Iftimie v Romanian Judicial Authority [2016] EWHC 1637 (Admin)

Case No CO/150/2016[2016] EWHC 1637 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
THE ADMINISTRATIVE COURT
Venue Royal Courts of JusticeDate Wednesday, 15 June 2016
Strand
London WC2A 2LL
B e f o r e:
MR JUSTICE COLLINS
Between
IFTIMIEAppellantv
Between
ROMANIAN JUDICIAL AUTHORITYRespondent
Computer aided transcript of the stenograph notes of WordWave International Ltdtrading as DTI8th Floor, 165 Fleet Street, London EC4A 2DYTel No: 020 7404 1400 Fax No: 020 7404 1424(Official Shorthand Writers to the Court)
Mr G L Hall (instructed by Dalton Holmes Gray) appeared for AppellantMs A Bostock (instructed by CPS Extradition Unit) appeared for Respondent
J U D G M E N T
[2]The appellant in fact had committed three offences of robbery on that same day. For reasons which are not apparent he was convicted in 2011 of the third of those robberies. Each was a street robbery and one imagines the circumstances were similar.[3]He was not at that stage dealt with for the other two robberies, perhaps because the victims had not come forward or there was not at that stage evidence to pursue the case against him. However, following his conviction he was sentenced to 2 and a half years' imprisonment and that sentence was suspended for a period of 4½ years.[4]He came to this country some time, it seems, in 2014. I put it that way because the authorities in Romania discovered the existence of the two subsequent robberies and it was decided that he should be prosecuted for those and he was convicted at the end of October 2014 of those two further robberies.[5]The result of that it is said was to merge the original sentence of four and a half years which had been suspended into the fresh sentence imposed for those two robberies which, as I have said, totalled 3½ years' imprisonment.[6]The Romanian system clearly permits such merger and there have been a number of cases which have had to consider the effect of the Romanian law on whether the circumstances of the offence which are merged in that way should be included in the warrant.[7]Essentially, what appears to have been decided is that if that was merely an aggravating feature as, for example, previous convictions would have been then circumstances need not be given and the warrant is valid. If, on the other hand, it was something which in itself added to the sentence which otherwise would have been imposed then it may well be that the circumstances should be given. The matter was comprehensively considered recently in the case upon which Ms Bostock particularly relies, Edutanu v Iasi Court of Law & Ors [2016] EWHC 124.[8]The warrant itself is not entirely straightforward in determining precisely the basis upon which the sentence was imposed. The District Judge mistakenly, it is said and indeed, clearly mistakenly, thought that there had been a breach by the appellant of the suspended sentence. It must be obvious that there could not have been such a breach by the commission of that offence, since it was committed on the same day as the convictions which are the subject of the warrant.[9]However, as I say, the description set out in the warrant is far from clear and I hope the Romanian authorities have been informed that they must make clear in any warrant that they issue where this situation has arisen precisely how it was that any suspended sentence or any other sentence was merged, and whether there was a breach; and, in particular, how it affected the ultimate sentence that was imposed and upon which the warrant is based. It is not difficult and for the avoidance of any doubt and maybe to an extent as a 'belt and braces' approach, it would be sensible to set out briefly the circumstances of any offence which was merged so that no argument can be raised that the circumstances should have been included in the warrant. That no doubt is for the future but it will avoid the problems and the somewhat extensive litigation that has resulted from this state of affairs.[10]Unfortunately, the warrant that is in the bundle before me is apparently not the warrant which was certified because the point was taken as to the details given of the two offences and it was said that they were not sufficient in as much as they did not identify where the offences had been committed.[11]The warrant in the papers before me does identify the street and the town in which the offences took place but Mr Hall has handed me a copy of the warrant which was certified and that merely says, in the case of each, that at the given time in a public place together with another person he committed the relevant offence. The argument was that merely to say "in a public place" was insufficient because a public place, on the face of it, could be anywhere within the jurisdiction of the particular court. Obviously, it would be reasonable to assume that the offence was within the jurisdiction of the court in Bacau.[12]Again, that point I do not need, for reasons which will become apparent to deal with, because there is a further, in my view, clear defect in the warrant which arises in relation to section 20 as to whether the appellant appeared in person or was, in the circumstances, entitled to a trial if he did not attend in person.[13]The warrant contains a box in which it is necessary to specify whether the individual appeared in person at the trial, that is "d" in the warrant. It reads as follows, so far as material:
"Indicate if the person appeared in person at the trial, after which the decision was pronounced: 1. [X] Yes, the person appeared in person at the trial resulting in the decision. 2. No, the person did not appear in person at the trial resulting in the decision" [and 1 is filled in]. [...] "3. If you have ticked the box point 2, please confirm the existence of one of the following: [...]"
Since box 1 was ticked, box 3 is on the face of the warrant inapplicable but the authority has ticked box 3.2 which reads:
"3.2 [X] being aware of the scheduled trial, mandated a lawyer who was either appointed by the concerned person or ex officio, to defend him at the trial, and was indeed defended by this lawyer at the trial;"
[14]The two ticks are clearly entirely inconsistent, since when box 1 is ticked, box 3 becomes immaterial. Ms Bostock seeks to rely upon a decision of the Divisional Court in Cretu v Local Court of Suceava, Romania [2016] EWHC 353 (Admin). In that case, number 2 in the warrant had been ticked, that is to say that he had not attended the trial and there were then the paragraphs, under 3, which are said to be alternative.[15]In fact, three of those paragraphs were ticked in the case: namely, that he was legally summoned, that being informed he authorised a defender, that is the same as 3.2, and that he was not given the decision personally but the decision that would be given in person would be late.[16]Albeit those are alternatives on the face of the warrant, it is obvious that more than one might well exist in a given case, as happened in Cretu(supra). That, Burnett LJ, giving the judgment, recognised and accordingly he took the view that there was no defect in the circumstances of that case. In dealing with the submission that the warrant was confusing because of the alternatives, he says as follows:
"38. [...] To my mind, it does not follow from the structure of the EAW that the four alternatives are necessarily mutually exclusive. For example, an accused may be appropriately summoned (paragraph 1a), or otherwise be aware of the trial, and instruct a lawyer to attend and argue the case in his absence (paragraph 1b). Thereafter, he might be served with the decision and be informed of his right to appeal and not pursue it (paragraph 1(c)). The question whether an accused is entitled to a retrial or appeal is answered very differently across the various jurisdictions of the European Union. It is at least conceivable that an accused properly summoned might nonetheless be entitled to a retrial."
[17]That is an entirely different situation from that which applies here because it is clear that paragraphs 1 and 2 are mutually exclusive and it follows that to say that the appellant appeared in person and then to go on to tick a box which says that it is only applicable where he did not appear in person, that he instructed a lawyer, is inconsistent. It is important in this case, particularly because it is the appellant's case and it was his evidence before the District Judge that he came to this country in September 2014 and did not attend the trial.[18]I appreciate that the warrant may contradict that. On the other hand it is, I suppose, possible that there has been a degree of confusion and that he undoubtedly did attend the trial in 2011, when he was dealt with for the third of the three robberies. It is, I suppose, possible, that there, as I say, has been a degree of confusion and the attendance at trial related to that but he denies that he appointed a lawyer, that that applies to the second. It cannot, though, be clear what the situation is and there has been no attempt to obtain an explanation from the Judicial Authority.[19]The District

