Yakub v Burgas District Prosecutors Office (Bulgaria)

B e f o r e :

MR JUSTICE BOURNE JUDGE OF THE HIGH COURT ____________________

____________________

Anna Rubbi (instructed by Hollingsworth Edwards Solicitors) for the Claimant Rebecca Hadgett (instructed by Crown Prosecution Service) for the Respondent Hearing dates: 27th January 2026 ____________________

HTML VERSION OF JUDGMENT ____________________

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Introduction

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.

Ground 1

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:

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]:

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 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:

(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:

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:

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:

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:

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.

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.

Ground 2

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

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:

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]:

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.

Conclusion

The appeal is allowed.