Yakub Ibryam Yakub v Burgas District Prosecutors Office (Bulgaria)

This is an appeal against an extradition order made by DJ Clews on 10 October 2024, with permission granted by Lang J.

The appellant is sought on a conviction warrant. On 15 February 2022 he was stopped by Bulgarian police while driving. They described him as “visibly worried and with red eyes” and suspected he had consumed alcohol or drugs.  They established that he and his passengers had a history of taking narcotic substances. A roadside test gave a positive reading for methamphetamine. He then refused to give blood and urine for chemical analysis, though he told a “medical person” at the hospital that day that he had used methamphetamine at a party 4 days earlier.

After a trial in his absence, he was convicted of an offence of “driving a car following the use of narcotic substances” contrary to Article 343b.3 of the Bulgarian Criminal Code. At the time he was subject to a suspended sentence of imprisonment. Upon his conviction for the drug driving offence the suspended sentence was activated (three months) and he was sentenced to one year and three months consecutive making a total of 18 months, all of which remains to be served. Upon return he may be entitled to a re-examination of his case.

The grounds of appeal for which permission was granted are (1) under sections 10 and 65 of the EA 2003 the test of dual criminality is not satisfied and (2) under section 2 of the Act the warrant is deficient by failing to specify the grounds upon which it was possible for the Appellant to be forced to provide a blood sample or the consequences which would follow his failure to do so. 

Section 10 requires the court to decide “whether the offence specified in the Part 1 warrant is an extradition offence”.

For that purpose sections 65 and 66 provide, so far as is material to the present case:

“65 (1)  This section sets out whether a person's conduct constitutes an “extradition offence” for the purposes of this Part in a case where the person—

(a)

has been convicted in a category 1 territory of an offence constituted by the conduct, and

(b)

has been sentenced for the offence.

(2)

The conduct constitutes an extradition offence in relation to the category 1 territory if the conditions in subsection (3) … are satisfied.

(3)

The conditions in this subsection are that—

(a)

the conduct occurs in the category 1 territory;

(b)

the conduct would constitute an offence under the law of the relevant part of the United Kingdom if it occurred in that part of the United Kingdom;

(c)

a sentence of imprisonment or another form of detention for a term of 4 months or a greater punishment has been imposed in the category 1 territory in respect of the conduct.

66 (1)   Subsections (1A) to (4) apply for the purposes of sections 64 and 65.

(1A)

References to “conduct” … are to the conduct specified in the Part 1 warrant.”

Subsection (1A) was added by amendment in 2014, as was a similar subsection in the corresponding sections 137 and 138 in Part 2 of the Act.

The amendment reflected the earlier decision of the House of Lords in Office of the King’s Prosecutor, Brussels v Cando Armas [2006] 2 AC 1 that the word “conduct” in section 65 was a reference to the conduct complained of or relied on in the warrant. This approach, Lord Bingham said at [16], “obviates the need for an undesirable inquiry into the niceties of a foreign law”. Similarly at [30] Lord Hope said that the judge “need not concern himself with the criminal law of the requesting state”.

In other words, when applying the relevant sections of the 2003 Act the court does not apply an “offence test” involving a comparison of the overseas offence with its UK equivalent to see if they have the same elements. Instead, it is a “conduct test” by which the court asks whether the conduct specified in the warrant makes out an offence in this jurisdiction.

The 2014 amendment also reflected the decision of the House of Lords in Norris v Government of the USA [2008] AC 920 (a Part 2 case), where the House considered that the language (of section 137) was consistent with either test but that the conduct test was the right one. At [86] of its composite judgment it placed weight on In re Ismail [1999] 1 AC 320, where Lord Steyn said at 326-7 that extradition states should be given a “broad and generous construction” bearing in mind that they are intended to serve the purpose of bringing to justice those accused of serious crimes”. At [89] they repeated that this approach “avoids the need always to investigate the legal ingredients of the foreign offence, a problem long since identified as complicating and delaying the extradition process”. The House held at [91]:

“In short, the conduct test should be applied consistently throughout the 2003 Act, the conduct relevant under Part 2 of the Act being that described in the documents constituting the request … , ignoring … mere narrative background but taking account of such allegations as are relevant to the description of the corresponding United Kingdom offence.”

