Elbeyati v Federation of Bosnia and Herzegovina [2011] EWHC 625 (Admin)

Case No CO/12021/2010

[2011] EWHC 625 (Admin)

IN THE HIGH COURT OF JUSTICE

QUEEN'S BENCH DIVISION

DIVISIONAL COURT

Venue Royal Courts of Justice

Date Wednesday, 23 February 2011

Strand

London WC2A 2LL

B e f o r e:

LORD JUSTICE PILL

MR JUSTICE SUPPERSTONE

Between

ELBEYATIAppellant

Between

FEDERATION OF BOSNIA AND HERZEGOVINADefendant

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Mr Matthew Butt (instructed by Hallinan Blackburn) appeared for Appellant

Mr Daniel Sternberg (instructed by CPS Extradition Unit) appeared for Defendant

J U D G M E N T

[1]MR JUSTICE SUPPERSTONE: The appellant is a citizen of Bosnia and Herzegovina ("BiH"). He is the subject of an extradition request dated 12 March 2009 from that country in order for him to stand trial for an offence which occurred in Sarajevo on 19 June 2008. The appellant has been charged with a "serious criminal offence on public traffic" under articles 332(3) and 336(4) of the Criminal Law of the Federation of BiH, carrying a maximum penalty of eight years' imprisonment.

[2]On 29 September 2010, District Judge Evans sent the appellant's case for the consideration of the Secretary of State as to whether he should be extradited to the Federation of BiH. The Secretary of State ordered the appellant's extradition on 9 November 2010. The appellant appeals against the decision of District Judge Evans alone.

[3]Mr Butt, for the appellant, relies on two grounds. First, that the conduct does not amount to an extradition offence under section 137(2) of the Extradition Act 2003 ("the 2003 Act"). Second, that his extradition to BiH would put the United Kingdom in breach of its obligations under articles 2 and 3 of European Convention on Human Rights, essentially because of prison conditions in BiH.

[4]On the first ground, the issue is whether the equivalent offence, had the conduct occurred in this jurisdiction, would be causing death by dangerous driving. The appellant's extradition has been ordered for what the district judge said would constitute an offence of causing death by dangerous driving in this jurisdiction. The appellant submits that the judge was wrong to so hold. It is common ground in respect of the conduct alleged that the only domestic offence that could potentially amount to an extradition offence that could potentially amount to an extradition offence within the meaning of Part 2 of the 2003 Act is causing death by dangerous driving, contrary to section 1(1) of the Road Traffic Act 1988.

[5]Part 2 of the 2003 Act is concerned with extradition to category 2 territories, which include BiH. For the purposes of part 2 of the 2003 Act, the term "extradition offences" is defined by section 137 which, so far as is material, provides: 1. This section applies in relation to conduct of a person if -(a) He is accused in a category 2 territory of the commission of an offence, constituted by the conduct. 2. The conduct constitutes an extradition offence in relation to the category 2 territory if these conditions are satisfied - (a) The conduct occurs in the category 2 territory;

(b) The conduct would constitute an offence under the law of the relevant part of the United Kingdom, punishable with imprisonment or another form of detention for a term of 12 months or a greater punishment if it occurred in that part of the United Kingdom;

[6]In Norris v Government of the United States of America and others

[2008] UKHL 16

, the House of Lords described the test to be applied in the following terms at paragraph 91:

"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 (the equivalent of the arrest warrant under Part 1), ignoring in both cases mere narrative background but taking account of such allegations as are relevant to the description of the corresponding United Kingdom offence."

[7]The request for extradition encloses a copy of the indictment against the appellant dated 28 August 2008 issued by the Cantonal Prosecutor's Office of Sarajevo which details the alleged conduct in respect of which the appellant's extradition is sought. The indictment states as follows:

"On June 19 2008 around 1645 in Sarajevo while driving a private motor vehicle, type Nissan Micra, along Bolnicka Street from the direction of Kosova Street towards intersection of Bolnicka Street and Stjepana Tomica Street on approaching the intersection of the streets where traffic is regulated by means of lights, traffic lights, getting closer to the intersection at the sign of allowed street light, contrary to provision of article 49, paragraph 2 of the Law on Safety in Road Traffic, he started turning to the left-hand side to Stjepana Tomica Street, not paying due attention to speed and distance of the vehicles moving from the opposite direction. On that occasion, he failed to let motorcycle, type Ducati, without registration plates, driven by Mirel Imamovic pass by, who at the intersection kept on moving his direction, midst of which he had crashed into the motorcycle by the front side of his car, on which occasion Mirel Imamovic sustained serious injuries....and as a consequence of such injuries he deceased on the spot. Whereas as participant in traffic he had not observed traffic regulations and in such way he endangered public traffic, jeopardising human lives, thus causing death of one person."

