BP v HIGH COURT, MARAMURES, ROMANIA [2015] EWHC 3417 (Admin)

IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
DIVISIONAL COURT
[2015] EWHC 3417 (Admin)Case No Case No: CO/2340/2015Venue Royal Courts of Justice, Strand, London, WC2A 2LL
Between
BPAppellantHIGH COURT, MARAMURES, ROMANIARespondent
Before
Lord Justice LawsMr Justice CranstonMr Malcolm Hawkes (instructed by Stuart Miller Solicitors) for the AppellantMiss Hannah Hinton (instructed by the Crown Prosecution Service and Romanian Judicial Authority) for the RespondentHearing dates: 3November 2015Date 27 November 2015
[1]Mr Justice Cranston: Introduction The appellant appeals against the decision of District Judge Purdy, of 19 May 2015, sitting at Westminster Magistrates' Court, to order her extradition to Romania pursuant to a European Arrest Warrant("EAW") issued by the Romanian Ministry of Justice on 24 March 2014 and certified by the National Crime Agency on 18 April 2014. It is a conviction warrant based on conviction by the High Court, Maramures, confirmed by Romania's High Court of Cassation and Justice on 17 March 2014. The appellant is sought to serve a sentence of imprisonment of 4 years. Initially, the Romanian Ministry of Justice had issued an accusation EAW on 13 December 2011 but that warrant was withdrawn on 19 April 2014. The appellant was arrested under the accusation warrant on 18 March 2013 and then under the conviction warrant on 29 May 2014.[2]The appellant has two cautions in this country, both in 2011: the first for placing an advertisement for prostitution in a telephone box, the other for theft. In 2013 she was charged here for controlling prostitution for gain and managing a brothel. At the Crown Court at Southwark on 31 July 2014, the judge found that there was no case to answer on one count of controlling prostitution for gain. On 14 August2014, the prosecution discontinued the case on another count for that offence and a count of managing a brothel.[3]After the appellant's arrest under the accusation EAW she was placed on conditional bail, including as one of the conditions an electronically monitored curfew of9 hours a day. After arrest for the domestic offending in October 2013, Southwark Crown Court placed her on the same bail conditions as for the accusation EAW. Thus, at the date of the hearing before us, she had been on bail for 137 weeks, with one condition being the 9 hour daily curfew. The EAW and proceedings under it[4]The background in Romania is that the appellant was tried in the High Court, Maramures in 2012 for offending which occurred in2010-2011. The EAW sets out the three offences of which she was convicted: first, during 2010-2011, along with her ex-husband, DBP and others, she formed a criminal organisation trafficking drugs, in particular 30 grams of cocaine from the UK to Romania; secondly, she dealt in cannabis resin, including to an undercover investigator; and thirdly, she was in possession of cannabis resin. Illicit trafficking of drugs is ticked in the EAW framework list set out in the warrant.[5]The warrant states that the appellant was tried in her absence "but she delegated a chosen defendant, lawyer Cioltea Octavian, who ensured her defence." After conviction, she applied to High Court of Cassation and Justice in Bucharest, but it affirmed her sentence on 17 March 2014.[6]Following her arrest here under the current EAW, there was a hearing before District Judge Purdy on 14 October 2014. The appellant gave evidence. She said that she had two children, a son, RBP, born in 2007 to DBP, her ex-husband and her co-accused in the Romanian proceedings, and a daughter, SBP, born in 2012 to KA, her current husband. On her account, KA only lived with the family 2-3 days at a time and was guilty of domestic violence, which led her to spend over a year in a women's refuge. However, they were attempting to reconcile. She told the court that DBP had made her work as a prostitute for about a year. She said she had two sisters who had been in the UK, one in Newcastle with her husband, a lorry driver.[7]Of Mr Octavian, the Romanian lawyer, the appellant said in evidence that neither she nor her family ever instructed him. Instead he represented her ex-husband at the trial. She explained away information from the Romanian authorities that her mother had signed the summons of 9 December 2013 for the application to the High Court of Cassation and Justice.[8]District Judge Purdy adjourned the hearing, and further information dated 30 October 2014 was obtained from the High Court, Maramures. It set out Mr Octavian's explanation that the appellant's parents in-law had employed him as the defence lawyer; that the appellant's mother was present at almost every hearing of her daughter's trial; and that he sent certain documents, as requested, to the appellant's lawyer herein Britain.[9]There was a further hearing before District Judge Purdy on 17 November 2014, when the appellant was recalled to give further evidence. She emphatically denied knowing that her parents in law had instructed Mr Octavian and said they would never act in her interests.[10]A statement, dated 3 December 2014, from the appellant's mother, was served in which she denied knowing about her daughter's offending or instructing any lawyer. She did not remember signing any summons. The appellant did not call her as a witness, nor anyone else.