Valeriu-Cosmin Argeseanu v Petrosani Court of Law, Romania
| Jurisdiction | England & Wales |
| Judge | Mrs Justice Yip DBE |
| Judgment Date | 09 March 2023 |
| Neutral Citation | [2023] EWHC 513 (Admin) |
| Docket Number | Case No: CO/831/2022 |
| Court | King's Bench Division (Administrative Court) |
[2023] EWHC 513 (Admin)
Mrs Justice Yip DBE
Case No: CO/831/2022
IN THE HIGH COURT OF JUSTICE
KING'S BENCH DIVISION
ADMINISTRATIVE COURT
Royal Courts of Justice
Strand, London, WC2A 2LL
Martin Henley (instructed by) AM International Solicitors for the Appellant
David Ball (instructed by) The Crown Prosecution Service for the Respondent
Hearing dates: 16 February 2023
Approved Judgment
This judgment was handed down remotely at 10.30am on 9 March 2023 by circulation to the parties' representatives by e-mail and by release to the National Archives.
The appellant, Mr Argeseanu, appeals against the decision of District Judge Bristow on 4 March 2022 to extradite him to Romania to serve a sentence of imprisonment of 3 years and 1 month.
There are four grounds of appeal:
i) The District Judge was wrong to find that the appellant was a fugitive;
ii) The appellant should have been discharged under section 14 of the Extradition Act 2003 on the ground of passage of time;
iii) The District Judge was wrong to dismiss the appellant's Article 8 claim under section 21 of the Extradition Act 2003;
iv) The extradition proceedings on the current warrant were an abuse of process and the District Judge erred in his approach to that.
Leave to appeal was granted by Thornton J at an oral renewal hearing on 7 October 2022.
The European arrest warrant
The appellant's extradition is sought pursuant to a European arrest warrant issued on 1 November 2018 and certified on 14 November 2018 (“EAW3”). EAW3 is a conviction warrant which relates to four offences, one offence of “outrage against morality and public disturbance” committed in 2005 and three assaults committed on a single night in 2004.
At the hearing before me, the 2005 offence was described as “criminal damage”, although that does not fully encapsulate the offending. It appears that this was a public order offence, during which criminal damage was caused (breaking windows). There is no dispute that all four offences are extradition offences.
Although no other offence is referred to in EAW3, there is a further relevant offence, details of which were provided in further information served by the respondent on 20 February 2020. The appellant had previously been convicted of an assault committed on 17 July 2002. On 17 June 2003, he was conditionally pardoned with a sentence of 1 year 6 months' imprisonment in default should he commit a further offence within 3 years (“the suspended sentence”). His conviction for the 2004 and 2005 matters put him in default of the suspended sentence. On 25 January 2006, the Hunedoara Court of Law sentenced the appellant to two years' imprisonment for the 2004 assaults. This sentence was made up of 6 months' imprisonment for the new offences and activation of the suspended sentence. On 15 May 2007, the Petrosani Court of Law sentenced the appellant to 1 year 6 months' imprisonment for the 2005 offence and also activated the suspended sentence in full, making a total of three years' imprisonment. It appeared therefore that the suspended sentence had been activated twice.
On 25 September 2018, the Romanian court allowed an application by the appellant to unmerge the previous sentences and to merge all sentences into one. The appellant did not attend the re-sentencing hearing but knew of it and had instructed his lawyer to appear on his behalf. The court unmerged the sentence imposed for the three assaults into its component parts and then merged these sentences with the sentence for the 2005 offence, arriving at a sentence of 1 year 7 months' imprisonment. The sentence of 1 year 6 months' imprisonment for the 2002 offence remained activated and was added to that, making a total to serve of 3 years and 1 month. This new sentence became irrevocable on 30 October 2018 and forms the basis of EAW3.
Previous extradition proceedings
Attempts to extradite the appellant have had a somewhat troubled history. His extradition was first sought by way of an arrest warrant issued on 26 August 2010. This warrant related to the 2005 offence. It was not certified until 17 February 2012. I shall refer to this warrant as “EAW2” since that is how it was described in earlier proceedings to which I shall refer. However, DJ Bristow chose to refer to it as “EAW1” since it was the first warrant issued. A second warrant (which I shall refer to as “EAW1” as described in the earlier proceedings; “EAW2” in DJ Bristow's judgment) which related to the 2004 offences was issued on 27 July 2012 and certified on 24 August 2012. Following separate extradition hearings, the appellant was discharged on both warrants because they were not sufficiently particularised.
