Merticariu v Judecatoria Arad, Romania
| Jurisdiction | England & Wales |
| Judge | Lord Stephens,Lord Burnett,Lord Hodge,Lord Sales,Lord Burrows |
| Judgment Date | 06 March 2024 |
| Neutral Citation | [2024] UKSC 10 |
| Year | 2024 |
| Court | Supreme Court |
Lord Hodge, Deputy President
Lord Sales
Lord Burrows
Lord Stephens
Lord Burnett
Appellant
Ben Cooper KC
Malcolm Hawkes
Mary Westcott
(Instructed by ITN Solicitors (Cheapside))
Respondent
Helen Malcolm KC
Stefan Hyman
(Instructed by Crown Prosecution Service Appeals and Review Unit (Westminster))
Heard on 29 November 2023
Lord Stephens AND Lord Burnett ( with whom Lord Hodge, Lord Sales and Lord Burrows agree):
The key issue in this appeal is, when all is said and done, a very short point concerning the proper construction of section 20(5) of the Extradition Act 2003 (“the 2003 Act”). Section 20(5) imposes a duty on the judge at an extradition hearing to decide whether a requested person, convicted in their absence, would be entitled after extradition to a retrial (or on appeal to a review amounting to a retrial) in the requesting state. The appellant submits that there must be an entitlement to a retrial in the requesting state, which is not dependent on any contingency, except for purely procedural matters such as making an application in the manner and in the time prescribed in the requesting state. By contrast, the respondent submits that it is sufficient for there to be a right to apply for a retrial to a court in the requesting state even if the success of that application is contingent on the court in the requesting state finding that the requested person was not present at, or was not deliberately absent from, their trial.
We will briefly outline the circumstances in which this issue arises. A European arrest warrant (“EAW”), issued on 7 May 2019 and certified by the National Crime Agency on 8 July 2019, sought the surrender of Ionut-Bogdan Merticariu (“the appellant”) to Romania, a category 1 territory to which Part 1 of the 2003 Act applied, to serve a sentence imposed on 11 April 2019 for a burglary committed on 5 March 2016. The appellant was arrested pursuant to the EAW on 25 September 2019. At that time, the United Kingdom's withdrawal from the European Union had not yet come into effect pursuant to the European Union (Withdrawal) Act 2018 (as amended), with the consequence that the 2002 Council Framework Decision 2002/584/JHA of 13 June 2002 (“the FD 2002”), as amended by Council Framework Decision 2009/299/JHA of 26 February 2009 (“the FD 2009”), continued to apply to the United Kingdom through the 2003 Act as then in force. Accordingly, the request to extradite the appellant is governed not only by the 2003 Act but also by the FD 2002 as amended by the FD 2009 (“the Amended Framework Decision”). Furthermore, since 1 December 2014 domestic courts are obliged by the principle of conforming interpretation to give effect to the Amended Framework Decision when interpreting the 2003 Act, to the extent that it is possible to do so without contradicting the clear intent of the legislation: see Cretu v Local Court of Suceava, Romania [2016] EWHC 353 (Admin); [2016] 1 WLR 3344, (“ Cretu”), paras 13 to 18 and Criminal Proceedings against Maria Pupino (C-105/03); [2006] QB 83, para 43. Although not applicable to these proceedings, the EU-UK Trade and Cooperation Agreement 2020 sets out arrangements applicable following the coming into effect of the United Kingdom's withdrawal from the European Union for (among other things) an extradition system between the United Kingdom and the European Union, which in large part reflects the EAW system. Those arrangements are implemented into domestic law by the European Union (Future Relationship) Act 2020 and by amendments to the 2003 Act.
The extradition hearing took place on 21 August 2020 before District Judge Ezzat sitting at Westminster Magistrates' Court. There were several issues before the district judge not all of which are relevant to this appeal. In his judgment dated 26 October 2020 and in relation to the issues relevant to this appeal, the judge held that the appellant: (a) had not been convicted in his presence; (b) had not deliberately absented himself from his trial; and (c) had a right to a retrial in Romania: section 20(1), (3) and (5) of the 2003 Act. The district judge ordered the appellant's extradition.
The appellant was given permission to appeal to the High Court against the extradition order on three grounds, including the ground that the District Judge had erred in finding, pursuant to section 20(5) of the 2003 Act, that the appellant was entitled to a retrial upon his surrender to Romania.
