Cel-Mare v Romania
| Jurisdiction | England & Wales |
| Judge | Mr Justice Dingemans |
| Judgment Date | 27 March 2019 |
| Neutral Citation | [2019] EWHC 1076 (Admin) |
| Docket Number | No. CO/2375/2018 |
| Court | Queen's Bench Division (Administrative Court) |
| Date | 27 March 2019 |
[2019] EWHC 1076 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
Royal Courts of Justice
Mr Justice Dingemans
No. CO/2375/2018
Mr M. Henley (instructed by Stewart Miller) appeared on behalf of the Appellant.
Mr J. Swain (instructed by the Crown Prosecution Service) appeared on behalf of the Respondent.
This is an appeal against the decision of District Judge Magistrates' Court Baritsa(?) (“the Judge”) made on 8 June 2018 at Westminster Magistrates' Court. Mr Cel-Mare, the appellant, was ordered to be extradited to Romania on a European Arrest Warrant issued on 9 January 2018 and certified by the National Crime Agency on March 2018 in respect of a sentence of imprisonment for driving, otherwise than in accordance with a licence, and the sentence was for one-year imprisonment. Permission to appeal was refused on paper by Sir Stephen Silber. The application for permission to appeal was renewed. At the renewed hearing, permission to appeal was granted by Ouseley J.
The issues
The appellant contends that this was a minor driving offence, that the Judge failed to take into account the lack of seriousness and that there was a low public interest in the appellant's extradition. It was said that the Judge had wrongly taken into account the fact that the appellant was a fugitive, given the appellant's concerns about prison conditions in Romania. The respondent contended that the Judge had had proper regard to the relevant factors and carried out a proper balancing exercise, taking account of relevant factors, including the fact that the appellant was a fugitive.
The European Arrest Warrant
The European Arrest Warrant showed that on 12 October 2014 in Bodesti village, Neamt County the appellant drove a BMW motorcar on a public road without a driving licence. On 11 March 2016 the appellant was convicted and sentenced to one year, which appears to have been suspended on various conditions. The appellant was not present at his trial, but the European Arrest Warrant makes it clear that he will have a right to retrial on his return. I should say that other information shows that the appellant came to the United Kingdom in about 2015 and that he was told by his lawyer that he had received a prison sentence, suspended on various conditions: see para.16 of the judgment of the Judge.
The Court of Appeal in Romania upheld the sentence on 23 November 2016 that the term of imprisonment was suspended for two years on conditions of attendance at probation and various notification requirements. The appellant gave evidence in the extradition proceedings before the Judge that he complied with the requirements for a period, but stopped complying because it was expensive to return to Romania. He said at the extradition hearing that he was told by his lawyer to attend court in 2017 in relation to his failure to comply with conditions, but he was worried because he was afraid he might go to prison and he had heard that prison conditions in Romania were poor with overcrowding and a risk of assault. It is common ground that there are issues with prison conditions in Romania and an undertaking has been provided in this case.
The evidence showed that the appellant had been in the UK since 2015. He had met his current partner some 10 months before the hearing before the Judge and she had a 14-month-old daughter and he had looked after his partner's daughter as if she were his own for that 10 month period until the hearing before the Judge. The evidence showed that his partner had previously lived with her parents and relied on their support and that she would have to return to live with them if the appellant were to be extradited.
The judgment
The Judge found that the appellant was a fugitive from justice in para.39 of the judgment, noting that he was aware of the original sentence, breached it, was aware of the requirement to return to deal with the question of failing to comply with the conditions of suspension, but did not return. The Judge did not accept that the appellant's fear of prison conditions provided an excuse for not returning. The Judge said issues of this type can and should be dealt with through lawful channels by way of complaint or litigation: see para.41 of the judgment. The Judge noted the absence of any other bars to extradition. The only bar was section 21 of the Extradition Act 2003 (“the 2003 Act”) and Art.8 of the European Convention on Human Rights.
The Judge specifically set out part of the judgment of Lord Thomas in Celinski v Polish Judicial Authorities [2015] EWHC 1274 (Admin), [2016] 1 WLR 551 where it was noted at para.13 that each member state could set its own sentencing regime and that, provided it was in accordance with the Convention, it was not for a United Kingdom judge to second guess the sentence. Courts in particular were warned to respect the importance to courts in the requesting state of enforcing compliance with the terms of a suspended sentence.
The Judge undertook the Art.8 balancing exercise. In favour of extradition...
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