Rozakmens v Judicial Authority of Latvia
| Jurisdiction | England & Wales |
| Judge | MR JUSTICE OUSELEY |
| Judgment Date | 20 December 2010 |
| Neutral Citation | [2010] EWHC 3500 (Admin) |
| Court | Queen's Bench Division (Administrative Court) |
| Docket Number | CO/9005/2010 |
| Date | 20 December 2010 |
[2010] EWHC 3500 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
THE ADMINISTRATIVE COURT
Before: Mr Justice Ouseley
CO/9005/2010
Mr M Henley appeared on behalf of the Claimant
Miss M Westcott appeared on behalf of the Defendant
MR JUSTICE OUSELEY: This case concerns two European Arrest Warrants, pursuant to which the appellant was arrested on 11 January 2010. The hearings were the subject of adjournments on a variety of occasions but, on 20 August 2010, District Judge Evans having heard the evidence and full submissions, refused a defence application for a further adjournment and ordered extradition on both warrants.
The first warrant gives rise to an issue of dual criminality. It alleges, so far as material, that, on 18 April 2004, the appellant "while being under the influence of alcoholic beverages" was driving his car in Latvia where he was detained:
"The amount of alcohol in his breath, when checked with portable device for alcohol checking Lion SD —400, during first check was 0.71 per mille but, during second check, 0.75 per mille".
The relevant provision of the criminal law of the Republic of Latvia is section 262, "driving of a vehicle while under the influence of alcoholic beverages …". The next part of the warrant says this:
"For a person who commits driving of a vehicle … while under the influence of alcoholic beverages … if commission thereof is repeated within a one year period, the applicable sentence is deprivation of liberty for a term not exceeding 1 year …".
Latvian law imposes a maximum penalty of a 1 year term where the offence, which I have quoted from the European Arrest Warrant, is repeated within 1 year. The warrant refers to a preceding occasion, some 8 months earlier, where a similar allegation was made in relation to driving while under the influence of alcohol.
The debate before the district judge took the form of a discussion, at least on the part of the defendant, as to whether the limit on the amount of alcohol in breath was equivalent to or lower than the United Kingdom limit, and more particularly, whether the quantity of alcohol recorded exceeded that in section 5 of the Road Traffic Act 1988 as being the limit for the United Kingdom. The district judge performed a number of calculations in order to come to the conclusion that the amount of alcohol in the defendant's breath, as alleged in the warrant, exceeded the United Kingdom limit. He concluded that it was just over twice the legal limit in England and Wales and, accordingly, was satisfied that the conduct alleged in that warrant would have constituted an offence in England had it been committed here.
It is said by Mr Henley, on behalf of the appellant, that the provision of section 262 is an offence equivalent to section 5, in that it makes it an offence to drive with alcohol above a prescribed limit, but that prescribed limit is lower than that in the United Kingdom and there is no evidence which satisfactorily would enable a court to conclude on the figures that the amount of alcohol which the appellant had in his breath exceeded the UK limit.
Miss Westcott, for the respondents, accepts that she is not seeking to demonstrate, and cannot demonstrate, dual criminality on the basis of the figures. She submits that the offence in the first arrest warrant is one of driving while under the influence of alcohol and that the conduct would involve the commission of an offence under section 4 of the Road Traffic Act 1988. She draws attention to the heading to that section:
"Driving or being in charge when under influence of drink or drugs".
However, as Mr Henley points out, subsection 1, which is the offence creating provision, says:
"A person, who when driving or attempting to drive … a vehicle on a road … is unfit to drive through drink or drugs, is guilty of an offence".
He points to the words "unfit to drive". He cites the decision in R v Hawks 22 Crim App R 172, a decision of 1931, and, benefiting from the shortness of reasoning common in those days, that the prosecution must prove not only the influence of drink but also that proper control of the vehicle is impaired by drink. That can be shown by evidence of the manner of driving, or the physical condition of the driver, or the proportion of alcohol in a specimen of breath, blood or urine, or perhaps medical evidence. The important point is the submission that not all driving whilst under the influence of alcohol is driving while unfit for the purposes of section 4, at least on the authority of Hawks.
Miss Westcott submits that it is inevitable that if someone drives under the influence of drink he is driving whilst unfit to do so. I have a great deal of sympathy with that submission. Indeed, were it not for the decision of Court of Criminal Appeal in 1931 I would have regarded it as obvious. However, that decision appears to have stood the test of time; I have been shown no decision which qualifies its wisdom and I am bound by it. It follows, therefore, that, insofar as the conduct asserted in the warrant could satisfy the requirement of dual criminality by reference to section 4, it has to be shown that there was impairment or unfitness rather than simply influence. There is no conduct alleged which shows impairment or unfitness as opposed to influence.
I do not consider that the debate over the limits before the district judge, and the lack of reliance on the figures showing a section 5 offence, means that I can infer that the conduct alleged, of driving with a particular amount of alcohol in the breath, means that section 4 can be seen as satisfied because of the volume of alcohol in the breath. It might be possible in certain cases for that to be done outside the scope of a section 5 offence, but the court would at least need to be clear that the Latvian...
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