England and Wales High Court (Administrative Court) Decisions

IN THE SUPREME COURT OF JUDICATURE
QUEEN'S BENCH DIVISION
DIVISIONAL COURT

		Royal Courts of Justice Strand, London, WC2A 2LL
		25 October 2006

Lord Justice Maurice Kay:

1. This an appeal by the Government of Romania against a decision of District Judge Tubbs to discharge the respondent Valentin Ceausescu following an extradition request. The respondent was a police officer in Romania. On 28 September 2003, when he knew that he was under investigation in respect of allegations of corruption, he left Romania. At that time he had not been charged with any offence. On 4 March 2004 he was convicted in his absence. He was living in this country and had received no notice of the commencement of a prosecution or the date of trial. He was sentenced to five years' imprisonment. On 29 September 2004 the conviction and sentence were declared final by the High Court of Cassation. A warrant was issued by the Court of Conviction on 14 October 2004. On 8 December 2005 the respondent was arrested on a provisional warrant. The application for extradition is governed by the provisions of Part 2 of the Extradition Act 2003. Romania is a Part 2 territory. At the hearing before the District Judge it was common ground that the respondent had been convicted in his absence. The District Judge found that, whilst the respondent had been aware of the allegations, he had not been aware and had received no notice of the trial. She therefore concluded that he had not deliberately absented himself from his trial. The District Judge also found that, upon return to Romania, the respondent would be entitled to a retrial. The central issue before the District Judge was whether the respondent could be extradited to Romania without contravention of his rights under the European Convention of Human Rights and Fundamental Freedoms. The District Judge rejected a submission that for the respondent to serve a sentence in a Romanian prison would subject him to a real risk of inhuman or degrading treatment amounting to a breach of Article 3. However, she found that to extradite the respondent would involve a breach of Article 5. She reached this conclusion because, as a result of the conviction, the respondent would not be permitted to apply for bail in Romania between return and retrial. She considered that, during that period, he would be in essentially the same position as a defendant awaiting trial and entitled to the protection afforded by Article 5(3). She said:

"I do find that the absolute prohibition on the grant of bail to a person in the position of Mr Ceausescu is a breach of Article 5(3)."

2. Although she was satisfied that the retrial would be given priority and would be heard within a reasonable time, in the circumstances that "reasonable time" could still be a substantial period of time. She said:

"The absolute prohibition of bail for Mr Ceausescu, the substantial period of time to conclude any retrial proceedings and the unpleasant experience of any period of imprisonment for an ex-police officer need to be weighed and balanced with the fact that responsibility for the serious criminal charges can be explored by way of retrial and appeal and that an appeal can and is being pursued by Mr Ceausescu's lawyers, without Mr Ceausescu being in custody and without his presence in Romania being required. In these particular circumstances I find that at this stage it would not be just and proportionate to extradite Mr Ceausescu in the light of the violation of his Article 5(3) rights by the absolute denial of bail. If Mr Ceausescu pursues his appeal in Romania through his lawyers against his conviction of these serious charges to its conclusion and loses the appeal, or if he should choose to discontinue or fail to pursue that appeal, then the position will be different and it may be that the balancing of the issues concerned in the qualified Article 5 rights would result in a different conclusion."

3. On this basis the District Judge discharged the respondent under section 87 of the 2003 Act. The Government of Romania now appeals to this court pursuant to section 105.
4. The relevant parts of Article 5 of the ECHR are in these terms:

"(1) Everyone has the right to liberty and security of the person. No-one shall be deprived of his liberty save in the following cases and in accordance with the procedure prescribed by law:

(a) lawful detention of a person after conviction by a competent court …

(c) the lawful arrest or detention of a person effected for the purpose of bringing him before the competent legal authority on reasonable suspicion of having committed an offence or when it is reasonably considered necessary to prevent his committing an offence or fleeing after having done so …

(3) Everyone arrested or detained in accordance with the provisions of paragraph (1)(c) of this Article shall be brought promptly before a judge or other officer authorised by law to exercise judicial power and shall be entitled to trial within a reasonable time or to release pending trial. Release may be conditioned by guarantees to appear for trial.

(4) Everyone who is deprived of his liberty by arrest or detention shall be entitled to take proceedings by which the lawfulness of his detention shall be decided speedily by a court and his release ordered if the detention is not lawful."

5. On behalf of the Government of Romania Mr Keith seeks to advance three grounds of appeal as follows: (1) the District Judge was wrong to apply the provisions of Article 5(1)(c) and (3) rather than Article 5(1)(a); (2) she failed to apply the correct test when assessing and characterising a breach of Article 5; and (3) her evaluation of the evidence was flawed. I now turn to consider these grounds of appeal.

1. The Article 5(3) point

6. The submission here is that, since the respondent presently stands convicted, albeit in his absence, Article 5(1)(c) and (3) are irrelevant. They only apply before there has been a trial. Here the respondent has been convicted by a competent court and, upon return, he would be lawfully detained pursuant to that conviction and the sentence imposed for it. The case for the respondent is that, having been convicted in his absence at a trial of which he had no notice, his position is analogous with that of a person facing trial for the first time and that the absolute prohibition on bail therefore offends Article 5(1)(c) and (3).
7. The District Judge did not accept that there was a meaningful distinction between the position of an accused person facing trial for the first time and a person convicted in his absence awaiting a retrial. She said:

"I do not find that is a distinction with any merit. Mr Ceausescu is in the same position essentially as a defendant awaiting trial at first instance and, as such, he is entitled to the protections afforded by Article 5(3)."

