Alin-Ionut Stafi v Judecatoria Roman, Romania
| Jurisdiction | England & Wales |
| Judge | Mrs Justice Yip DBE |
| Judgment Date | 28 February 2023 |
| Neutral Citation | [2023] EWHC 429 (Admin) |
| Docket Number | Case No: CO/1597/2021 |
| Court | King's Bench Division (Administrative Court) |
[2023] EWHC 429 (Admin)
Mrs Justice Yip DBE
Case No: CO/1597/2021
IN THE HIGH COURT OF JUSTICE
KING'S BENCH DIVISION
ADMINISTRATIVE COURT
Royal Courts of Justice
Strand, London, WC2A 2LL
Ben Joyes instructed by Birds Solicitors for the Appellant
Hannah Burton instructed by The Crown Prosecution Service for the Respondent
Hearing dates: 14 February 2023
Approved Judgment
This judgment was handed down remotely at 2pm on Tuesday 28 February 2023 by circulation to the parties or their representatives by e-mail and by release to the National Archives.
The appellant, Mr Stafi, appeals against the decision of District Judge Branston on 29 April 2021 to extradite him to Romania to serve a sentence of three years' imprisonment for offences of fraud committed between 2011 and 2013.
The appeal was initially pursued on three grounds but proceeds solely on ground 2, namely that the requirements of section 20 of the Extradition Act 2003 (“EA 2003”) have not been complied with. Permission to proceed on that ground was granted by Chamberlain J on 11 February 2022. Permission was refused on Ground 1, which raised an argument under section 2 of EA 2003. There is no renewed application for permission on that ground so I say no more about it. Chamberlain J stayed the application for permission on Ground 3, relating to prison conditions in Romania, pending determination of the issues raised by the Divisional Court. Following the decision in Marinescu and others v Romania [2022] EWHC 2317 (Admin), the appellant does not seek to pursue Ground 3. I therefore lift the stay and refuse permission on Ground 3.
The appellant's extradition is sought pursuant to a European arrest warrant (“EAW”) issued by a judge of the Roman Court in Romania on 11 July 2019 and certified by the National Crime Agency on 21 February 2020. The EAW relates to nine offences concerning fraudulent activity committed by the appellant in the course of his employment as a mobile phone salesman. The offences were initially dealt with in four criminal cases. On 14 June 2019, the Roman Court issued penal decision 359, which was final by lack of appeal (“Sentence 359”). Sentence 359 activated and merged sentences which had been imposed on the appellant following trials in the underlying proceedings to arrive at the new sentence of three years' imprisonment, all of which remains unserved.
The EAW acknowledged that the appellant was not present at the hearing resulting in Sentence 359 and had not been served with the decision. However, it stated that he would be personally served with it without delay after surrender and would be informed of his retrial and appeal rights, including the right to request a retrial within 30 days.
Where a requested person was convicted in their absence, section 20(3) EA 2003 requires the judge to decide whether he “deliberately absented himself from his trial.” If he did not, the judge must proceed under section 20(5) to decide whether the requested person would be “entitled to a retrial or (on appeal) to a review amounting to a retrial.” If not, the judge must order his discharge, pursuant to section 20(7). Section 20(8) sets out the rights which must be afforded to satisfy section 20(5). If the judge decides that the requested person was deliberately absent or if he finds that he would be entitled to a retrial, he will proceed (pursuant to section 21 EA 2003) to consider whether extradition would be compatible with the Convention rights within the meaning of the Human Rights Act 1998.
At the hearing in the court below, section 20 was given limited consideration. It was not the primary argument advanced by the appellant, as it is now. Arguments were advanced on the basis of inconsistencies as to the appellant's presence or absence at some earlier hearings within the four cases, but the District Judge found that he had been represented throughout those proceedings and therefore was not to be treated as absent. Although it was accepted that the appellant had not been present at the Sentence 359 hearing, the District Judge found that the provisions of section 20 were satisfied, on the basis that the EAW stated that he had a right to a retrial. The judgment does not include any consideration of whether the appellant had deliberately absented himself from the Sentence 359 hearing. This was apparently not treated as a live issue as it would be immaterial if the appellant had a right to a retrial, as set out in the EAW.
