Sonea v Meheinti District Court Romania
| Jurisdiction | England & Wales |
| Judge | Lord Justice Scott Baker |
| Judgment Date | 23 January 2009 |
| Neutral Citation | [2009] EWHC 89 (Admin) |
| Court | Queen's Bench Division (Administrative Court) |
| Docket Number | Case No: C0/10324/2008 |
| Date | 23 January 2009 |
[2009] EWHC 89 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEENS BENCH DIVISION
DIVISIONAL COURT
Lord Justice Scott Baker and
Mr Justice Maddison
Case No: C0/10324/2008
Ms Lisa Freeman (instructed by Azam & Co) for the Appellant
Ms Amy Mannion (instructed by Crown Prosecution Service) for the Respondent
Hearing date: 3 December 2008
Lord Justice Scott Baker:
This is an extradition appeal against the decision of District Judge Tubbs in the City of Westminster Magistrates Court when she ordered the extradition of Mihai Sonea, the appellant, to Romania pursuant to a European arrest warrant. The issue is straightforward. The warrant was drafted as a conviction warrant and, so it is submitted, should have been drafted as an accusation warrant and is therefore invalid.
The appellant is a 33 year old Romanian national and the warrant recites that he was convicted in Romania of attempted first degree murder and sentenced to 10 years imprisonment. The offence is said to have been committed on 19 June 1999. After 4 August 1999 the Romanian authorities were unaware of the appellant's whereabouts but learned from his father that he had left Romania and was believed to be in Spain. This information was later confirmed by the appellant's wife.
The appellant was tried in his absence and convicted on 5 November 2003. There appears to have been an appeal on his behalf conducted by a lawyer appointed to represent his interests, and his sentence is said to have “remained definitive” from 10 November 2004. The Romanian court concluded that he knew about the trial because his wife had told him of it on the telephone. Ms Freeman, who has appeared for the appellant, submits that he nevertheless has a right to a retrial in the event of his extradition to Romania. She refers to a letter dated 7 April 2008 from the President of the Criminal Department of the Mehedinti Court and to the judgment of this court in Da An Chen v The Government of Romania [2006] EWHC 1752 (Admin) paras 9 – 12. Although I am not persuaded that the matter is entirely free from doubt on the facts on this case, I am prepared to assume for the purposes of the present appeal that he does have the right to a retrial.
Ms Freeman's submission is that because the appellant is entitled to a full retrial the warrant should be treated as an accusation warrant rather than a conviction warrant. Because he is entitled to a full retrial he ought to be considered as an accused person rather than a convicted person. She relies on a number of authorities under the Extradition Act 1989, in particular Hewitson v The Governor of France [2005] EWHC 135 (Admin), Foy v The Governor of Brixton Prison and Anr (unreported CO/3969/1999) and also R v Governor of Pentonville Prison and Anr ex parte Zezza [1983] 1 AC 46, which involved the Extradition Act 1870. She submits that the principles of the earlier legislation survived the arrival of the Extradition Act 2003. She refers in particular to the observations of Lord Roskill in Zezza at p.55E:
“The English court must inform itself by expert evidence where the application for extradition asserts that the person whose extradition is sought is a convicted person, whether the demand is founded upon a sentence in contumacia. That evidence will show whether or not the conviction upon which the demand is founded bears the characteristics of a conviction or sentence “in contumacy”, so that the whole matter can be reopened in the event of subsequent surrender and appearance. If it can, then the person concerned must not be treated as a convicted person but as an accused person.”
She also relies on Kennedy L.J in Foy at para 6:
“Prior to 1989 courts in this country examined the finality of proceedings abroad to see if a fugitive should be regarded as a person convicted or accused, and that process has continued. In Re Sarig ( 20 March 1993 unreported), where the request came from the United States, the conviction of the fugitive in his absence was treated as final because if he were returned the court would have a discretion whether or not to set that conviction to set aside. As Evans L.J put it at 25E:
“The question is, does the applicant have a right to trial of the alleged or admitted extradition crime, notwithstanding the conviction which has been recorded?”
“The same approach was adopted by the House of Lords in Re Ismail [1999] 1 AC 320 where Lord Steyn said that “accused” in section 1 of the 1989 Act is not a term of art. It is a question of fact in each case whether the person passes the threshold test of being an “accused” person. “
These cases, however, all predate the Extradition Act 2003. The only authority relied on by Ms Freeman under that Act is Caldarelli v Court of Naples [2008] UKHL 51. In that case Caldarelli had been convicted and sentenced in absentia in Italy for drug offences. An appeal had been lodged by Caldarelli in Italy and was extant. The argument was whether surrender was appropriate when a European arrest warrant appeared to be an accusation warrant with no final and enforceable conviction, but no automatic right to a retrial. The Divisional Court certified the following point:
“Where a fugitive has been convicted and sentenced in his absence in the requesting state, but the conviction and sentence are neither final nor enforceable, may his case be treated as an accusation warrant even though he does not enjoy an unqualified right to a retrial on the merits?”
The House of Lords, affirming the decision of the Divisional Court, answered the question in the affirmative. Caldarelli had properly been described as being subject to an accusation warrant. It was common ground between the parties that in Italian law:
(1) In Italy, a person is not considered 'convicted' until the sentence becomes 'final'. Custody in Italy following surrender would be categorised as 'pre-trial custody'.
(2) The first instance judgment, including the sentence of imprisonment, was neither final nor enforceable where the criminal appeal process was incomplete.
(3) Caldarelli had no unqualified right to a fresh hearing on the merits with all the evidence called again.
(4) He would be entitled to a retrial if fresh evidence came to light or the Italian court, in the exercise of its discretion, decided to grant a rehearing.
It is important to have in mind that the warrant in Caldarelli contained all the attributes of an accusation warrant. Furthermore, all parties were agreed that the warrant was an accusation warrant within the meaning of s.2(2), (3) and (4) of the 2003 Act. Caldarelli was “sought for the purposes of executing the pre-trial custody order issued against him and in order to be judged in subsequent and ongoing proceedings.” The sentence imposed was described as “sentence not yet enforceable as not final.”
As Baroness Hale put it at para 29:
“The crucial distinction drawn in article 1.1 of the Council Framework Decision (2002/584/JHA) is between an arrest warrant issued with a view to arrest and surrender of the requested person “for the purposes of conducting a criminal prosecution” and an arrest warrant issued with a view to the arrest and surrender of the requested person “for the purposes of……..executing a custodial sentence or detention order.”
Caldarelli was not being sought for 'the purposes of executing a custodial sentence', but rather for 'the purposes of conducting a criminal prosecution.'
The Extradition Act 2003 implements in this country the Council Framework Decision, and the European arrest warrant procedure is designed to implement a new and summary process for extradition between Member States. In my view it is liable to be misleading to pick out observations by judges in cases concerned with earlier legislation. Rather, it is necessary to follow carefully and chronologically the structure of the 2003 Act.
The starting point for present purposes is s.2 (as amended). It provides:
“(1) This section applies if the designated authority receives a Part...
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