Andras Seprey-Hozo v Law Court of Miercurea Ciuc, Romania
| Jurisdiction | England & Wales |
| Judge | Mr Justice Cranston |
| Judgment Date | 17 November 2016 |
| Neutral Citation | [2016] EWHC 2902 (Admin) |
| Docket Number | Case No: CO/6014/2014 |
| Court | Queen's Bench Division (Administrative Court) |
| Date | 17 November 2016 |
[2016] EWHC 2902 (Admin)
The Hon. Mr Justice Cranston
Case No: CO/6014/2014
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
Royal Courts of Justice
Strand, London, WC2A 2LL
Mr Martin Henley (instructed by Lewis Nedas Law) for the Claimant
Ms Hannah Hinton (instructed by the Crown Prosecution Service) for the Defendant
Hearing date: 13/10/2016
Judgment Approved
Introduction
This is a novel application to reopen an extradition appeal after the appellant, Andreas Seprey-Hozo, has been extradited. He was extradited to Romania under a European Arrest Warrant ("EAW") pursuant to Part 1 of the Extradition Act 2003 ("the 2003 Act"). The appellant claims that the prison conditions in Romania where he is serving his sentence of three years' imprisonment are in breach of Article 3 of the European Convention on Human Rights ("ECHR" or "the Convention"). Even if it is not possible for him to be returned to the UK, he argues that this court should reopen his appeal and declare in clear terms its disapproval of what the Romanian authorities have done: they gave an assurance that he would serve his sentence in Article 3 ECHR compliant prison conditions, but that assurance has been breached.
Background
On 22 December 2014, District Judge Coleman ordered the appellant's extradition to Romania under two conviction EAWs. He raised prison conditions in Romania on his appeal. On 5 October 2015, Supperstone J dismissed the appeal: Hozo v. Romania [2015] EWHC 3022 (Admin). An application for permission to appeal to the Supreme Court was lodged but Supperstone J refused to certify a question as being of sufficient public importance to go to the Supreme Court. The appellant was subsequently extradited to Romania in December 2015, and has been serving his sentence there since.
The basis of Supperstone J's decision regarding prison conditions in Romania was that in the light of Blaj v. Romania [2015] EWHC 1710 (Admin), and its approval of the assurance given by the Romanian Ministry of Justice on 26 February 2015 as to the treatment of UK extraditees in Romanian prisons, the appellant did not face a serious risk of being treated in an inhuman or degrading way contrary to Article 3 ECHR.
The Romanian assurance followed decisions in this court on Romanian prison conditions such as Florea v. Romania [2014] EWHC 2528 (Admin) (" Florea I") and Florea v. Romania [2014] EWHC 4367 (Admin) (" Florea II"). In summary, it guarantees that every person surrendered from Britain to Romania, pursuant to an EAW, will occupy the minimum space requirements laid down in both domestic and Strasbourg case law (as to the latter, see for example, Toma Barbu v. Romania, no. 19730/10, 30 July 2013, Tirean v. Romania, no. 47603/10, 28 October 2014 and Case ofEze v. Romania, no. 80529/13, 21 June 2016).
The appellant's case for reopening the appeal is that the Romanian authorities have breached this assurance to the UK, not only generally but specifically with regard to him. Mr Henley referred to the evidence from a number of UK extraditees adduced in the Westminster Magistrates' Court earlier this year in the case of Rusu v. Romania. The Romanian authorities then sent letters dated 14 and 24 June 2016, accepting that the assurances had not been met in relation to these persons but explaining how this had occurred. In his judgment of 11 August 2016 District Judge Purdy discharged Mr Rusu because of the risk to him that the assurances may not be met in his case.
With respect to the appellant, it is said, the assurance that he would not be held in inhuman or degrading prison conditions has not been fulfilled. He was supposed to have available to him a minimum of two square metres of space within a semi-open prison regime. The appellant has provided a handwritten witness statement of his own composition, a floor plan and photographic evidence of the worse conditions he is experiencing. His evidence is supported by the signed, handwritten statements of his cellmates. Mr Henley submits on his behalf that the evidence is clear that he has been subjected to inhuman and degrading conditions as a result of his incarceration.
