Mioti v Government of Romania
| Jurisdiction | England & Wales |
| Judge | MR JUSTICE MITTING,LORD JUSTICE MAURICE KAY |
| Judgment Date | 07 June 2006 |
| Neutral Citation | [2006] EWHC 1977 (Admin) |
| Date | 07 June 2006 |
| Court | Queen's Bench Division (Administrative Court) |
| Docket Number | CO/2575/2006 |
[2006] EWHC 1977 (Admin)
IN THE HIGH COURT OF JUSTICE
DIVISIONAL COURT
QUEEN'S BENCH DIVISION
Lord Justice Maurice Kay
Mr Justice Mitting
CO/2575/2006
MISS CAMPASPE LLOYD-JACOB (instructed by Messrs Tuckers, London W1T 6AF) appeared on behalf of the Appellant
MR BEN WATSON (instructed by Crown Prosecution Service, Casework Directorate, 50 Ludgate Hill, London EC4M 7EX) appeared on behalf of the Respondent
On 20 th September 2002 the appellant, Cristian Mitoi, and his brother, Misu Mitoi, were convicted of several offences of dishonesty by the criminal section of the Dambovita District Court in provincial Romania. The official record of the court proceedings reveals that the appellant was convicted of five separate offences, three of fraud contrary to section 215 of the Romanian Criminal Code and two of theft contrary to article 208. The offences comprised the issuing of four cheques totalling 294 million odd lei for goods supplied by two different companies for which there were no funds to cover them in the bank account on which the cheques were drawn. Two of the cheques were also stolen. All five offences were committed in May 1999.
Neither the appellant nor his brother was present at the trial. The appellant says that he left Romania on the night of 30th/31st May 1999. He told the District Judge at the extradition hearing that he and his brother left Romania together and arrived in the United Kingdom on 26th June 1999. Though the two brothers were not present at the Dambovita court on 20th September 2002, they were represented by counsel, described by the court in the official record as "chosen counsel". There is no indication in the record that the facts on which the prosecution was based were disputed.
Three questions were argued: (1) on the prosecutor's application whether or not the offences should be treated as one, in which case it seems it would have attracted a more severe total penalty; (2) whether or not the brothers had evaded the criminal investigation by leaving Romania; (3) whether or not extenuating circumstances, in the case of both brothers their previous good character and partial recompense of the victims of their dishonesty, and in the case of Misu Mitoi ill health, should mitigate the penalty.
The court concluded that the offences were separate, not one; that the brothers had not evaded the criminal investigation; and that extenuating circumstances should mitigate the penalty. Concurrent sentences for each offence were imposed on the appellant, of which the longest was 12 months' imprisonment. The sentence was suspended for three years.
The prosecutor appealed to the criminal section of the Ploiesti Court of Appeal on two grounds. First, the District Court should have treated the offences as one single offence of fraud. Secondly, the court imposed a sentence below the statutory minimum for fraud and should not have suspended the appellant's sentence. The Court of Appeal upheld the prosecution appeal on 18th June 2003. It held that both brothers had acted in an organised manner, not spontaneously, with a "global image" of the offending activity they were going to carry out. The court substituted a single offence of fraud for the five offences of which the appellant had been convicted, and increased his sentence to three years' imprisonment, no part of which was suspended. There is no indication in the official record of the Court of Appeal that either brother was represented by counsel at the appeal.
Both brothers then appealed to the High Court of Cassation and Justice in Bucharest. They were represented by Gheorghe Birsan, described in the official record as "chosen counsel for defence". On 6th February 2004 the High Court rejected their appeal, holding that the Court of Appeal had been correct to treat the offences as one and to "remove" the extenuating circumstances found by the District Court, and to increase the appellant's penalty to three years' immediate imprisonment. Both the Court of Appeal and the High Court held that the brothers had evaded trial, not quite the same question as that answered by the District Court which had simply held that they had not evaded the criminal investigation.
On 26th February 2004 a warrant for the arrest and detention of the appellant was issued by the Dambovita court. On 3rd March 2005 the Republic of Romania requested the extradition of the appellant. On 15th March the Secretary of State certified that the request was validly made under Part 2 of the Extradition Act 2003.
On 13th January 2006 District Judge Tubbs rejected the appellant's contention that his extradition was barred by reason of extraneous considerations under section 79(1)(b) and section 81 of the 2003 Act. There is no challenge to that element of her decision. The sole ground of appeal arises out of the second element of her decision, that the appellant had deliberately absented himself from his trial before the Dambovita court on 20th September 2002.
The relevant statutory provision is to be found in section 85(1) to (4), which repeats in identical terms the provisions in Part 1, section 20(1) to (4):
"(1) If the judge is required to proceed under this section 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 87.
(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 87."
Section 87 requires the District Judge to send the case to the Secretary of State for his decision whether the person is to be extradited, unless his extradition would be incompatible with his Convention rights.
It was common ground that the trial was in the appellant's absence. The sole question was therefore that which arose under section 85(3): had the appellant deliberately absented himself from his trial? This required the District Judge to determine two questions. First, was he aware of the trial? Secondly, if so, did he deliberately fail to attend it? Each question is a question of fact. The appellant's case was that he was not aware of the trial or, for that matter, of either set of appeal proceedings. The District Judge rejected that case for the following reasons:
"I am required to consider whether Cristian Mitoi was aware of the trial at Dambovita that concluded in the Judgment of that Court on 30th September 2002 and/or the 2 appeal hearings that followed from that conviction. 'Chosen counsel' that appeared on behalf of both brothers at this first trial was clearly in touch with Misu Mitoi as he produced medical documentation on his behalf that can only have been supplied through Misu Mitoi himself. This gives weight to the contention that this was not court-appointed or court-chosen counsel but the defendants' own chosen counsel. Further I am not persuaded that a court appointed lawyer without contact or instructions from a defendant would take an appeal on his behalf to the High Court or make points in relation to mitigation of sentence on his behalf. The appeal in this case to the High Court was on behalf of both brothers. The subsequent orders for costs were against both brothers. The appeal to the High Court on behalf of Cristian Mitoi and the references throughout the court proceedings to his representation by 'chosen counsel' is evidence that Cristian Mitoi was aware of all three court proceedings. Misu Mitoi was clearly aware of the trial proceedings. Cristian Mitoi said he had lost contact with his brother and not been informed of, or discussed, the trial and appeal proceedings with him at any stage. The court is entitled to look carefully at the account given by the defendant to form a view as to its credibility. On Cristian Mitoi's own evidence he and Misu had run the company in Romania together,...
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