Milas Bodas v Tampova District Court, Czech Republic

JurisdictionEngland & Wales
JudgeMr Justice Cranston
Judgment Date30 January 2015
Neutral Citation[2015] EWHC 436 (Admin)
Date30 January 2015
CourtQueen's Bench Division (Administrative Court)
Docket NumberCO/5359/2014

[2015] EWHC 436 (Admin)

IN THE HIGH COURT OF JUSTICE

QUEEN'S BENCH DIVISION

THE ADMINISTRATIVE COURT

Royal Courts of Justice

Strand

London WC2A 2LL

Before:

Mr Justice Cranston

CO/5359/2014

Between:
Milas Bodas
Appellant
and
Tampova District Court, Czech Republic
Respondent

Mr David Williams (instructed by Dalton Holmes Gray) appeared on behalf of the Appellant

Mr James Stansfeld (instructed by the CPS Extradition Unit) appeared on behalf of the Respondent

Mr Justice Cranston
1

This is an appeal against a decision of District Judge Goldspring made on 14 November 2014 at the Westminster Magistrates' Court. The district judge ordered the appellant's extradition to the Czech Republic under a conviction European Arrest Warrant. That had been issued by the District Court in Most on 4 July 2014 and was certified by the National Crime Agency on 18 August 2014. The warrant seeks the appellant's extradition to serve a sentence of imprisonment for 12 months in respect of the two offences of forcible entry into a dwelling house and theft. Those offences were committed in November 2012.

2

The warrant reads that the appellant, together with another, person:

"… by opening the kitchen window placed 2.5 metres above the ground they entered the flat [of the owner] … and took away a woman's ring from white gold … five pieces of silver jewellery … 75 pieces of fashion jewellery … an Acer notebook … a camera … a mobile phone … a wallet … personal documents … In total they caused damage amounting to 24080 CZK."

The warrant at box E then goes on to refer to theft under section 205 of the Czech criminal code and to forcible entry under section 178. Those provisions are set out in the warrant along with other related provisions.

3

Mr Williams, on behalf of the appellant, contends that the entry offence is not an extradition offence as required by sections 10 and 65 of the Extradition Act 2003 ("the 2003 Act"). Mr Williams's submission to the district judge was that the entry offence is no more than trespass, which is not an extradition offence under the 2003 Act because it is not an offence in English law and thus does not satisfy dual criminality (required as not being on the Framework list). In response, the district judge said that the warrant should be read as a whole. If read as a whole, the conduct described in the warrant clearly equated to burglary:

"… it is a matter for the requesting state to decide which of their domestic offences are made out and whether it was one or two separate offences, as long as the conduct disclosed in the warrant satisfies the dual criminality test.

… I am impelled to conclude that the EAW discloses both the actus reus and mens rea for the offence of burglary in this jurisdiction and therefore meets the test for dual criminality in so far as the conduct disclosed in the whole of the warrant is a sufficient description of a burglary."

4

Mr Williams contends that the district judge's approach is flawed. He contends that the conditions in section 65(3) should be satisfied for each offence contained in a Part 1 conviction warrant. Section 65 (3) provides:

(3) The conditions in this subsection are that—

(a) …

(b) the conduct would constitute an offence under the law of the relevant part of the United Kingdom;

(c) a sentence of imprisonment or another form of detention for a term of 4 months or a greater punishment has been imposed in the category 1 territory in respect of the conduct.

5

In other words, Mr Williams's submission is that the statute requires that in conviction cases a different approach be adopted to that adopted in the authorities from United Norris v States of America [2008] 1 AC 920 onwards, which was the analysis used by the district judge in looking at the offending as a whole. In respect to entry, no offence is made out on the warrant. There is no description that the window was forced, and it is possible from the description that the requested person may have been a mere trespasser when first going through it. There is nothing from which mens rea can be inferred.

6

Mr Williams submits that his approach is supported by policy reasons as well. With accusation cases, a requesting state as a matter of policy should have greater discretion,...

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