Bacau District Court Romania v Andy-Richard Iancu
| Jurisdiction | England & Wales |
| Judge | Mr Justice Chamberlain |
| Judgment Date | 29 April 2021 |
| Neutral Citation | [2021] EWHC 1107 (Admin) |
| Date | 29 April 2021 |
| Docket Number | Case No: CO/4768/2020 |
| Court | Queen's Bench Division (Administrative Court) |
[2021] EWHC 1107 (Admin)
Mr Justice Chamberlain
Case No: CO/4768/2020
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
Royal Courts of Justice
Strand, London, WC2A 2LL
Stuart Allen (instructed by the Crown Prosecution Service) for the Appellant
Graeme Hall (instructed by Oracle Solicitors) for the Respondent
Hearing dates: 22 April 2021
Approved Judgment
Introduction
The respondent, Andy-Richard Iancu, is sought by the Bacau District Court in Romania pursuant to a European arrest warrant issued on 14 August 2019. The warrant seeks Mr Iancu's surrender to serve a custodial sentence of 2 years and 1 month's imprisonment. The sentence was imposed in respect of several separate offences, including theft of a mobile phone, a laptop computer and certain associated items and two counts of driving without a licence.
Mr Iancu was arrested on 3 January 2020. There was an initial hearing at Westminster Magistrates' Court on the following day. On 28 January 2020 Mr Iancu served a statement of issues raising a number of objections to extradition. The only one material for present purposes is that extradition was barred by s. 21 of the Extradition Act 2003 on the ground that it would be contrary to Mr Iancu's rights under Article 3 ECHR because of prison conditions in Romania. The statement of issues drew attention to the lack of an assurance in this respect.
The extradition hearing was originally listed for 17 March 2020, but was adjourned on Mr Iancu's application. It was relisted on 18 May 2020, but was vacated again, this time because of the COVID-19 pandemic. It was relisted on 11 September 2020. Shortly before that hearing, the Romanian judicial authority served an assurance dated February 2020 about prison conditions (“the February assurance”).
At the hearing on 11 September 2020, an expert instructed by Mr Iancu to deal with other points was unavailable, so District Judge Hamilton decided to adjourn the hearing again, but not before considering the Article 3 issue. Without determining whether the February assurance was adequate, he gave directions for the CPS to draft a request for further information in relation to prison conditions, in terms to be approved by him in writing. He directed that the Romanian judicial authority should respond to it by 12 October 2020 and that Mr Iancu could serve any rebuttal evidence by 14 November 2020. The adjourned hearing was listed for 4 December 2020.
The request for further information was drafted and sent to the judge on 15 September. The judge emailed on 18 September, saying: “the questions look fine to me and should now be submitted asap”. Stuart Allen, who appears for the Romanian judicial authority, told me that when they were submitted it was made clear that they had been approved by the judge.
By the time of the hearing on 4 December 2020, there had been no response. The judge heard argument on the Article 3 point only and adjourned to prepare his judgment, noting that no further information was to be served without leave of the court and observing that, given the history of the matter, such leave was unlikely to be given readily.
A response to the request for further information containing a further assurance was then prepared by the Romanian judicial authority (“the December assurance”). The CPS sent it to the judge on 14 December 2020. The judge responded by email on the same day in the following terms:
“I am not prepared to give leave for this additional information to be considered at this stage:
1. I am sure its admission will be strongly disputed given the history of this case (including the further 3 months given to the JA to correct the assurance) and consideration of all the relevant arguments would therefore require a further hearing rather than my making a unilateral decision. You don't appear to have copied Mr Hall into your email so I have done so now.
2. On 4 December Mr Allen explicitly agreed that I could confine myself to considering the single issue of the adequacy of the prison assurance and did not need to consider the other issues raised by Mr Hall. So my acceptance of this very late-served material would potentially mean the matter being listed again before Westminster for those other unconsidered issues to be dealt with.
3. On a purely practical and, you might contend, selfish point – I have almost finished the judgment and I don't see why I should be greatly inconvenienced having to produce another judgment just because someone in Romania has suddenly ‘woken up’.”