Judge dealt with this in his relatively short judgment (that is no criticism) in this way:

"The presence of the defendant at his trial it is quite clear from the warrant it is stated;- [then he refers to (d) and the ticking of box 1], a more unequivocal statement from the Judicial Authority it is hard to imagine. I do not find the statement at 3.2 which is also ticked on the warrant as undermining this. It does not state that the lawyer was instructed in absence of the Required Person to represent him [...]"
[20]That is wrong. It does say it on the face of the warrant that a lawyer was instructed in the absence of the requested person. He goes on:
"On the information on the warrant I am satisfied so I am sure that the authorities have indicated that the Required Person was present. I see no issue as to whether he is therefore denied the opportunity to raise a challenge under section 20. On the information of the Judicial Authority I am satisfied to the proper standard he was present."
[21]In my view, that finding is simply one which was not open to the District Judge in the absence of further information from the Judicial Authority.[22]So far as Article 8 is concerned, which is another ground taken, in favour of ordering extradition he set out three matters: The first is a general one, public interest in ensuring that extradition arrangements are honoured. The third, again, is the normal one, that the determination should be accorded a proper degree of mutual confidence and respect and the return was sought in respect of two convictions for robbery of a person which are clearly serious offences.[23]But the second he relies on is that the appellant was a fugitive and came to the United Kingdom in breach of the terms of his sentence:
"There is a strong public interest in discouraging persons seeing the United Kingdom as a State willing to accept fugitives from justice."
That is wrong. He did not come to this country in breach of the terms of his sentence. Ms Bostock makes the point that the District Judge would have been entitled to find clearly that he was aware of the charges, even if he did not attend, relating to 2014. The difficulty is that if he did attend and was sentenced to an immediate sentence of imprisonment, how is that he is not still in prison in Romania? There is no suggestion as I understand it that the 3 and a half year sentence was the subject of any suspension, nor are we told that the situation is, as in some States occurs, for example, Poland, quite regularly, that someone sentenced to a period of imprisonment is told to wait until there is room in the prison to accommodate him, in the sense that he is instructed to attend prison on a particular day. So the circumstances seem to me, on the face of it, to make it improbable that he was attending his trial in October 2014. However, there is no evidence one way or the other as to precisely what the situation was.[24]I am entirely satisfied that the judgment of the District Judge was in that respect defective, that there is confusion in the warrant and that there is in those circumstances a breach of section 20.[25]According, I propose to allow this appeal and the warrant is quashed. That of course does not prevent the Judicial Authority from issuing a fresh warrant if so advised and including all the necessary relevant material.

Cited in 1 later judgment