Tamas Biri v High Court in Miskolc, Hungary
| Jurisdiction | England & Wales |
| Judge | Mr Justice Julian Knowles |
| Judgment Date | 22 January 2018 |
| Neutral Citation | [2018] EWHC 50 (Admin) |
| Court | Queen's Bench Division (Administrative Court) |
| Docket Number | Case No: CO/962/2017 |
| Date | 22 January 2018 |
[2018] EWHC 50 (Admin)
Mr Justice Julian Knowles
Case No: CO/962/2017
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
Royal Courts of Justice
Strand, London, WC2A 2LL
Saoirse Townshend (instructed by Kaim Todner Solicitors Ltd) for the Appellant
Alexander dos Santos (instructed by CPS) for the Respondent
Hearing date: 7 December 2017
Introduction
This is an appeal with the permission of Sir Wyn Williams sitting as a justice of the High Court by the Appellant, Tamas Biri, against the decision of District Judge Bayne dated 17 February 2017 to order his extradition to Hungary to serve two sentences of imprisonment for drugs offences that are contained in a European arrest warrant (‘EAW’) dated 4 April 2016.
The Appellant is represented by Ms Townshend and the Respondent is represented by Mr dos Santos. Neither of them appeared at the hearing below.
The enforceable sentences upon which the EAW is based are, first, the sentence of the District Court of Mátészalka delivered on 1 October 2013, and the Final Sentence of the Court of Justice of Nyíregyháza, as the court of second instance, delivered on 5 September 2014; and, second, the sentence imposed by the Court of Borsod-Abaúj-Zemplén County, delivered on 24 November 2016 and which became final on 27 November 2016. The first sentence was of seven months imprisonment, of which six months and 22 days is left to serve after deducting time spent on remand. The second sentence was of eight months, of which seven months and nineteen days are left to serve. The warrant indicates that the Appellant has one year, two months and 11 days left to serve in prison. The Appellant was present when his sentences were passed but subsequently left Hungary before they could be enforced.
The EAW
Box (e) of the EAW specifies that the warrant relates to five offences under Hungarian law. There are two cases then set out, each containing several offences, and each of the two cases reflecting the two separate sentences passed on the Appellant at the different courts that I have already set out. I will call these Case 1 and Case 2 respectively. To understand the issues on the appeal it is necessary to set out in some detail the particulars of conduct set in Box (e).
Facts of Case 1
First, the EAW states under sub-paragraph (a) that on 28 July 2008 at 9.25pm in a specified street in Hungary the Appellant was stopped by police whilst driving his car. It goes on, ‘The defendant drove the car under the influence of a substance that has the capacity to impair one's ability to drive (speed, ecstasy, marijuana or hashish).’ I will refer to this conduct as ‘1(a)’.
Second, under sub-paragraph (b), the warrant states that later that day, at 11.30pm on a different street, the Appellant was again stopped by police whilst a passenger in a car. It says that at 29 July 2008 at 00:15am a urine sample was taken, and then on 29 July 2008 at 9:10 a blood sample and 9:25 another urine sample, and that ‘The blood and urine samples confirmed the presence of amphetamine, MDA and MDMA. The detected amphetamine derivatives sold in illegal drug trafficking under the names “speed” and “ecstasy” and are qualified as narcotic drugs.’ It is also stated that Δ 9 — tetrahydrocannabinol was detected in the Appellant's urine, ‘which most probably referred to the consumption of cannabis’ ( sic). The warrant states that ‘the mentioned narcotic drugs were consumed by the defendant in Budapest.’ I will refer to this conduct as ‘1(b)(i)’.
Third, also under sub-paragraph (b), the warrant states that on 29 July 2008 the police seized ‘various tablets, white powders, plant debris and 1 digital weighing scale in the defendant's flat …’ ( sic). I will refer to this conduct as ‘1(b)(ii)’. The next paragraph refers to these items as ‘narcotic drugs’.
Later in Box (e) the warrant specifies two provisions of Hungarian law which this conduct is said to have violated:
a. a misdemeanour count of ‘driving under the influence of drugs (alcohol or other psychoactive substances), contravening and qualified by section 188(1) of Chapter XIII on “Traffic Offences” of Act IV of 1978 on the Criminal Code (Hungary)’ ( sic). This offence relates to the conduct set out under sub-paragraph (a) that I have described.
b. a misdemeanour count of ‘misuse of narcotic drugs, contravening and qualified by section 282(1) and (5) a/ of Title IV on “Crime against public health” of Chapter XVI on “Crimes against Law and Order” of Act IV of 1978 on the Criminal Code (Hungary)’. This relates to the conduct under sub-paragraph (b).