[11]There was further information, this time from the Romanian Ministry of Justice, dated 15 December, about prison conditions in Romania. The letter guaranteed that this appellant would serve her sentence in a "substantial unit", which would ensure 2 or 3 square metres of individual space, including beds and furniture, although factors which could not be controlled might affect that.[12]District Judge Purdy was scheduled to deliver his judgment on 12 February 2015. The previous day, however, the appellant's lawyer submitted a medical certificate that she was pregnant, the baby being expected in July. That led to a further adjournment and the Judicial Authority was allowed to seek information about prison facilities in Romania for mothers and babies.[13]That information came in a letter from the Romanian Ministry of Justice dated 8 April 2015. It restated the guarantee for the appellant of having 2 or 3 square metres of individual space, including beds and furniture. It explained that pre- and post-natal care was available in prison. It then stated that the prison authorities take measures at the request of a prisoner "unless deprived of parental rights, to exceptionally be able to take care of the child until the age of one year." At that age, the child would be sent for care with the mother's family or a friend, but if that were not possible the child would be entrusted to the child protection authorities. Children could visit their parents in prison within the monthly allowance of visits, the visits lasting from 30 minutes to 2 hours, depending on conditions. The only women's prison in Romania is Targsor, which is authorised to take mothers and babies.[14]There were various medical reports on the appellant's condition before the District Judge. In a report of 27 August 2013, Dr Halari, a clinical psychologist, concluded that she presented as a highly vulnerable individual. While she had undergone physical and verbal abuse in her relationships with men, including her husband, she had a positive and settled relationship with her children. Her son was described as suffering from stress and worry at the prospect of his mother's extradition, which could have a significant effect on his emotional and cognitive development. Were she to be extradited, Dr. Halari concluded that her children would be at a serious risk of significant psychological harm. Neither the appellant's current, nor former husband were suitable carers, KA because of fears of domestic violence, and her ex-husband, because he was in Romania and sentenced to imprisonment. The appellant would find it extremely difficult to cope without her children.[15]A report from another clinical psychologist, Dr. Grange, dated 1 October 2014, found that, if extradited, the appellant would beat risk of a descent into moderate to severe mental health problems. Her children would likely suffer severe developmental consequences in the event of a separation from their mother. As with Dr. Halari, Dr. Grange found that RBP exhibited classic signs of separation anxiety in relation to his mother. The significant developmental consequences for SBP, post-extradition, would likely be of a severe intensity. Dr. Grange considered that the appellant was currently suffering from a mild-to-moderate level of depression, with moderate anxiety, and would find separation from her children highly traumatic which would result in her depression and anxiety deteriorating. In terms of alternative care arrangements, he expressed significant doubts as to the viability of KA, given the clear child protection concerns, viz. the history of domestic violence. His family were not well known to the children. A maternal grandmother in Romania would not be suitable, since she was unlikely to be physically capable due to her own health concerns.[16]A further report from Dr. Grange on 19 March2015, commented on the change in circumstances in relation to the appellant's pregnancy with her third child. He concluded that she has now separated from KA, who visited the children every two weeks. The children appeared to be largely emotionally unaffected by this, but the effect upon her has likely been detrimental. The birth of her third child will not ameliorate the severe impact of her extradition upon her two elder children. Commenting upon the UK protocol of separating mothers from children at 18 months, Dr. Grange found that this would lead to obvious attachment disruption at a critical age for the child.[17]Dr. Grange completed a further report of 1 May2015. He found that the Romanian information of 8 April 2015 raised very serious concerns about the safety of the infant and the long-term effect on the infant's development. The District Judge ' s decision[18]In his judgment, District Judge Purdy found as a fact that that extradition would undoubtedly impact very adversely on the appellant and both her children, given that she was effectively their sole carer. There was no Social Services report about care of the children should she be extradited. It was, said the District Judge, serious offending given its nature and the penalty imposed.