R Sas v Circuit Court in Zielona Gora
| Jurisdiction | England & Wales |
| Judge | Mr Justice King,MR JUSTICE KING |
| Judgment Date | 26 January 2015 |
| Neutral Citation | [2015] EWHC 648 (Admin) |
| Docket Number | CO/5175/2014 |
| Date | 26 January 2015 |
| Court | Queen's Bench Division (Administrative Court) |
[2015] EWHC 648 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
THE ADMINISTRATIVE COURT
Royal Courts of Justice
Strand
London WC2A 2LL
Mr Justice King
CO/5175/2014
CO/5173/2014
Miss Amelia Nice appeared on behalf of the Appellant Mrs Sas
Mr Nicholas Hearn appeared on behalf of the Appellant Mr Sas
Miss Saoirse Townshend appeared on behalf of the Respondent
This is an appeal by two appellants, Marek Sas (husband) and Boguslawa Sas (wife) against the decision of Senior District Judge Riddle on 4 November 2014 to order their extradition to Poland pursuant to a number of European arrest warrants ('EAW'). These proceedings are governed by Part I of the Extradition Act 2003. ('the Act').
EAW 1
In the case of Mrs Sas her extradition is being sought pursuant to only one EAW. There is a like EAW issued in respect of identical matters in the case of Mr Sas. This warrant has been known throughout these proceedings as EAW No 1. although separate ones have been issued in respect of each appellant. This warrant relates to an offence of obtaining credit by false representation committed on 11 July 2005. It is a conviction warrant. Mr Sas was sentenced to eight months' imprisonment and Mrs Sas to six months. This EAW in each case was issued on 23 January 2008 and certified by SOCA on 14 June 2013.
Mr Sas's extradition was in addition pursuant to three other warrants, known as EAW 2 and EAW 3.
EAW 2
EAW no. 2 is an accusation warrant. Mr SAS's extradition is sought for him to face prosecution on five offences.
EAW 3
EAW N0.3 is a conviction warrant in relation to four offences of fraud committed between 2000 and 2002. Mr SAS's extradition is sought to serve an outstanding sentence of one year six months and twenty-three days of a total sentence of 3 years 2 months.
Three grounds of appeal have been pursued before me. I proceed to give judgment now only in respect of two of them. I shall give judgment later on the Article 8 ground.
The requirement of dual criminality
As regards Mr Sas, he pursues a discrete ground of appeal in relation EAW 2, namely that one of the five offences in relation to which his extradition is sought is not an extradition offence within the meaning of the Act. It is common ground that if it is not, then the Appellant's discharge on this offence ought to have been ordered under section 10 of the Act.
The particulars of the offences are set out in Section E of the warrant. Of the five offences alleged, the first 4 are alleged to have occurred on the same day, 9 March 2006, and self evidently relate to the same occasion when Mr SAS's car was involved in an accident and was left at the scene.
The particulars of the first offence disclose conduct which would amount to an offence of perjury in this country. The allegation is that while being interviewed as a witness under a criminal liability caution under the Polish Penal Code Mr SAS testified untruthfully that his car had gone missing the day before from where he had parked it, 'whereas the truth had been he had driven this car to Legnica where he caused an accident and where he left the damaged car'. The particulars of the second offence was that 'on the night of the 9 of March 2006' he was driving an identified BMW motor car 'while in the state of drunkenness'. The particulars of offence number three alleges that he incited his son to make a false statement on 9 March 2006 that his car had been stolen while the particulars on number 4 alleges that he incited his son on 9 March 2006 to give false testimony to the police regarding the theft of his car. The particulars of offence number five alleges that he provided false information to a bank in order to obtain credit to purchase a car.
The ground of appeal now being pursued is that the particulars of the second offence, namely driving a motorcar ' in the state of drunkenness' do not disclose an 'extradition offence'.
For present purposes to be an extradition offence the conduct alleged must, amongst other things, satisfy the dual criminality test section 64 (3)(b) of the Act, namely:
(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 submission being made is that driving 'while in a state of drunkenness' does not amount to any offence in this jurisdiction.
