Lucian-Ionut Pancu v Judicial Authority for Romania
| Jurisdiction | England & Wales |
| Judge | Mrs Justice May |
| Judgment Date | 27 May 2022 |
| Neutral Citation | [2022] EWHC 1287 (Admin) |
| Court | Queen's Bench Division (Administrative Court) |
| Docket Number | Case No: CO/1907/2021 |
[2022] EWHC 1287 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
Royal Courts of Justice
Strand, London, WC2A 2LL
Mrs Justice May
Case No: CO/1907/2021
Robbie Stern, instructed by JD Spicer & Zeb, for the Claimant
David Ball, instructed by the CPS Extradition Unit, for the Defendant
Hearing dates: 19.05.2022
Approved Judgment
Introduction
This is an appeal on Article 8 ECHR grounds against an order for the appellant's extradition made by District Judge Zani (“the District Judge”), dated 26 May 2021. The order was made pursuant to a conviction EAW issued by a Judge of the Judecatoria Piatra Neamt, Romania on the 3 January 2018 and certified by the NCA on the 16 January 2018. I granted permission to appeal on 25 Jan 2022.
Offence for which extradition is sought
The appellant is wanted to serve a 3 year sentence for burglary. He and others stole various components of a train, the value of which equipment was put at 15,000 Romanian Leu (equivalent of around £3,122). The offending occurred in 2009, proceedings were commenced in 2014 and became final when the appellant's appeal against conviction and sentence was dismissed by the Romanian court in December 2017.
The appellant has been on remand awaiting a final decision on extradition since his arrest in this country on 18 December 2020.
The District Judge's judgment
Having set out the evidence, including the arrival of the appellant in the UK in 2011 with his wife and daughter following in 2017, the District Judge dealt with the passage of time. He found that the appellant had not come to the UK as a fugitive in 2011, since proceedings against him had not then started. Further, after proceedings had been commenced in Romania the appellant had returned there from the UK several times to participate in such proceedings. The District Judge observed that the appellant was “therefore entitled to rely on s.14 as a challenge to this request and the passage of time also feeds into the Article 8 challenge”. Referring to the fact that the appellant had been at large from December 2017 when his conviction and sentence became final upon the dismissal of his appeal, and having regard to the changes that had occurred in the appellant's life since then, the District Judge concluded that it would not be oppressive to order his return for the purposes of the challenge under s.14 of the Act.
Moving to the Art 8 challenge the District Judge discussed the principles set out in Norris v United States of America (No 2) [2010] 2 AC 487 and Poland v Celinski [2016] 1 WLR 551 before turning to the factors for and against extradition. He listed factors in favour as the strong public interest in the UK abiding by its international extradition obligations and the seriousness of the criminal conduct attracting, as it had, a sentence of 3 years. Factors against extradition included the appellant feeling settled with his wife and daughter in the UK, the fact that the appellant had been in employment since arriving, with his own car-wash business set up in December 2019, and the absence of any offences committed here, save for a caution for attempted shoplifting in 2014.
The District Judge went on to find that it would not be a disproportionate interference with the appellant's Article 8 rights to order his extradition, having regard to the seriousness of the offences and the strong public interest in abiding by international extradition treaty obligations. He said he had considered Brexit uncertainty but neither that nor “the period of time that has passed since conviction to date” was sufficient to tip the balance against extradition. He acknowledged hardship to the appellant's wife and child but considered that such hardship was also insufficient to preclude extradition.
Arguments on appeal
I am grateful to both counsel for their excellent written and oral submissions. Mr Stern, who appeared for the appellant on this appeal, argued that the District Judge made an error of principle when considering delay; moreover that he had in any event failed to give any or any sufficient weight to the following factors: (i) delay, (ii) the interests of the appellant's 11 year-old daughter and (iii) the relative lack of seriousness of the offence for which the appellant was sought.
The principal focus of Mr Stern's challenge was directed at the treatment of the passage of time by the District Judge in his judgment, specifically when considering Article 8. Mr Stern argued that the District Judge had erred in failing to consider the entire passage of time since the offending in 2009 for the purposes of Article 8; instead, he suggested, the District Judge had mistakenly restricted his consideration of delay to the period from final confirmation of conviction and sentence in December 2017, when the appellant became unlawfully at large within the meaning of s.14 Extradition Act 2003 (“s.14”).
But even if the District Judge did have in mind the full period of the delay from 2009, Mr Stern argued, he failed to give it any or any sufficient weight in the Celinski balancing exercise. Mr Stern submitted that the offence – non-domestic burglary – was relatively simple and straightforward, yet the delay in investigation from 2009 until proceedings were first issued in 2014, and then the further delay from the initiation of proceedings until their final resolution nearly four years later in December 2017, had been completely unaccounted for by the judicial authority. Mr Stern submitted that in those circumstances the delay should properly been seen as culpable delay and the District Judge should have accorded the full passage of time much more weight than he did. He pointed out that delay had not even been listed by the judge as a factor when considering the factors for and against extradition; moreover in his conclusions at paragraph 88(iv) the District Judge had only referred briefly to “the period of time that has passed from conviction to date”, that period being insufficient (as noted above) in any event.
Referring to the well-known passages in the speech of Lady Hale in R (HH) v Westminster Magistrates Court [2013] 1 AC 338, Mr Stern emphasised the effect of unexplained delay as weakening the public interest in extradition, also as reducing the importance the requesting state attaches to bringing the requested person to justice. He suggested that, even if the delay could not properly be described as culpable, it could still diminish the public interest in extradition, referring to the observations of Fordham J in Makowska v Poland [2020] 4 WLR 161 at [49].
Mr Stern criticised as too brief the judge's consideration of the effect of delay in the balancing exercise. He pointed out that other than a reference to the appellant “feel[ing] settled in the UK” the District Judge had given no real consideration to the impact of delay upon the appellant and his family.
Mr Stern next moved to the District Judge's treatment of the impact of extradition upon the appellant's daughter. This had also been wholly inadequate, he suggested. He submitted that the impact of extradition upon a child was a “cogent consideration” which required “careful attention” to be paid (drawing attention to Norris at [65]; HH at [33]). In this case, he said, the District Judge had made only two passing references to the appellant's daughter in the Article 8 balancing exercise. Moreover the District Judge's treatment of the evidence — that separation from her father had caused the child such distress that her mother had obtained counselling for her — had wrongly ignored the distress caused and instead had regarded the counselling as a protective factor telling in favour of extradition.
Finally as to seriousness, Mr Stern did not press the points made in his skeleton by reference to the Sentencing Council of England and Wales Guideline on Non-Domestic Burglary, arguing instead that there was a sliding scale of seriousness which the District Judge in this case had failed to take into account. Notwithstanding the 3-year sentence which the Romanian court passed, Mr Stern submitted that an offence of burglary of goods to the value of just over £3,000 was not at the high end of severity, suggesting that the judge had ascribed too much weight to this as a factor.
In response, Mr Ball acknowledged that delay could be a factor against extradition. But although the District Judge may not specifically have listed it as such, Mr Ball stressed that he clearly had the chronology in mind, having addressed it in great detail earlier in his judgment when considering oppression in connection with s.14. Since the appellant's partner and child had not joined him in the UK until at or around the date upon which his conviction and sentence became final, family life in the UK had in reality only started from 2017.
Mr Ball submitted that in the Article 8 balancing exercise the effect of delay in diminishing the public interest in extradition, and the effect of delay in strengthening family life in the UK are two sides of the same coin. Where, as here, family life in...
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