[19]As one of his findings of fact, the District Judge stated that the appellant was not deliberately absent from her Romanian trial. As to Mr Octavian, the judge found that, strange as it might seem, she did not know that he was acting for her and his instructions seemed to come from the parents in law, who did not like her and wanted their son to separate from her prior to the proceedings. Perhaps Mr Octavian himself was wilfully misled, said the District Judge, but he was not acting for her with her knowledge and consent. Her mother did attend court, but he was unable to infer, despite the express information from the Romanian authorities, that by attending she really understood what was going on.[20]Regarding prison conditions in Romania, the District Judge referred to a decision of this court, Florea v. Romania [2014] EWHC 2528 (Admin) , which had found that Romanian prison conditions potentially amounted to a real risk of a breach of Article 3. He presumed that adequate medical care for mothers and babies existed on the basis that Romania was an adherent to the European Convention on Human Rights ("ECHR"). He referred to specific assurances in the Romanian letter of 15 October 2014and said that he had to presume, absent any information to the contrary, that the conditions met ECHR minimum standards.[21]The District Judge then found that because the appellant had not deliberately absented herself from her Romanian trial, and in light of recent Romanian legislation – Articles 466and 469 of the Code of Criminal Procedure – she had aright of retrial in Romania, compliant with section 20 of the Extradition Act2003 ("the 2003 Act"). As to prison conditions in Romania, there was the specific assurance given by the Romanian authorities in the letter of 15December 2014 a clear indication, said the District Judge, that the Romanian authorities would use best endeavours to ensure compliance with UK expectations. There was no real risk of a breach of Article 3ECHR.[22]Relevant to Article 8, the District Judge canvassed the medical evidence. He found it unnecessary to cite extensively from it since he thought that it was common sense that it was undesirable both for a young child to be in prison with her mother and for a mother in prison to be separated from her young child. After referring to the case law, including Polish Judicial Authority v. Celinski [2015] EWHC 1274 (Admin) , he concluded:
"Without doubt extradition will adversely affect both children as well as the one due to be born in July and will be very detrimental to their development. Likewise the [appellant] will be displaced and emotionally distraught at separation from her children the more so as now pregnant. Those blunt and harsh facts are plain and the human consequences cannot be ignored. KA [the current husband] seems unlikely to be suitable to care for any child although one cannot, absent a formal assessment by a psychologist and/or Social Services, be definitive. If extradition takes place the likely consequence is inevitable social services intervention possibly seeking to place the children with an aunt in Newcastle, again unlikely, or back in Romania. More likely into care/foster arrangements in the UK, at least until the outcome of any retrial."
[23]The District Judge then referred to the clear imperative of honouring international treaties and enforcing cross-border criminal justice for what was, as here, serious crime, punishable by 4 years imprisonment. Conducting the balancing exercise, he concluded that extradition was not disproportionate. Specific assurances had been given on the mother and baby facilities. As to the medical evidence, the District Judge said that, rightly so, no psychologist would endorse the separation of a mother and her child or anything less than an ideal developmental environment. The District Judge also rejected the Article 6and abuse of process challenges. He ordered the appellant's surrender. The appellant ' s case[24]The appellant appealed on three grounds, ground1, section 20, that she is not entitled to a right of retrial; ground 2,section 21, that there are substantial grounds to believe that she and her baby are at real risk of being held in conditions so overcrowded as to amount to inhuman or degrading punishment in breach of Article 3 ECHR; and ground 3, that detention in such conditions represents a clear breach of her right to private and family life under Article 8 ECHR (especially given her own vulnerability),as well as that of her two young children and unborn child, because it will result in the complete severance of all relations with her two older children, for whom she is the primary carer, and in her being forcibly separated from her baby at the very least within twelve months of its birth.[25]Mitting J granted leave to appeal on ground 1; subsequently Ouseley J granted leave to appeal on all remaining grounds. In granting leave on ground 1, Mitting J observed:
"The District Judge found that the appellant was not deliberately absent from her trial and that Articles 466 and 469 gave her the unconditional right to a retrial. It is arguable that this conclusion was wrong, given that the conviction EAW on which her surrender was sought asserted that she had delegated a nominated lawyer to defend her. It is, therefore, arguable that the District Judge should have gone on to decide whether a Romanian Court would accept the finding that she had not delegated a nominated lawyer to defend her, so preserving her right to are trial."
