Presecan v Cluj-Napoca Court, Romania [2013] EWHC 1609 (Admin)

Case No CO/3877/2013[2013] EWHC 1609 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
THE ADMINISTRATIVE COURT
Venue Royal Courts of JusticeDate Wednesday, 22 May 2013
Strand
London WC2A 2LL
B e f o r e:
MR JUSTICE CRANSTON
Between
FLAVIU-DANIEL PRESECANAppellantv
Between
CLUJ-NAPOCA COURT, ROMANIARespondent
Computer-Aided Transcript of the Stenograph Notes ofWordWave International LimitedA Merrill Communications Company165 Fleet Street London EC4A 2DYTel No: 020 7404 1400 Fax No: 020 7404 1424(Official Shorthand Writers to the Court)
Ms R Kapila (instructed by Kaim Todner) appeared for AppellantMr N Hearn (instructed by the Crown Prosecution Service) appeared for Respondent
J U D G M E N T
[1]MR JUSTICE CRANSTON: This is an appeal in relation to the appellant's extradition that is sought by a court in Romania pursuant to a European Arrest Warrant issued on 15 February 2012. Extradition was ordered by District Judge Nicholas Evans on 27 March of this year. The ground of appeal now being pursued relates to the finding of the district judge that the warrant is not a valid warrant within the meaning of section 2 of the Extradition Act 2003 in that it does not provide particulars of conviction as required by section 2(6)(b).[2]The background is this: in February 2004, the appellant was convicted of an offence for which he received a sentence of 3 years and 6 months' imprisonment. We do not know the nature of the offending. At some point during his sentence he was released on probation. There were a number of days, in fact 381, of the sentence still outstanding. Then on 22 September 2006, the appellant committed a commercial burglary. The details set out in the warrant describe how on the night of 22/23 September the appellant was on a street in the city of Cluj-Napoca and went through the front of a building, number 136, entering the yard and then breaking in through a window belonging to a company, where he stole several fishing rods, reels and fishing gear worth some 15,000 leu.[3]On 24 November 2011, the appellant was convicted of that burglary and sentenced to 2 years' imprisonment. It seems that the appellant's probation in relation to the earlier offending was somehow revoked and he was ordered to serve the outstanding term of 381 days.[4]In box C, the warrant says this about the remaining sentence to be served:
"2 years in jail as result of probation revocation for the 381 days in jail, remained unexecuted of his sentence of three years and six months in prison by the criminal sentence no 194 of 10 February 2004 of the Cluj-Napoca Court, merged with the punishment of imprisonment for 2 years applied in the criminal case number 17343/211/2010; thus it has been established the heaviest penalty of two year imprisonment."
Box E of the warrant provides that the offence to which the warrant relates is the commercial burglary.[5]When this point about the validity of the warrant was raised before District Judge Evans, he took the view that there was no sound basis for the submissions. In his view, they were unintelligible and incoherent.[6]The law in relation to section 2(6)(b) has been examined by Davies J, as he then was, in Echimov v Court Of Babadag Romania [2011] EWHC 864 (Admin) . In that case, the European Arrest Warrant appeared to deal with one offence but contained details of two sentences. The appellant had been convicted of an offence of aggravated theft for which the sentence of 1 year's imprisonment had been imposed. In addition, the warrant stated that the appellant was required to serve a further 6 months as a result of the activation of a suspended sentence. The sentences were to be served consecutively, making a total of 18 months. However, there was no information in the warrant regarding the conviction which had given rise to the 6-month sentence.[7]In the course of his judgment, Davies J set out the principles which were to be applied. The language of the section, ie section 2 of the 2003 Act, was mandatory, but it was well established that it had to be read and applied purposively, regard in particular being had both to the letter and intent of the Council Framework Decision of 30 June 2002: [11] Davies J underlined that the purposive approach had been endorsed in a number of domestic authorities: this country should not adopt an unduly narrow or parochial approach when assessing a European Arrest Warrant. The overall approach "should be to view the matters on, as it were, a cosmopolitan basis with a view to helping, rather than hindering, the due operation of extradition requests as between member states."[8]Nonetheless, Davies J held that, notwithstanding that the warrant in that case related to only one offence, it had to be read as a whole. When reading it as a whole, it was apparent that extradition in that case was being sought in relation to two separate offences. At paragraph 29, Davies J said that it would be "... completely artificial, indeed plain wrong, to say that the total sentence of 18 months' imprisonment was for, let alone solely for, the second offence (that is, the supermarket burglary). Consequently, sufficient particulars of conviction in respect of both offences were required under section 2(6)(b) for this European Arrest Warrant to be valid. Since, as is conceded, such particulars of conviction were not given in relation to the first offence, the warrant is invalid."