The appeal was heard by Chamberlain J on 8 June 2022. The submissions of the appellant's counsel were set out by Chamberlain J, at para 23 of his judgment dated 17 June 2022: [2022] EWHC 1507 (Admin). The submissions were:
“(a) The starting point must be the language of section 20 of the 2003 Act. Parliament could have said that the judge must consider whether the person would be entitled to a retrial unless the courts of the requesting state decide that he was deliberately absent from his original trial. It did not. Instead, it posed three distinct questions, each of which was to be answered separately by the UK judge, applying the criminal burden and standard of proof. In a case such as the present, where the UK judge is not satisfied that the requested person deliberately absented himself from his trial, section 20(5) requires the UK judge to decide only one question, namely ‘whether the person would be entitled to a retrial or (on appeal) to a review amounting to a retrial’. On a natural reading of the words Parliament used it may be argued that, if the answer is contingent upon some other decision whose outcome cannot be predicted to the requisite standard of certainty, the question must be answered in the negative.
(b) Whether a person is ‘entitled’ to a retrial depends on whether he has the ‘right under law’ to a retrial: Da An Chen v Romania [2006] EWHC 1752 (Admin), [8] (Mitting J). A right to a retrial has to be automatic and is inconsistent with the existence of a discretion whether to grant a retrial: Bohm v Romania [2011] EWHC 2671 (Admin).
(c) A requested person may have the right to a retrial even if the domestic law of the requesting state requires him to take ‘procedural steps’ in order to invoke the right: see eg Benko v Hungary [2009] EWHC 3530 (Admin) (where, on the evidence, a retrial would be granted if applied for, but would not take place unless requested: [18]). But if the entitlement to a retrial is conditional on a preliminary finding that the requested person was not deliberately absent from his trial, the proceedings leading to that finding would not naturally be referred to as a ‘procedural step’; it may be argued that those proceedings should be regarded as involving a decision on a substantive issue.”
Chamberlain J stated, at para 23 of his judgment, that subject to Zeqaj v Albania [2013] EWHC 261 (Admin) and BP v Romania [2015] EWHC 3417 (Admin) there was “considerable force” in the appellant's submissions. However, referring to R v Greater Manchester Coroner, Ex parte Tal [1985] QB 67, 81, he considered that he was bound by judicial comity to follow the reasoning of the Divisional Court in BP v Romania that section 20(5) of the 2003 Act will be satisfied even if the right to a retrial is conditional on a finding by a court in the requesting state that the requested person was not deliberately absent from their trial. Accordingly, he dismissed this ground of appeal. He also dismissed the other grounds of appeal, none of which are relevant to this appeal.
On 22 June 2022 the appellant applied to Chamberlain J to certify points of law of general public importance arising from his decision dated 17 June 2022 and to grant leave to appeal to this court pursuant to section 32 of the 2003 Act. In a judgment delivered on 20 July 2022 ( [2022] EWHC 3648 (Admin)) Chamberlain J refused leave to appeal but certified the following questions:
“In a case where the appropriate judge has decided the questions in section 20(1) and (3) of the Extradition Act 2003 in the negative, can the appropriate judge answer the question in section 20(5) in the affirmative if (a) the law of the requesting state confers a right to retrial which depends on a finding by a judicial authority of that state as to whether the requested person was deliberately absent from his trial; and (b) it is not possible to say that a finding of deliberate absence is ‘theoretical’ or ‘so remote that it can be discounted’? If so, in what circumstances?”
On 13 December 2022 a panel of this court granted permission to appeal in relation to the certified points of law and the appellant now appeals to this court.
Section 20 of the 2003 Act, headed “Case where person has been convicted” and contained in Part 1 (concerning category 1 territories) provides:
“(1) If the judge is required to proceed under this section (by virtue of section 11) he must decide whether the person was convicted in his presence.
(2) If the judge decides the question in subsection (1) in the affirmative he must proceed under section 21.
(3) If the judge decides that question in the negative he must decide whether the person deliberately absented himself from his trial.
(4) If the judge decides the question in subsection (3) in the affirmative he must proceed under section 21.
(5) If the judge decides that question in the negative he must decide whether the person would be entitled to a retrial or (on appeal) to a review amounting to a retrial.
(6) If the judge decides the question in subsection (5) in the affirmative he must proceed under section 21.
(7) If the judge decides that question in the negative he must order the person's discharge.
(8) The judge must not decide the...
To continue reading
Request your trial