Romanian Judicial Authority v Ionut-Victor Chelu
| Jurisdiction | England & Wales |
| Judge | Mr Justice Linden |
| Judgment Date | 07 March 2023 |
| Neutral Citation | [2023] EWHC 765 (Admin) |
| Docket Number | No. CO/1362/2022 |
| Court | Queen's Bench Division (Administrative Court) |
[2023] EWHC 765 (Admin)
Mr Justice Linden
No. CO/1362/2022
IN THE HIGH COURT OF JUSTICE
KING'S BENCH DIVISION
ADMINISTRATIVE COURT
Royal Courts of Justice
Mr D Ball (instructed by CPS Extradition) appeared on behalf of the Appellant.
Mr W Zalewski (instructed by AMI International) appeared on behalf of the Respondent.
The extradition of the respondent to this appeal, Mr Chelu, is sought pursuant to a conviction arrest warrant which was issued on 15 September 2021 and certified by the National Crime Agency on 23 November 2022. The warrant concerns two offences: the first, driving whilst disqualified on 9 November 2017; and the second, driving a vehicle whilst under the influence of alcohol or other substance on 16 March 2016. The respondent is required to serve an aggregate sentence of 10 months and 20 days' imprisonment in respect of both offences pursuant to an order of the Calafat Law Court which became final on 25 February 2021.
By a decision dated 12 April 2022, which was made after a hearing at the Westminster Magistrates' Court on 5 April 2022, District Judge Tempia ordered the extradition of Mr Chelu in respect of the first offence, but she ordered his discharge in respect of the second one on the grounds that it is not an extradition offence. This appeal concerns the decision to discharge Mr Chelu in respect of the second offence (“the drink driving offence”). Permission was granted by Ellenbogen J on 23 August 2022.
Mr Chelu has also appealed against the decision of the District Judge in respect of the first offence. That is case number CO/1327/2022. On 23 August 2022 Ellenbogen J refused permission on the papers on all of Mr Chelu's grounds of appeal, other than his challenge under Art.3 of the European Convention on Human Rights, which she stayed pending the decision of the Divisional Court in Marinescu & Ors v Judecatoria Neamt, Romania & Anor [2022] EWHC 2317 (Admin). Permission in relation to that ground was then refused by Heather Williams J on 29 November 2022. She directed that Mr Chelu's renewed application for permission to appeal be considered in the light of the decision in the present appeal given that one of his grounds, a challenge under s.17 of the Extradition Act 2003, will fall away in the event that the appeal by the Judicial Authority succeeds.
The issue in the Judicial Authority's appeal is a narrow one. Section 10(3) of the Extradition Act 2003 requires that the court must determine whether an offence specified in an arrest warrant is “an extradition offence” and, if it is not, must order that the requested person is discharged in respect of that offence. Section 65(3)(b) specifies that one of the conditions which must be satisfied if an offence is to be regarded as an extradition offence is that: “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 arrest warrant in the present case give the following particulars of the drink driving offence, that:
“Offence 2.
On 16/03/2016, at around 01.35 am, the defendant Chelu Ionut Victor drove in Bailesti Town, on Independentei street, the Opel Astra car with registration number DJ-92-FLP, being under the influence of alcohol.
The blood alcohol level resulting from the samples taken was 1.45 g/l pure alcohol in blood (first sample taken at 2100, respectively 1.30 g/1 pure alcohol in blood (second sample taken at 2210).”
The Judicial Authority accepts that on the evidence it cannot rely on the offence of driving or being in charge when under the influence of drink or drugs, contrary to s.4 of the Road Traffic Act 1988 as the comparable offence in this jurisdiction. But it contends that it can rely on the offence of driving or being in charge of a motor vehicle with alcohol concentration above the prescribed limit contrary to section 5 of the 1988 Act. This offence is committed when a person drives, or attempts to drive, or is in charge of, a motor vehicle on a road or other public place “after consuming so much alcohol that the proportion of it in his breath, blood or urine exceeds the prescribed limit, he is guilty of an offence.” Section 11 of the 1988 Act sets out the prescribed limits for the purposes of s.5 as follows:
“‘The prescribed limit’ means as the case may require –
(a) 35 microgrammes of alcohol in 100 millilitres of breath;
(b) 80 milligrammes of alcohol in 100 millilitres of blood, or
(c) 107 milligrammes of alcohol in 100 millilitres of urine.”
The question in this appeal is whether the District Judge was entitled to convert the grams per litre figure given in the arrest warrant to milligrams per millilitre so as to determine whether Mr Chelu would have been over the prescribed limit for blood/alcohol content for the purposes of s.5 of the 1988 Act had the facts arisen in this jurisdiction. The District Judge held that she was not entitled to do so, and the Judicial Authority contends that her decision on this point was wrong.
There are various cases in which this sort of issue has arisen, but the principles were helpfully set out by Blake J in District Court in Litomerice, Czech Republic v Miroslav Kolman [2017] EWHC 302 (Admin). In that case the level of the alcohol found in the blood of the requested person was expressed in the warrant as 1.52 grams per kilogram. At paras.17 and 18 Blake J said:
“17. It is common ground that where the information in the warrant contains all that is necessary to make a very simple arithmetical calculation by moving a decimal point across, it is open to the district judge to make that calculation; see the case of Podlas v Koszalin District Court (Poland) [2015] EWHC 908 (Admin) Divisional Court per Lord Justice Akins at [9]. It appears that judicial notice can be taken of how the metric system functions. Whilst finding no difficulty in that case, he accepted that a degree of caution is needed if the court makes its own calculations. Jankowski indicates that the degree of caution extends to finding the formula to make the calculation in another reported case.”
“18. In the present case however, it is not simply the question of moving the decimal point or making a simple calculation. The judge considering the case has also to acquire information about the viscosity of blood in order to make the calculation. That information was not contained in the warrant and the question is whether it can be supplied by the doctrine of judicial notice extended to making enquiries of reputable and authoritative sources.”
At paras.22 and 23 Blake J went on to say:
“22. Summarising the core principles to be found in this review of relevant cases and materials, it seems to me that judicial notice enables judges to convert measurements into metric form (pounds into kilos) and the various computations of micrograms, milligrams and kilograms....
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