Yakub Ibryam Yakub v Burgas District Prosecutors Office (Bulgaria)

For dual criminality under the Extradition Act 2003, the court applies a conduct test. It asks whether the conduct specified in the warrant would constitute an offence in the relevant part of the United Kingdom. It need not compare the legal ingredients of the foreign and domestic offences.

Where the proposed domestic offence contains an essential element, such as failure to act without reasonable excuse, the warrant must state that element or make its fulfilment the only reasonable inference from the particulars. An inference that is merely possible is insufficient. A warrant which omits that element is defective.

The appellant appealed, with permission, against an extradition order made by District Judge Clews on 10 October 2024. He was sought by Bulgaria on a conviction warrant following an in-absentia conviction for driving after using narcotic substances. He had tested positive for methamphetamine and had refused to provide blood or urine for analysis.

The appeal concerned whether the conduct test under sections 10 and 65 of the Extradition Act 2003 was satisfied, and whether the conviction warrant contained sufficient particulars under section 2. The central issue was whether the refusal to provide a specimen could be transposed into the English offence under section 7 of the Road Traffic Act 1988, despite the warrant not stating that the refusal was without reasonable excuse.

1. Appeal allowed. The court allowed ground 1 and, alternatively, ground 2.
2. Sections 65 and 66 of the Extradition Act 2003, as amended, require a conduct test. The relevant question is whether the conduct specified in the Part 1 warrant would constitute an offence under United Kingdom law if it had occurred there. The court does not conduct an elaborate comparison of the ingredients of the foreign offence.
3. The court accepted the approach in Office of the King’s Prosecutor, Brussels v Cando Armas [2006] 2 AC 1 and Norris v Government of the USA [2008] AC 920. Mere narrative background is excluded, but allegations relevant to the description of the corresponding United Kingdom offence are considered.
4. Minchev v Bulgaria [2019] EWHC 1925 (Admin) was materially distinguishable. Its warrant explained that refusal of a specimen led to reliance on the roadside test. The present warrant contained less information and did not explain the legal consequence of refusal. The court was therefore not bound to follow Minchev, although it was not convinced that that decision was wrong.
5. The English offence under section 7 of the Road Traffic Act 1988 requires failure to provide a specimen without reasonable excuse. Under Assange v Swedish Prosecution Authority [2011] EWHC 2849 (Admin) and Cleveland v USA [2019] EWHC 619 (Admin), an omitted essential element may be supplied by inference only where the particulars make that inference inevitable.
6. The warrant was silent on the legal status of the request, the consequences of refusal, and whether there was a reasonable excuse. Absence of reasonable excuse might be inferred, but it was not the only reasonable inference. The particulars therefore did not establish that the conduct would have constituted a United Kingdom offence.

• High Court (Administrative Court): the appeal against the extradition order made by District Judge Clews on 10 October 2024 was allowed.