Appeal Under Section 26 Of The Extradition Act 2003 By Ioan Iosif Gherhardt V. The Lord Advocate

JurisdictionScotland
JudgeLady Paton,Lord Wheatley,Lord Eassie
Judgment Date16 April 2010
Neutral Citation[2010] HCJAC 35
Docket NumberXC818/09
Date16 April 2010
CourtHigh Court of Justiciary
Published date16 April 2010

APPEAL COURT, HIGH COURT OF JUSTICIARY

Lord Eassie Lord Wheatley Lady Paton [2010] HCJAC 35 Appeal No: XC818/09

OPINION OF THE COURT

delivered by LORD EASSIE

in

APPEAL UNDER SECTION 26 OF THE EXTRADITION ACT 2003

by

IOAN IOSIF GHERHARDT

Appellant;

against

THE LORD ADVOCATE

Respondent:

_______

Appellant: Govier; Adams Whyte

Respondent: Duncan; Crown Agent

16 April 2010

[1] This is an appeal under section 26 of the Extradition Act 2003 - "the Act" - in which the appellant appeals against a decision of the sheriff at Edinburgh ordering his extradition to the Republic of Romania in terms of a European arrest warrant issued by the Court of First Instance in Timisoara.

[2] The European arrest warrant in question was issued in respect of four offences of which the appellant was convicted on 21 November 2007. He was convicted in absence. On the same day he was sentenced, also in absence, to a term of imprisonment on each of the four charges.

[3] The circumstances of the offences as narrated in the English translation of the European arrest warrant are as follows:

"During the night of 4 to 5 January 2006, the accused, in state of inebriation, broke the window of the injured party's house (injured party JURJESCU SORIN) wherefrom he tried to purloin a TV, however without succeeding as he dropped it - offence provided by article 20 Criminal Code with reference to article 208, article 209 paragraph 1, letters g and i, Criminal Code applying article 37, letter b, Criminal Code, for the commission of which the penalty of 3 (three) years detention was imposed.

During the same night of 4 to 5 January 2006, the accused forced the gate and entered into the courtyard of the real estate of the injured parties Hapciuc Virgil and Hapciuc Viorica, refusing to leave the property until the arrival of the police officers, - offence stipulated by article 192, paragraph ? Criminal Code, applying article 37, letter b Criminal Code, for the committing of which the penalty of 4 (four) years detention was imposed.

During the evening of 10th June 2006, the accused illegally entered into the residence of the injured parties Bocicor Andrei and Bocicor Valentina, refusing to leave at their request - offence provided by the article 192, paragraph 2 Criminal Code, applying article 37 letter b, Criminal Code, for the committing of which the penalty of 4 (four) years was imposed.

During the night of 31st of March to 1st of April 2006, the accused purloined 120 seedlings of apple trees and of other species from the Agricultural Sciences University of Banat which he took illegally, - offence provided by article 208, article 209 paragraph 1, letters g and i, Criminal Code applying article 37 letter b Criminal Code for the committing of which the penalty of 5 (five) years detention was imposed."

[4] The appellant has tabled two grounds of appeal. The first ground is concerned with the rule respecting double criminality. The second ground is concerned with establishing whether a person has "deliberately absented himself from his trial".

Double Criminality

[5] In terms of section 10(2) of the Act, a judge conducting an extradition hearing in respect of a Part 1 warrant (and a European arrest warrant is a Part 1 warrant) must decide whether the offence in the warrant constitutes an "extradition offence". In the circumstances of the present case (a conviction case) the definition of extradition offence is contained in section 65 of the Act and, in particular - since none of the offences constitute conduct catalogued in the European Framework List (see section 215 of and Schedule 2 to the Act and article 2(2) of the European Framework decision[1]) - in the provisions of section 65(3) of the Act. The requirement of double criminality takes statutory form in the provisions of paragraph (b) of section 65(3) which sets out the condition that:

"(b) The conduct would constitute an offence under the relevant law of the relevant part of the United Kingdom if it occurred in that part of the United Kingdom;"

We would add that where, as in the present case, the European arrest warrant is issued for more than one offence, section 10 of the Act is modified by paragraph 2 of the Schedule to the Extradition Act 2003 (Multiple Offences) Order 2003 - S.I. 2003/3150 - to the practical effect that the judge must consider each offence separately and discharge the person arrested as respects any offence which is not an extradition offence.