[26]Before us, Mr Hawkes sought to add an additional ground, abuse of process, related to ground 1. Given the view I take of the appellant's case on that ground, I would refuse the amendment. Fresh evidence[27]There are four pieces of fresh evidence placed before this court. First, on behalf of the appellant is a report from the Council of Europe's European Committee for the Prevention of Torture ("CPT") on Romanian prisons and psychiatric establishments. The report was based on visits during June2014 but was not published until 25 September 2015. Among the prisons and detention facilities visited was Targsor women's prison, where the appellant would serve her sentence. The CPT reported that the closed regime cells at Targsor offered only 2 square metres of living space per inmate. At Targsor, there were some allegations of physical mistreatment (slaps and punches) inflicted by members of staff, including the so-called intervention squad, notably during cell searches. There was an atmosphere of fear based on the threat of the systematic use of disciplinary sanctions set forth by the law. Reporting of incidents of mistreatment by the intervention squad was quite unsatisfactory. The closed regime was characterised by significant overcrowding, with barely more than 2 square metres of living space for each prisoner. Sanitary facilities were dilapidated, the water pressure was very weak, and inmates had to plug toilets at ground level with bottles to avoid smells and vermin coming out of them. Inmates received only five sanitary pads/tampons per month. Food was poor. Inmates spent 20-22 hours per day in their cells.[28]Regarding the mother and baby unit at Targsor prison, the CPT report is positive: it was well equipped, bright, ventilated and has good facilities. Hygiene products were adequate, with medical and other staff available. Infants must leave when they reach twelvemonths.[29]As to visiting rooms at the prison, the report states that these are completely closed, thus do not permit any physical contact between the inmate and visitors. Closed prisoners almost never have access to a room reserved for meetings with their children when they visit.[30]Advanced by the Romanian authorities is further information from the High Court, Maramures in the form of three letters dated24 August 2015, 22 September 2015 and 2 November 2015. The first states that there is a legal provision for a woman prisoner with a child under a year to apply to suspend the sentence until the child is twelve months. If the application is refused, the mother and child stay in a special division in Targsor women's prison until the child is one year old. A child over a year old could be in foster care. If the mother is not deprived of parental rights there are arrangements to facilitate contact through prison visits, telephone calls and correspondence. In Romania, there are provisions for parole before a full sentence is served.[31]The letter of 22 September 2015 refers to the admission on any application for a retrial in Romania of the proof of evidence that the appellant presented before the English court. The letter also states that the appellant's mother signed Mr Octavian's legal assistance contract. It was not possible for the Romanian court to state at that stage, prior to any request for a retrial, whether the findings of the English court were "mandatory".[32]The letter of 2 November 2015 states as follows:
"As we have also shown in our previous answers, mister lawyer Cioltea Octavian has kept connection with the lawyer from England of the [appellant] during the entire trial from Romania. Mister lawyer Cioltea Octavian has shown that he has sent to the lawyer from England of the [appellant] documents which have been requested by her. Therefore, the [appellant] may not assert that she was unaware of this trial."
The letter adds that the appellant may make an application for retrial under the Code of Criminal Procedure, which the Romanian court will decide. She will be able to "point… out in her defence the evidence she owns."[33]The principles for the admissibility of fresh evidence were considered in Hungary v. Fenyvesi [2009] EWHC 231 (Admin) . Generally, an appeal court will not enable litigants who have lost in the lower court to advance their case upon new and enlarged evidence which they failed to adduce in the lower court. However, the underlying policy often is that fresh evidence may be received when it is just to do so or perhaps when it would be unjust not to do so. The court will ask why the evidence was not adduced at first instance, and whether there is a good reason or excuse for not doing so, since the policy is that litigants should normally adduce their whole case and evidence at first instance. What part the fresh evidence will play, if adduced, whether it is credible and whether it will or might lead to a different outcome in the case are questions the court considers. Generally, the court is required to have regard to whether there is a reasonable explanation for the failure to adduce the evidence in the earlier proceedings. Attention is paid to whether the fresh evidence may afford any ground for allowing the appeal.