Lacramiora Luminita Feraru v Swedish Judicial Authority
| Jurisdiction | England & Wales |
| Judge | Mr Justice Holgate |
| Judgment Date | 04 February 2022 |
| Neutral Citation | [2022] EWHC 400 (Admin) |
| Docket Number | No. CO/3457/2020 |
| Court | Queen's Bench Division (Administrative Court) |
[2022] EWHC 400 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
Royal Courts of Justice
Mr Justice Holgate
No. CO/3457/2020
Mr J. Swain (instructed by Sonn Macmillan Walker) appeared on behalf of the Appellant.
Mr S. Allen (instructed by CPS) appeared on behalf of the Respondent.
On 14 March 2019 the City Public Prosecutor's Office in Stockholm, part of the Swedish Prosecution Authority, issued a European Arrest Warrant (“EAW”) against the appellant, Mrs Lacramiora Feraru. The EAW was certified on 31 July 2019. It is an accusation warrant based upon a decision taken by the Stockholm City Court on 19 February 2019 to issue an arrest warrant in the absence of the appellant.
The EAW seeks the surrender of the appellant to be prosecuted for 42 alleged offences between May 2017 and March 2018 relating to thefts of bank cards and cash from persons and the use or attempted use of those cards with their pin codes in, for example, ATMs. The total value of the losses is just over £5,500. The maximum sentence for the thefts is six years and for the fraudulent use of the cards, two years.
The appellant was arrested on 31 July 2019. The initial extradition hearing was held on 1 August 2019 at Westminster Magistrates' Court. There then followed several adjournments so that the substantive hearing did not take place until 10 September 2020. In her judgment, dated 21 September 2020, District Judge Tempia ordered the appellant's extradition to Sweden pursuant to section 21A(5) of the Extradition Act 2003. On 22 January 2021 Morris J granted the appellant permission to appeal.
Mr Jonathan Swain appeared on behalf of the appellant and Mr Stuart Allen for the respondent. I am grateful to them both for their submissions.
Proceedings in the Magistrates' Court
At the extradition hearing the appellant relied firstly upon section 12A of the 2003 Act. She contended that no “decision to try” had been made and that her absence from Sweden was not the “sole reason” for that failure. The appellant relied upon a report from an expert in Swedish law, Mr Rodney Humphreys. He said that there was no exact equivalent of a “decision to charge” or a “decision to try” in Swedish law, and he therefore found it difficult to say whether either decision had been taken in the appellant's case. He proceeded on the basis that a decision to try equated to a Swedish prosecutor's decision to prosecute. But under Swedish law a prosecutor is prevented from prosecuting a person until a formal notification is given to the suspect and that person is interviewed by the prosecution.
On the “sole reason” issue the appellant relied upon the availability of the procedure for a European Investigation Order (“EIO”) which would enable a prosecutor in Sweden to notify and interview the appellant from abroad. This was described as a form of Mutual Legal Assistance. On that basis, the appellant submitted that her absence from Sweden was not the sole reason why the competent authority had failed to make a decision to try her.
The respondent relied upon further information supplied in written communications from Mr Goran Kvist, a senior public prosecutor in the City Public Prosecutor's Office. At para.84 of her judgment, the judge stated that she accepted his evidence and at paragraphs 85 to 86 she said:
“85. A cosmopolitan approach to the interpretation of the Extradition Act has to be made, the warrant is clear that it has been issued “for the purposed of conducting a criminal prosecution”, I am satisfied that the statement made by Mr Kvist is unequivocal, an intention to prosecute the RP and bring her to trial has been made. Furthermore, as stated in Puceviciene at para 56, ‘a decision to try is simply a decision where the relevant decision maker…has decided to go ahead with the process of taking to trial the defendant against whom the allegation is made’.
86. I am satisfied a decision to charge and a decision to try has been made. The RP has not established, on the balance of probabilities, that the JA has not made the decision to try and that the RP's absence is not the sole reason for that failure and accordingly this challenge fails.”
Then, the appellant submitted that by virtue of section 21A of the 2003 Act and Article of the ECHR her extradition would not be compatible with her Convention rights and so she should be discharged.
At the time of the extradition hearing, the appellant was aged nearly 53 and her husband, Mr Villi Feraru, was 60. They were both born in Romania and were married in 1986. They have one daughter who was aged 32 at the time of the hearing and leads a separate life in Romania. Her husband's health had deteriorated after he had been diagnosed in 2010 with diabetes, high blood pressure and heart disease. After a period in Italy, they returned to Romania in 2012 and went to Sweden in 2016. It was also in that year that Mr Feraru was diagnosed with bladder cancer.
They moved to the United Kingdom in September 2018. Up until 2019 the appellant was working four days a week in a food factory. She was earning about £1,100 to £1,200 a month. Mr Feraru was receiving universal credit of about £650 a month. Following the appellant's arrest, her employers said that she could not continue to work for them until the extradition proceedings were concluded. In early 2020 she found a job in a barber's shop where she worked for 1 1/2 months until the shop had to close because of the pandemic. Since then she has been unemployed and the two of them have been relying upon Mr Feraru's universal credit, which by that stage amounted to £940 a month. It is said that they do not receive housing benefit. The appellant explained why she had not been entitled to universal credit since January 2020 because she does not have settled status and her identity documents were with the magistrates' court.
Mr Feraru said that he had had two operations in Romania in connection with his bladder cancer and two further operations since arriving in the United Kingdom between May and July 2019. He had chemotherapy for five weeks between August and September 2019.
In para.57 of her judgment the judge summarised Mr. Feraru's evidence. He was due to have further results in relation to his cancer on 9 October 2019. He takes medication for his diabetes, blood pressure and heart conditions. He cannot walk properly because of weak muscles and pain. His wife cares for him and he has to wear incontinence nappies. He claimed that he did not know anyone in the UK who would be able to help him if his wife were to be extradited. He could not do anything for himself. He could not return to Romania because medical staff in the UK have told him he has to remain here because of the treatment he is receiving. The judge was also told that Mr. Feraru suffered from a condition which requires him to have injections in one eye every month to stop him going blind. He cannot see very well for about one to two days after each injection.
In para.47 of the judgment the judge recorded that the appellant accompanies her husband to his weekly GP appointments. If she were to be extradited, he would not be able to pay rent. He would be unable to care for himself because she is his main carer. She helps bathe and shower him and they take taxis together to appointments because he cannot walk far.
In para.54 the judge noted that several Romanians live on the same street as Mr and Mrs Feraru, and a neighbour had driven them to court that day. Also with them was a family friend who lives nearby and speaks English. She helps them when they need assistance with translation because they cannot speak English.
The appellant relied upon the oral evidence and a report dated 4 November 2019 of an occupational therapist, Ms Finlayson-Jackson. I will refer to this below.
The judge carefully recorded the submissions made by counsel on both sides. At para.71 she found that the appellant is not a fugitive. At para.72 she stated that the appellant is of good character in the UK, but does have a relevant conviction in Italy for attempted theft from a person committed on 25 March 2016 for which she received a suspended sentence of imprisonment.
In para.73 of her judgment, the judge said in relation to Mr Feraru's eye problems, that the only medical evidence she had been shown were letters confirming appointments with doctors. She added that she had not received much medical evidence, and the material that she did have was from 2019. She noted that Mr Feraru was not then underling chemotherapy for his bladder cancer.
In para.74 of her judgment the judge summarised the evidence of the occupational therapist, including a number of recommendations which had been made to assist the appellant's husband if she were to be extradited. They included a care package involving four...
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