Nicoletta Prusianu v Braila Court of Law
| Jurisdiction | England & Wales |
| Judge | Mr Justice Fordham |
| Judgment Date | 22 July 2022 |
| Neutral Citation | [2022] EWHC 1929 (Admin) |
| Docket Number | Case No: CO/3447/2021 |
| Court | Queen's Bench Division (Administrative Court) |
[2022] EWHC 1929 (Admin)
Mr Justice Fordham
Case No: CO/3447/2021
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
Royal Courts of Justice
Strand, London, WC2A 2LL
Mary Westcott (instructed by Lawrence & Co Solicitors) for the Appellant
David Ball (instructed by CPS) for the Respondent
Hearing dates: 5.7.22 & 6.7.22
Approved Judgment
I direct that no official shorthand note shall be taken of this Judgment and that copies of this version as handed down may be treated as authentic.
THE HON. Mr Justice Fordham
Introduction
This is an appeal in an extradition case. Permission to appeal was granted on three grounds. The Appellant is aged 23 and is wanted for extradition to Romania. That is in conjunction with a conviction Extradition Arrest Warrant (“ExAW”) issued on 16 November 2020 and certified on 19 April 2021. She was arrested on that ExAW on 18 April 2021 and was granted conditional bail the following day. This is a case to which the Trade and Cooperation Agreement (“ TCA”) applies. Extradition was ordered by District Judge Griffiths (“the Judge”) for the reasons given in a detailed and impressive judgment dated 5 October 2021, after an oral hearing on 6 September 2021. The Judge had three formal documents filed by the Respondent, in addition to the ExAW. First, there was a “Further Information” document dated 6 May 2021, dealing with the Romanian criminal proceedings and the sequence of events. Secondly, there was a formal document which has been described as a “prison assurance”, dated 18 May 2021. Thirdly, there was a further formal document, also described as a “prison assurance” dated 15 June 2021. The index offending to which the conviction ExAW relates was described by the Judge as “one offence” with “five instances of conduct” of shoplifting committed on five separate occasions in Romania, when the Appellant was aged 19 and 20: 21 August 2018; 3 September 2018; 27 September 2018; 17 October 2018 and 15 May 2019. The Appellant had been arrested and interviewed as a “suspect” on 15 May 2019 and appeared again as a “defendant” on 20 July 2019. By October 2019 she had travelled to Denmark and had soon (18 October 2019) been fined for a further shoplifting offence there. In relation to the index offending in Romania, the Appellant was convicted in her absence on 5 October 2020. A 12 month custodial sentence was imposed. The Romanian authorities have confirmed that the Appellant has a right to a retrial, at which guilt or innocence would be considered, as would the appropriateness of any sentence if convicted.
The Judge made adverse credibility findings against the Appellant in relation to certain aspects of her description of events. The Judge accepted other aspects. It will be necessary to keep clearly in mind those parts of the Appellant's description of events which were and were not accepted as reliable and truthful by the Judge who, although she appeared “remotely”, nevertheless had the advantage of oral evidence with cross-examination. Ms Westcott for the Appellant – although recording the Appellant's disagreement with the Judge's adverse findings on certain aspects of the case – has sensibly recognised that, for the purposes of the appeal to this Court, she is not able to impugn the Judge's findings rejecting aspects of the Appellant's evidence. The Judge found that the Appellant had left Romania after the appearance on 20 July 2019; that she had been informed that she was being prosecuted for the shoplifting offences; she had been informed of an obligation to notify any change of address, but did not comply with that obligation; she was warned that failure to comply would mean that summonses to her previous address would be valid; and she had signed the documents which recorded all of this. In consequence, the Judge made what is accepted to be an unassailable finding that the Appellant left Romania as a “fugitive”. As the Judge also explained, the Appellant had – through a Romanian lawyer – filed an appeal with the Romanian courts in Romania, seeking to overturn the conviction and sentence. By then, the ExAW had been issued, on which she was arrested five months later. The Judge found that the Appellant had come to the UK at some time after October 2019 and probably after April 2020. That meant she had only been in the UK for a period between 12 and 18 months at the time of her arrest, and only between 18 and 24 months at the time of the oral hearing before the Judge in September 2021.
