APPEAL COURT, HIGH COURT OF JUSTICIARY
Lord Carloway Lord Brodie Lord Philip	[2011] HCJAC 107 XC544/11 OPINION OF THE COURT delivered by LORD CARLOWAY in APPEAL AGAINST SECTION 26 OF THE EXTRADITION ACT 2033 by POITR SOBCZAK Appellant; against HER MAJESTY'S ADVOCATE Respondent: _____________

Appellant: Govier; Ludgate Dunne, Edinburgh

Respondent: Hawkes AD; Crown Agent

7 October 2011

[1] On 29 March 2005 at the Regional Court in Zielona Gora, Poland, the appellant was convicted of importing narcotic substances, in the form of approximately 5 kilograms of cannabis, into Poland from Germany in the cab of his lorry. He was sentenced to 3 years and 3 months imprisonment, but left Poland whilst at liberty pending an appeal which was subsequently refused on 18 October 2005. A European Arrest Warrant under Part 1 of the Extradition Act 2003 was issued by the court in Poland on 18 June 2010 and this was executed on the appellant in Scotland on 9 June 2011.

[2] According to the translation of the EAW produced to the sheriff, the cannabis in the appellant's lorry had been in the form of seeds. This translation had not accompanied the EAW from Poland, but had been obtained by the respondent after the provisional arrest of the appellant under section 5 of the 2003 Act. On 21 July 2011 the Sheriff at Edinburgh ordered the appellant's extradition, rejecting a contention that the offence for which the appellant had been convicted was not extraditable in terms of section 65 of the Act. Under reference to R v Mitchell [1977] 1 WLR 753 and R v Goodchild [1977] 1 WLR 473, the argument had been that section 37(1) of the Misuse of Drugs Act 1971 had defined cannabis in a manner which excluded the seeds. Thus, it was contended, the offence was not extraditable since it was not criminal in Scotland. The response from the Crown, which was accepted by the sheriff, was that what the appellant had been doing was importing seeds in order to grow cannabis plants. Thus the facts necessary to prove a contravention of section 4(2) of the 1971 Act, namely concern in the production of cannabis, had been proved. In addition, the sheriff held, in accordance with a further argument from the Crown, that whether or not possession of cannabis seeds was illegal in Scotland, the offence in Poland had been duly certified as extraditable in terms of section 65 of the 2003 Act.

[3] The appeal to this court has been affected by the discovery that the translation of the EAW is erroneous in one respect. In its original Polish, the description of the cannabis in the EAW is not "seeds" but, properly translated, "leafy material". In short, the appellant had been convicted of importing plants or parts of them. The accuracy of the new translation was not disputed nor was it argued that importing or otherwise transporting 5 kilograms of cannabis plants did not constitute an offence in Scotland which, if committed in contravention of the laws of a category I territory, would be extraditable. Nevertheless, the respondent was inclined not to resist the appeal on the basis that the initial translation of the EAW had been defective, even although the EAW in its original Polish form is not. The respondent would, in this set of circumstances, not oppose the appeal but instead, obtain a further, presumably identical, EAW and proceed in due course on the basis of that EAW as correctly translated.

[4] The court first has to consider whether the sheriff's decision was a correct one on the information before him. If it was not then the appeal must succeed. On the other hand, if the sheriff's decision was the correct one, the new information provides the court with an extra task of determining whether the translation error was material to that decision and undermines its validity.

[5] Sub-sections 65(2) and (3) of the 2003 Act provide that conduct will amount to an extradition offence if the authority, in this case Poland, certifies the conduct as falling within the framework list or if, in any event, the conduct would constitute an offence if it had occurred in Scotland. It is not disputed that the European Council Framework Decision of 13 June 2002 (2002/584/JHA) includes within its list the "illicit trafficking in narcotic drugs and psychotropic substances". Where the Polish authorities have designated the particular offence, of which the person has been convicted, as a framework list offence and there is a certificate to that effect, the offence becomes extraditable without the further need for verification of double criminality (see Office of the King's Prosecutor, Brussels v Armas [2005] 3 WLR 1079). In this case, the fact that possession of cannabis seeds may not be an offence in Scotland does not affect that issue. But, in any event, the court agrees with the sheriff's conclusion that transporting this quantity of seeds would constitute an offence in Scotland under section 4(2) of the 1971 Act. Accordingly the court is of the view that the sheriff's decision on the material presented to him was a correct one.

[6] Turning to the question of whether the original error in translation was a material one, the court must answer that in the negative. It is not disputed that the original EAW, upon which the arrest of the appellant was based, is valid and relates to cannabis plants. It was not submitted, nor indeed could it have been, that the importation of such material is neither a framework list offence nor a crime in Scotland. The original translation error being immaterial to the ultimate decision of the sheriff, it can have no effect on the determination of this appeal, which must be refused.

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