Danut Maris v Romanian Judicial Authority
| Jurisdiction | England & Wales |
| Judge | Mr Justice Garnham |
| Judgment Date | 04 July 2019 |
| Neutral Citation | [2019] EWHC 2013 (Admin) |
| Court | Queen's Bench Division (Administrative Court) |
| Date | 04 July 2019 |
| Docket Number | No. CO/4704/2018 |
[2019] EWHC 2013 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
Royal Courts of Justice
Mr Justice Garnham
No. CO/4704/2018
Mr M. Henley (instructed by A M International Solicitors) appeared on behalf of the Appellant.
Miss G. Lindfield (instructed by CPS Extradition) appeared on behalf of the Respondent.
Introduction
Mr Danut Maris appeals against a decision of Deputy Senior District Judge Ikram, delivered on 21 November 2018, ordering his extradition to Romania. He appeals with the permission of Ouseley J dated 11 March 2019 on one ground only, namely that his extradition would amount to a disproportionate interference with his rights, and those of his family, pursuant to Article 8 ECHR. He also seeks permission to appeal, pursuant to s.20 of the Extradition Act 2003, on the grounds that he was convicted in his absence, that he had not deliberately absented himself from his trial, and that he would not be entitled to a retrial.
On 15 May 2019, Julian Knowles J directed that the permission hearing on the s.20 ground be heard as a rolled-up hearing alongside the Article 8 appeal. Accordingly, there is before me today both an application for permission to appeal, and a statutory appeal, the grounds of the latter depending to some extent on the outcome of the former.
I have had the advantage of detailed skeleton arguments from Mr Martin Henley, on behalf of the applicant appellant, and from Miss Gemma Lindfield for the respondent judicial authority. There has been a little delay in the hearing of this matter because of the late filing of Mr Henley's skeleton. Mr Henley has expressed his apologies for that to the court and those apologies I have accepted.
The History
The appellant is sought on a European Arrest Warrant (“EAW”) issued on 19 March 2018. It is a conviction warrant based on a conviction for theft committed on 20 February 2015 in respect of which the Romanian Court imposed a one year term of imprisonment. That term was suspended but has subsequently been activated as a result of Mr Maris' failure to comply with probation terms imposed at the time of the sentence.
The theft occurred when Mr Maris stole cash from the jacket of a person in a casino. The money stolen was the equivalent of £1,140. The sentence was activated by the Romanian Court on 11 December 2017. The decision was made final on 6 February 2018. The EAW was issued on 19 March 2018 and was certified on 11 April 2018. The applicant was arrested on the EAW on 23 October 2018. Bail was refused and the extradition hearing was conducted on 21 November 2018.
The District Judge's Reasoning
Solicitors acting for Mr Maris had initially indicated to the court that he would be arguing that he should not be extradited on the basis of both s.20 and s.21. The opening part of the District Judge's reasons indicate, however that: “Mr Green [Mr Maris' Solicitor] confirmed that the s.20 argument was not being pursued”. The District Judge also noted that no issue had been taken under s.4 or s.7 of the Act. Accordingly, he resolved all matters, other than the identified challenges, in favour of the judicial authority.
The District Judge rejected the case under Article 3, ECHR, and that issue has not been pursued before me. He then dealt with the Article 8 argument. He accurately set out the relevant principles, referring in particular to the Supreme Court's decision in Norris v Government of United States of America [2010] UKSC 9 and HH v Westminster City Magistrates' Courts. He noted that the requested person (“RP”) accepts that he was aware of the suspended sentence, and says he found out in December – that must have been December 2017. He says the summons that was sent for 11 December 2017 was signed for by someone else, but someone told him about that. He said he appealed the decision and was aware of it by looking on the internet. The District Judge went on:
“I find that the RP knew of the summons and then did not attend. He says the victim said he need not attend as he had settled the loss. He says he knew of the suspended sentence and that his mother-in-law notified him of the probation officer. He appealed the decision. He says, having arrived in the UK, he became aware that the police had been looking for him through his family. I find that he knowingly failed to co-operate by not attending court and he then became aware that he was wanted by the police. I find to the criminal standard that the RP is a fugitive.”
The District judge then conducted the balancing exercise directed by the Divisional Court in Celinski v Poland. He noted in favour of extradition the public interest in honouring extradition requests. He noted that he had found the RP to be a fugitive who had built a life in this country knowing that he was wanted in Romania. He noted that he had a prison sentence of one year to serve. He then set out the facts pointing away from extradition. He noted that Mr Maris had been in the UK since 2013 and has no convictions here. He has built a private and family life here. He has a wife and a 17 year old daughter. He has been working and his family are dependent on him. He concluded that he was not satisfied that extradition would amount to a disproportionate interference with the requested person's Article 8 rights, or those of his family.
Against that background, I turn first to consider the application for permission to pursue an appeal on the basis of s.20.
Discussion – Permission under Section 20
Mr Henley, on behalf of Mr Maris, accepts that the s.20 point had been conceded by the previous legal team before the District Judge on 16 November 2018. He says that that concession notwithstanding, the District Judge was obliged to consider s.20 before ordering extradition. As Mr Henley neatly put it, there is no route to s.21 except via s.20. No evidence has been put before me to explain why the issue was not pursued before the District Judge. As Ouseley J observed in refusing permission on this ground:
“It is elementary that a court on appeal cannot just accept arguments based on written material in those circumstances as if there had been no discussion between the applicant and the previous solicitors about it. There is nothing to explain why the point was not pursued or, by reference to the oral evidence which was given, how the course of proceedings might have been affected.”
Ouseley J referred to the Divisional Court decision Sondy v CPS [2010] EWHC 108 (Admin). In his judgment in Sondy Openshaw J noted the following aspects of the history of the case before the court:
“4. When the matter came back before the court on 8 June 2009, counsel acting on the appellant's behalf expressly abandoned any point relying on Article 8. No doubt counsel took the view that the circumstances there described did not begin to meet the very high threshold which must be crossed before serving to prevent an extradition …
5. Mr Keith, on the appellant's behalf, has argued before us today that this decision was wrong and that it was taken without proper instructions. He argues that there was sufficient evidence to justify mounting an argument based on the Article 8 point. He says that counsel was negligent not to have pursued the point and quite wrong not to have done so without clear instructions. “These are very serious allegations.”
Openshaw J continued at para. 6:
“… No notice of these criticisms has been given to the lawyers concerned and they have not properly and formally been asked for their response. Furthermore, although the appellant might be deemed to have waived privilege, he has not expressly done so. In my judgment, the practice commonly followed in the Court of Appeal Criminal Division should have been followed here; the appellant should have been formally invited to waive his privilege and, whether he did so or not, the lawyers should have been asked by the court to deal with the points made against them, having regard to whether privilege has been waived or not. If the appellant did not waive privilege, then of course an adverse inference could in any event be drawn against him. But none of that was done here. The result is that his allegations against them cannot properly be tested or challenged. This seems to me to be entirely unsatisfactory. Appeals cannot proceed on the basis of untested and speculative assertions of this kind.”
Mr Henley suggests that Sondy is distinguishable. He says that Mr Sondy had put evidence relevant to an Article 8 argument before the appropriate judge, but his counsel at the extradition hearing had abandoned the Article 8 point and the evidence adduced had not been tested in cross-examination. He says that on appeal Mr Sondy suggested his legal team had been negligent in so doing.
I note that in their grounds for oral renewal in respect of the application for...
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