Claudiu Camaras v Baia Mare Local Court Romania
| Jurisdiction | England & Wales |
| Judge | Mr Justice Ouseley,Lord Justice McCombe |
| Judgment Date | 15 July 2016 |
| Neutral Citation | [2016] EWHC 1766 (Admin) |
| Docket Number | Case No: CO/5786/2015 |
| Court | Queen's Bench Division (Administrative Court) |
| Date | 15 July 2016 |
[2016] EWHC 1766 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
DIVISIONAL COURT
Royal Courts of Justice
Strand, London, WC2A 2LL
Lord Justice McCombe
Mr Justice Ouseley
Case No: CO/5786/2015
Martin Henley (instructed by Lloyds PR Solicitors) for the Appellant
Joel Smith (instructed by the Crown Prosecution Service) for the Respondent
Hearing dates: 22nd June 2016
Approved Judgment
This is an appeal against the decision of District Judge Blake on 19 November 2015, whereby he ordered the Appellant's extradition to Romania on a conviction EAW in relation to four offences.
This was not the first time the Appellant had faced extradition to Romania from England in respect of those offences. On 24 June 2014, District Judge McPhee had discharged him from three EAWs, covering those four offences. The district judge discharged him on the ground, in s20(7) Extradition Act 2003, that as the defendant had not been present at his trials and had not deliberately absented himself from them, extradition was barred unless he was entitled to a retrial in Romania. There was no evidence that he would be entitled to a retrial after extradition. Rather, the Administrative Court in Bohm v Romania Judicial Authority [2011] EWHC 2671 (Admin) and Bicioc v Baia Mare Local Court Romania [2014] EWHC 628 (Admin), 26 February 2014, had held that Romanian law did not provide the full rights to a retrial which the Framework Decision and s20 required, in order to prevent the bar to extradition from the absence of retrial rights. There was no appeal against that decision.
In fact, as District Judge Blake found, it was on 15 February 2014 that a change in Romanian law came into force, which provided fully for retrial rights. That was accepted by both sides in front of him. The problem was that either the Romanian judicial authority had failed to inform the CPS of the change, despite ample opportunity to do so, or it had done so, but the CPS had not passed it on to its advocate. Mr Henley, then as now for the Appellant, argued that it was an abuse of process for the Respondent to seek extradition, having failed to place all its arguments and evidence before District Judge McPhee, when it could and should have done so.
Cranston J, on paper, granted permission to argue this abuse of process ground. He refused permission to argue that extradition would be oppressive by reason of the passage of time, (s14), and a disproportionate interference with the Appellant's Article 8 ECHR rights, (s21). Mr Henley renewed his application before us, and we grant it, in order that all the issues, which have some inter-relationship, can be considered.
The facts
The first two of the four offences were committed in March 2007 in incidents in two bars, one best seen as equivalent to an offence under s5 Public Order Act 1986, using "threatening, abusive or insulting words or behaviour" or as the EAW puts it "acts and gestures…words and phrases by which he damaged morality, causing the outrage of the customers who [were] present in the two bars." The other was that in one of the bars, he "broke a vase and a few bottles and glasses." That is a criminal damage offence. The Appellant was initially sentenced to 1 year 6 months imprisonment for those two offences in 2009. The other two offences were committed in June 2008; on two separate occasions he drove a car without a driving licence. He was sentenced to 1 year 6 months imprisonment on each of those two offences, in 2009 for the first offence and in 2010 for the second offence. That made a total of 4 years 6 months imprisonment.
The principal issue before District Judge McPhee at the extradition hearing on 29 May 2014 had been whether the Appellant was convicted in his presence and, if not, whether he had deliberately absented himself from his trials. If he had either been present or had deliberately absented himself, then he would not have been entitled to a retrial under s20(3), and the issue which led to his discharge would not have availed him. The district judge found, in respect of each offence, that the Appellant had not been present at his trial and had not deliberately absented himself from them. There was no appeal by the prosecutor against the Appellant's discharge on the grounds that those findings were wrong. The district judge also found that the Appellant had spent 6 weeks in custody in Romania for the criminal damage offence.
