Biri v High Court In Miskolc, Hungary

In extradition appeals under the Extradition Act 2003, the judge must analyse each episode of conduct said to constitute each foreign offence. The judge must first check that the warrant gives the required particulars, then decide whether that episode is an extradition offence and whether any bar applies. Where dual criminality is required, the inquiry concerns the conduct, not the foreign offence’s legal ingredients. Generic references to narcotic drugs may be insufficient to establish equivalent possession of controlled drugs, while the framework-list route cannot convert simple possession into trafficking. Article 8 disproportionality requires evidence of severe hardship.

This was an appeal against District Judge Bayne’s decision dated 17 February 2017 ordering the appellant’s extradition to Hungary under a European arrest warrant to serve sentences for drug offences. The district judge had discharged the appellant in relation to one drug-driving allegation but ordered extradition on the remaining conduct.

The appeal concerned whether each alleged episode was sufficiently particularised under the Extradition Act 2003, whether it constituted an extradition offence through dual criminality or the European framework list, and whether extradition would breach Article 8. The central issue was whether extradition could properly be ordered for each individual episode of conduct.

The appeal was allowed in part. The extradition order was quashed for conduct 1(b)(i), 1(b)(ii) and 2(a)(ii), but remained effective for conduct 2(a)(i) and 2(b).

1. Correct analytical method. The number of offences in the warrant means the number of foreign offences, not the number of conduct episodes. For the purposes of sections 2 and 10 of the Extradition Act 2003, the judge must identify each episode said to constitute each foreign offence, assess the required particulars for that episode, decide whether it is an extradition offence, consider any bar, and make an episode-specific order. The court relied on the approach in Office of the King’s Prosecutor, Brussels v Cando Armas [2006] 2 AC 1, Dabas v High Court of Justice in Madrid, Spain [2007] 2 AC 31, Norris v Government of the United States of America [2008] AC 920, Pilecki v Circuit Court of Legnica, Poland [2008] 1 WLR 325 and Alexander v Public Prosecutor’s Office, Marseille District Court of First Instance, France [2017] 3 WLR 1427.
2. English charges. Where dual criminality must be demonstrated, the court endorsed reviving the practice of drafting English charges. Except in the most straightforward cases, those charges should identify the conduct relied upon and the equivalent English offence. The practice has no formal statutory status, but promotes precision and certainty. The court referred to R v Bow Street Magistrates’ Court ex p Kline 30 June 1999, CO/813/99, R v Governor of Pentonville Prison ex p Osman [1990] 1 WLR 277, R v Bow Street Metropolitan Magistrate ex parte Pinochet (No 3) [2000] AC 147, Boudhiba v Central Examining Court No 5 of the National Court of Justice, Madrid [2006] EWHC 167 (Admin) and Fofana v Deputy Prosecutor Thubin Tribunal de Grande Instance de Meaux, France [2006] EWHC 744 (Admin).
3. Case 1. The 2008 drug-driving conduct was not an extradition offence because the relevant offence under section 5A of the Road Traffic Act 1988 did not exist when the conduct occurred. The presence of drug metabolites in blood or urine was insufficient by itself to prove possession under the Misuse of Drugs Act 1971, applying Hambleton v Cullinan [1968] 2 QB 427 and Spitans v Riga Regional Court [2012] EWHC 472 (Admin). The generic description of seized items as narcotic drugs was also too unspecific to establish possession of controlled drugs, and simple possession could not rely on the framework-list trafficking offence.
4. Case 2. The supply of marijuana in conduct 2(a)(i) was sufficiently particularised and would constitute an equivalent supply offence under the Misuse of Drugs Act 1971; it also fell within the framework list. The possession allegation in 2(a)(ii) was deficient because the place of the alleged offence was omitted. The supply of an ecstasy tablet in 2(b) was sufficiently particularised and constituted an extradition offence.
5. Article 8. The seriousness of involving an underage person in drug supply and the public interest in returning a person who had been tried, sentenced and then fled outweighed the appellant’s case. There was no evidence of the severe hardship required to establish disproportionality.

• High Court (Administrative Court): Appeal allowed in part. The extradition order was quashed for conduct 1(b)(i), 1(b)(ii) and 2(a)(ii), and the appellant was to be extradited in relation to conduct 2(a)(i) and 2(b) alone.
• District Judge: District Judge Bayne discharged the appellant in relation to conduct 1(a) and ordered extradition on the remaining conduct. The decision was dated 17 February 2017; no citation is stated in the judgment.