Grozavu v Romanian Judicial Authority
| Jurisdiction | England & Wales |
| Judge | Mrs Justice Nicola Davies,Mrs Justice Nicola Davies DBE |
| Judgment Date | 10 August 2018 |
| Neutral Citation | [2018] EWHC 2606 (Admin) |
| Date | 10 August 2018 |
| Court | Queen's Bench Division (Administrative Court) |
| Docket Number | CO/998/2018 |
[2018] EWHC 2606 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
THE ADMINISTRATIVE COURT
Royal Courts of Justice
THE HON. Mrs Justice Nicola Davies DBE
CO/998/2018
APPEARANCES
Mr J Stansfeld (instructed by McMillan Williams Solicitors) appeared on behalf of the Appellant.
Ms A Bostock (instructed by the Crown Prosecution Service Extradition Unit) appeared on behalf of the Respondent.
The appellant appeals the decision of District Judge Tempia dated 5 March 2018 to order his extradition pursuant to a conviction European Arrest Warrant (“EAW”), issued by the respondent authority on 9 November 2017 and certified by the National Crime Agency (“NCA”) on 5 December 2017. This application is brought pursuant to s.26 of the Extradition Act 2003 (“the 2003 Act”). The relevant parts of the 2003 Act are as follows:
“2. Part 1 warrant and certificate
(1) This section applies if the designated authority receives a Part 1 warrant in respect of a person.
(2) A Part 1 warrant is an arrest warrant which is issued by a judicial authority of a category 1 territory and which contains—
(a) the statement referred to in subsection (3) and the information referred to in subsection (4), or
(b) the statement referred to in subsection (5) and the information referred to in subsection (6).
[…]
(5) The statement is one that—
(a) the person in respect of whom the Part 1 warrant is issued has been convicted of an offence specified in the warrant by a court in the category 1 territory, and
(b) the Part 1 warrant is issued with a view to his arrest and extradition to the category 1 territory for the purpose of being sentenced for the offence or of serving a sentence of imprisonment or another form of detention imposed in respect of the offence.
(6) The information is—
(a) particulars of the person's identity;
(b) particulars of the conviction;
(c) particulars of any other warrant issued in the category 1 territory for the person's arrest in respect of the offence;
(d) particulars of the sentence which may be imposed under the law of the category 1 territory in respect of the offence, if the person has not been sentenced for the offence;
(e) particulars of the sentence which has been imposed under the law of the category 1 territory in respect of the offence, if the person has been sentenced for the offence.
[…]
26 Appeal against extradition order
(1) If the appropriate judge orders a person's extradition under this Part, the person may appeal to the High Court against the order.
(2) But subsection (1) does not apply if the order is made under section 46 or 48.
(3) An appeal under this section—
(a) may be brought on a question of law or fact, but
(b) lies only with the leave of the High Court.
(4) Notice of application for leave to appeal under this section must be given in accordance with rules of court before the end of the permitted period, which is 7 days starting with the day on which the order is made.
(5) But where a person gives notice of application for leave to appeal after the end of the permitted period, the High Court must not for that reason refuse to entertain the application if the person did everything reasonably possible to ensure that the notice was given as soon as it could be given.
27 Court's powers on appeal under section 26
(1) On an appeal under section 26 the High Court may—
(a) allow the appeal;
(b) dismiss the appeal.
(2) The court may allow the appeal only if the conditions in subsection (3) or the conditions in subsection (4) are satisfied.
(3) The conditions are that—
(a) the appropriate judge ought to have decided a question before him at the extradition hearing differently;
(b) if he had decided the question in the way he ought to have done, he would have been required to order the person's discharge.
(4) The conditions are that—
(a) an issue is raised that was not raised at the extradition hearing or evidence is available that was not available at the extradition hearing;
(b) the issue or evidence would have resulted in the appropriate judge deciding a question before him at the extradition hearing differently;
(c) if he had decided the question in that way, he would have been required to order the person's discharge.
(5) If the court allows the appeal it must—
(a) order the person's discharge;
(b) quash the order for his extradition.”
European Arrest Warrant
At box (e), the warrant is stated to relate to one offence as follows:
“ In essence, in the act referring the case to the court it was acknowledged that on 14.04.2010, the defendant drove a vehicle on the public roads having his driving licence suspended and he refused the collection of biological samples in view of establishing his blood alcohol concentration…” [Emphasis in original]
In box (c) further information is given which can be summarised as follows:
(i) The defendant was given a 2-year sentence of imprisonment for the offence of failing to provide a specimen contrary to Art.87(5) from the Government Emergency Ordinance 195/2002 (GEO). He also received a “ban on rights” (offence A).
(ii) The appellant was acquitted of the offence of driving on public roads.
(iii) The sentence of 2 years' imprisonment was concurrent to a sentence of 6 months' imprisonment for an offence contrary to Art.86 GEO, criminal sentence number 182/07.09.2012 of the Câmpulung Law Court. That sentence was, however, unmerged(?) (offence B).
There was a further 2-year sentence of imprisonment, sentence number 227/16.09.2010 of the Câmpulung Law Court which was suspended but which was activated by the Pitesti Court of Appeal in the decision reference 45/R/18.01.2011 (offence C). That decision to revoke the suspended element of the sentence was maintained. The court proceeded to merge the 2-year sentence with the 6-month sentence number 182/07.09.2012, and it added the 2-year sentence number 227/12.09.2010 to reach an overall sentence of years' imprisonment for which extradition was sought.
At the conclusion of box (c), the EAW contains of following:
“ The defendant will finally serve the punishment of 4 years imprisonment.” [Emphasis in original]
The decision of the district judge
The judge noted that the EAW was a conviction warrant comprising merged sentences. She described the warrant as extremely confusing, complicated and unclear. She analysed the facts as contained in the warrant, and found in respect of offences B and C that they were not particularised. Accordingly, the judge concluded that the warrant was valid only in respect of the offence of failing to provide a specimen in 2010. The judge did not find that the appellant is a fugitive. She found that he did not deliberately absent himself from his trial, and accepted that between the offence occurring in 2010 and the judgment of the Romanian court in 2017 there was unexplained delay.
The evidence as to the appellant's circumstances in the UK was unchallenged. He has been here since December 2012 when he joined his uncle and cousin. He lives on his own, a single man. His parents live in Romania. He is an only child. He started his own recycling business and currently works in a restaurant. He has a conviction in the UK for driving with excess alcohol in 2015; offences of failing to provide a specimen in 2015 and 2016; one offence of driving whilst disqualified in 2015 and two in 2016; and two offences of driving without insurance in 2015/2016. He was given a suspended sentence of imprisonment in 2016.
In her judgment at paras.82 to 84, the judge considered the validity of the warrant and stated:
...“82. I now turn to whether the whole warrant is invalid or whether I can extradite on the one offence which I have concluded in (sic) properly particularised in the warrant and the further information, namely the offence in 2010 for which the sentence of 2 years imprisonment was imposed. Looking at the authorities cited and reading the warrant as a whole I can extradite on that offence and not the others.
83. Mr Almaz further submitted that if this was the case, it was still not possible to extradite in relation to one offence and not the others because, in Edutanu the Romanian JA confirmed that it was not possible to ‘intervene’ with the merged sentence (para 87). I do not agree with this and am persuaded by Ms Bostock's submission that I cannot import information from one case into another as that evidence has not been produced before me. Pursuant to mutual trust and confidence between Member States, the court can rely on specialty.
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