Vasile Mihaila v Judecatoria Piatra Neamt (Romania)
| Jurisdiction | England & Wales |
| Judge | Mr Justice Julian Knowles |
| Judgment Date | 23 January 2024 |
| Neutral Citation | [2024] EWHC 43 (Admin) |
| Court | King's Bench Division (Administrative Court) |
| Docket Number | Case No: CO/4297/2020 |
[2024] EWHC 43 (Admin)
Mr Justice Julian Knowles
Case No: CO/4297/2020
IN THE HIGH COURT OF JUSTICE
KING'S BENCH DIVISION
ADMINISTRATIVE COURT
Royal Courts of Justice
Strand, London, WC2A 2LL
Jonathan Swain (instructed by Lawrence & Co) for the Appellant
David Ball (instructed by CPS) for the Respondent
Hearing dates: 16 May 2023
Approved Judgment
This judgment was handed down remotely at 10.30am on 23 January 2024 by circulation to the parties or their representatives by e-mail and by release to the National Archives.
Introduction
This is an appeal under Part 1 of the Extradition Act 2003 (EA 2003) with the permission of Linden J. The Appellant appeals the decision of the district judge dated 16 November 2020 ordering his extradition to Romania. The Appellant was arrested before 11pm on 31 December 2020 and so the ‘old’ European arrest warrant (EAW) arrangements continue to apply.
The Appellant is represented by Mr Swain. The Respondent is represented by Mr Ball. I am grateful to them both.
The Appellant is sought pursuant to a conviction EAW. This is based on a sentence imposed on 10 April 2019, which remained final through the decision of the Court of Appeals, Bacau, on 1 April 2020.
The EAW was issued by Gabriela Bratu, Judge of the Judecatoria Patra Neam, Romania, on 8 April 2020 and issued for service by the NCA on 20 April 2020. The warrant is based on a final and enforceable judicial order dated 10 April 2019. This was passed by the Piatra Neamt Trial Court. The decision became final by a decision dated 1 April 2020 by the Court of Appeal Bacau.
The EAW relates to three offences from 2006–2007. It is said the Appellant began a ‘sexually deviant attitude’ in relation to two children (aged seven and eight) ‘of his concubine’.
The behaviour complained of is described in Box (e) of the EAW. Around 2002 the Appellant began cohabiting with a woman whom I will call PA. She had two daughters who, when she and the Appellant met, were toddlers. In around 2006–2007, when the daughters were aged approximately seven and eight respectively, he began to sexually abuse them. The warrant sets out how he ‘periodically secured the satisfaction of his sexual needs by touching the minors’ private parts and by contact of his penis with the bodies of the victims, ejaculating subsequently.’ He would ‘emotionally blackmail’ and mentally coerce his partner into thinking this is normal behaviour. The conduct is said to have, ‘severely jeopardised the minors’ moral development.’
The Appellant was present at his trial but not his sentence. A sentence of 10 years and four months' imprisonment was imposed, of which nine years nine months and 22 days remains to be served (less any time spent on remand).
Procedural history
The Appellant was arrested on 24 April 2020 and produced before the lower court the same day. The following grounds under the EA 2003 were raised at the extradition hearing under Part 1 in relation to some or all of the Romanian offences: s 2; s 10; s 17; and Articles 3 and 8 of the ECHR read with s 21 of the EA 2003. The Article 3 argument related to prison conditions in Romania and alleged risks from other prisoners to the Appellant as a sex offender. The Appellant relied on a report from the European Committee for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment (CPT) from 2019 (based on prison visits in Romania in 2018).
The Appellant filed and served Perfected Grounds of Appeal dated 15 January 2021. On 22 December 2021, he applied to vary his grounds of appeal. In an order of 17 February 2022 Griffiths J granted that application, directing that the Appellant must file and serve Amended Perfected Grounds of Appeal within 28 days of the date of the order.
Further, Griffiths J directed that that the Appellant should, within 14 days of the date on which the decision of the Divisional Court in Marinescu (CO/4264/2020) being handed down (the lead case on Romanian prison conditions), inform the Respondent as to whether the ground is maintained and, if so, on what basis, together with appropriate submissions.
The Appellant filed and served Amended Perfected Grounds of Appeal dated 18 March 2022 in line with those directions. On 12 September 2022, the Court handed down its decision in Marinescu and others v Romanian Judicial Authority [2022] EWHC 2317 (Admin). The Appellant then filed and served updated Amended Perfected Grounds of Appeal in light of that decision, incorporating his updated submissions on Article 3. An application to adduce a further assurance was lodged by the Respondent in October 2022.