Legal framework
That a requested person has been extradited is no absolute bar to a court considering the person's appeal. In Pilecki v. Poland [2008] UKHL 7, [2008] 1 WLR 325 the appellant had been mistakenly removed from the UK while his petition for leave to the appeal to the House of Lords was still pending. In a speech with which the other law lords agreed, Lord Hope noted (1) that the appellant had informed his English solicitor that he wished to continue his appeal and (2) that proceedings for declaratory relief had been commenced in the High Court and that the appellant would not seek any consequential orders from the House if the appeal was successful: [13]. Lord Hope then considered the merits of the appeal, which was dismissed.
Similarly, in Asztaslos v. Szekszard City Court, Hungary [2010] EWHC 237 (Admin), [2011] 1 WLR 252 a requested person was returned to Hungary as a result of an administrative error on the part of the British authorities before his appeal was heard. In Hungary he was held on remand to face criminal proceedings for which his extradition had been requested. On the appellant's behalf it was argued that the erroneous removal should not extinguish his statutory right of appeal here and that the court should hear the appeal in the normal way. In giving the judgment of Openshaw LJ and himself, Aikens LJ said that "certainly it would be most unjust if he were to be deprived of his right of appeal by an error on the part of the British authorities when an appeal was pending": [3]. The court went on to hear the appeal, which it dismissed.
Neither the House of Lords in Pilecki, nor the Divisional Court in Asztasles had to consider what would have happened if the requested person's appeal had been successful. Neither case involved the reopening of an appeal, since at that point the appeal was still ongoing.
The power of the High Court to reopen an extradition appeal is now contained in a specific rule, rule 50.27 of the Criminal Procedure Rules ("the CrPR"). Before rearrangement of the rules in October 2015, this was CrPR 17.27, which was introduced in 2014. Under rule 50.27(3)(b) the application to reopen the extradition appeal must give reasons why –
"(i) it is necessary for the court to reopen that decision in order to avoid real injustice,
(ii) the circumstances are exceptional and make it appropriate to reopen the decision, and
(iii) there is no alternative effective remedy."
The court must not give permission to reopen a decision unless each other party to the appeal has had an opportunity to make representations.
Until October 2014, extradition appeals fell not under the Criminal Procedure Rules but under the Civil Procedure Rules ("the CPR"), 52DPD.22. The power to reopen appeals under those rules is contained in CPR 52.17. It provides:
"(1) The Court of Appeal or the High Court will not re-open a final determination of any appeal unless—
(a) It is necessary to do so in order to avoid real injustice;
(b) The circumstances are exceptional and make it appropriate to re-open the appeal; and
(c) There is no alternative effective remedy."
CPR 52.17 is of relatively recent origin. Prior to its adoption, the Court of Appeal, Civil Division, had held in Taylor v. Lawrence [2002] EWCA Civ 90, [2003] QB 528 that there was a residual jurisdiction in the court to reopen an appeal. That was to avoid a real injustice in exceptional circumstances where it was necessary to achieve the court's two principal objectives, one correcting wrong decisions and two, ensuring public confidence in the administration of justice. In reaching this conclusion, the court emphasised the importance of finality in litigation.
In the course of his judgment in Taylor v. Lawrence, Lord Woolf MR referred to Flower v. Lloyd (1887) 6 Ch D 297, where Sir George Jessel MR had held that there was no power to reopen an appeal even where the appellate judgment had been obtained by fraud, since there was the alternative remedy of bringing a fresh action to impeach the original decree. The court in Taylor v. Lawrence said that the jurisdiction to reopen an appeal was seldom to be exercised: [54]. Following Taylor v. Lawrence in October 2003, its principles were embodied...
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