The reference to “mere narrative background” has been repeated in case law post-dating the amendment of the sections. In El Khouri v Government of the United States of America [2023] UKSC 3 the Supreme Court was considering an accusation warrant under Part 2 of the Act. The main issue was the location where the alleged crimes were committed. In that admittedly different context, the Court noted at [83(2)]:

“… the court is concerned, and concerned only, with where the person’s acts specified in the extradition request were physically done, ignoring in the case of both provisions mere narrative background and focusing on the substance of the alleged criminality”.

The judicial authority relies on Minchev v Bulgaria [2019] EWHC 1925 (Admin), a case involving the same country and the same offence as the present case. The offender was charged with driving a car following the use of narcotic substances contrary to Article 343b.3 which, as in the present case, was established using a roadside testing device. The offending there occurred in August 2016.

The arrest warrant in Minchev stated that where a person refuses to give a blood sample, the court takes “into account the results of the checkup carried out by a technical means detecting the use of an intoxicating substance”. There was also the following further information:

“• The presence of opiates was detected in the RP's [Requested Person's] saliva using a technical device at the roadside.

• Neither the concentration nor the level of opiates are indicated.

• The RP refused a medical examination to be performed in the Emergency Medical Health Centre in Stara Zagora.

• The result of that refusal was that the roadside test results were relied upon to establish an offence of driving whilst unfit through drugs.

…

• A protocol of medical examination means a document prepared by a medical doctor who examines the driver of a motor vehicle for whom it has been established by a technical device that he has used alcohol or intoxicating substances.

• Upon the roadside test being carried out, the police officer issued a standard form for medical examination to the RP.

• The RP was then accompanied by police to the medical centre where a blood sample should have been taken.

• RP refused to provide a blood sample for examination.

• The RP's refusal was recorded in the protocol of medical examination.

• The relevant ordinance specifies that a driver for whom it has been established through a technical device that he has used drugs or alcohol 'may provide a blood sample for examination or may refuse to provide such', but in the event of a refusal the use of drugs or alcohol is established upon the indication of the technical device (the roadside test results).”

(emphasis added)

Allowing an appeal from discharge by the DJ, Supperstone J accepted a submission by the judicial authority that there need not be exact correspondence between the ingredients of the foreign offence and those of the UK offence which would be disclosed had that conduct occurred here. It is for the foreign state to identify in the request the conduct upon which it relies and for the UK court to consider whether if that conduct had occurred here, it would have constituted an offence under UK law. At [16] Supperstone J summarised the judicial authority’s submissions which he accepted:

“It does not matter for the purposes of the transposition exercise, that the refusal to provide a blood sample would give rise to an offence of driving a motor vehicle following the use of narcotic substances or an offence of refusing to provide a sample. The effect is the same: the refusal to engage in the medical examination results in a substitute or fall back position. It is a contingency option. It gives rise to an offence to ensure that those who decline to engage do not go unpunished. It matters not ... that the UK offence is brought about by refusal when required to do so by a constable rather than a refusal when requested in accordance with the relevant Bulgarian ordinance. In neither jurisdiction is it possible for a person to be forced to provide a blood sample … so in effect an individual in both jurisdictions is permitted to refuse to provide a sample … The consequences of doing so give rise to a different category of offence, depending on which country you are in.”

Supperstone J accordingly ruled that dual criminality was established on the basis that in this jurisdiction, the offender would have been guilty of an offence of failing to provide a sample under section 7 of the Road Traffic Act 1988.

The material parts of section 7 of the 1988 Act provide:

“7.

— Provision of specimens for analysis.

(1)

In the course of an investigation into whether a person has committed an offence under section 3A, 4 or 5 of this Act a constable may, subject to the following provisions of this section and section 9 of this Act, require him—

(a)

to provide two specimens of breath for analysis by means of a device of a type approved by the Secretary of State, or

(b)

to provide a specimen of blood or urine for a laboratory test.

(1A)

In the course of an investigation into whether a person has committed an offence under section 5A of this Act a constable may, subject to subsections (3) to (7) of this section and section 9 of this Act, require the person to provide a specimen of blood or urine for a laboratory test.

…

(6)

A person who, without reasonable excuse, fails to provide a specimen when required to do so in pursuance of this section is guilty of an offence.”

The DJ considered Minchev to be on all fours with the present case and found dual criminality to be established on the same basis.

