Bacau Disrict Court, Romania v Andy-Richard Iancu
| Jurisdiction | England & Wales |
| Judge | Mrs Justice May DBE |
| Judgment Date | 26 May 2023 |
| Neutral Citation | [2023] EWHC 1274 (Admin) |
| Court | Queen's Bench Division (Administrative Court) |
| Docket Number | Case No: CO/1517/2022 |
[2023] EWHC 1274 (Admin)
Mrs Justice May DBE
Case No: CO/1517/2022
IN THE HIGH COURT OF JUSTICE
KING'S BENCH DIVISION
ADMINISTRATIVE COURT
Royal Courts of Justice
Strand, London, WC2A 2LL
Joel Smith (instructed by CPS Extradition Unit) for the Appellant
Graeme Hall (instructed by Taylor Rose MW Solicitors) for the Respondent
Hearing dates: 4 May 2023
Approved Judgment
I direct that pursuant to CPR PD 39A para 6.1 no official shorthand note shall be taken of this Judgment and that copies of this version as handed down may be treated as authentic.
The appellant judicial authority appeals the decision of District Judge Michael Snow (“DJ Snow”) dated 22 April 2022 to discharge the respondent on the basis that the extradition proceedings were an abuse of process. Leave was granted on the papers by order of Bourne J dated 30 January 2023.
The current arrest warrant
The surrender of the respondent was sought pursuant to a conviction warrant issued on 2 November 2021 by the appellant and certified by the NCA on 8 November 2021 (“AW2”). The warrant relates to six offences:
(1) Theft of a mobile phone committed on 20 April 2014
(2) Theft/burglary of a computer from an apartment between 8–9 July 2011
(3) Theft of a laptop from an office on 26 July 2013
(4) Driving a Fiat Doblo motor vehicle without a licence on 17 March 2016
(5) Damage to a slot machine on 3 November 2016
(6) Driving a Fiat Doblo motor vehicle without a licence on 15 April 2016
On 4 July 2019 the respondent was sentenced to a combined sentence of 2y1m reflecting all of the above conduct. That sentence became final, due to a lack of appeal, on 23 July 2019. The hearing was conducted in the respondent's absence and he has a right to a re-trial.
The earlier arrest warrant
The respondent was first arrested on 3 January 2020 pursuant to a European Arrest Warrant issued on 14 August 2019 (“AW1”). AW1 sought the respondent's extradition to serve the same sentence passed by the Romanian court on 4 July 2019, based on the same offences set out above. He was brought before Westminster Magistrates' Court on 4 January 2020. The respondent resisted extradition on a number of grounds, including an Article 3 ground alleging a real risk that prison conditions in Romania would expose him to inhuman and degrading treatment and submitting that there had been no assurance served which could rebut that risk.
Proceedings on AW1 were adjourned and eventually listed for hearing on 11 September 2020. Shortly before the hearing the appellant served an assurance, dated February 2020 (“the February 2020 assurance”), as to prison conditions which the respondent contended was inadequate. At the hearing District Judge Hamilton (“DJ Hamilton”) directed that the CPS send a request for further information in relation to prison conditions, in terms to be approved by him in writing. He further directed that the appellant should respond to that request by 12 October 2020. The case was listed again on 4 December 2020.
At the hearing on 4 December 2020 no response had been received from the appellant. Counsel sought no adjournment, the appellant wishing to contend that the February 2020 assurance was adequate. DJ Hamilton heard argument and adjourned to consider his ruling.
On 14 December 2020, before the ruling had been finalised or handed down, the appellant provided a further assurance. DJ Hamilton declined to receive this further assurance into evidence. Two days later, on 16 December 2020, DJ Hamilton gave his reasons for refusing to admit the further assurance into evidence and discharged the respondent on AW1, finding that the February 2020 assurance was inadequate. DJ Hamilton noted that:
(1) The appellant had known since the decision in Georghe v Romania [2020] EWHC 722 (Admin), handed down in March 2020, that the February 2020 assurance was inadequate. Nevertheless it served that assurance in September and sought to rely on it as sufficient at the reconvened hearing on 4 December 2020.
(2) In the interim the Romanian authorities had provided at least 3 further informations dealing with other matters but had inexplicably failed to deal with prison conditions;
(3) Despite the extradition hearing on 11 September 2020 having been adjourned for 3 months, the appellant had failed to respond to the request for further information issued by the CPS as directed in September, and had failed to make any contact with the CPS to explain why.
DJ Hamilton concluded that this was “an exceptional case where ‘the surrender procedure should be brought to an end’”.
