Virgiliu Ionut Popa v President of the Tulcea Court, Romania
| Jurisdiction | England & Wales |
| Judge | Mr Justice Kerr |
| Judgment Date | 18 June 2020 |
| Neutral Citation | [2020] EWHC 2466 (Admin) |
| Docket Number | No. CO/1591/2019 |
| Court | Queen's Bench Division (Administrative Court) |
| Date | 18 June 2020 |
[2020] EWHC 2466 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
Royal Courts of Justice
Mr Justice Kerr
No. CO/1591/2019
Mr Martin Henley (instructed by Sharma Law) appeared on behalf of the Appellant.
Mr David Ball (instructed by the CPS Extradition Unit) appeared on behalf of the Respondent.
( )
This is an appeal founded on article 8 of the European Convention on Human Rights. Permission was initially refused on the papers by Julian Knowles J but was granted, at an oral hearing, by Laing J.
The appellant is wanted by the respondent in Romania to serve a sentence of one year, 11 months and 10 days for driving without a licence and failing to provide a specimen of breath or blood.
Leave was granted on 17 September 2019. The decision appealed against followed a hearing at Westminster Magistrates' Court before District Judge Zani on 4 April 2019. His judgment was given the same day.
The Facts
The appellant is from Romania. On 20 March 2011, in Romania, he drove a vehicle without a licence, was involved in a collision and subsequently refused to provide a sample of breath or blood. The District Judge below set out in his judgment that in evidence before him the appellant accepted that on that date, 20 March 2011, he was stopped by police having collided with another vehicle.
The judge noted that the appellant, in his evidence, accepted that on that date he did not have a licence authorising him to drive and accepted that he refused requests to provide a specimen of breath or blood, and he accepted that on that date he was taken to a police station.
The next event in the chronology is over a year later, on 10 August 2012. In Romania, on that date, the appellant signed a document in which he agreed to notify the prosecuting authority of any change of residence during the criminal trial process. In further information provided over and above the European Arrest Warrant (“EAW”) the respondent's evidence included the following:
“According to Article 70(4) of the Criminal Procedure Code … [Mr Popa] had the obligation to inform the Romanian Judicial Authorities of the change of his domicile address …
The convict, [Mr Popa], signed the minute of 10.08.2012 in which he was informed ‘the accused or the defendant is also informed of the obligation to announce in writing within 3 days any change of dwelling during a criminal trial’.”
The subsequent EAW, to which I am coming, includes an indication that the appellant was not present at his later trial “being gone for work in England”. The appellant did, indeed, come to this country. He did so in 2013.
He told the District Judge that he thought that was in December 2013 but the judge thought it probable that, as the appellant had stated in an earlier document in which he provided personal information, it was in March or April 2013, shortly after visiting a police station in Romania in connection with this matter.
Thus, it is known that the appellant visited a police station in Romania in the spring of 2013 and that later the same year, either a short time later or about six months later, he came to this country. There is an indication that in the middle of 2014 he was working in this country as a carpenter; the later EAW indicates that.
His trial eventually took place in Romania on 3 December 2014. He was tried in his absence, but represented by a lawyer, an arrangement made by his brother. On 17 December 2014, judgment was given and he was convicted and sentenced. As I have said, the sentence was of one year, 11 months and days for the two offences.
According to paragraph 17 of the judgment of the District Judge, police in 2014 attended the address that they had for him in Romania, which was the home of his mother and brother. He gave evidence to the District Judge that that was how he had learned of his conviction and sentence.
The appellant then appealed to the Appeal Court of Constanta in Romania, again represented by a lawyer, this time a different lawyer, arranged with help from his family. He, for his part, remained in this country. The appeal was unsuccessful and was dismissed by the Appeal Court in Constanta on 9 April 2015. Under Romanian law, the sentence thereupon became final and enforceable. Accordingly, the same day a warrant was issued by the court in Constanta for the capture and imprisonment of the appellant.
A short time later, on 17 April 2015, the Romanian police established that the appellant was in this country, if they did not already know. A few days after that, on 20 April 2015, the EAW in this case was issued by the local court in Tulcea before which the appellant had been convicted at first instance. Although the National Crime Agency certified the warrant on 11 May 2015, the appellant was not arrested until some years later.
On 3 October 2018, his son was born. A few months after that, on January 2019, he was arrested pursuant to the EAW at his place of work in Luton. He was remanded on conditional bail the next day. After an initial hearing before the District Judge, followed by further information being obtained about the appellant's sentence, the effective hearing took place before District Judge Zani on 4 April 2019. The sole issue was Article 8 of the European Convention.
The judge, having found the facts, determined that the appellant “was clearly well aware of the ongoing proceedings throughout and, accordingly, he must be regarded as a fugitive from justice from the date when he was convicted to date”. That is paragraph18 of the judgment. The judge went on to carry out the usual balancing exercise in respect of article 8, listing factors in favour of and against extradition.
He concluded that it would not be disproportionate under article 8 for the appellant's extradition to be ordered and gave his reasons, which amounted in substance to giving more weight to the importance of the UK's international extradition obligations and the fact that the appellant was “unlawfully at large” than to his domestic circumstances. The judge noted that this was not a sole carer case and that the appellant's partner was the main carer for his young son.
The Appeal
I can only allow the appeal if I am satisfied that the decision of the District Judge is wrong. Mr Ball cited much case law – which, with respect, I need not set out here – in support of his proposition that such is also the position in article 8 appeals. He emphasised that it is not for me to conduct the balancing exercise de novo. However, the appellant applied two days ago to admit fresh evidence, prepared three days ago, about his young son, born on 3 October 2018. The boy is now just over one and a half years old.
The ground of the application is that the evidence is relevant and admissible and should be considered on appeal by this court. If I were to look at that evidence, which was not available to the District Judge, it would, I suppose, follow that I would of necessity have to revisit the balancing exercise carried out by the District Judge, since he was unable to put that evidence in the balance.
The fresh evidence shows, if it is to be taken at face value, that the appellant's son is somewhat late in developing receptive and expressive language, although he has no medical diagnosis; and that he has a developmental age of one year and certain difficulties...
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