On 19 December 2022, Lane J refused permission on all grounds. The Appellant applied to renew permission to appeal. On 20 December 2022 he made an application to rely by way of fresh evidence upon a report from 2022 from the CPT based on visits in 2021. On 26 January 2023, Linden J granted permission to appeal.
The single ground of appeal now advanced by Mr Swain on behalf of the Appellant is that he would be at a real risk of a breach of Article 3 if surrendered to Romania due to the risk of harm he faces from other prisoners because of the nature of his offences (sexual offences against children) and that he will not be adequately protected in prison. Mr Swain relied on the principle that although Article 3 is aimed primarily at ill-treatment, etc, by state agents, the state will also be liable under Article 3 where the relevant risk emanates from non-state actors (such as other prisoners) and the state is unable or unwilling to act to provide ‘reasonable protection’ to the defendant: see R (Bagdanavicius) v Secretary of State for the Home Department [2005] 2 AC 668, [24].
Submissions
On behalf of the Appellant, Mr Swain submitted that the nature of the Appellant's offending would render him vulnerable to violence at the hands of prisoners. In addition to the Appellant's own past treatment in prison, there is evidence from the CPT that individuals in custody for similar offending are particularly at risk, and that the Romanian authorities fail to adequately protect them (and so will not protect the Appellant).
The Appellant had given evidence in his proof (which he adopted orally as his evidence in chief), in particular at [37], that he had been ill-treated in prison in Romania because of his offending. The judge had therefore been wrong to say there was no evidence of risk to the Appellant arising from his offences when he said at [42]:
“I have heard no evidence about the risks that are faced specifically by the RP should his extradition be ordered. In his proof of evidence, the RP describes his troubling experiences while on remand in Romania, however those experiences are not as a result of the offences for which the RP was on remand.”
The Appellant's evidence had not been challenged by the Respondent, and should have been accepted. At [44] the judge mentioned the assurance from Romania about prison conditions, but this did little to alleviate risks from other prisoners. The 2019 CPT Report before the judge referred to inter-prisoner violence and made criticisms, eg, of failures to conduct proper risk assessments in relation to cell-sharing. The judge had not referred to this.
Mr Swain said that the judge had wrongly not engaged with that CPT Report and that had he done so, he would have been bound to discharge the Appellant.
Before me, Mr Swain also sought to rely on the CPT Report from 2022 which I referred to earlier. Plainly this post-dates the district judge's decision. He said it was decisive and should be admitted under the well-known principles in Szombathely City Court v Fenyvesi [2009] 4 All ER 324 and Zabolotnyi v Mateszalka District Court, Hungary [2021] 1 WLR 2569.
Mr Swain said the 2022 Report includes pertinent information, which demonstrates that deficiencies inherent in the Romanian prison system would place those accused of sexual offences at risk: see, for example, at [72]:
“72. The CPT's delegation found that instances of inter-prisoner violence appeared to be lower in the prisons visited in 2021 by comparison with those visited in 2018. Nevertheless, many persons stated that tensions were exacerbated by the overcrowding, lack of activities and limited access to hot water/showers which did, at times, spill over into violence between prisoners. In each prison, the CPT's delegation received allegations of fights happening mostly in cells and occasionally in the exercise yards. In this context, persons of Roma origin, as well as persons accused or convicted of sexual offences, appeared to be particularly at risk. The situation appeared especially problematic at Galati and Giurgiu Prisons.”
Mr Swain said there was nothing in the assurances offered by Romania (including the one from October 2022) which met these concerns. Overall, he said that the Aranyosi threshold had been crossed ( Criminal proceedings against Aranyosi [2016] QB 921) so as to require further specific information about the Appellant's position. I will return to Aranyosi later.
Absent an adequate response from the Respondent which engaged directly with the issue of risks to the Appellant, Mr Swain submitted that there is a real risk that Romania would fail to adequately protect the Appellant from the risk of harm.
On behalf of the Respondent, Mr Ball said that the height of the Appellant's case was that he will be at real risk of a breach of Article 3 inter-prisoner violence because he is a child sex offender. (Although he also denies that he is a child sex offender, and that the allegations are made up.) However, he said that the evidence relied upon by the Appellant falls short of what would be required to...
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