Alexandru Lucian Nicolescu v The Government of the United States of America
| Jurisdiction | England & Wales |
| Judge | Mr Justice Cranston,Lord Justice Laws |
| Judgment Date | 09 October 2014 |
| Neutral Citation | [2014] EWHC 3501 (Admin) |
| Court | Queen's Bench Division (Administrative Court) |
| Date | 09 October 2014 |
| Docket Number | CO/2505/2014 |
[2014] EWHC 3501 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
DIVISIONAL COURT
Royal Courts of Justice
Strand
London WC2A 2LL
Lord Justice Laws
Mr Justice Cranston
CO/2505/2014
The Appellant appeared in person
Mr Aaron Watkins (instructed by the Crown Prosecution Service) appeared on behalf of the Respondent
The appellant is a Romanian national and in his mid-30s. He is married and has two young sons. The Government of the United States of America requests his extradition to stand trial in their District Court for the District of Connecticut on an indictment which contains three counts. The first two fall under volume 18 of the United States Code, section 1951: one of attempting to interfere with commerce by extortion, the other of conspiracy to interfere with commerce by extortion. Each of these counts carries a maximum penalty of 20 years' imprisonment. The third count is possession of a stolen vehicle in violation of an offence in volume 18 of the United States Code, section 2313(a), carrying a maximum penalty of 10 years' imprisonment.
The alleged offending for which the federal grand jury returned this indictment occurred at night on 15 April 2007. The appellant, together with others, is alleged to have broken into the home of a Ms Anne Bass in South Kent, Connecticut masked and armed with guns and knives. Ms Bass is very wealthy. She was home at the time with her partner and 3-year-old granddaughter. She and her partner were bound and over a period of five hours the gang attempted to extort $8.5 million. They injected the two with what they claimed was a deadly virus and demanded money in exchange for an antidote. For various reasons, which I do not need to explain, the gang abandoned their plan and compelled the couple to consume an unknown drink which made them unconscious. The gang then stole the Jeep and fled the address.
Two of the gang were caught and charged with materially identical conduct. One, Emanuel Nicolescu, who has previously worked for Ms Bass at the South Kent residence, was convicted and is serving a 20-year term of imprisonment. The other pleaded guilty and at the time of the hearing before the District Judge had yet to be sentenced. An Associate Director of the Office of International Affairs of the Criminal Division of the United States Department of Justice and the Assistant US Attorney for the District of Connecticut explain that the evidence against the appellant includes that from a co-operating witness and DNA.
The appellant first appeared in the Westminster Magistrates' Court on 15 November 2013. He failed on a number of occasions to comply with case management directions, in particular his evidence was not served as directed. A report from a psychiatrist, Dr Joseph, was eventually obtained, but the appellant was unhappy with that and did not intend to rely on it. After numerous delays there was a full hearing before Chief Magistrate Riddle on 6 March 2014, but the appellant had refused to instruct his lawyers and it was aborted. The appellant acquired new lawyers. There was another hearing before the Chief Magistrate on 20 March. The Chief Magistrate made an unless order, that all evidence had to be served by the end of the day. On 31 March there was a request to adjourn the scheduled 9 April hearing. That was refused. The Chief Magistrate said that the appellant had deliberately chosen not to co-operate. He commented that if Dr Joseph's report was deficient he could have been posed further questions. He said that the appellant had manipulated the court's processes. He would not rule out the admission of a further medical report on 9 April, but he was satisfied that in any event the court had all the information that it needed.
District Judge Snow heard the case on 9 April. At that hearing the appellant was represented by experienced counsel. There was a further report from Dr Forrester. Contrary to case management directions, Dr Forrester was not available for cross-examination. In his judgment the District Judge set out the procedural history and refused to admit the further evidence from Dr Forrester. There had been flagrant and repeated breaches of directions, he said, and the United States was at a disadvantage by the late service of evidence compounded by the appellant's failure to ensure Dr Forrester's attendance. Thus the sole issue was whether the appellant's mental health operated to bar extradition, pursuant to section 91 of the Extradition Act 2003 ("the 2003 Act") and to Articles 3 and 8 of the European Convention on Human Rights.
The appellant did not give evidence. The judge referred to the appellant's proof where he stated that he had a history of depression and that earlier that year he was preparing to commit suicide by hanging, but was dissuaded by his cell mate. The judge also referred to a statement from the appellant's wife. On her account there was a previous suicide attempt some years previously.
The District Judge turned to Turner v United States of America [2012] EWHC 2426 (Admin) and a summary of it, by the then President of the Queen's Bench Division, in Wolkowicz v Poland [2013] EWHC 102 (Admin), [2014] 1 WLR 2402. Sir John Thomas (the President) said:
"8. In a recent suicide case, Turner v Government of the USA [2012] EWHC 2426 (Admin), Aikens LJ summarised the propositions which could be derived from these cases at paragraph 28:
"(1) The court has to form an overall judgment on the facts of the particular case.
(2) A high threshold has to be reached in order to satisfy the court that a requested person's physical or mental condition is such that it would be unjust or oppressive to extradite him.
(3) The court must assess the mental condition of the person threatened with extradition and determine if it is linked to a risk of a suicide attempt if the extradition order were to be made. There has to be a "substantial risk that [the appellant] will commit suicide". The question is whether, on the evidence the risk of the appellant succeeding in committing suicide, whatever steps are taken is sufficiently great to result in a finding of oppression.
(4) The mental...
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