Marcinkowski v Polish Judicial Authority
| Jurisdiction | England & Wales |
| Judge | MR JUSTICE CALVERT SMITH |
| Judgment Date | 07 March 2012 |
| Neutral Citation | [2012] EWHC 753 (Admin) |
| Court | Queen's Bench Division (Administrative Court) |
| Docket Number | CO/973/2012 |
| Date | 07 March 2012 |
[2012] EWHC 753 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
THE ADMINISTRATIVE COURT
Royal Courts of Justice Strand
London WC2A 2LL
Mr Justice Calvert Smith
CO/973/2012
Mr M Henley (instructed by Gurney, Clark & Ryan) appeared on behalf of the Claimant
Ms K Tyler (instructed by the Crown Prosecution Service) appeared on behalf of the Defendant
This is a statutory appeal against an order of District Judge Arbuthnot sitting at Westminster Magistrates' Court for extradition of the appellant under a European Arrest Warrant. The order was made on 25 January 2012. The warrant was both a conviction and an accusation warrant. The conviction concerned an allegation of driving while disqualified, in particular that the appellant drove a motor vehicle on 14 April 2004 while disqualified and in a state of intoxication. The disqualification had been imposed in 2003. The sentence was one of 10 months' imprisonment imposed on 22 February 2005. The sentence was suspended but was ordered to be activated on 11 April 2007. The accusation warrant concerned another allegation of driving while disqualified, alleged to have taken place on 26 April 2006. In respect of both, the warrant was issued on 24 March 2010 and certified by the Serious and Organised Crime Agency on 30 June 2010. The appellant was arrested on 7 December 2011 and he was produced at court the following day and bailed.
At the hearing on 25 January the appellant submitted that his extradition should be barred on the basis that first, there was double jeopardy in respect of the accusation warrant in that he had already been fined in respect of that offence, and second, that so far as the conviction warrant was concerned there was insufficient particularity within the European Arrest Warrant. The District Judge ruled that no double jeopardy issue arose since the defendant himself gave evidence at the hearing. That the so-called fine had been in respect of not having with him his identity documents rather than in respect of the offence for which the accusation is now made. She also ruled that there was nothing in the particularity ground, since on the authority of Zbigniew Krzysztof Wars v Lublin Provincial Court, Poland [2011] EWHC 1958 (Admin), it is sufficient for the warrant to allege intoxication and that in any event the offence disclosed was an offence of driving while disqualified. For the purposes of this appeal, the appellant raises a new ground under Article 8 and repeats the second ground advanced below, although perhaps put in a slightly different way. The first argument has not been pursued before me.
So far as the conviction warrant offence is concerned, Mr Henley, who did not appear at the court below, submits that the conduct alleged in respect of this offence is described in such a way that it alleges conduct which is not an offence in this country and in fact alleges conduct which in this country might amount to two offences. Because it does so, for the warrant to be valid, he submits, the conduct in the warrant must amount to conduct which would amount to the commission of both the possible offences disclosed in the description of the offence. The warrant reads:
"On 14 April 2004 in Kielce, being intoxicated with alcohol (3.0% blood alcohol concentration), he was driving a passenger vehicle Fiat 170, registration mark KWI 40 CT, which was in contravention of the judgment of the Local Court in Konskie (Sad Rejonowy w Kinskich), Case No. VIK 275/03, in which he was proscribed to drive any motor vehicle for five years."
It is perfectly clear from that recital that under English criminal law such behaviour would be proceeded against, either as two offences, the one under section 4 of 5 the Road Traffic Act 1998, and the other under section 103 of the same Act of driving whilst disqualified. Or, albeit less likely, one or other would be charged and the evidence of the other would be adduced as aggravation in terms of sentencing in respect of whichever offence had been charged.
Mr Henley submits that it is far from clear that the second offence, that is to say the blood alcohol offence, has been made out since, first, if the contention is that the offence is one contrary to section 4 of the Road Traffic Offenders Act 1998, the "unfit to drive" section of the Act, it falls foul of the Court of Appeal decision in R v Hawkes 22 CAR 172, a decision of 1933, shortly after driving whilst unfit through alcohol became a criminal offence in this country. The correctness of Hawkes, it is submitted, has recently been confirmed by Ouseley J in the case of Rozakmens v Latvia [2010] EWHC 3500 (Admin) in which, albeit with some reluctance, the judge concluded that an offence of being unfit through drugs or alcohol required evidence of actual impairment rather than simply the proof of a particular concentration of alcohol in blood. However, it is right that decision has been followed by the decision in the case of Zbigniew Krzysztof Wars v Lublin Provincial Court, Poland [2011] EWHC 1958 (Admin). In that case the appellant was appealing an order for his extradition. The warrant was a conviction warrant and the offence was described as "driving a car in a public road while being in a state of inebriation/2.13%". The finding of the Senior District Judge, that the state of inebriation meant a state of drunkenness and therefore must involve unfitness to drive, was upheld by the Divisional Court, presided over by Aikens LJ, the judgment being given by Swift J.
Second, Mr Henley submits that if the contention is that the offence disclosed is one under section 5 of the Road Traffic Offenders Act 1998, that is to say what is commonly known as driving above the limit, there is no way of knowing whether the figures supplied in the warrant would or would not amount to an offence under that section in English law since there is no...
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