[34]There is little difficulty with the admissibility of the CPT report. It became available only recently, comes from a respected source, and has a direct bearing on the issue of the prison conditions the appellant faces if extradited. The admissibility of the further information from the Romanian authority, at least some of it, is more difficult. Mr Hawkes submitted simply that "enough is enough". There is no statement to explain why the Romanian evidence was not adduced earlier or why, on the three previous occasions on which the Romanian authorities provided further evidence, the matters were not addressed there. Moreover, the case at the court below was repeatedly adjourned, in order to permit the Romanian authorities to provide further information. Bearing in mind the fact that the appellant was arrested on 18 March 2013, there has been every opportunity for the Romanian authorities to have provided comprehensive information before the conclusion of the case at the District Court.[35]In the circumstances of this case, the three further letters from the Romanian authorities should also be admitted. The letter of 24 August 2015, about the mother and baby unit at Targsor women's prison, adds little, if anything, to the earlier letter of 8 April 2015, which was before the District Judge.[36]The letters of 22 September 2015 and 2 November2015 go directly to Mitting J's decision on leave to appeal on ground 1, the retrial issue, when he found it arguable that, given what the warrant said, the District Judge should have decided whether the Romanian Court would accept the finding that she had not delegated Mr Octavian to defend her. The letter of 22 September 2015 states that the appellant's evidence regarding this could be presented to the Romanian Court, before it considered the matter, but it was not possible to regard the finding of District Judge Purdy as "mandatory". The letter of 2 November 2015 restates Mr Octavian's account, and that "therefore" the appellant could not assert she was unaware of the trial. Both letters state that the appellant can apply for and present her case for a retrial. Thus the letters conform to the Fenyvesi principles. It is not a matter of the Romanian authorities attempting to remake their case, or a failure to adduce the evidence earlier. The letters are directly relevant to a ground of appeal and it would be unjust to the Romanian authorities not to admit them when they address the very basis on which Mitting J granted leave to appeal. Section 20 – right of retrial[37]Section 20 of the 2003 Act provides that if are quested person was tried in his absence, and was not deliberately absent from his trial, the court must decide under section 20(5) "whether the person would be entitled to a retrial or (on appeal) to a review amounting to are trial". If the court decides that he would not be so entitled, it must discharge him. Section 20(8) provides that the judge must not decide the question in subsection (5) in the affirmative unless, in the retrial, the person would have the right to defend himself, to legal assistance and to call and cross-examine witnesses. The mirror provision to section 20 in non-EAW (Part II) cases is section 85 of the 2003 Act.[38]The District Judge decided that the appellant was not deliberately absent from her trial, did not know Mr Octavian was acting for her and, under Romanian law, was entitled to a retrial. He referred to the amendments in 2014 to the 2010 Romanian Code of Criminal Procedure. The relevant parts of Article 466 read as follows:
"Reopening criminal proceedings in case of an in absentia trial of the convicted person (1) The person with a final conviction, who was tried in absentia, may apply for the criminal proceedings to be reopened no later than one month since the day when informed, through any official notification, that criminal proceedings took place in court against them. … The convicted person who had appointed are tainted counsel or a representative shall not be deemed tried in absentia if the latter appeared at any time during the criminal proceedings in court… (4) The criminal proceedings in court may not be reopened when the convicted person had applied to be tried in absentia."
[39]Article 469 then provides for court proceedings related to the motion to reopen the trial. It reads as follows:
"(1) The court shall hear the arguments by the prosecutor, the parties and the main subjects of the proceedings, and examine whether: a) the motion was submitted within the deadline and by one of persons provided under Article 466; b) legal grounds were relied upon to re open the criminal proceedings; c) the reasons based on which the motion was submitted had not been shown in a prior motion to reopen criminal proceedings, that had been tried by the court of last resort. … (3) If the court finds that the requirements provided under par. (1) are fulfilled, it shall order in a court resolution that the motion to reopen criminal proceedings be admitted. (4) If the court finds that the requirements provided under Article 466 are not fulfilled, it shall order in a sentence that the motion to reopen criminal proceedings be denied. … (6) The court ruling that rejects the motion to reopen criminal proceedings shall be subject to the same legal remedies as the court ruling issued with the convict in absentia. (7) Sustaining of the motion to reopen the criminal proceedings may result in the rightful reversal of the ruling issued in the absence of the convicted person. (8) The court shall reopen the criminal proceedings by extending it also to the parties that had not submitted any application. The court may also issue a ruling in their respect, without creating for them a more difficult situation…"
