Irinel Edutanu v Iasi Court of Law
| Jurisdiction | England & Wales |
| Judge | Lord Justice Beatson,Mr Justice Cranston |
| Judgment Date | 28 January 2016 |
| Neutral Citation | [2016] EWHC 124 (Admin) |
| Docket Number | Case No: CO/87/2015, CO/3964/2015, |
| Court | Queen's Bench Division (Administrative Court) |
| Date | 28 January 2016 |
[2016] EWHC 124 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
Royal Courts of Justice
Strand, London, WC2A 2LL
Lord Justice Beatson
Mr Justice Cranston
Case No: CO/87/2015, CO/3964/2015,
CO/4068/2015, C0/4136/2015
Julian Knowles QC and Julia Farrant (instructed by CPS Extradition Unit) for the Requesting Judicial Authorities
John Jones QC and Daniel Jones (instructed by JFH Law) for Edutanu
John Jones QC and Daniel Jones (instructed by MW Solicitors) for Barbu
John Jones QC and Daniel Jones (instructed by Abbey Solicitors) for Smadeci
Adam Wolstenholme (instructed by HP Gower Solicitors) for Pascariu
Hearing date: 25 November 2015
Further submissions: 26 and 29 November 2015
I. Introduction and overview
Part 1 of the Extradition Act 2003 ("the 2003 Act") implements the EU Council's Framework Decision on the European Arrest Warrant and Surrender Procedures (2002/584/JHA, 13 June 2002, hereafter "the Framework Decision"). It makes provision for simplified and accelerated procedures where the extradition from the United Kingdom is sought of a person convicted in EU Member States and Gibraltar (referred to in the 2003 Act as "category 1 territories").
These four appeals concern the requirement in section 2(6)(b) of the 2003 Act requiring the European Arrest Warrant ("EAW") to contain "particulars of the conviction". More specifically, they concern cases in which the EAW containing particulars of the offence or offences for which return is sought state that the sentences for other offences have been "merged" in a variety of ways into the offence or offences for which return is sought.
Two questions fall for decision. The first is whether, and if so when, an EAW which does not give the particulars of those other offences is invalid as failing to comply with section 2(6)(b)? The second concerns the role of the principle of extradition law known as "specialty" (referred to as "speciality" in the 2003 Act) where an EAW dealing with a "merged" offence is valid. That principle prohibits a person being dealt with in the requesting state for matters other than those which form the basis of the extradition request and in respect of which he was surrendered. There is said to be a difference of approach between decisions of the Administrative Court dealing with section 2(6)(b) and decisions of the Divisional Court dealing with specialty. The appeals are against the decisions of two District Judges (Magistrates' Courts) in the Westminster Magistrates' Court in extradition proceedings instituted by Romanian issuing judicial authorities ("IJAs") who took a different view about the state of the authorities.
Chronologically, the first decision under appeal is that of District Judge (Magistrates' Court) Tempia on 5 January 2015 ordering the extradition of Irinel Edutanu, who was sought by an EAW issued by the Iasi Court of Law. The District Judge accepted that the decision of the Administrative Court in Flaviu-Daniel Presecan v Cluj-Napoca Court, Romania [2013] EWHC 1609 (Admin) dealt with a similar scenario but preferred the reasoning in a subsequent decision of the Divisional Court, Brodziak v Poland [2013] EWHC 3394 (Admin).
In Presecan's case Cranston J, broadly speaking, held that the effect of section 2(6)(b) of the 2003 Act is to require a conviction EAW to set out the particulars of all the convictions for the offences "in respect of" which the sentence was imposed, including merged sentences. In Brodziak's case a Divisional Court (Richards LJ and Silber J) held that where an EAW contained details of a single sentence imposed for multiple offences, some of which were not extraditable, the requested person could be discharged for the non-extraditable offences and extradited for the remaining offences. This, it was stated, is because there is a strong presumption that Member States will act in accordance with their international obligations in respect of specialty. Edutanu's appeal was lodged on 9 January 2015, before the amendment to section 26 of the 2003 Act requiring permission to appeal came into effect.
