Miculescu v Petrosani Court of Law, Romania [2017] EWHC 445 (Admin)

Case No CO/761/2016[2017] EWHC 445 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
THE ADMINISTRATIVE COURT
Venue Royal Courts of JusticeDate Wednesday, 25 January 2017
Strand
London WC2A 2LL
B e f o r e:
MR JUSTICE DINGEMANS
- - - - - - - - - - - - - - - - - - - - -Between:
STEFAN MICULESCU
Appellant
v
PETROSANI COURT OF LAW, ROMANIA
Respondent
- - - - - - - - - - - - - - - - - - - - -Computer-Aided Transcript of the Stenograph Notes of
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Mr G Hall (instructed by Hodge Jones Allen) appeared on behalf of the Appellant
Ms A Bostock (instructed by the Crown Prosecution Service Extradition Unit) appeared on behalf of the Respondent
Between
MiculescuClaimantPetrosani Court of Law, RomaniaDefendant
[1]MR JUSTICE DINGEMANS: This is an appeal against the order of District Judge Ashworth dated 8 February 2016 ordering the extradition of the appellant to Romania in respect of a conviction warrant for assaulting a police officer on 10 to 11 May 2014. It is alleged that the appellant headbutted the police officer and caused the police officer to be off work for 9 to 10 days. He was sentenced in his absence to 1 year's imprisonment. I will return to the circumstances of the alleged assault.[2]Although a number of grounds were raised in the notice of appeal, including prison conditions in Romania, which has now been addressed by the Divisional Court, permission to appeal was restricted to the Article 8 challenge on the basis that a finding that surrender would not breach the applicant’s Article 8 ECHR rights was arguably wrong.[3]The relevant principles have been established, see Norris v Government of the United States of America [2010] UKSC 9, HH v Deputy Prosecutor of the Italian Republic, Genoa [2012] UKSC 25 and Polish Judicial Authority v Celinski [2015] EWHC 1274 (Admin). Article 8 provides a right to a private and family life which is qualified. The question is whether interference with that right is outweighed by the public interest in extradition. There is no test of exceptionality. In the balance there is the constant and weighty public interest in extradition. People should have their trials and the United Kingdom should honour Treaty obligations. Delay since the commission of a crime may diminish the weight to be attached to the public interest and increase the impact on the private life. The best interests of the children will always be a primary consideration but their interests will not always be paramount. It is important when carrying out a balance simply not just to refer to the children but to take proper account of the circumstances. The question for me is whether the Celinski balance struck by the District Judge is wrong.[4]The balance struck by the District Judge in this case is challenged on the basis that the judge wrongly found that the appellant was a fugitive from Romanian justice because he conflated evidence of two separate assaults: first of all, the assault for which the appellant had been arrested on 10 May 2014, which was or appears to have been, on the evidence, a fight outside a public house where a number of people appear to have been arrested, and secondly the alleged assault which has given rise to this particular conviction warrant, which occurred after the appellant had been taken back to the police station. It is also said that the District Judge failed to take account of the interests of the children, being the appellant's very young step-daughter, with whom he, on the evidence, has an exceptionally strong bond, and his younger child, born after he returned to the United Kingdom.[5]It might be noted that part of the basis for the challenge to the finding that the appellant is a fugitive is based on further information which the appellant in fact tried to exclude at first instance after it had arrived late. It was properly admitted by the District Judge, who had noted that it might assist the appellant.[6]It is necessary to set out the facts in a bit more detail. There was, as I have said, on the evidence, an alleged fight outside a pub which was alleged to involve the appellant and he was arrested and taken with a number of others to the police station. He was taken to the police station and is alleged to have assaulted by headbutting the police officer. The appellant was released and it does not appear that he was questioned about the assault on the police officer nor required to attend for questioning about it. That appears from the further information.[7]On 17 May 2014, the appellant gave evidence, which was accepted by the District Judge, that he had returned to the police station to pick up his ID card and at that stage he was not questioned, although the evidence shows that by 11 May 2014 the police officer, who was at that stage still off work, had filed a complaint.[8]On 6 June 2014, the appellant returned to the United Kingdom. Attempts were made, it appears, to summons the appellant and he had given an address in Romania at a flat that he had rented until July 2014 even though he had left shortly after this incident on 6 June 2014. He was prosecuted in his absence on 16 September 2014 and the trial concluded in a conviction in May 2015. The warrant was then issued in June and in August 2015 it was certified.[9]The District Judge heard evidence and at page 5 of the judgment he set out some of the appellant's evidence including given in cross-examination in which the appellant referred to an assault. The District Judge referred to that evidence as if it was the assault on the police officer. The difficulty is that it is effectively now common ground that that passage of the appellant’s evidence was referring to the assault outside the public house where the appellant denied any involvement, and it appears that there was a person who alleged that he had been assaulted and had gone to hospital and later turned up to the police station.[10]It is apparent that the District Judge had conflated the two incidents of assault and therefore the basis for the District Judge's criticism of the requested person's evidence was not soundly based because the District Judge said:
"I found the requested person to be wholly unbelievable when he gave evidence. The events of the allegation against him actually took place in a police station, the suggestion that he was let go and simply told 'Let's see what happens' is inconceivable and I rejected his evidence."