Facts of Case 2
In this case, under sub-paragraph (a), the warrant states that in April 2004 the juvenile seventh defendant met the Appellant in a club/bar in Tiszaújváros and that the Appellant offered to obtain ‘narcotic drugs in pre-portioned amounts’ which the juvenile would then be able to sell for profit. It goes on to say that a couple of days later the Appellant gave the juvenile 40 small bags of marijuana, which he sold, and that they split the proceeds. I will refer to this conduct as ‘2(a)(i)’.
Next, also under sub-paragraph (a), the warrant states, ‘Moreover, in the first half of the year 2004 [the Appellant] had in his possession 1 Ecstasy tablet and 2 cigarettes containing marijuana, which he consumed and/or smoked himself.’ I will refer to this conduct as ‘2(a)(ii)’.
Then, under sub-paragraph (b), the warrant alleges that the Appellant gave the eighth defendant an ecstasy tablet on 31 December 2003 in Sáránd. I will refer to this conduct as ‘2(b)’.
The conduct in Case 2 is said to give rise to the following Hungarian offences. I will set out verbatim how these are set out on the warrant:
“2.
a/ 1 felony count of misuse of narcotic drugs committed by person over the age of eighteen by offering or supplying a small quantity of narcotic drugs to a person under the age of eighteen, contravening and qualified by section 282/B(2) a/ and (7) b/ of Title IV on “Crimes against public health” [of Chapter XIII on “Crimes against Law and Order”] of Act IV of 1978 on the Criminal Code [Hungary] and 1 misdemeanour count of misuse of narcotic drugs committed by engaging in distributing, trafficking or dealing in narcotic drugs in respect of a small quantity, contravening and qualified by section 282/A(1) [of the same act]
b/ 1 misdemeanour count of misuse of narcotic drugs committed by acquiring narcotic drugs without authorisation in respect of a small quantity, contravening and qualified by Section 282(1) and (5) a/ of Title IV on “Crime against public health” [of Chapter XIII on “Crime against Law and Order”] of Act IV of 1978 on the Criminal Code [Hungary].”
On the EAW the Framework list offence of ‘Illicit trafficking in narcotic drugs and psychotropic substances’ has been highlighted.
Proceedings before the district judge
Before the district judge the Appellant challenged the EAW on the grounds that in relation to Case 1 it did not comply with either s 2 or s 10 of the Extradition Act 2003 (‘ EA 2003’). He also argued that extradition was barred under s 21 because it would be incompatible with his rights under Article 8 of the European Convention on Human Rights. The judgment records at para 32 that no issue was taken by the Appellant under ss 2 or 10 in relation to Case 2, however Ms Townshend tells me, and I accept, that in fact a challenge was made that some of the alleged conduct was insufficiently particularised the purposes of s 2 and/or that it did not disclose an extradition offence.
The district judge discharged the Appellant in relation to 1(a) at paras 28 and 48 of her judgment, it being conceded by the Respondent that the particulars given of driving whilst impaired through drugs did not satisfy the requirements of dual criminality, and so I need not say any more about that conduct.
However, the judge ordered the Appellant's extradition on the remaining conduct, holding at para 33 that the warrant ‘complies with section 2 and section 10 of the Act save as set out in paragraph 28 of this judgment,’ and that his extradition was not incompatible with Article 8.
Grounds of Appeal
On behalf of the Appellant, Ms Townshend challenges the district judge's decision on a number of grounds.
First, she says that the whole or parts of the EAW do not comply with s 2 because:
a. The warrant refers to five offences, but she says that it is possible to count up to eight offences within the description in the EAW. She maintains, therefore, that the district judge fell into error when she did not consider compliance with a s 2 for each offence, as is required under the Extradition Act 2003 (Multiple Offences) Order 2003 (SI 2003/3150) (‘the Multiple Offences Order’).
b. The conduct 1(b)(ii), referring to items seized from the Appellant's flat, is insufficiently particularised because the drugs are not specified.
c. In relation to the conduct 2(a)(ii), the EAW does not specify where this occurred. She points out that in relation to the other conduct on the warrant the place where it occurred is specified, but no location is given for this conduct.
Next, Ms Townshend submits that some of the conduct on the warrant does not constitute an extradition offence (as defined in s 65 of the EA 2003):
a. In relation to conduct 1(b)(i), she submits that there is clear law that the mere presence of the metabolites of controlled drugs in blood/urine does not constitute possession of those drugs (see Hambleton v Cullinan [1968] 2 QB 427) and so dual criminality is not satisfied in relation to this conduct (see Spitans v Riga Regional Court [2012] EWHC 472 (Admin)).
b. She submits that the Respondent cannot rely on s 65(5) (Framework list...
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