The King on the Application of Muizarajs v The Prosecutor General of the Republic of Latvia
| Jurisdiction | England & Wales |
| Judge | Mr Justice Lane |
| Judgment Date | 12 October 2022 |
| Neutral Citation | [2022] EWHC 2751 (Admin) |
| Docket Number | No. CO/840/2021 |
| Court | Queen's Bench Division (Administrative Court) |
| Year | 2022 |
[2022] EWHC 2751 (Admin)
Mr Justice Lane
No. CO/840/2021
IN THE HIGH COURT OF JUSTICE
KING'S BENCH DIVISION
ADMINISTRATIVE COURT
Royal Courts of Justice
Mr M Hawke appeared on behalf of the Appellant.
Mr J Swain appeared on behalf of the Respondent.
( )
This is an appeal against the decision of a district judge at Westminster Magistrates' Court, given on 1 March 2021, to order the appellant's extradition to Latvia. Permission to appeal was granted by Dove J on 20 October 2021.
There are two European Arrest Warrants (“EAW”). EAW1 concerns accusations. EAW1 was issued on 6 April 2020 and contains what is described as two offences of equivalent conduct to possession of controlled drugs with intent to supply, and the non-criminal conduct of having consumed a controlled drug.
Offence 1 is that on 17 January 2018, the appellant bought just over 2 grams of cannabis, which is designated in Latvia as a prohibited especially dangerous narcotic substance, which he kept for the purpose of onward supply, and then sold to another. The 2 grams weight of the drug is said to “exceed the quantity up to which it can be qualified as small”. This was an offence contrary to section 2531 of the Criminal Law. It is punishable by a minimum sentence of two years' imprisonment, with a range of up to eight years.
Offence 2 is as follows. Despite being warned on 27 June 2017 about the consequences of using controlled drugs, on 13 February 2018 the appellant tested positive for cannabis and “MDMA/Ecstasy”. The use of these drugs is an offence contrary to section 2531 of the Criminal law. It is punishable by temporary depravation of liberty of up to three months' community service or a fine.
EAW2 concerns convictions. The first offence within EAWs is that on 27 March 2017 the appellant, who was then a student at Jelgava Technical School in Latvia, bought 8.452 grams of cannabis for €110. The following day at the school he sold 2.8029 grams to one Renes Pleetz for €40. On 28 May 2017 he again sold 2.4984 grams to Mr Pleetz for €40, again on the school premises. The remaining 3.1507 grams were seized by police from the appellant's room in his school dormitory. As before, this amount exceeds the volume which is considered in Latvia to be “small”, and the cannabis was also treated as “an especially dangerous” substance. The conduct was contrary to section 2533 of the Criminal Law, which addresses supplying drugs to minors, or on the premises of educational establishments. On 30 January 2018, the appellant was sentenced to five years' imprisonment suspended for five years.
Offence 2 is as follows. On a date in April 2018, the appellant smoked some cannabis and consumed one pill of Ecstasy and MDA. As the appellant was warned on 27 June 2017 not to consume these drugs, when police discovered him in his dormitory on 12 April “under the influence of narcotic and psychotropic substances,” he was arrested. On 29 June 2018 the appellant was convicted of an offence contrary to section 2531 of the Criminal Law, of having used these drugs, and sentenced to one month imprisonment. Also, and importantly, on 29 June 2018, the court activated the five-year suspended sentence and aggregated the two sentences so as to comprise five years and 15 days' of imprisonment with one year of probation.
The district judge discharged the appellant in respect of offence 2 in EAW1 owing to the length of the maximum sentence, namely three months. He ordered extradition in respect of the other matters in the EAWs.