The three grounds of appeal are advanced by Ms Westcott, both on the basis that the Judge was wrong on the evidence as it stood before her (ie. s.27(3) of the Extradition Act 2003 (“the 2003 Act”)), and alternatively on the basis that the outcomes were demonstrably wrong in light of “fresh evidence” together with the evidence as a whole (ie. s.27(4) of the 2003 Act). On all three appeal grounds, Ms Westcott says the Judge made errors of approach, and that this “appellate court” should “stand back and say that [the] question ought to have been decided differently because the overall evaluation was wrong: crucial factors should have been weighed so significantly differently as to make the decision wrong, such that the appeal in consequence should be allowed”: Love v USA [2018] EWHC 172 (Admin) [2018] 1 WLR 2889 at §26. It was common ground that I should consider all of the evidence, including the putative “fresh evidence”, and evaluate its capability of being dispositive.
A fourth ground of appeal has been stayed. It is whether extradition would be incompatible with Article 3 ECHR. The stay is pending the test case of Marinescu v Romania which deals with prison conditions and assurances. It was common ground that deciding the Article 3 compatibility of extradition in this case would need evaluation in light of the Divisional Court's awaited judgment in Marinescu CO/4264/2020 (argued on 29 March 2022). These things were also common ground: that the Article 3 arguments in the present case overlap with the three grounds which have not been stayed; but that I ought to proceed to deal with those three grounds (including points regarding assurances) and not to adjourn this case part-heard.
The Equal Treatment Benchbook
Before proceeding further with a legal analysis of this case, I want to recognise some insights from the Equal Treatment Benchbook (February 2021). The Benchbook is a public domain resource. It stands as an essential reference-point for judges and lawyers. Both Ms Westcott and Mr Ball were familiar with it. Chapter 12 (pp.324–343) is entitled “Trans People”. On the topic of the “treatment of trans people in court” (p.326) the Benchbook explains:
[I]t should be possible to recognise a person's gender identity and their present name for nearly all court and tribunal purposes regardless of whether they have obtained legal recognition of their gender … [But] in … rare circumstances … it [may be] necessary in the proceedings to disclose a person's previous name and transgender history .
As the Benchbook also explains (p.325):
Trans, transgender or transgendered are umbrella terms often used to describe many different people who cross the conventional boundaries of gender. Not all people who have adopted a social or legal gender different from their birth gender will be happy to be referred to as ‘trans’ … It is important to respect a person's gender identity by using appropriate terms of address, names and pronouns. Everyone is entitled to respect for their gender identity, private life and personal dignity .
Speaking of the UK, the Benchbook records (p.325–326):
Awareness, knowledge and acceptance of trans people has greatly increased over the last decade. Unfortunately, however, there remains a certain mistrust of non-conventional gender appearance and behaviour, and many transgender people experience social isolation and/or face prejudice, discrimination, harassment and violence in their daily lives. Many trans people avoid being open about their gender identity for fear of a negative reaction from others. This applies in all contexts, but particularly when out in public because of safety issues. Social isolation, social stigma and transphobia can have serious effects on trans people's mental and physical health…
Again speaking of the UK, the Benchbook says this about “trans offenders” (pp.326):
Trans people are likely to be highly apprehensive about being sentenced to a term of imprisonment because of concerns about safety and also about access to any medically necessary hormonal support. A Ministry of Justice/NOMS policy on ‘The Care and Management of Individuals who are Transgender’ (reissued 27 January 2020) applies to prisons and providers of probation services. The policy is concerned to protect the rights and welfare of trans prisoners as well as those of others around them .
I add two footnotes to this. (1) The MoJ/NOMS policy was considered in R (FDJ) v Secretary of State for Justice [2021] EWHC 1746 (Admin), where the terms “transgender” (§7), “transgender women” and “transgender women with a [Gender Recognition Certificate]” (§10) are explained. (2) When the European Commission against Racism and Intolerance (ECRI) released its 2019 Country Report on Romania, in discussing the need in Romania for “further training for police, prosecutors and judges on how to deal with racist and homo-/transphobic acts of violence” the ECRI identified two “vulnerable groups” which it emphasised “in particular” (at §63), namely “the Roma and LGBT communities”: see the judgment of the European Court of Human Rights (“ECtHR”) in Association ACCEPT (§11 below) at §43.
The Appellant
The Appellant is a transgender woman of Roma ethnicity. It is necessary, in these...
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