[40]Mr Hawkes contended that the appellant would not be considered to have been tried in absentia under Article 466, since it was quite clear that the Romanian judicial authority is of the view that Mr Octavian was acting for the appellant in her defence. The warrant alleges that he was delegated to do that, and the further information of 30 October2014 states that the appellant's parents-in-law instructed him on her behalf and that her mother attended almost every court hearing. The latest letter of 22 September 2015 does not resile from that position. In other words, submitted Mr Hawkes, on the Romanian view there would be no entitlement to a retrial given Articles 466(2)and 466(4). Despite the District Judge's finding that the appellant did not agree to her ex-husband's lawyer acting on her behalf in this way, and did not instruct or receive advice from him, the Romanian judicial authority has only conceded that the finding can be adduced in the application for a retrial but, as per the letter of 22 September2015, it will not be "mandatory". In summary, Mr Hawkes submitted, the appellant is in a position of uncertainty about whether she will be afforded a retrial. Since her absence from the trial, which led to her conviction, was not deliberate, and since she does not have any guarantee that it may be reopened, in accordance with section 20(7) of the 2003 Act the warrant must be discharged.[41]Consistently with Mitting J's judgment in DaAn Chen v. Government of Romania [2006] EWHC 1752 (Admin) , I regard the word "entitled" in sections 20(5) and 85(5) of the2003 Act as addressing the issue of whether or not there is a legal right to a retrial. Mitting J said:
"8. Section 85(5) requires the judge to decide whether a convicted person who has not deliberately absented himself from his trial would be entitled to a retrial et cetera in which he would have the rights specified in section 85(8). "
Entitled" as a matter or ordinary language must mean "has the right under law". It is the law of the requesting state which either confers or does not confer that right. It is a right which must be conferred, not merely the possibility of asking the court to exercise a discretion. Free of authority, I would hold it is neither necessary nor right to examine what a requesting state does in practice. Its law will either provide clearly for the relevant entitlement or it will not." Maurice Kay LJ agreed. I note that at that stage Romania was not a member of the European Union, which is why the case was decided under Part II of the 2003 Act.[42]In Bohm v. Romanian Judicial Authority [2011] EWHC 2671 (Admin) , the District Judge had concluded that the requested person's extradition complied with section 20, but Irwin J allowed the appeal since the Romanian court had a discretion to order are trial on his return. The right to a retrial had to be automatic and it could not be automatic if it was subject to the exercise of a discretion. Irwin J said that Romania had not yet made an act of accession to Decision2009/299 of the EU and unless it did any extraditee to Romania in the requested person's position would not be extraditable. Subsequently, Articles 466 and 469 were introduced into the Romanian Code of Criminal Procedure in an attempt to comply with Decision 2009/299.[43]In Nastase v. Italy [2012] EWHC 3671 (Admin) Rafferty LJ (sitting with Kenneth Parker J) held that in that case there was no doubt that the Italian court would comply with the provisions of its own Code and re-open the requested person's case in the appellate phase: all that was required from there quested person was to show that he had been absent from the original proceedings and his entitlement to a retrial was only excluded if the court was satisfied, on the evidence, that he had known of the proceedings and had voluntarily renounced his right to appear or to file and appear: [44]. Moreover, the existence of procedural steps did not remove the entitlement to are trial: the Italian authorities had to be permitted to regulate their own proceedings by imposition of their own rules: [45]. No question of the exercise of discretion or the abrogation of a right to a retrial arose:[52]. Gloster J's decision in Zeqaj v. Albania [2013] EWHC 261 (Admin) is to the same effect: see [12].[44]To my mind the appellant has an entitlement in this case to a retrial in Romania. Article 466 provides that. There is no discretion in the Romanian court to deny that right. Admittedly the Romanian court could decide that the appellant had appointed Mr Octavian to represent her, through her mother or otherwise, and therefore does not qualify for a retrial under Article 466. But that is a "procedural step", as it was described in Nastase. There Rafferty LJ held that, although the Italian court could theoretically refuse a retrial where it was satisfied that a requested person knew of the original proceedings and voluntarily absented himself, that was a procedural step which did not detract from the unconditional nature of the legal right. In this case the Romanian Judicial Authority has stated that in making the decision under Article 466 it will take into account the District Judge's conclusion that the appellant did not know Mr Octavian was acting for her and that it seemed that her mother was unaware of what was going on, but it is not "mandatory". Nothing more can be required on the Romanian Judicial Authority. We work on the basis of mutual trust between Convention states, especially if EU members. If the Romanian court finds that the appellant had not instructed the lawyer she is entitled under their law to a retrial. Consequently, the District Judge was correct in his conclusion that the section 20(5) is satisfied. Prison conditions[45]Mr Hawkes submitted