Mugurel Cretu v Local Court of Suceava, Romania
| Jurisdiction | England & Wales |
| Judge | Mr Justice Irwin,Lord Justice Burnett |
| Judgment Date | 26 February 2016 |
| Neutral Citation | [2016] EWHC 353 (Admin) |
| Docket Number | Case No: CO/4514/2015 |
| Court | Queen's Bench Division (Administrative Court) |
| Date | 26 February 2016 |
[2016] EWHC 353 (Admin)
The Rt Hon Lord Justice Burnett
The Hon Mr Justice Irwin
Case No: CO/4514/2015
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
DIVISIONAL COURT
Royal Courts of Justice
Strand, London, WC2A 2LL
John Jones QC and Myles Grandison (instructed by Lansbury Worthington) for the Appellant
Julian Knowles QC and Julia Farrant (instructed by CPS Extradition Unit) for the Respondent
Hearing date: 19 January 2016
On 16 September 2015 the appellant's extradition to Romania was ordered by District Judge Goldspring sitting at Westminster Magistrates' Court pursuant to a European Arrest Warrant ("EAW") issued on 10 December 2014 and certified by the National Crime Agency on the following day. The appellant has been given permission to appeal on three grounds:
i) The judge erred in finding that the appellant had absented himself deliberately from his trial for the purposes of Section 20 of the Extradition Act 2003 ["the 2003 Act"];
ii) The judge erred in concluding that it would not be unjust or oppressive to order the extradition of the appellant on account of his mental condition, applying Section 25 of the 2003 Act;
iii) The judge erred in concluding that the extradition request was not an abuse of process.
The first ground concerns the circumstances in which the appellant was convicted of aggravated burglary in Suceava, Romania in November 2010 and sentenced to a term of imprisonment of five years and ten months. A subsidiary question arises whether he would be entitled to a retrial following surrender to Romania. In view of this primary conclusion, the district Judge did not have to decide that question. The respondent's case is that even if the appellant did not deliberately absent himself from his trial, he is entitled to a retrial. Both aspects of this ground require consideration of Section 20 of the 2003 Act and article 4a of the 2002 Framework Decision 2002/584/JHA of 13 June 2002 introduced by way of amendment by Council Framework Decision 2009/299/JHA ["the 2009 Framework Decision"]. The second ground arises because the appellant is at risk of committing suicide. The third ground flows from a contention that the sentence identified in the warrant is demonstrably wrong. The sentence imposed, it is said, is one of three years and the balance is made up of what would be described in this jurisdiction as activated suspended sentences.
The EAW
The EAW was the third by which the Romanian authorities had sought the extradition of the appellant. It was in the form prescribed by the 2009 Framework Decision which, to reflect article 4a, introduced a change into the form hitherto used. We have a copy of the original Romanian version and a translation into English. The EAW is available in English in the Framework Decisions, but rather than using that English version as the basis of translation and inserting any additional text, it appears to have been translated from scratch. That has resulted in some clunky language. The second EAW was also in the form prescribed by the Framework Decisions. That EAW was technically deficient. So too was the first, which was in the form prescribed by the 2002 Framework Decision before amendment. That too failed for technical reasons.
The EAW indicates that the appellant is sought to serve a sentence imposed at first instance on 10 November 2010 and finally confirmed on appeal on 1 February 2011. The EAW identifies the length of the sentence as 5 years and 10 months, all of which is unserved. The offence had occurred on the night of 14/15 November 2006. The section of the EAW which was changed by the 2009 Framework Decision is part (d). Its purpose is to provide information relating to absence from trial and the possibility of retrial which is necessary to determine whether the executing judicial authority has the power to refuse to execute the warrant. It closely follows the language of the new article 4a. In this case it states:
"(d) Decision rendered in the absentia and:
1. The person concerned has been summoned in person or otherwise informed of the date and place of the hearing which led to the decision rendered in absentia.
2. x No, the person was not in person at the hearing which led to the decision.
