Victor – Marian Banica v Pogoanele District Court, Romania
| Jurisdiction | England & Wales |
| Judge | Mr Justice Julian Knowles |
| Judgment Date | 08 March 2023 |
| Neutral Citation | [2023] EWHC 405 (Admin) |
| Docket Number | Case No: CO/3263/2021 |
| Court | King's Bench Division (Administrative Court) |
[2023] EWHC 405 (Admin)
Mr Justice Julian Knowles
Case No: CO/3263/2021
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 CPS) for the Respondent
Hearing date: 9 June 2022
Judgment Approved by the court
for handing down
(subject to editorial corrections)
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Introduction
This is an appeal with leave of the single judge against the decision of District Judge Rimmer dated 20 September 2021 ordering the Appellant's extradition to Romania.
The Appellant is represented by Mr Henley. The Respondent is represented by Mr Ball. I am grateful to them both. As well as my notes, I have a full recording of the hearing.
The Appellant is the subject of a conviction arrest warrant. It is dated 9 December 2020 and was certified by the National Crime Agency on 27 May 2021. The Appellant's extradition is sought on the basis of the judgment of the Respondent on 27 November 2019, which was made final by the decision of Buzau County Court on 17 September 2020. A sentence of two years and 10 months imprisonment was imposed, all of which remains to be served. This was imposed following the revocation of the suspended sentence which was originally imposed.
Because the Appellant was arrested after 11pm on 31 December 2020, the relevant provisions are; at the domestic level, the Extradition Act 2003 (EA 2003) as amended by the European Union (Future Relationship) Act 2020; and at the UK/EU level, by the Trade and Cooperation Agreement between the EU and the UK (TACA), and specifically Title VII of Part 3 of TACA. Hence, the warrant in this case is just referred to as an arrest warrant, rather than a European arrest warrant (see TACA, Article 632, in the renumbered version).
The Appellant's sentence was imposed for offences of driving otherwise than in accordance with a licence, and failing to provide a specimen. The offences were committed on 19 August 2018 in Comuna Scutelnici, Bradeanu, Romania. The Appellant drove a motor vehicle on a public road for four kilometres and then failed/refused to supply a sample to establish his blood alcohol level when requested to do so by a police officer.
Let me say at once that, to English eyes at least, the Appellant's sentence (in its activated form at least) would seem to be very long. That submission lay at the heart of Mr Henley's submissions, as I shall explain.
The warrant confirms that the Appellant was summoned in person and informed of the date and place for the trial. On 11 December 2018 he was sentenced.
The district judge found the Appellant to be a fugitive [judgment, [41(g)]. In his evidence, the Appellant explained that he came to the UK on 12 December 2018. He confirmed that he knew he was being prosecuted for offences in Romania when he left. He also confirmed that he knew he was avoiding any sentence he might get after the trial (district judge's judgment (hereafter ‘judgment’), [23]).
As I have said, the Appellant's original sentence was a suspended sentence. The suspension period was four years. During the term of suspension, the Appellant was required to attend the Probation Service at dates to be set; to receive visits from them; and to notify any change of home lasting longer than five days. He was also required to perform 90 days unpaid work. Further Information from the Respondent highlighted that in the event of non-compliance, the suspended sentence would be revoked, and the Appellant would be required to serve his sentence (as happens in this country).
The Appellant did not comply with the terms of his suspended sentence and as the judge found, he left Romania as a fugitive. As a result, the Probation Service requested the revocation of his suspended sentence, which is what occurred.
The Appellant was arrested in this country on 8 June 2021 and produced at Westminster Magistrates' Court the following day.
The issue raised in the court below was that, pursuant to s 21 of the EA 2003, extradition would be a disproportionate interference with the Appellant's and his family's rights to a private and family life (Article 8 of the European Convention on Human Rights (ECHR)).
The issue on this appeal is whether the district judge was wrong in his conclusion that extradition would not be disproportionate.