EAW1 and EAW2 were both reissued in 2016. EAW1 sought the appellant's extradition to serve a sentence of 2 years and EAW2 a sentence of 3 years. There were continuing failures in the supply of sufficient and accurate particulars. In particular, neither warrant particularised the 2002 offence which gave rise to the original sentence of 1 year 6 months and which is now known was a component part of both sentences. Both warrants were considered at an extradition hearing before District Judge Branston who delivered his decision on 4 October 2016. DJ Branston found that the appellant was a fugitive, having been present at his trials and being aware of the outstanding proceedings. Given the lack of particularity about the 2002 offence, he discharged the appellant on those parts of both EAW1 and EAW2 that related to the sentence of 1 year 6 months for that offence. However, he concluded he could excise those parts and uphold the remainder of the warrants as valid. This led to him ordering the appellant's extradition on EAW1 for the three assault offences for which he received a sentence of 6 months and on EAW2 for the 2005 offence for which he received a sentence of 18 months.
The appellant appealed to this court. His appeal was dismissed by McGowan J on 28 March 2018 (see Argeseanu v Romania [2018] EWHC 670 (Admin)). Those proceedings were not finally concluded as the appellant sought the certification of a point of law of general public importance. While the outcome of that application was awaited, the appellant's request for his sentences to be unmerged and dealt with together led to him being re-sentenced as set out above. The respondent then issued EAW3 based on the new sentence and withdrew EAW1 and EAW2.
It can be seen from the above summary that had the appellant been extradited on EAW1 and EAW2, following the refusal of his appeal in 2018, he could have expected to serve a total of 2 years. If extradited pursuant to EAW3, he will be required to serve 3 years and 1 month. The appellant claims that EAW3 represents an abuse of process because it is an attempt to reinstate the 2002 offence in relation to which he was discharged in 2012 and again in 2016 and would have the effect of increasing the sentence he faced in 2016. The respondent says it is not an abuse at all. EAW3 relates to the revised sentence imposed in 2018 following a request by the appellant. The respondent argues that the appellant can hardly complain that a new warrant was issued in relation to the new sentence when it was his action that led to that sentence.
The District Judge's decision
The District Judge found that the appellant came to this country in 2007, sometime after May 2007. He did so on the basis that the appellant had been present at the trial in the Petrosani Court on 15 May 2007. He rejected the appellant's evidence that he came in January 2007. The respondent now accepts that it cannot be asserted that the appellant was at the May 2007 hearing. However, there was clear evidence he was present at court in January 2007.
The judge found that the appellant was a fugitive when he came from Romania in 2007 and that he continued to be a fugitive after he was arrested here in 2012. On the appellant's status after 2012, the District Judge said:
“He chose to continue to remain beyond the reach of Romanian justice. He could have consented to extradition or chosen to return voluntarily to Romania. He may have been living in plain sight in the UK, but I am sure one of his reasons for remaining in the UK was to avoid the punishment imposed by the Romanian court – the same reason he fled to Romania in 2007.”
The judge noted that when asked why he did not go back to Romania in 2007/2008, the appellant said, “It did not appear correct that I should go to prison.”
Having found that the appellant was a fugitive both before and after his arrest in 2012, the District Judge concluded that he could not rely upon the passage of time to bar his extradition under section 14 of the 2003 Act.
In considering section 21 of the 2003 Act, the District Judge dealt with the appellant's Article 3 and Article 8 rights. Given the issues on this appeal, I do not need to say anything about Article 3. In considering Article 8, the judge balanced the factors for and against extradition, following Poland v Celinski [2015] EWHC 1274 (Admin). The judge gave weight to the public interest in ensuring extradition arrangements are honoured and in discouraging fugitives such as the appellant from seeing the UK as a safe haven. He also took account of the seriousness of the offences and the length of sentence, all of which remained to be served. He also noted that the appellant had committed an imprisonable offence in this country which was serious enough to attract a community order (failing to provide a specimen of breath after a road traffic collision). Against that, he recognised the interference with the appellant's family life and that of his family. He recognised that the interests of his children carried particular weight. He also took...
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