The judicial authority appealed DJ Hamilton's decision. The appeal was heard and dismissed by Chamberlain J on 29 April 2021: District Court of Bacau, Romania v Iancu [2021] EWHC 1107 (“ Iancu 1”). In the course of his decision Chamberlain J observed that “it is inherent in the concept of a time limit that failure to comply with it may have consequences” (Iancu 1 at [22]). In addition to the reasons given by DJ Hamilton he pointed out that admitting the further assurance would almost certainly have required a further hearing, in circumstances where “the time limits set out in Article 17 [of the Framework Decision] had long ago been exceeded”. In response to the appellant's submission that the district judge had not considered the strong public interest in extradition he found that the district judge had been aware of this but was entitled to conclude, in accordance with the court's observations in Aranyosi [2016] QB 921 at [104], that this was “an exceptional case” in which “the surrender procedure should be brought to an end”.
Proceedings on AW2
As indicated above, AW2 was issued some 6 1/2 months later, in November 2021, based on the same conduct, and the same sentence, as that cited and relied on in AW1. The respondent appeared before Westminster Magistrates' Court on 10 December 2021 and has been on bail since then.
On 5 January 2022 the appellant provided an assurance as to prison conditions. The Respondent, who was unrepresented at the hearing before DJ Snow, did not then dispute the adequacy of this assurance. I am told that he may seek to revisit this issue upon remission, in reliance upon the recent decision in Marinescu v Romania [2022] EWHC 2317 (Admin).
The hearing came on before DJ Snow on 22 April 2022. The respondent gave evidence. At the end of the hearing DJ Snow invited representations on abuse of process. Having heard submissions he proceeded to stay proceedings on AW2 as an abuse of process
Ground of appeal
The single ground of appeal is that DJ Snow's decision was wrong.
Legal framework
Appeals from extradition decisions
The court's powers on an extradition appeal are set out in Section 29 of the 2003 Act, which materially provides that:
(1) On an appeal under section 28 the High Court may—
(a) allow the appeal
(b) dismiss the appeal
(2) The court may allow the appeal only if the conditions in subsection (3) or the conditions in subsection (4) are satisfied.
(3) The conditions are that—
(a) The judge ought to have decided the relevant question differently;
(b) If he had decided the question in the way he ought to have done, he would not have been required to order the person's discharge. …”
The practical application of the statutory requirement has been encapsulated by Lord Burnett CJ in Love v Government of the USA [2018] 1 WLR [2889] at [25]–[26] as follows:
“25. The true focus is not on establishing a judicial review type of error, as a key to opening up a decision so that the appellate court can undertake the whole evaluation afresh. This can lead to a misplaced focus on omissions from judgments or on points not expressly dealt with in order to invite the court to start afresh, an approach which risks detracting from the proper appellate function. That is not what Shaw's case or Belbin's case was aiming at. Both cases intended to place firm limits on the scope for re-argument at the appellate hearing, while recognising that the appellate court is not obliged to find a judicial review type error before it can say that the judge's decision was wrong, and the appeal should be allowed.
26 The true approach is more simply expressed by requiring the appellate court to decide whether the decision of the district judge was wrong. What was said in the Celinski case and In re B (A Child) are apposite, even if decided in the context of article 8. In effect, the test is the same here. The appellate court is entitled to stand back and say that a question ought to have been decided differently because the overall evaluation was wrong: crucial factors should have been weighed so significantly differently as to make the decision wrong, such that the appeal in consequence should be allowed.”
Abuse of process
There is no principle of res judicata or issue estoppel in extradition. In cases where one party attempts to re-litigate matters determined in proceedings on a previous warrant the appropriate remedy is abuse of process: see Auzins v Latvia [2016] 4 WLR 75 at [36]–[37] per Burnett LJ (as he then was).
The principle in Henderson's Case (1843) 3 Hare 100, requiring parties to litigation to bring their whole case before the court on the first occasion, does not apply where a requesting state fails to secure extradition on a first attempt and thereafter institutes fresh proceedings on a further warrant: see Camaras v Baia Mare Local Romania Court [2018] 1 WLR 1174 (Admin) at [27] to [29]. Abuse of process in the context of extradition arises as an aspect of the public interest in giving effect to extradition arrangements, which includes effective management of cases and of court time.
Having reviewed relevant authorities including Auzins and Belbin v...
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Alba Iulia Court of Law, Romania v Ferencz Ioan Szabo
...abuse arguments. This would lead to unnecessary expense, delay, and duplication of proceedings. The case of Romania v Iancu [2023] EWHC 1274 (Admin) (“ Iancu 2”), he submitted, demonstrates that such proceedings would not necessarily be abusive, given the absence of tactical conduct or bad......