For the appellant, Anna Rubbi of counsel submits that Minchev either can be distinguished or was wrongly decided, and that the relevant “conduct” should be confined to the conduct which the Bulgarian authorities have alleged amounted to a criminal offence. That conduct, she submits, consisted solely of driving after taking methamphetamine, and no equivalent offence exists in England and Wales. No evidence has been produced to show that the appellant was driving while unfit to do so or with any specified concentration of drugs in his blood or urine and therefore that his conduct would have amounted to an offence under section 4 or section 5A of the RTA 1988.

Meanwhile, she submits, the appellant’s refusal to give a specimen was not an element of his offence in Bulgaria and was not the offence with which he was charged. It had no impact on his guilt or, so far as the arrest warrant discloses, his sentence. He would have remained equally guilty under Bulgarian law and equally innocent under the law of England and Wales if in fact he had submitted to a test but it had yielded a reading too low to found a charge in this jurisdiction. That being so, the refusal to give a specimen was “mere narrative background”.

In response, Rebecca Hadgett of counsel contends that allowing ground 1 would lead to a perverse result in that extradition would be barred by the lack of information about the quantity of drugs in the appellant’s system, that lack being caused only by the appellant’s refusal to co-operate. She invites me to follow Minchev to avoid that result and to find that the refusal was not mere narrative background but was central to the facts of the incident. It does not matter, she submits, that the Bulgarian offence was committed at an earlier point in the chronology than the equivalent UK offence.

I cannot be certain whether there was any material difference between the facts of Minchev and the facts of the present case. There was, however, a difference between the evidence on the question of how the charge against the offender was proved.

In Minchev the court was given the information quoted at paragraph 13 above, including the parts emphasised in my quotation. In addition, Box E of the arrest warrant stated:

“The order on establishment of the use of alcohol was determined as of the moment of the act in Ordinance No.30 of 27 June 2001 by a chemical examination of a blood sample taken from the person or, (if a person refuses to give a blood sample) are taken into account the results of the check-up carried out by a technical means detecting the use of an intoxicating substance.”

In the present case the arrest warrant did not refer to any consequence of a person refusing to give a specimen. Having recited the facts including the roadside test, the refusal and the admission of recent but not quite contemporaneous drug use, it stated:

“The use of narcotic substances by the accused … has been proved in an indisputable and undoubted manner. The requirements of Ordinance No. 1/19/07.2017 … for the procedure for establishing the use of alcohol and/or narcotic substances or their analogues have been met.”

So Minchev and the present case appear to have involved different Bulgarian Ordinances. That is unsurprising, given the passage of 5½ years between the offending in the two cases.

In Minchev the requested person was not represented and did not take part in the appeal hearing. Supperstone J accepted the judicial authority’s counsel’s submission that, in both countries, the refusal to give a specimen “results in a substitute or fallback position”. In Bulgaria the result was reliance on the roadside test which proved the offence with which the requested person was charged. In England it was liability for the section 7 offence of refusing to give a specimen. Supperstone J ruled that that difference did not matter for the purposes of the dual criminality test.

Although decisions of the High Court are not binding on the High Court, the practice is that “a judge of first instance … would always follow the decision of another judge of first instance, unless he is convinced the judgment is wrong”: Police Authority for Huddersfield v Watson [1947] KB 842 @ 848 per Lord Goddard CJ, cited by Robert Goff LJ in R v Greater Manchester Coroner, Ex parte Tal [1985] QB 67 at 81.

I am not convinced that Minchev was wrong, but I cannot rule out a different outcome having occurred if both sides had been represented, for two main reasons.

First, by way of context, although the conduct test can and does result in the necessary equivalence being found between domestic and overseas offences which have different elements, I suspect that finding equivalence between driving after using drugs and failing to provide a specimen is close to the outer boundary of that principle.

The second and more important reason is that there was apparently no debate in Minchev about the fact that the English offence consists not merely of failing to provide a specimen when required, but of failing “without reasonable excuse”. At the extradition hearing, as Supperstone J recorded at [14], the District Judge rejected a different argument on behalf of Mr Minchev, namely that he had not been “required” by a constable to produce the specimen according to the procedure under section 7. Supperstone J agreed that the relevant “conduct” was the same whether it was refusal in the face of a “request” (the word used in Bulgaria) or in the face of a “requirement”. But I do not know whether he would have acceded to an alternative submission that the English offence requires an absence of reasonable excuse and that that part of the “conduct” could not necessarily be inferred from the information in the warrant.

As I explain below, I have come to the conclusion that the warrant in the present case, which contained less information than the warrant in Minchev, suffered from precisely that defect. As that point was not taken in Minchev, and the information before the Court was different, I take the view that I am not bound to follow it.