that the District Judge fell into error in considering the state of Romanian prisons. First, the assurances in the letters from the Romanian Ministry of Justice were that the space for individual prisoners was 2 or 3 square metres, whereas the authorities establish that if the space per prisoner falls below 3 square metres there is a strong presumption that there will be a violation of Article3 of the Convention: e.g., Elashmawy v.Court of Brescia, Italy [2015] EWHC 28 (Admin) ,[49]; Ananyev v.Russia (application numbers 425/07 and 60800/080910) of January 2012; Florea v.Romania [2014] EWHC 3538 (Admin). Next, there was no guarantee that the appellant would be permitted to keep her baby, the letter of 8 April 2015 using the phrase "exceptionally be able to take care of the child…" Finally, there was the CPT report of September 2015, which has revealed a combination of serious shortcomings in Targsor women's prison where the appellant may be held, which exceeded the Article 3 threshold by some distance. Personal space of prisoners in the closed regime is about 2 square metres, or less (the appellant will be held in closed conditions since she will be serving four years). There are also the very poor material conditions in ground floor cells, inadequate nutrition and the climate of fear and intimidation arising from the under-documented, unjustified use of force and the overly zealous application of prison law. All this is relevant because even if the appellant begins her detention in the mother and baby unit (and it appears from the CPT report to be adequate), that will end when her child is twelve months old and she will still have a lengthy sentence to serve in the closed regime . Conditions are deplorable for closed prisoners whose children visit. For someone as mentally vulnerable as the appellant, to be held in such conditions would indeed amount to a breach of Article 3.[46]The starting point in considering this ground is the assurance the Romanian Ministry of Justice gave on 26 February 2015, to be applied to every person surrendered from England and Wales to Romania pursuant to an EAW. The assurance reads:
"The persons deprived of liberty will be detained in penitentiaries which will ensure exceeding 2 sqm of individual space if they execute the penalty to the semi-open or open regime and exceeding3 sqm of individual space if they execute the penalty in the closed regime. We state that the individual space includes beds and furniture. Where the percentage occupancy figures for any prison exceeds or may in the future exceed 100% the Romanian authorities nonetheless assure that the requested person personally will at all times be accommodated in a cell in which he/she will personally be provided with personal space in excess of two or three metres squared dependent on the regime in which he is detained."
The assurance was set out in Blaj & Ors v. Judicial Authority of Court Alesd Romania & Ors [2015] EWHC 1710 (Admin) . Both that case and Marginean v. Romania , 23 October 2015 held that it was sufficient to eliminate a real risk of breach of Article 3 as regards serving a sentence in a prison where the minimum space requirements are not met. On its face the assurance applies to both men and women prisoners. In my view it is determinative of the space issue.[47]In Marginean , Blake J recognised that there was always a possibility that other factors such as unsanitary conditions or poor medical facilities would contribute to a violation of Article 3 if they are systemic in nature leading to a degree of likelihood that they would be encountered by the individual requested person:[15]. In this case the CPT report does not make happy reading. Unfortunately, we were not provided with the response of the Romanian Ministry of Justice to the CPT report, which is available. Nor do we know what progress has been made by the Ministry of Justice in seeking to meet the recommendations contained in the report. As regards medical facilities, for example, we do not know whether the vacancies for doctors and nurses identified in the report have been filled; as for food, the report notes that new calorie norms were being prepared for 2014 and it would have been useful to know what had been achieved with respect to that.[48]As this court has stated in a number of cases, are quested person will need to establish a very strong case to make good a violation of Article 3, the test being a stringent one and not easy to satisfy e.g., Elashmawy v. The Court of Brescia, Italy [2015] EWHC 28 (Admin) , [49]-[50]. Moreover, there is a presumption that member states of the Council of Europe are able and willing to fulfil their obligations under the ECHR, in the absence of clear, cogent and compelling evidence to the contrary, a presumption which operates even stronger in the case of EU member states. In my judgment the appellant here has not established a strong case.