The three other appeals, pursuant to section 28 of the 2003, are by the 4 th District Trial Court of Bucharest, the Constanta 1 st Court of Law, and the Iasi Tribunal against decisions of District Judge (Magistrates' Court) Arbuthnot on 14, 20 and 24 August 2015 discharging Ion-Viorel Barbu, Ionel Smadeci, and Marius-Ionut Pascariu. The IJAs were granted permission to appeal by Cranston J on 22 October 2015.
In these three cases, the District Judge concluded that she had to follow the decision in Presecan's case and the earlier decision of Davis J in R (Echimov) v Court of Babadag, Romania [2011] EWHC 864 (Admin). She stated they were on all fours with the cases before her and directly concerned the application of section 2(6)(b) of the 2003 Act. She considered that the decision of the Divisional Court in Brodziak v Poland was distinguishable because the issue was about disaggregation and that Arranz v Spanish Judicial Authority [2013] EWHC 1622 (Admin) was distinguishable because all the offences that were the subject of the warrant in that case were particularised and the issue was abuse of process. She concluded that in the light of the decisions in Presecan and Echimov, the EAWs requesting these requested persons did not comply with the requirements of section 2(6)(b) of the 2003 Act.
The remainder of this judgment is arranged as follows. Sections II and III respectively summarise the legislative framework and the relevant authorities, in particular the decisions which were considered by the District Judges. Section IV summarises the factual background (including post EAW further information) and the decisions below. Section V summarises the submissions of the parties. The principles are discussed in section VI. The application of those principles in the individual appeals and my conclusions are contained in section VII.
Before turning to the fuller treatment that is necessary because the validity of an EAW referring to a "merged" sentence depends on its precise wording and to which of the different possible meanings of the term "merged" it refers, I give a very short and possibly oversimplified summary of what is stated in each EAW and the relevant principle. As to principle, at this stage it suffices to state that what is important in determining whether an EAW is valid is whether it appears from its terms read as a whole that the sentence to be served is not only for the particularised offences but at least in part for unparticularised offences which are stated to be "merged" into those for the particularised offences. It is not always easy to determine this. The fact that an EAW refers to a total sentence to be served that is longer than the sentence for the particularised offences is, however, a strong pointer to construing it as meaning that the IJA is seeking a return that would mean the requested person is at least in part to serve a sentence for unparticularised offences. Where an EAW is valid, the approach in Brodziak's case (summarised at [5] above, and see [31]ff below) enables extradition to be ordered on a limited basis.
The principal features of the EAWs in the four appeals are as follows:
i) Edutanu: His return was sought for offences of fraud and forgery, which were particularised and for which he was sentenced to a total of six years imprisonment. The EAW referred to the cancellation of a pardon relating to a fine and to an unparticularised offence of mercury trafficking, for which extradition was not sought. The material parts of the EAW are set out at [57] – [59] below and my conclusions on this case are set out at [115] – [117] below.
ii) Barbu: The EAW refers to an outstanding 707 days imprisonment in respect of an unparticularised previous offence as "merged" with an offence of theft for which Barbu was sentenced to two years imprisonment and for which his extradition was sought. The material parts of the EAW are set out at [63] – [65] below and my conclusions on this case are set out at [118] – [121] below.
iii) Smadeci: The EAW related to a single offence of driving while disqualified, for which Smadeci was sentenced to one year and one month imprisonment. There is a reference to the provision of the Romanian Criminal Code dealing with merger of penalties for multiple offences, but there is no reference to any conviction or any sentence other than that for the single offence, which is stated to be the offence for which extradition was sought. However, further information stated that eight previous convictions for driving while disqualified had been "merged" with the offence that was the subject of the EAW. The material parts of the EAW are set out at [72] – [74] below, and my conclusions on this case are set out at [122] – [125] below.
iv) Pascariu: The EAW stated that it related to two offences, one of aggravated theft, for which the sentence was one year and six months imprisonment, and one of giving a bribe, for which the sentence was five months imprisonment. The sentences were merged into the heaviest penalty of one year and six months imprisonment. Both those offences were particularised. The EAW also stated that the total penalty to be executed is of three years and six months imprisonment. That figure was the result of adding...
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