There are only two potential equivalent offences. The first is the offence under section 5 of the Road traffic Act 1988 (driving with excess alcohol). However the Appellant submits that absent any particulars of any blood/alcohol reading or other measure, these particulars could not in themselves bring the conduct within an offence under section 5 which defines the offence by reference to driving with a concentration of alcohol in excess of a prescribed limit.
This submission must be right. Indeed Miss Townshend, on behalf of the judicial authority, does not dispute this part of the Appellant's submission. However she submits that this court can nonetheless safely conclude from the facts set out in the warrant, that the conduct alleged would amount to an offence under section 4 of the 1988 Act, namely driving while unfit to do so. Section 4 (5) of the 1988 Act provides:
"(5) For the purposes of this section, a person shall be taken to be unfit to drive if his ability to drive properly is for the time being impaired."
In Wars v Lublin Provincial Court Poland [2011] EWHC 1958, a Divisional Court of this Court (Lord Justice Aikens and Mrs Justice Swift) held that in a case where the allegation was that the appellant was driving a car on a public road 'while being in a state of inebriation', such particulars were sufficient to establish conduct amounting to an offence under Section 4. In that case the District Judge had had no doubt that if in this jurisdiction a court was satisfied that the defendant had been driving while 'inebriated' the inescapable conclusion would be that he was unfit to drive. In the earlier case of Rozakmens [2010] EWHC 3500 Admin, Ouseley J. when considering an alleged offence of "driving under the influence of alcohol" had had regard to the country's domestic criminal law jurisprudence to the effect that to establish the offence of driving when unfit, the prosecution had to prove not only the 'influence' of drink but that 'proper control of the vehicle was impaired' by the drink and had ruled that no conduct had been alleged in the warrant showing impairment or unfitness as opposed to influence.
In Wars the Divisional Court (Swift J. at paragraph 16) distinguished Rozakamens by taking the point that the conduct alleged in Wars was not driving under the 'influence' of alcohol but driving 'in a state of inebriation' 'i.e. drunkenness'. The Court (Swift J. at paragraph 17) accepted the proposition that driving whilst 'inebriated i.e. whilst drunk' 'inevitably' amounts to driving when unfit to drive and ruled therefore that the conduct alleged in the warrant did amount to conduct amounting to an offence under Section 4 and hence an extradition offence was made out:
"17 … I consider that the Senior District Judge was quite right in finding that, if a UK court were satisfied that a defendant had been driving whilst inebriated (i.e. whilst drunk) its conclusion would inevitably be that he was also unfit to drive and that section 65 (3) (b) of the Act was therefore satisfied."
In subsequent decisions of this court however Wars has not been followed. It was not followed by Irwin J. in Grabowski [2014] EWHC 3602 and nor by Blake J. in Lis [2014] EWHC 3226.
In Lis the particulars were that the appellant was driving a car "being intoxicated". At paragraph 22 Blake J. said he did not consider that there was any material difference between "intoxication" and "inebriation" for the purposes of deciding which two lines of authority to follow. At paragraph 23 he said that it seemed to him —
" … 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."
It was not sufficient in his judgment to establish 'being unfit to drive that one was under the influence of alcohol'. He continued in these terms:
" … one either needs to know how much alcohol was influencing the driver and draw the conclusion that the quantity was such as to indicate unfitness or one needs some evidence of the way the driver was behaving or of the driving or the degree of control … from which that conclusion can safely be drawn."
Reference was made by Blake J. to Assange [2011] EWHC 2849 Admin where this court applied the criminal standard of proof to the dual criminality test and said at paragraph 57:
" … the facts set out in the [warrant] must not merely enable the inference to be drawn that the Defendant did the acts alleged with the necessary mens rea. They must be such as to impel the inference that he did so; it must be the only reasonable inference to be drawn from the facts …"
At paragraph 28 Blake J. applying these principles determined that he could not conclude that the description of the conduct in the warrant, which was the only source of information, was sufficient to meet the double criminality test.
In this case Miss Townshend relies however not only...
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