[8]On page 3 of the indictment under the heading, "Investigation Results and Evidence", it is stated:

"The findings of expert in traffic profession proved that speed of private motor vehicle Nissan Micra was about 35 kilometres per hour and that of the motorcycle was about 112 kilometres per hour. The driver of the passenger vehicle on approaching intersection at the sign of an allowed light before started turning to the left-hand side had not paid due attention to speed and distance of motorcycle that arrived from opposite direction and, keeping on moving in that direction, so that such action of turning and crossing to opposite side of the roadway was both cause and consequence resulting in inflicted accident, by which the driver of the car had deprived the driver of the motorcycle of priority passage."

[9]Further and better particulars of the conduct alleged were requested of the government of the Federation. The answers given by the Municipal Court of Sarajevo to the request include the following: Q. "What is the provision of article 49 paragraph 2 of the Law on Safety in Road Traffic and how was it breached?" A. "Article 49, paragraph 2, of the Law on Safety in Road Traffic in BiH reads: The driver of the car that turns left on an intersection shall let the car that is coming from the opposite direction and is continuing in the same direction across the intersection, or is turning right, unless a traffic signal post indicates otherwise". Q. "Had the driver of the motorcycle breached any traffic regulations observe and, if so, what do they mean?" A. "The driver of the motorcycle had breached some traffic regulations observe flows from a traffic expert opinion and findings, with a remark that the opinion and findings are in the prosecutor's office, so this court cannot answer the question for the time being. You can ask the Cantinor prosecutor's office in Sarajevo to send you this piece of evidence and other pieces of evidence." Q. "When the passenger car started to turn left, was it allowed to do so?" A. "The driver of the passenger car was not allowed to turn left if there was another car continuing in the same direction." Q. "What are the respective speed limits of the roads for both the passenger car and the motorcycle?" A. "Article 44 paragraph 1 of the Law on Safety in Road Traffic in Bosnia and Herzegovina provides that on the road in an inhabited place the speed limit is 60 kilometres per hour, unless a traffic signed post indicates otherwise."

[10]Turning now to what is said to be the equivalent offence in this jurisdiction, Section 1 of the Road Traffic Act 1988 ("the 1988 Act") provides that:

"A person who causes the death of another person by driving a mechanically propelled vehicle dangerously on a road or other public place is guilty of an offence."

Section 2(A) of the 1988 Act provides, so far as is material, as follows:

"(1). For the purposes of sections 1 and 2 above, a person is to be regarded as driving dangerously if, (and, subject to sub-section (2) below, only if) - (a) The way he drives falls far below what would be expected of a competent and careful driver; and. (b) It would be obvious to a competent and careful driver that driving in that way would be dangerous. (2). A person is also to be regarded as driving dangerously for the purposes of sections 1 and 2 above if it would be obvious to a competent and careful driver that driving the vehicle in its current state would be dangerous. (3). In sub-sections (1) and (2) above "dangerous" refers to danger either of injury to any person or of serious damage to property; and in determining for the purposes of those sub-sections what would be expected of or obvious to a competent and careful driver in a particular case, regard should be had not only to the circumstances of which he could be expected to be aware, but also to any circumstances shown to have been within the knowledge of the accused."

[11]Reference was made to R v Conteh [2004] RTR 1 where Auld LJ emphasised the importance of keeping in mind the high threshold set by section 2A, however tragic the outcome. Auld LJ said at paragraph 16:

"So courts are not just concerned with what ought to have been anticipated, a feature of charges of driving without due care. It is a high threshold and courts should not forget that threshold on a charge of dangerous driving or of causing death by dangerous driving."

[12]Mr Butt submits that the essence of the allegation made against the appellant in the documents constituting the request is that on approaching the intersection of streets where traffic is regulated by means of traffic lights, he started turning to the left-hand side, "not paying due attention to speed and distance of the vehicles moving from the opposite direction." The speed limit was 60 kilometres per hour, or at least it is not alleged to be otherwise. The speed of the appellant's motorcar was about 35 kilometres per hour and that of the motorcycle was about 112 kilometres per hour. The traffic lights allowed the appellant to turn left at the intersection, but the motorcyclist had right of way because he was continuing in the same direction. Mr Butt submits that in considering whether the appellant was driving dangerously, regard should be had to the fact that the motorcyclist was driving grossly in excess of the speed limit.

