual Criminality Test: The Drink Driving Offences
Section 64 of the 2003 Act sets out the test by which court should decide whether a person's conduct constitutes an "extradition offence". The relevant part of the Section here is the wording in Section 64(3)(b), which reads:
"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."
It is trite law that this test is satisfied by an examination of the "conduct" concerned, not an examination of the "equivalent offence". See Norris v USA [2008] 1 AC 920.
The wording set out in the offences contained within Section E of the European Arrest Warrant, as quoted above, is conceded by the Respondent to be insufficient to prove to the criminal standard that, when he drove on those two occasions, the Appellant had exceeded the UK drink drive limit pursuant to Section 5 of the Road Traffic Act 1988. The particulars as there expressed do not satisfy any of the prescribed limits as defined in Section 11(2) of the Road Traffic Act 1988, which are respectively 35mg of alcohol in 100ml of breath, 80mg of alcohol in 100ml of blood or 107mg of alcohol in 100ml of urine. Hence the information on the face of the warrant cannot show that the conduct complained of would satisfy the dual criminality test in respect of the statutory limits of excess alcohol.
However, "drink drive" offences can be prosecuted in the United Kingdom under Section 4 of the Road Traffic Act 1988, where the relevant allegation is that the defendant was driving "whilst unfit through drink". A number of authorities have addressed whether wording in a European Arrest Warrant similar to this can satisfy the dual criminality test by establishing that the conduct could be prosecuted under Section 4 of the 1988 Act. In the case of R (Rozakmens) v Judicial Authority of Latvia [2010] EWHC 3500 (Admin), Ouseley J was concerned with an EAW where the allegation was "while being under the influence of alcoholic beverages" the appellant drove his car and when detained "the amount of alcohol in his breath …during first check was 0.71 per mille but, during second check, 0.75 per mille". In the course of submissions the Court was taken to the phrase in the statute "unfit to drive" and then to the decision of R v Hawkes (1931) 22 Cr App Rep 172. In that case the Court of Criminal Appeal confirmed that the relevant question for a jury considering this offence was whether "the appellant was under the influence of drink to such an extent as to be incapable of having proper control of the vehicle" (emphasis added). Ouseley J considered that for that reason an EAW which neither established a level of alcohol in the bloodstream beyond the level prescribed by English law, nor established the additional ingredient of unfitness to drive the vehicle could not pass the dual criminality test. On that ground the appeal against extradition succeeded.
In Wars v Lublin Provincial Court Poland [2011] EWHC 1958 (Admin) the Divisional Court was concerned with a similar problem. The relevant offence before that court was described as "driving a car … in a public road, while being in the state of inebriation/2.13%". The Court observed that unsuccessful attempts had been mounted "to clarify the meaning and the precise equivalent level in UK terms of the "2.13%" which appears in the warrant, but those efforts have been unsuccessful". The District Judge in that case had distinguished the case from Rozakmens on the basis that "the conduct complained of in this case was not driving under the influence of alcohol, but driving whilst in a state of inebriation, i.e. drunkenness. Thus the cases of Rozakmens and Hawkes which were, as the Senior District Judge pointed out, decided in the context of the different definition of "unfit to drive" then prevailing are not directly on the point in this case". The Divisional Court agreed. Extradition proceeded on that basis.
A similar problem arose before Blake J in the case of Thomasz Lis v Regional Court in Rzeszow, Poland [2014] EWHC 3226 (Admin). In that case the relevant EAW alleged that the Appellant was driving a car whilst "being intoxicated". Here again the requesting Authority argued that this was the equivalent of being unfit to drive through drink. Blake J analysed the earlier authority, including Hawkes, Rozakmens and Wars. His judgment continued as follows:
"23. It seems to me that the central question is whether the inference can be drawn from the facts revealed in the information before the District Judge and this court that the appellant was so under the influence of alcohol as to be unfit to drive. If it can, the dual criminality test is met; but it if cannot, it is not. As I understand the law, whilst...
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