[6] Before the sheriff it was argued on behalf of the appellant that charge 3 in the warrant did not meet this requirement of double criminality because the conduct there alleged did not constitute a crime or an offence under Scots law. For convenience we repeat the detail, such as it is, of the conduct in that charge:

"During the evening of 10th of June 2006, the accused illegally entered into the residence of the injured parties ... refusing to leave at their request."

The charge was laid under article 192 of the Romanian Criminal Code which is translated in the warrant thus:

"The trespass in any form of a house, room, annex or any other enclosed area belonging to the former, without the consent of the person owning them, or the refuse (sic) to leave the property at the owner's request, shall be punished with detention from six months to four years."

[7] The sheriff rejected the submission that the requirement of double criminality was not met. In his report to this Court he writes:

"It was argued that both the translated Romanian description of the conduct in charge 3 and the terms of the country's Criminal Code, do not describe a crime known to the law of Scotland. I considered that argument to be flawed and found that I did not consider that this crime should be regarded in Scotland as simple trespass and therefore not unlawful conduct, as argued by the Appellant. I looked at the Romanian indictment as a whole and it is clear that it deals with a succession of thefts, attempted thefts and conduct preparatory to theft in four separate instances. The first charge in Scottish terms is housebreaking with intent to steal (possibly theft by housebreaking). The second charge in Scottish terms is either opening lockfast places with intent to steal or a contravention of section 57 of the Civic Government (Scotland) Act 1982 (being found in the curtilage of property in circumstances in which theftuous intent can reasonably be inferred) and charge 4 is simple theft. It seems to me perfectly clear that charge 3 is a breach of the same Article of the Criminal Code as charge 2, that it is a crime very similar to charge 2 and that the conduct which Article 192 covers and purports to punish is essentially theftuous. Charge 3 describes conduct which in Scottish terms could very properly be covered by the terms of section 57 of the Civic Government (Scotland) Act or alternatively by breach of the peace, where the private individuals who did not know the appellant found him to have entered their home during the evening of 10 June and required him to leave without achieving any success. That set of facts appears to describe a situation which could perfectly conceivably be described as a breach of the peace since it was likely to be a circumstance which they found alarming. Breach of the peace in Scotland does not require full specification in the charge and the proper and normal libel is 'Conduct yourself in a disorderly manner and commit a breach of the peace'. There is no requirement under our law to specify the effect of the refusal to leave, the means of entry, length of time that the person was there or his demeanour and these would all be dealt with in the evidence at trial. There is no reason to place a higher specification requirement on the libelling of the Romanian charge.

In the only Scottish appeal decision in this general area (Antonio La Torre v Italy (2006) HCJAC 56) it was observed at paragraph 124 that the proper approach was to look at the conduct for which extradition is sought rather than to any specific nomen juris. The court indicated that it was 'concerned to see whether the substance of the alleged Acts for which extradition is sought would amount to a crime in our law'. On looking at the substance of the acts alleged to have been performed by the Appellant in this case, I came to the view that these would amount to a crime in Scotland although I could not say with certainty which of the two crimes referred to above may more properly be described by that conduct. As I understand it, Section 65(3)(b) does not require me to say which crime, simply to be clear that the conduct 'would constitute an offence'. I was entirely satisfied that the conduct would constitute one or other of these crimes and I therefore decided that charge 3 was an extradition offence".

[8] Before us, counsel renewed the submission made to the sheriff. The terms of article 192 of the Romanian Criminal Code provided for a crime of trespass, which was not criminal in Scotland. The only conduct alleged in the charge was that of trespass. There was nothing alleged which would bring in section 57 of the Civic Government (Scotland) Act 1982 and nothing suggestive of a public order offence such as breach of the peace. Counsel also pointed out that charge 3 was separated by an interval of almost two and a half months from the earlier charge which appeared as charge 4 and in any event required to be viewed on its own terms. Charge 2 involved an allegation of damage to the gate, and on that view the double criminality point had not been taken before the sheriff as respects that charge.

[9] Counsel for the Lord Advocate submitted that it was clear that it was the conduct alleged in the charge which mattered, not the technical nomen juris. In that respect he also referred to La Torre v HM Advocate 2008 J.C. 23 at paragraph [124]. While giving some indication of appreciating possible difficulty with the terms of charge 3, counsel...

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