[11]That evidence of being told “let’s see what happens” was given in relation to the earlier assault, and it is not a proper basis on which to make a finding against the requested person.[12]In my judgment, given the mistaken finding of fact and the mistaken basis for the findings rejecting the requested person's evidence, it is necessary to undertake the article 8 ECHR balance again. That is partly because if one turns to page 13 of the judgment, facts found relevant to this challenge include that:
"The requested person deliberately fled prosecution and has attempted to evade serving his sentence."
[13]That finding appears to feed in to the factors that favours extradition in paragraph 2 of the judge's assessment. In those circumstances, there has been a wrong assessment because the District Judge has taken into account a finding of fact against the requested person which is not soundly based.[14]It therefore falls to me to carry out the Celinski balance. In that respect, what is said against the requesting authority is that it was effectively their fault that the delay took place and their fault that the requested person now has a child because the child was, on the chronology, conceived after the return to the United Kingdom and that should therefore mean that the Article 8 balance is reassessed in favour of the requested person.[15]In my judgment, the following facts are relevant. First of all, the requested person bears no culpability for leaving the jurisdiction. On the evidence before me, he had given his address in Romania but that was an address he had, on the evidence, rented and was properly given. The evidence also suggests that he at that stage had not got an address in the United Kingdom. The requested person was entitled to come to the United Kingdom and came to the United Kingdom. On the other hand, the requesting authority, in my judgment, cannot be blamed for the course of action that they took. The circumstances of the assault are to be determined in Romania but it is well known that in incidents where there are a number of people in police stations, the exact person who has carried out an assault, if an assault was carried out, might be difficult to identify that evening, especially if there are a number of persons all around at the same stage. So, in my judgment, it is not fair to blame the requesting authority for what has occurred. The reality is that a complaint was made on 11 May by the police officer who is alleged to have been assaulted. It was then pursued against a person who was believed, albeit wrongly, to be in Romania. The reality is there has been a delay of some 2 years and in that period of time the appellant has developed his family life, developing his strong bond with his step-daughter and having a child. Those are important factors to take into account. But they are not trump cards and no-one, in my judgment, is to blame for the situation; it is something that has to be assessed in the Celinski balance.[16]So I then turn to address the factors that favour extradition. There is a public interest in ensuring that extradition arrangements are honoured. It is likely, as Lady Hale said, that the public interest in extradition will outweigh Article 8 rights of the family unless the consequences are particularly notable. It is also noted that this is a serious offence. It involves the assault of a police officer with a headbutt in circumstances where the requested person was being held at the police station in an investigation to another alleged assault where the police officer was off work for some 9 to 10 days afterwards.[17]Mr Hall, in attractive submissions, gently suggested the idea that there was an air of unreality about what was alleged to have happened at the police station. For the reasons I have already given about a number of people being around in a police station, I do not accept that suggestion. It is not my function to determine the outcome of the criminal case.[18]Mr Hall also suggested was that this was all a sentence which could readily be suspended. True it is under English criminal law a sentence of 1 year's imprisonment could be suspended but in circumstances where a police officer has been deliberately assaulted in a police station and is off work for 9 to 10 days, in my judgment a sentence of immediate imprisonment is perfectly justifiable and those are primarily issues for the Romanian authorities to consider.[19]Against that is the fact that the appellant is here. He has worked as a labourer. He is living with his partner, her daughter, with whom he has got this very strong bond, and has a new baby and he is of good character here.[20]In carrying out Celinski balance in this case, I have no doubt that the public interest in ensuring that extradition arrangements are honoured in relation to this serious case outweighs the important Article 8 rights of the appellant, including those of his step-daughter and daughter.[21]In those circumstances, I will dismiss the appeal. I should record my gratitude to both Mr Hall and Ms Bostock for their submissions.