3. If you have marked point 2, please confirm the existence of one of the following elements.
3.1a x the person was legally summoned on May 27 th 2009; June 24th 2009; September 2 nd 2009, October 7 th 2099, November 18 th 2009, January 13 th 2010, February 24 th 2010, March 24 th 2010, May 5 th 2010, May 26 th 2010, June 23 rd 2010, September 15 th 2010, October 20 th 2010, November 3 rd 2010 and therefore was informed about the date and place settled for the trial whose decision was issued and was informed that a verdict can be issued even if he doesn't come to the trial;
Or3.1b the person was not personally summoned, but has effectively received by other communication means of an official notification regarding the date and place settled for the trial whose decision was issued so at it was ascertained without any doubt that the person knew about the settled trial and she was informed about the fact that a decision could be issued if he doesn't come to trial;
Or3.2 x being informed about the settled trial, he authorized a defender who was appointed either by himself or ex officio in order to defend him during the trial and indeed he was defended by that lawyer at the trial.
3.3 the person was given the decision personally and he was expressly informed about his right for re-judging the case or choosing a means of appeal and for this he has the right to come and let the case, including the new proofs, being re-examined and this may have as consequence the annulment of the previous decision; and the person expressly declared that he would not contest this decision:
Orthe person did not asked either the case re-judgment or the promotion of a means of appeal in a due time.
3.4 x the person was not given the decision personally but:
— the decision will be given to him personally as soon as possible after delivery; and
— at the moment when the person will be given the decision, this person will be expressly informed about the right of case re-judgment or a means of appeal that he has the right to, where he could attend personally and that means the whole case, including the new proofs, to be re-examined and this could lead to the annulment of the previous decision; and
— the person will be informed about the time interval in which he may ask the case re-judgment or the promotion of a means of appeal, that is 10 days.
4. If you have marked point 3.1b, 3. 2, or 3.3 please provide information regarding the modality in which the relevant condition was fulfilled:
— he benefited of an ex officio defender."
The English form of point 3.1a in the 2009 Framework Decision starts "the person was summoned in person on …". 3.2 starts "being aware of the scheduled trial, the person had given a mandate to a legal counsellor …" Point 3.4, in the official English version provides:
"the person was not personally served with the decision, but
— the person will be personally served with the decision without delay after the surrender, and
— when served with the decision, the person will be expressly informed of his or her right to a retrial or appeal, in which he or she has the right to participate and which allows the merits of the case, including fresh evidence, to be re-examined, and which may lead to the original decision being reversed, and
— the person will be informed of the time frame within which he or she has to request a retrial or appeal, which will be … days. "
There is no reason to suppose that the Romanian version of the EAW did not faithfully follow the language of the Framework Decisions and thus reflect the authorised English version.
The EAW thus confirms that the appellant was not present at the hearing which led to the decision to impose the sentence of 5 years and 10 months, but that he was repeatedly summoned to successive court hearings. The last summons referred to was on 3 November 2010, which was shortly before the decision was made. The combination of answers at points 3.2 and 4 show that the appellant was represented by a lawyer "ex officio". When one considers the authorised English text in the 2009 Framework Decision, it is clear that point 3.2 is concerned to treat an absent defendant who instructed a lawyer to appear on his behalf, as being present. It is also clear that the judge who filled in or approved the EAW, in putting a cross against 3.2, was doing no more than providing information that the appellant was represented, but (in the language of article 4a) had not given a mandate to the lawyer concerned. Other material provided by the Romanian judicial authority, and a different lawyer who has reviewed the court file, demonstrates that the lawyer acted without instructions both at the trial and in pursuing an appeal. The lawyer was appointed by the court to protect the appellant's interests as best she could. The answer at 3.4 suggests that the appellant will be given the decision on his return to Romania, informed of his right to a retrial and the period (10 days) within which he must apply for that retrial.
Statutory Provisions
Section 20 of the 2003 Act provides:
"Case where person has been convicted
(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...
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