The District Judge therefore turned to consider section 21, concluding (after analysis) that extradition would be compatible with the appellant's Convention rights within the meaning of the Human Rights Act 1998. This conclusion is no longer the subject of challenge on appeal.
Following the hearing in the court below, the Roman Court issued a decision on 12 March 2021. In light of that ruling, the respondent now accepts that it cannot maintain that there is a right to retrial. It is unnecessary to decide whether the ruling is fresh evidence and/or whether the appellant should have permission to rely on it as such since it is now common ground that this appeal must proceed on the basis that there is no right to a retrial within the meaning of section 20(5) and (8).
Section 27 EA 2003 sets out the conditions for allowing an appeal. Under section 27(3), an appeal may be allowed if “the appropriate judge ought to have decided a question before him at the extradition hearing differently”. Section 27(4) applies where “an issue is raised that was not raised at the extradition hearing or evidence is available that was not available at the extradition hearing” and that issue or evidence would have resulted in the judge deciding a question before him differently. In both cases, the appeal will be allowed if the judge would have been required to order the requested person's discharge had the question been decided as it ought to have been.
The respondent did not assert that the appellant had deliberately absented himself from the Sentence 359 hearing and the District Judge made no finding about that. His conclusion on section 20 was simply underpinned by the understanding at the time that there was a right to a retrial. The judge cannot be blamed for proceeding on an erroneous basis but, given that it is now common ground that there is no right to a retrial, consideration should have been given to whether the appellant deliberately absented himself from the Sentence 359 hearing in June 2019. That is the issue which must now be decided on appeal.
If the appellant did not deliberately absent himself from trial, he must be discharged since section 20(5) cannot be satisfied. If he did deliberately absent himself, his extradition must be ordered on the basis of the finding of the court below that extradition is compatible with his human rights. The respondent bears the burden of proving each of the required elements under section 20 to the criminal standard. It follows that it is for the respondent to prove that the appellant was deliberately absent, and not for the appellant to prove that he was not.
The issue having been raised in the perfected Grounds of Appeal, the respondent applied to admit fresh evidence, contained in further information dated 16 August 2021. This was the seventh time further information had been served by the respondent, so is referred to as “FI7”. Relying on that evidence, it is the respondent's position that the appellant had not notified the authorities of his change of address or that he had moved to this country. The respondent contends that the fresh evidence leads to the conclusion that the appellant was deliberately absent and therefore that the decision to extradite him should be upheld.
The parties also referred to earlier evidence served by the respondent, within FI1–6, each making submissions as to what inferences could be drawn from the evidence before the court below. On behalf of the respondent, Ms Burton initially contended that, even without the fresh evidence, the District Judge could have inferred that the appellant was deliberately absent. However, during the hearing, she realistically accepted that it was difficult to submit that the court could be satisfied to the required standard without reliance on FI7. It follows that, unless the fresh evidence is admitted, the appeal would have to be allowed.
At the hearing in the Magistrates' Court, the appellant gave evidence that he did not know about the hearing on 14 June 2019. He was not aware that he had been re-sentenced to an overall sentence of three years' imprisonment. He claimed he did not understand how that had happened as he was under probation supervision and his probation officer had details for him in the United Kingdom. He had been in this country since 2014 but had made trips back to Romania, last travelling there in November 2018. He produced documentary evidence of his flights. The appellant said that he thought all the proceedings had been concluded and finalised in 2018 and that he had complied with all the terms of his supervision and with instructions from his probation officer.
A potential difficulty arises from this court being asked to determine the issue of deliberate absence without relevant factual findings having been made in the court below. I did not hear the appellant's evidence. I do not even have a transcript of it. Since deliberate absence was not treated as a live issue, he was not challenged on his evidence about lack of knowledge of the June 2019 hearing in cross-examination. On the question of whether the appellant was a fugitive, the District Judge said:
“Ms Burton does not submit that Mr Stafi can be proven to be a fugitive from Romanian justice. I agree there is insufficient evidence...
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...[2019] EWHC 351 (Admin), Bertino v Public Prosecutor's Office, Italy [2022] EWHC 665 (Admin) and Stafi v Judecatoria Roman, Romania [2023] EWHC 429 (Admin). It should be noted, however, that the relevant statutory provision in England and Wales (section 20 of the Extradition Act 2003) dif......