Romana Dumitru v Court of Verona, Italy
| Jurisdiction | England & Wales |
| Judge | Mr Justice Fordham |
| Judgment Date | 24 June 2020 |
| Neutral Citation | [2020] EWHC 1683 (Admin) |
| Court | Queen's Bench Division (Administrative Court) |
| Docket Number | Case No: CO/4019/2019 |
| Date | 24 June 2020 |
[2020] EWHC 1683 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
Royal Courts of Justice
Strand, London, WC2A 2LL
Mr Justice Fordham
Case No: CO/4019/2019
Martin Henley for the appellant
The respondent did not appear and was not represented
Hearing date: 24 June 2020
Judgment as delivered in open court at the hearing
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 was a remote hearing by Skype. It and its start time were published in the cause list together with an email address for anyone to use if they wished to observe the hearing. I heard oral submissions just as I would have done had we all been sitting in the court room. I have asked myself whether, and I am satisfied that: this constituted a hearing in open court; the open justice principle has been secured; no party has been prejudiced; insofar as there has been any restriction on a right or interest, it is justified as necessary and proportionate.
The appellant is 21. She is wanted for extradition to Italy. That is in relation to an accusation EAW. The EAW relates to alleged offending which took place on 22 April 2018 when she was aged 19. The offending is described as robbery together with the causing of injury. It involved a group who confronted an elderly victim on his bike in what is described as a ‘hugging’ technique and resulted in the stealing of his Rolex watch together with minor injuries. The appellant says that she was in the United Kingdom on that day and that it is all a mistake. She points out that she was heavily pregnant and indeed it is known that she gave birth on 9 July 2018 to the younger of her two children. I have also seen a record which on the face of it describes her attending her midwife appointment on 23 April 2018. She has a husband here and their two children: the older aged 5 and the younger aged nearly 2.
The district judge ordered extradition on 9 October 2019. At that stage, the resistance to extradition put forward by the legal representatives for the appellant was squarely based on article 8 ECHR. That resistance is maintained on this application for permission to appeal, and a new argument has been added. The district judge heard oral evidence from the appellant and her husband. She rejected the article 8 arguments for reasons she gave. An application to this court for permission to appeal was refused on the papers by Saini J. At that stage, article 8 remained in issue, though reference was also made to the interrelated question of statutory proportionality under section 21A(3).
A renewed application for permission to appeal was made, which Holman J adjourned to this hearing which has taken place before me today. The position before Holman J was there had been a change in Counsel and Mr Henley was raising the new point based on section 12A, to which I will come. He had only just been instructed. The judge, in adjourning the matter, gave directions for a skeleton argument to set out the point in detail, with the opportunity for the respondent to revisit the submissions accompanying the respondent's notice, in order to deal with the new point. Mr Henley seeks an extension of time for the skeleton argument, which was filed late, and I grant that extension. I am satisfied that it is in the interests of justice to do so, in circumstances where Holman J wished the point to be considered on its legal merits, and where the respondent has had a full and fair opportunity to respond.
Section 12A
I turn first to the new issue based on section 12A. That provision describes an extradition bar where there is an “absence of a prosecution decision”. The structure of the section involves two stages. The first stage involves the requested person raising before “the appropriate judge” the question of whether there are “reasonable grounds for believing that … the competent authorities … have not made a decision to charge or … to try” (or if they have that the requested person's absence is not “the sole reason for that failure”). Mr Henley's case is that that extradition bar arises on the evidence in this case. He submits that the first stage test is satisfied on the material before the court, and in the light of the authorities. For the purposes of the hearing today he submits – and I accept – that the question is whether that is reasonably arguably so.