[9]More recently, the matter was considered by the President of the Queen's Bench Division and myself in the Divisional Court in Ministry of Justice (Romanian Judicial Authority) v Bohm [2013] EWHC 1171 (Admin). That was a case where the Romanian Judicial Authority appealed a decision of a district judge that the warrant was invalid. The warrant had said that there were two offences for which extradition was being sought, namely complicity to defraud, for which the sentence was 3 years and false documents under private signature, for which the sentence was 6 months. Also mentioned in the warrant was an order which was equivalent to a Sexual Offences Prevention Order in this jurisdiction. The warrant went on to provide that the sentence was 5 years and 6 months.[10]When the case came before the Divisional Court, it was evident that there were two possible interpretations of the way in which the sentence of 5 years and 6 months had been calculated. The first was that the sentence for the two offences of complicity to defraud and false documents under private signature had been increased because previous sexual misconduct was an aggravating circumstance. The Judicial Authority was not relying on that interpretation. The other possible interpretation was that the sentence of 5 years and 6 months originated from a sentence imposed in 2009 for a separate offence, namely committing a sexual act against a minor. It was in relation to that that the equivalent of the Sexual Offences Prevention Order had been imposed. Since that sentence was the heavier sentence it, in a sense, superseded the lesser sentences for the fraud and false documentation offences. Adopting that interpretation, the plain fact was that the warrant did not set out the earlier 2009 offending. On that basis, the court held that the warrant was invalid (see paragraphs 18 and 19).[11]In the present case, Mr Hearn contends that those cases are distinguishable. He submits that the earlier sentence, the 2004 sentence, of 3 years and 6 months is clear on the face of the warrant; that the appellant had served a portion of that but 381 days was outstanding; that he was released; and that it was only subsequently that that probation period was effectively cancelled so he had to serve the 381 days. In Mr Hearn's submission, however, the warrant indicates the sentence which the appellant has to serve is the 2 years for the commercial burglary, not the 381 days. Mr Hearn underscores the principle identified by Davies J in Echimov, namely that a purposive approach should be adopted to European Arrest Warrants. He accepts that this court cannot order extradition in respect of the earlier offence since no particulars have been provided. However, that does not mean that the warrant is void. All that the court is being asked to do is to order extradition in relation to the commercial burglary for which the 2-year sentence has been imposed.[12]It is clear from the warrant, he submits, that the Romanian court has either aggregated or treated as concurrent the sentences for the 2004 and 2006 offending. All that the appellant has to serve is the 2 years. In Echimov and Bohm, he submits, the concern of the court was, to put it in broad terms, that the appellant might have to serve a longer sentence as a result of an offence for which particulars had not been given. In Bohm, for example, the superseding sentence was a heavier sentence and that was not particularised. Here, it is clear that the sentences for the 2004 and 2006 offences are being imposed concurrently.[13]In my view, this will not do. Although it is necessary to adopt a purposive approach, on the plain wording of the warrant, box C requires that the remaining sentence to be served is a merged sentence in relation to both the 2004 and 2006 offending. It might be that there is no issue of severance. Ms Kapila gave the example of a situation in this type of case where on return to Romania the appellant might have the conviction for the commercial burglary quashed on appeal. Because the sentence is now a merged sentence, however, it might well be that the appellant would remain in prison for the 381 days. Mr Hearn's reply to that is that it is necessary to place trust in the Romanian authorities. Certainly that is the case. However, it seems to me an unsatisfactory position. Another example given by Ms Kapila is that the appellant in this type of case needs to know the particulars relating to the other offending because it might be that it is not an extradition offence, or there is some other bar in relation to extradition in relation to it. That, again, suggests that this is not something which can be overcome by Mr Hearn's purposive approach.[14]Taking these matters into account, it seems to me that in this case the mandatory provisions of section 2 are not satisfied. The warrant is not a valid warrant. It does not contain the particulars of the conviction in relation to the earlier offending. I allow the appeal and quash the order for extradition.[15]MS KAPILA: I am grateful, my Lord. Can I ask only for the usual order in relation to assessment for legal aid purposes.

MR JUSTICE CRANSTON: Yes.

[17]MS KAPILA: Thank you, my Lord.

Cited in 1 later judgment