[13]Mr Sternberg, for the respondent, submits that the decision of the district judge discloses no error of law and that doing what is identified in the indictment constitutes dangerous driving. A momentary lapse of concentration in failing to see the motorcyclist is the conduct Mr Sternberg relies upon.

[14]At paragraph 11 of his judgment, the district judge summarised his approach to determining whether the driving described in the request documents was dangerous as follows:

"As I read the information provided, it looks as though the defendant may have been moving constantly through the intersection at about 35 kilometres per hour and although that might not be a high speed or even in excess of the speed limit...it might be wholly inappropriate in the given circumstances. It does not look as though he entered the intersection and then stopped before pulling away to make the turn. The fact the defendant drove into the path of Mr Imamovic may in itself be sufficient to show a manner of driving that fell far below what would be expected of a careful and competant driver, and it would have been obvious to a careful and competent driver that driving in that way would be dangerous. It is only when the totality of the evidence is taken into account that a jury or court could decide whether his guilt had been established."

[15]In my view, the conduct alleged against the appellant falls short of the conduct that would amount to the offence of dangerous driving in this jurisdiction. I have reached that conclusion by reference to the documents constituting the request, as required by the decision in Norris. I do, however, note that in the opening note of Mr Mannion for the government of the Federation of BiH dated 30 July 2009 inviting the district judge to send the case to the Secretary of State, she referred to the conduct of the appellant in the following terms:

"He failed to pay due care and attention to the speed and distance of a motorcycle approaching and having the right of way."

[16]In addition, I observe that the appellant was charged under article 332(3) with negligent action, not under article 334 with "risky action". I must be careful not to attempt to interpret concepts that may be understood differently in foreign law, but I am entitled to note that the conduct with which the appellant has been charged is negligent conduct under BHI law which transposed to our law is more akin to careless than dangerous driving.

[17]In my judgment, the conduct alleged does not amount to an extradition offence for the purposes of section 137(3) of the 2003 Act. The district judge was wrong to find that it did. Having reached this conclusion, it is unnecessary for this court to consider the second ground of challenge. This appeal is allowed.

LORD JUSTICE PILL : I agree. Mr Butt, counsel for the appellant, has indicated that if we are with him on the first ground of appeal he does not seek to pursue the grounds based on articles 2 and 3 of the European Convention on Human Rights.

[19]MR BUTT: Thank you, my Lord.

LORD JUSTICE PILL: Are there any applications?

[21]MR BUTT : Simply for assessment for legal aid.

LORD JUSTICE PILL : But you do not apply for costs? Should you, as a legally aided --

[23]MR BUTT : My Lord, I believe the usual application is simply to apply for assessment of the costs.

LORD JUSTICE PILL : There is usually a duty on those who are legally aided who are successful, which you are, to apply for costs against the authority. The government that is, not the legal aid authority.

[25]MR BUTT : I have never known an application to be made before in an extradition case, my Lord, but that is no reason why --

LORD JUSTICE PILL : Well, it is up to you. You take instructions, if you wish.

[27]MR STERNBERG: Certainly in my experience, my Lord, the usual application is simply for assessment of costs. I am not aware --

LORD JUSTICE PILL : Is that peculiar to extradition?

[29]MR STERNBERG: I think it may be, my Lord.

LORD JUSTICE PILL : Have the Legal Aid Board declared themselves that in extradition cases they do not want to ask for costs?

[31]MR BUTT : I do not think such an announcement has been made, my Lord. I think the view was always taken that pushing the same money, in effect, around between different state organisations assisted --

LORD JUSTICE PILL : Yes, very well. No order for costs, save a legal aid taxation direction.

[33]MR BUTT : My Lord --

LORD JUSTICE PILL : Do you have a further submission?

[35]MR BUTT : Simply formally an order quashing the extradition order --

LORD JUSTICE PILL: Yes.

[37]MR BUTT: -- and the discharge of the appellant and also may I ask that a --

LORD JUSTICE PILL : Anything on that, Mr Sternberg?

[39]MR STERNBERG: My Lord, I can't resist.

[40]MR BUTT : A security of £20,000 is being held by those who instruct me to the order of the court. May I ask that my instructing solicitor be released from that undertaking?

LORD JUSTICE PILL : Security for costs?

[42]MR BUTT : No, it was a bail security.

LORD JUSTICE PILL : Bail. Mr Sternberg?

[44]MR STERNBERG: I think the quashing of the order with a discharge means that the bail conditions no longer apply.

LORD JUSTICE PILL : Yes, I would think so. Out of caution, we do declare that obligation is now released.

[46]MR BUTT : Thank you, my Lord.