Whether the point can be raised
A threshold objection is taken by the respondent, who says that the appellant ought not now to be able to raise an extradition bar, for the first time on appeal, having not taken the point before “the appropriate judge”, at a hearing at which the appellant was legally represented. Mr Henley in response has two points. First, he submits that the appellant is ‘entitled’ to raise a new point of law which does not involve or engage putting forward any fresh evidence. In support of that entitlement he relies on the case of Adedeji [2012] EWHC 3237 (Admin) where Mr Justice Collins concluded (paragraph 11) that the earlier case of Khan [2010] EWHC 1127 (Admin) was ‘clearly wrong’. Khan had taken a restrictive approach to the consideration for the first time on appeal of a point of law not dependent upon evidence, and had applied the familiar Fenyvesi [2009] EWHC 231 (Admin) fresh evidence approach to whether or not to entertain such an argument. Mr Justice Collins rejected that. He went on (at paragraph 12) to say this: “I therefore have to consider whether the point is a good one”. Mr Henley submits that that approach supports an ‘entitlement’. His second point, if he is wrong as to ‘entitlement’, it is that the Fenyvesi restriction is inappropriate, that the court has to make a judgment as to whether or not to allow the new point to be relied on, and that in all the circumstances of the present case that judgment should be made in favour of his client. For the purposes of today's hearing, he submits that it is sufficient if it is reasonably arguable either that he is right on ‘entitlement’ or that he is right so far as the exercise of judgment is concerned.
I would be very surprised indeed if there were a legal ‘entitlement’ to advance on appeal a point that could and should have been raised below, in a case where there was legal representation below, and in respect of an extradition bar which spells out on the face of the statute that “the appropriate judge” has to be satisfied that there are reasonable grounds. That is an ambitious submission. I am quite satisfied, however, that that it would not be appropriate at this stage to shut the point out – if the section 12A ground is reasonably arguable on its legal merits – on the basis that it was not raised below. Were that the position, I would be inclined to grant permission to appeal, while specifically making clear that I was leaving open to the respondent at the substantive hearing of the appeal the issue as to what approach the court should take in relation to the raising for the first time of a new argument of law, and the section 12A argument in particular, given the structure of the statutory provision. If necessary, I would direct a ‘rolled-up’ hearing to leave that point open. I asked Mr Henley whether he was aware of any more recent authority which was against him on the question of legal ‘entitlement’. He candidly told me that he could think of at least one example where this court had refused to allow a new point to be raised on appeal. I am satisfied that no further enquiry in the circumstances is necessary or appropriate. I will put to one side the fact that the point was not relied on below.
The substance of the point
So far as the substance of the point is concerned the starting point is with the two-stage analysis of section 12A. That is authoritatively described in the case of Carpenter [2019] EWHC 211 (Admin) at paragraph 18(1). Mr Henley emphasises, taking me back to the case of Kandola [2015] EWHC 619 (Admin) [2015] 1 WLR 5097 at paragraph 30, that “reasonable grounds for believing” is “something less than proof on a balance of probabilities”. The question is whether, reasonably arguably, the appellant can show based on the materials before this court, and in the light of the authorities, that the objective ‘reasonable grounds for belief’ is met. The argument starts with the documents and ends with the authorities.
The documents
So far as the documents are concerned Mr Henley has two points that he relies on as positive points in his favour. He addresses two further points which he says do not materially count against him.
i) The first point, on which he positively relies, is in the EAW at box (b), which describes ‘the decision on which the EAW is based’, the underlying domestic warrant. So far as that requirement is concerned, Mr Henley has shown me the judgment of the CJEU in the case of Bob-Dogi [2016] 1 WLR 4583 and the conclusion in particular at paragraph 58. He relies on that for the proposition that there is a legal requirement that an EAW (or formal supplementary or further information) must spell out reliance on the underlying operative domestic warrant. I accept for the purposes of this hearing that that is correct. Returning to the documents, the EAW in this case specifies as the warrant on which the EAW is based an “order for pre-trial precautionary custody in prison issued on 11 June 2018 by the pre-trial investigation judge attached to the court of Verona in the...
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