Gheorghe Bicioc v Baia Mare Local Court Romania
| Jurisdiction | England & Wales |
| Judge | Mr Justice Mitting |
| Judgment Date | 26 February 2014 |
| Neutral Citation | [2014] EWHC 628 (Admin) |
| Court | Queen's Bench Division (Administrative Court) |
| Date | 26 February 2014 |
| Docket Number | CO/13455/2013 |
[2014] EWHC 628 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
THE ADMINISTRATIVE COURT
Royal Courts of Justice
Strand
London WC2A 2LL
Mr Justice Mitting
CO/13455/2013
Miss M Westcott (instructed by Leslie Franks Solicitors) appeared on behalf of the Appellant
Mr D Sternberg (instructed by the Crown Prosecution Service Extradition Unit) appeared on behalf of the Respondent
This appeal raises a vexed question under section 20 of the Extradition Act 2003 to which a clear answer has not yet been given by our courts. The appellant's extradition is sought on a conviction European Arrest Warrant issued by a judge of Baia Mare Local Court in Romania on 29 May 2012 to serve a sentence of two and a half years' imprisonment imposed at the same court on 2 May 2012, which became final on 22 May 2012, for driving with excess alcohol in his blood. The warrant was certified by the Serious and Organised Crime Agency on 11 December 2012 and the appellant was arrested on the same day.
After a contested hearing District Judge Coleman ordered the extradition of the appellant. Two grounds of challenge were argued before him:
(1) The warrant does not comply with section 2 of the 2003 Act because the date of the offence is mis-stated in it as 19 January 2012, whereas the correct date is either 29 May 2010, as the judicial authority have stated in clarifying evidence submitted under section 202 of the Act; or 18 May 2010, as the appellant contends;
(2) The appellant was convicted in his absence. He can therefore only be extradited if entitled to a retrial, which, on the present state of English law, it is accepted by Mr Sternberg, for the requesting state, Romanian law does not afford him.
The appellant therefore contended that his extradition was barred under section 20(3).
Two further grounds of appeal are raised, neither of which are based on evidence laid before the District Judge: that his extradition would infringe his and his family's right to respect for their family life under Article 8 of the European Convention on Human Rights and that his extradition would infringe Article 3 of the European Convention on Human Rights because of the prison conditions in pre-trial detention facilities in Romania.
I deal first of all with the first ground argued before the District Judge. Section 2(6) sets out the information which a conviction European Arrest Warrant must contain. It includes "(b) particulars of conviction". Accepting without deciding that "particulars of conviction" requires the date of the offence to be set out, a mis-statement of the date as a result of a clerical error does not have the automatic consequence that the requested person must be discharged (see the observations of Lord Sumption in Zakrzewski v The Regional Court in Lodz, Poland [2013] UKSC 2 at paragraphs 8, 9 and 10). The purpose of giving accurate particulars is to enable the requested person to know the grounds upon which his extradition is sought so as to permit him to challenge the application if he has good or arguable grounds to do so. The appellant was put in precisely that position. He knew quite soon after the warrant was served on him that it must have related to the only occasion on which he had been arrested in Romania for an offence of drink driving on 18 or 19 May 2010, not 19 January 2012. The error is therefore, in my judgment, as it was in the view of the District Judge, plainly immaterial. The first ground of appeal is therefore rejected.
The second ground is that which gives rise to the difficulty. The District Judge made clear findings, which he was entitled to make, about the circumstances in which the appellant had come to be absent from his trial:
"At the time he was arrested for the offence he deliberately provided police with an address in Romania where he had not lived for 4 years and where he was not going to reside. Not only was he not living there, but on his own evidence, he was living in Austria at that time. He made no attempt to correct the information he had given. He certainly did not tell the Romanian police that he had moved to the UK.
I have listened to the Requested Person's evidence on the point, but did not find it to be truthful. I find to the required standard that Mr Bocioc deliberately set out to deceive the police in order to avoid prosecution. He made it impossible for the process to be served on him and therefore deliberately absented himself from his trial."
Those are strong findings of fact. I cannot go behind them and they raise the difficult point which I will now address head on. Section 20 of the 2003 Act provides:
"(1) If the judge is required to proceed under this section (by virtue of section 11) he must decide whether the person was convicted in his presence.
(2) If the judge decides the question in subsection (1) in the affirmative he must proceed under section 21.
(3) If the judge decides that question in the negative he must decide whether the person deliberately absented himself from his trial.
(4) If the judge decides the question in subsection (3) in the affirmative he must proceed under section 21."
This question was first addressed in Government of Albania v Bleta [2005] 1 WLR 3576. Giving the leading judgment of the court, Pill LJ at paragraph 48 said this:
"I reach the following conclusions:
(a) In Section 85(3) [the equivalent to section 20 in a Part II case] Parliament has adopted the expression 'deliberately absented himself from his trial'. Consideration must be given to the concept of deliberate absence and to the concept of a trial. The Respondent has deliberately absented himself from Albania but there is no evidence that he knew of the existence of a trial or of any proceedings which might lead to a trial.
(b) The word 'trial' was adopted by Parliament in the context of the presence of Article 6 with its use of the word 'hearing' and its reference to a right to a hearing and a right to be informed of the nature and cause of the accusation. Article 6 confers the right to a fair trial and the word 'trial' would not have been used by Parliament in Section 85(3) if a wider view of absence had been intended.
(c) The sub-section must be construed in a context in which capital importance is attached to the appearance of a defendant at his trial. The focus is on a specific event at which the Respondent could expect to be present. Other factors, as well as the need to facilitate extradition, are at work.
(d) Parliament could have used an expression such as 'deliberately absenting himself from legal process' which could, on appropriate findings of fact, include leaving a jurisdiction to avoid arrest but Parliament has not done so and the sub-section cannot be construed as if it had. The expression 'his trial' contemplates a specific event and not the entire legal process.
(e) In the result, I am unable to construe the words of Section 85(3) as covering the present circumstances. While the absence from the jurisdiction of Albania is established, it is not established that the Respondent left that jurisdiction, or remained in the United Kingdom, with the intention expressed in the sub-section."
On the facts of Bleta the appellant had, having, if the Government's allegations were right, deliberately murdered another man, immediately fled Albania to avoid investigation and prosecution. Bleta was followed in a number of other cases.
A similar issue then arose in Atkinson & Binnington v Supreme Court of Cyprus [2009] EWHC 1579 (Admin). That case was decided on 17 June 2009. I draw attention to that date because despite the fact that by then the Framework Decision 2009/299/JHA of 6 February 2009 had been reached and entered into force, no reference to it was made in the text of the judgment. That was a case in which the "trial" of the appellants included an appeal process from which they had absented themselves. The District Judge had found that their counsel had left no doubt in the eyes of the court that they would not be present during the appeal...
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