Judgment was handed down on 16 December 2020. The judge concluded that the February assurance was inadequate, relying on a decision of Steyn J in Gheorghe v Giurgiu District Court, Romania [2020] EWHC 722 (“ Gheorghe”). Accordingly, he found that extradition would not be in accordance with Mr Iancu's Article 3 rights and ordered his discharge.
The Romanian judicial authority appeals on a single ground: that the judge “fell into error in his conclusion that the extradition of the respondent would not be compatible with his rights pursuant to Article 3 ECHR by dint of the conditions that he may be exposed to within the Romanian prison estate”. This ground has three limbs:
(a) If the judge concluded that the February assurance was inadequate, he was obliged by Article 15 of Framework Decision 2002/584/JHA (“the Framework Decision”) and the decision of the Grand Chamber of the European Court of Justice (“ECJ”) in Joined Cases C-404/12 C-659/15 PPU Aranyosi EU:C:2016:140, [2016] QB 921 (“ Aranyosi”) to request a further specific assurance before discharging Mr Iancu.
(b) In any event, the judge was wrong to refuse to admit the December assurance.
(c) In any event, the judge misinterpreted Gheorghe and failed to give adequate reasons for concluding that the February assurance was inadequate.
Permission to appeal was granted by Thornton J on 10 March 2020. Her reasons were as follows:
“The Judge accepts in his judgment that he was not aware of the ‘Aranyosi’ process and then states ‘I am not sure in any event that anything of real significance turns on this point’. His understanding in this regard may have influenced his case management decision not to admit the assurance in question.”
Graeme Hall, for Mr Iancu, submitted that this meant that permission to appeal was limited to the Aranyosi point. I do not accept that submission. The scope of a grant of permission to appeal (or permission to apply for judicial review) is determined by the operative part of the order made by the court, not the reasons given for it. Where permission to appeal (or permission to apply for judicial review) is granted in relation to a specific point only, that will be made clear in the order. The corollary of a grant of permission limited to a particular point or points is that permission is refused on other points. This generally triggers a right to renew the application on these other points at an oral hearing. In this case, Thornton J's grant of permission to appeal was unlimited. There is no indication that she intended to refuse permission in respect of any part of the Perfected Grounds of Appeal. I have therefore considered them in their entirety.
(a): The Aranyosi point
Article 15 of the Framework Decision provides as follows:
“1. The executing judicial authority shall decide, within the time limits and under the conditions defined in this Framework Decision, whether the person is to be surrendered.
2. If the executing judicial authority finds the information communicated by the issuing member state to be insufficient to allow it to decide on surrender, it shall request that the necessary supplementary information, in particular with respect to articles 3 to 5 and article 8, be furnished as a matter of urgency and may fix a time limit for the receipt thereof, taking into account the need to observe the time limits set in article 17.
3. The issuing judicial authority may at any time forward any additional useful information to the executing judicial authority.”
Article 17 provides in material part as follows:
“1. A European arrest warrant shall be dealt with and executed as a matter of urgency.
2. In cases where the requested person consents to his surrender, the final decision on the execution of the European arrest warrant should be taken within a period of 10 days after consent has been given.
3. In other cases, the final decision on the execution of the European arrest warrant should be taken within a period of 60 days after the arrest of the requested person.
4. Where in specific cases the European arrest warrant cannot be executed within the time limits laid down in paragraphs 2 or 3, the executing judicial authority shall immediately inform the issuing judicial authority thereof, giving the reasons for the delay. In such case, the time limits may be extended by a further 30 days.”
In Aranyosi, the ECJ was asked what courts in the executing state should do in cases where there is “solid evidence that detention conditions in the issuing member state are incompatible with fundamental rights, in particular with article 4 of the Charter”. (The Charter is the EU Charter of Fundamental Rights. The terms of Article 4 are identical to those of Article 3 ECHR.) The answer was that:
(a) “where the judicial authority of the executing member state is in possession of evidence of a real risk of inhuman or degrading treatment of individuals detained in the issuing member state… that judicial authority is bound to assess the existence of that risk when it is called upon to decide on the surrender to the authorities of the issuing member state of the individual sought by a European arrest warrant”: [88];
(b) “the executing judicial authority...
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