[49]As to the mother and baby unit, use of the word "exception" in the letter of 8 April 2015 is unclear, even if this is an accurate translation from the Romanian. On one interpretation it means that only exceptionally will the appellant be able to have her baby in prison. To my mind it cannot mean that the appellant will be separated from her baby since that would be redundant in light of the preceding phrase, "unless deprived of parental rights", and contrary to the tenor of the Romanian letter. In any event, the word "exceptional" does not recur in the more recent letter of 24 August 2015, which assumes the appellant will have her baby in prison. In my judgment these letters are "Othman" complaint ( Othman v. United Kingdom , 8139/09 (2012) 55 EHRR 1 ); they are an assurance that the appellant will enjoy the facilities of the mother and baby unit at Targsor women's prison until her child is twelve months old, unless the child is taken into care. Article 8[50]Mr Hawkes contended that the District Judge fell into error in considering the Article 8 question given the position, in particular, of her three children. Extradition would cause a complete severance of the relationship between the appellant and the two eldest children. There was no evidence that they could move to Romania. Nor was there evidence that there was any suitable carer for them in this country and they would go into care. At twelve months, the appellant's baby would be removed and placed in social services care in Romania, with the appellant still having more than three years to serve. If any of the children were in Romania, the evidence on family visits in prison from the CPT report painted a bleak picture of relatively short visits, with no physical contact. The distress for any child visitor is obvious. There is no satisfactory information on the regularity and cost of telephone or internet contact with the children.[51]As to the Romanian assurance, Mr Hawkes highlighted that there was nothing in it which caused Dr Grange to alter his view that the appellant's extradition would have a severe and lasting impact on her children and would seriously affect her own mental health. In his submission the District Judge failed to consider this clear and uncontradicted evidence of the clinical psychologists. Finally, the District Judge did not mention the fact that the appellant had been on an electronic curfew for some 28 months, so that she had already been punished over a significant period, under our legislation the equivalent of 14 months in prison. Article 26(1) of the 2001 Framework Decision requires the requesting state to deduct from any sentence remaining to be served all periods of custody pending extradition, and Mr Hawkes submitted that this should include time spent pursuant to an electronically-monitored curfew.[52]To my mind there is no basis on which this court can conclude that the judge was wrong not to find that extradition constituted a disproportionate interference with the appellant and her children's Article 8rights. The District Judge weighed up the factors for and against extradition. Weighing heavily in favour were the public interests and, in this case, the fact of the index offence being serious in light of the charges and the length of the sentence imposed. On the other side of the balance, the District Judge considered the impact of extradition on the appellant and her children, in the passage quoted earlier in this judgment. The District Judge adopted the approach in Polish Judicial Authorities v. Celinski [2015] EWHC 1274 (Admin) and I cannot regard his conclusion on Article 8 as wrong. I accept Miss Hinton's submission that, in this case, the District Judge heard evidence over a period of several months and it is clear that he did not reach the decision without carefully examining the facts, simply using the nature of the offending and length of sentence as a trump card.[53]The District Judge omitted mention of the electronic curfew but, as in Blaj (supra),that cannot swing the balance against extradition. Given the seriousness of the offending, it is perhaps not surprising that she was made subject to restrictive conditions of bail. It is a matter for the Romanian authority to decide whether the curfew should count in her favour in serving her sentence there. I would, however, have thought that there is a very strong case that it should.[54]Finally on the Article 8 point, I would make this comment. Far too often requested persons in extradition cases will invoke Article 8 and ask the court to draw inferences without adducing very relevant evidence which is within their control. This case was typical. The appellant produced a statement from her mother but did not call her as a witness in the case. Her mother supported her daughter's account that she had not known of the proceedings in Romania but did not provide assistance to the District Judge with regard to her ability to care for the two older children for any length of time. Yet the appellant's evidence before the District Judge was that she had left her son with her mother in Romania while she was residing in the UK, forming a relationship with KA. Equally absent was evidence from any members of the appellant's extended family, including the two sisters, one of whom was apparently living in Newcastle. No reason was advanced as to why her sisters did not provide statements. In my view, requested persons must be open with the court about possible assistance for children from the family or elsewhere. In this case the District Judge took the generous view and assumed the worse about alternative care. That may well have been the sensible approach when the appellant was being sought to serve a four sentence. However, it is up toa requested person to make the case in relation to the Celinski balance. If deprived of information, a court need not draw inferences of benefit to the requested person. Conclusion[55]In the result I would dismiss the appeal.

Lord Justice Laws:

[56]I agree that this appeal should be dismissed for the reasons given by Cranston J. I would wish to endorse and emphasise Cranston J's observations at paragraph 54.

Cited in 12 later judgments

and 3 more of the most senior