Title VII of TACA is entitled ‘Surrender’. Article 596 sets out its objective:
“The objective of this Title is to ensure that the extradition system between the Member States, on the one side, and the United Kingdom, on the other side, is based on a mechanism of surrender pursuant to an arrest warrant in accordance with the terms of this Title.”
Within that mechanism of surrender, which is expressed as forming the basis of the extradition system, Articles 597, 598(a) and 613(1) provide as follows:
“ARTICLE 597. Principle of proportionality. Cooperation through the arrest warrant shall be necessary and proportionate, taking into account the rights of the requested person and the interests of the victims, and having regard to the seriousness of the act, the likely penalty that would be imposed and the possibility of a State taking measures less coercive than the surrender of the requested person particularly with a view to avoiding unnecessarily long periods of pre-trial detention.
ARTICLE 598. Definitions. For the purposes of this Title the following definitions apply: (a) “arrest warrant” means a judicial decision issued by a State with a view to the arrest and surrender by another State of a requested person, for the purposes of conducting a criminal prosecution or executing a custodial sentence or detention order; …
…
ARTICLE 613. Surrender decision. 1. The executing judicial authority shall decide whether the person is to be surrendered within the time limits and in accordance with the conditions defined in this Title in particular the principle of proportionality as set out in Article 597…”
The principal issue argued by Mr Henley on this appeal is whether TACA necessitates a new and stricter approach to extradition, as compared to that which applied pursuant to the Council Framework Decision 2002/584/JHA on the European arrest warrant and the surrender procedures between member states of the European Union (the EAW Framework Decision).
This referred, in [10] of the Preamble, to the fact that, ‘The mechanism of the European arrest warrant is based on a high level of confidence between Member States.’ As to this, in Ministerio Fisca v Gordi (Case C-158/21), 14 July 2022, for example, the CJEU said at [80]:
“It must be remembered in this connection that Framework Decision 2002/584 seeks, by the establishment of a simplified and effective system for the surrender of persons convicted or suspected of having infringed criminal law, to facilitate and accelerate judicial cooperation with a view to contributing to the attainment of the objective set for the European Union of becoming an area of freedom, security and justice, and has as its basis the high level of trust which must exist between the Member States.”
Mr Henley says there is now a different approach, and that that this principle no longer applies in the same way as it did under the EAW Framework Decison, so that (my words), this country should be less indulgent and in particular, should scrutinise more strictly sentences passed by foreign courts on the basis of a proportionality assessment.
His argument was based upon what he said was the excessive sentence passed on the Appellant in Romania. He said the district judge erred in assuming that the principle of mutual trust still applied, in a way which infected his Article 8 assessment. Mr Henley's subsidiary argument was that the district judge had also been wrong to find the Appellant to be a fugitive, and that this also wrongly influenced his Article 8 finding.
In granting permission to appeal, the single judge said:
“So far as I am aware the point of law as to whether the approach that the Court should take to allegedly excessive sentences remains the same under the Trade and Co-Operation Agreement as it was under the Framework Agreement has not previously been considered, and it may be helpful if the matter is raised before the Court for clarification. It is just arguable that this is an exceptional case in which the sentence was wholly disproportionate (notwithstanding that I note that the sentence as originally imposed was suspended). Accordingly, I have granted permission to appeal.
If the only ground of challenge in relation to Article 8 was the finding that the Appellant was a fugitive, I would not have granted permission to appeal, especially in light of the Appellant's own evidence as referred to at paragraph 23 of the District Judge's judgment. However, as the Article 8 issue must be considered in the round, I do not think that it is appropriate to limit the arguments that may be advanced on appeal.”
Submissions
On behalf of the Appellant, Mr Henley submitted as follows.
Mutual trust and confidence in extradition only arose under the EAW Framework Decision and the jurisprudence of the CJEU, neither of which applied in this case. The judge did not properly address the issue. He simply proceeded on the basis that the former approach is unmodified by TACA, and so was wrong.
The judge also wrongly found that the Appellant is a fugitive, this despite the Respondent in its Further Information stating that it had no information to suggest...
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