Mr Hawkes brings the appeal to this court on the basis that the district judge was wrong to conclude that, in all the circumstances, extradition would be compatible with the appellant's right to respect for his private life under Article 8 of the ECHR. Although Mr Hawkes makes a number of criticisms of the way in which the district judge undertook the Article 8 balancing exercise, the main thrust concerns offence 2 of EAW2. Relying on the judgment of the Divisional Court in Hambleton v Callinan [1968] 2 QB 427, Mr Hawkes says that the information from the Latvian authorities fails to show that the appellant's conduct in using cannabis and amphetamine would be a criminal offence if committed in England and Wales. In Hambleton Lord Parker CJ said:
“Now what happened was this, that on October 20, the defendants were arrested by the police on suspicion of being in unlawful possession of drugs. They were asked for and gave urine samples, and on analysis it was found that the urine samples contained traces of this amphetamine powder. It was also found that the durophet tablets were in the amphetamine group and quite clearly the prosecution case was that the amphetamine powder, traces of which were found in the urine, had come from consuming durophet tablets.
It is to be observed that so far as this case stated is concerned, the prosecution contention was that when there is found in a man's urine traces of amphetamine powder, he is in possession of that powder, contrary to the Drugs (Prevention and Misuse) Act 1964. That Act provides: ‘… it shall not be lawful for a person to have in his possession a substance for the time being specified in the Schedule to this Act …’; and it goes on to give exceptions, and there is: ‘unless – (a) it is in his possession by virtue of the issue of a prescription … for its administration by way of treatment to him, or to a person under his care.’ It was contended by the prosecution, and it has been contended here, that a man can be in possession of a prohibited substance within the meaning of section 1 of this Act if he has traces of it in his urine, in his intestines or any other part of his body in which can be found.
The justices felt that that was a wholly artificial conception and that once you have consumed something and its whole character had altered and no further use could be made of it, as in this case, a man could not be said to be in possession of the prohibited substance.
For my part, there is little I think that can be said in the matter. I am quite satisfied that the justices were right. Mr Tucker has said that there may be cases where a man, as it were, consumes something, puts it in his mouth or swallows it, such as a diamond or a gold ring, in order to conceal it, when nevertheless he may well be in possession of it. I entirely agree but when, as here, something is literally consumed and changed in character, it seems to me impossible to say that a man is in possession of it within the meaning of this Act, and accordingly I would dismiss this appeal.”
Immediately thereafter, however, Lord Parker said this:
“But before leaving the matter, I confess that I myself can see no reason why in another case the time when the possession is said to have taken place should not be a time prior to the consumption, because as it seems to me the traces of, in this case, amphetamine powder in the urine is at any rate prima facie evidence — which is all the prosecution need — that the man concerned must have had it in his possession, if only in his hand prior to raising his hand to his mouth and consuming it. Accordingly, it seems to me that the possible difficulty that the decision in this case raises for the police does not arise in practice because the date of his possession can always be laid prior to the consumption.”
Hambledon was followed by Lloyd Jones J in Spitans v Riga Regional Court [2012] EWHC 472:
“17. In the context of the present case, the question for consideration therefore is whether the conduct alleged in the warrant would necessarily constitute an offence contrary to the laws in force in this jurisdiction if committed here.
18. On behalf of the appellant, Mr Jesurum accepts that it is possible to infer from the conduct described in charge 2 in the warrant that there was a prior possession but he says that that is not a necessary inference and it is not possible therefore to conclude that the conduct in question would constitute the offence of possession of prohibited drugs if committed here. He gives examples of situations in which such an inference could not be drawn, for example the administration of drugs by another, which would not involve prior possession. For present purposes, it is enough for me to say that I consider that that is not a entirely fanciful example.
19. In response, Mr Sternberg submits that in the circumstances of the present case it is appropriate for the court to look at the conduct described in charge 2 in the context of the warrant as a whole and in particular in the light of the conduct alleged in charge 1. He says that when it is read in that context it becomes a necessary inference from the conduct described in charge 2 that the appellant was in possession of the drugs.
20. Charge 1 is set out in very specific terms. It alleges that in a time and place...
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