It was conceded by the CPS that, if the Appellant was entitled to a retrial, no such right was guaranteed. Although such a concession is recorded by the district judge in respect of one offence only, it is obvious that the conclusion would apply to all. That concession was not arrived at without some consideration. The Appellant was first arrested on the original EAWs in August 2013. The initial hearing was in September 2013. The first extradition hearing in December 2013 was abortive because of a lack of court time, and a further hearing was set for 17 March 2014. On 5 February 2014, at a review hearing, a district judge granted the CPS' request for further time in which to serve its skeleton argument and further evidence. The CPS knew by then, if not earlier, that the retrial rights issue was to be raised. It had obviously been an issue in other cases. It was for the requesting judicial authority to prove the existence of the retrial rights and, in the absence of a proven change in the law, it was clear that district judges were going to apply the two Administrative Court decisions referred to above.
By 17 March 2014, no further information had been obtained, and an adjournment was granted to the CPS, so that it could obtain the further information about retrial rights in Romania. Mr Smith, for the requesting judicial authority on this appeal, accepted that, by March 2014, the CPS was aware that there had been a potentially relevant change in Romanian law, but said that it was not aware of the details. The further information for which the adjournment was granted was not forthcoming. On 29 May 2014, District Judge McPhee refused a further adjournment request from the CPS. It was already 9 months since the Appellant's arrest. According to Mr Henley, although this does not appear from the judgment, the district judge also was aware that there had been some change to retrial rights, but, like the CPS, did not know how the rights operated and whether they would apply to cases of the age or stage of this one. I accept what Mr Henley tells us. No further information was forthcoming later, such that it could be placed before the district judge in the time between the hearing on 29 May 2014, and the delivery of his judgment on 24 June 2014.
Accordingly, the Appellant was discharged, and his bail conditions ended. These had included daily reporting to a police station, tagging, and a curfew between midnight and 3am, and had lasted for ten months.
Mr Henley pointed out that the requesting judicial authority did not appeal against the decision on retrial rights, which is true, but, unless it had provided the necessary information to the CPS in time to meet the 7-day deadline for an appeal, it would have been wrong for an appeal to be lodged in the hope that something might turn up to justify an application for fresh evidence to be admitted on appeal.
On 18 December 2014, the Baia Mare Court replaced the separate sentences totalling 4 year 6 months with a single sentence of 1 year 10 months. This required the issue of an EAW to replace the earlier three which were still enforceable in other Member States. By this time, the Romanian authorities knew and communicated what the retrial position was. With effect from 15 February 2014, those retrial rights, the assumed absence of which had led to his discharge in June 2014 on the earlier EAWs, had come into force.
The Appellant was arrested again on 19 April 2015, and next day was released on conditional bail, on the same conditions as before. His response on arrest was to say that there must have been a mistake. His case came on before District Judge Blake on 30 October 2015, who delivered his decision on 19 November. He rejected the contention that the further proceedings were an abuse of process on the grounds that there had been no bad faith, but a mistake based on ignorance of the nature and detailed change in the Romanian Criminal Code. There had been no manipulation of the court's process. The effect of delay was a matter for consideration under s14 and Article 8. He rejected the Appellant's contentions under those heads.
Abuse of process
Although logically it is the statutory bars to extradition which should be considered before the residual jurisdiction to refuse extradition on the grounds of an abuse of process, it is convenient to take that issue first here.
The existence in English law of such a jurisdiction was established in R (Government of United States of America) v Bow Street Magistrates' Court and R (Central Examining Court, Criminal Court of the National Court, Madrid) v Same [2006] EWHC 2256 (Admin), [2007] 1 WLR 1157. When dealing with the Madrid case, the Divisional Court said this:
"80. The 2003 Act makes express provision for extradition to be refused when the request is motivated by "extraneous circumstances" that under English law would constitute an abuse of process and for these and human rights issues to be considered as part of the extradition hearing. Where extradition is challenged on grounds, such as abuse of process, which are not dealt with expressly under the Act they should none the less normally be considered within the extradition hearing. The 2003 Act lays down special rules in relation to extradition that are designed to ensure that extradition...
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