Ground 1 will therefore be allowed. My reasons for finding a defect in the warrant are now set out more fully under ground 2, which I will allow in the alternative.

Section 2(6) of the 2003 Act requires a conviction warrant to contain information including:

“(b)

particulars of the conviction”.

In Assange v Swedish Prosecution Authority [2011] EWHC 2849 (Admin) there was an issue as to the fairness and accuracy of the description of the conduct alleged in the arrest warrant. The warrant relied inter alia on Swedish offences of coercion and sexual molestation. Giving the judgment of the Divisional Court, Sir John Thomas P said:

“56.

It should ordinarily be the case that a court in this jurisdiction will accept the designation of the conduct as constituting an offence under the law of the issuing state; the particulars given in the EAW should also ordinarily make clear whether the conduct would also constitute an offence under the law of England and Wales.

57.

It was accepted by Mr Assange that it was not necessary to identify in the description of the conduct the mental element or mens rea required under the law of England and Wales for the offence; it was sufficient if it could be inferred from the description of the conduct set out in the EAW. However, the facts set out in the EAW must not merely enable the inference to be drawn that the Defendant did the acts alleged with the necessary mens rea . They must be such as to impel the inference that he did so; it must be the only reasonable inference to be drawn from the facts alleged. Otherwise, a Defendant could be convicted on a basis which did not constitute an offence under the law of England and Wales, and thus did not satisfy the dual criminality requirement. For example, an allegation that force or coercion was used carries with it not only the implicit allegation that there was no consent, but that the Defendant had no reasonable belief in it. If the acts of force or coercion are proved, the inference that the Defendant had no reasonable belief in consent is plain.”

The question of what particulars are sufficient to cover each element of the equivalent English offence was further addressed in Cleveland v USA [2019] EWHC 619 (Admin). Holgate J explained at [61]:

“First, in some cases the argument raised is not that the offence alleged in the foreign state lacks an ingredient essential to criminality in this jurisdiction, but simply that the particulars of conduct supplied in the warrant … do not address an ingredient of an equivalent English offence. In such cases there is no legal justification for applying the ‘inevitable inference’ test in para 57 of Assange in order to ensure that the person requested could not be convicted of an offence overseas which would not amount to any crime in this country. If a warrant … fails to include any allegation dealing with an essential ingredient, the court may conclude that the particulars are insufficient and decline to order extradition. But in other cases, the court may conclude that a gap (whether as to conduct or any mental element) is filled because an inference can properly be drawn from information contained in the warrant or request. Here, that approach to the drawing of an inference is legally correct because the offence for which a person is to be extradited does not lack an ingredient essential to criminal liability under English law.”

Ms Rubbi submits that if, contrary to ground 1, the refusal to provide a specimen was material to the appellant’s conviction, then the arrest warrant was defective by failing to specify the grounds upon which it was possible for the Appellant to be required to provide a specimen or the consequences of a failure to do so.

In response, Ms Hadgett submits that the warrant provides detailed information about the Appellant’s identity, the timing and location of the offence, the Appellant’s conduct, the investigation that followed, the conviction, the legal provisions relied upon and the sentence imposed. On any view, the Appellant can understand how the case is put against him in Bulgaria and what he is alleged to have done. Nothing further is necessary and the District Judge was correct to determine that the requirements of section 2 had been met.

As I have said, the English offence under section 7 of the 1988 Act requires an absence of reasonable excuse for failing to provide a specimen. The offence of which the Appellant was convicted in Bulgaria does not, and equivalence between the two offences is contested by him. That being so, the principle enunciated in Assange and discussed in Cleveland above means that if an element of the English offence is not stated in the warrant, the warrant will suffice only if fulfilment of that element is an “inevitable inference” from the particulars given.

In this case the warrant is silent as to the legal status of the request for a specimen or the consequence of refusal or the presence or absence of any excuse for refusal. Although an absence of reasonable excuse could be inferred from the information provided, I do not consider that it must be. I therefore conclude that an element of the English offence is missing.

For those reasons, and although Ms Rubbi did not articulate the “reasonable excuse” point, I accept her submission as set out in paragraph 46 of the Appellant’s perfected grounds that the particulars in the arrest warrant are not sufficient to support the conclusion that the Appellant’s conduct would have amounted to a criminal offence in this jurisdiction.

The appeal is allowed.