8. She referred to the decision of the European Court of Human Rights in Caballero v United Kingdom (application no. 32819/96). This was the case in which the court dealt with the breach of Article 5 which arose when, in section 25 of the Criminal Justice and Public Order Act 1994, the Bail Act 1976 was amended so as to prevent those charged with murder, attempted murder, manslaughter, rape or attempted rape who had previously been convicted of any such offence from applying for bail. The Government conceded that that involved a breach of Article 5. It seems to me that it has little or no bearing on the present case because it was concerned exclusively with the position between charge and trial and not with the position after conviction.
9. More in point is the decision of the Strasbourg Court in Wemhoff v Germany (application no. 2122/64). The court stated (at paragraph 9):

"… a person convicted at first instance, whether or not he has been detained up to this moment, is in the position provided for by Article 5(1)(a) which authorises deprivation of liberty 'after conviction'. This last phrase cannot be interpreted as being restricted to the case of final conviction, for this would exclude the arrest at the hearing of convicted persons who appeared for trial while still at liberty, whatever remedies are still open to them. Now, such a practice is frequently followed in many Contracting States and it cannot be believed that they intended to renounce it. It cannot be overlooked moreover that the guilt of a person who is detained during the appeal or review proceedings, has been established in the course of a trial conducted in accordance with the requirements of Article 6."

10. This passage is relied upon by both parties in the present case. Mr Keith submits that it establishes that Article 5(1)(c) and Article 5(3) cease to apply at the moment of conviction by a competent court. At that point Article 5(1)(a) takes effect but it contains no right to apply for bail pending appeal, whether by way of retrial or otherwise. Mr Sidhu accepts that up to a point, but his contention is that, in the present case, the first instance conviction and its subsequent confirmation by the Court of Cassation were tainted to the point of non-compliance with Article 6. He draws attention to the fact that, even before the original trial, the prosecuting authorities in Romania were aware that the respondent had left Romania and was living at a known address in north London. Moreover, he was living there lawfully in the sense that his presence was covered by a visa, as it had been on previous occasions.
11. Whilst I accept that and I further accept the finding of the District Judge that the respondent knew that he was being investigated but did not know that he had been charged or that a trial was listed, there are further circumstances which seem to me to be relevant. It is a matter of record that the respondent's lawyer appeared at the original trial. We are told that that was the result of something akin to a power of attorney which had been executed by the respondent. Although the respondent had reasons to leave Romania for England, quite apart from the investigation, the fact is that he left within days of being interviewed and having clothed his lawyer with some kind of authority to look after his interests. We simply do not know why the lawyer did not or could not inform the respondent of the date of trial. In these circumstances, the fact that the prosecuting authorities had an address for the respondent in London cannot have the weight which Mr Sidhu seeks to attach to it. I find it impossible to escape the conclusion that, when he left Romania shortly after being interviewed, he was aware of the risk of prosecution and chose to deal with it by ignoring it, save for giving some authority to his lawyer. Not every trial of an accused person in his absence amounts to a breach of Article 6: see Regina v Jones [2002] UKHL 5, per Lord Bingham of Cornhill at paragraph 8-9. In the present case, the District Judge did not consider whether there had been a breach, let alone a flagrant breach, of Article 6. However, even if there was a breach of Article 6 (and I am expressing no concluded view on the point in view of the absence of findings of fact relevant to it), the fact that a person was convicted after a trial which was arguably in breach of Article 6 does not mean that he was not convicted by a court of competent jurisdiction. In my judgment, Mr Keith's central submission on this ground of appeal is correct. From the moment of conviction at the original trial the relevant part of Article 5 became Article 5(1)(a), rather than Article 5(1)(c) and Article 5(3). Under section 87 of the Extradition Act 2003 the District Judge is concerned with compatibility with Convention Rights, neither more nor less. Broader considerations of justice arise, for example, when there is an issue as to the passage of time under Article 82 but section 87, the provision in play in the present case, gives a person no rights beyond those set out in the Convention. In my judgment, the District Judge was wrong to treat this as a case under Article 5(1)(a) and Article 5(3). Those provisions do not apply following conviction by a competent court and it is not for the court in this country to seek to enlarge Convention Rights by analogy. I am satisfied that this first ground of appeal is made out.

2. The wrong test

12. I can deal with this ground of appeal more briefly. It is apparent from the passage in her judgment which I have set out in paragraph 2 above that the District Judge decided that it would not be "just and appropriate" to extradite the respondent in the light of a perceived violation of his rights under Article 5(3). The point made by Mr Keith is a simple one. The correct test in relation to whether extradition was barred under section 87 by reason of incompatibility with Convention Rights is not one of what is "just and proportionate" or one based on a "balancing of the issues". The test is one of "flagrant breach": see R (Ullah) v Special Adjudicator [2004] UKHL 26, per Lord Bingham of Cornhill at paragraph 24. Accordingly, even if the District Judge had been correct to identify a breach of Article 5, her decision would have been flawed by a failure to apply the "flagrant breach" test. In my judgment, this ground of appeal also succeeds.

3. Irrelevant or incorrect considerations

13. Under this ground of appeal Mr Keith refers to a number of matters, two of which seem to me to be significant. The one of lesser significance relates to the weight accorded by the District Judge to "the unpleasant experience of any period of imprisonment for an ex-police officer". It seems to me that that was not a relevant consideration, particularly in the light of her rejection of the case under Article 3. The second matter is more complex. The District Judge proceeded on the basis that it was common ground that the respondent could remain in this country until and during the retrial. Mr Keith submits that if there was a concession to this effect on behalf of the Government of Romania (which did not have the benefit of Mr Keith's services before the District Judge), it was a concession wrongly made on the evidence. The point turns on Article 522 of the Romanian Criminal Procedure Code. The provided English translation of this is:

"In case it is requested the extradition of a person tried and sentenced in his absence, the case can be judged by the court which judged in first instance, at the request of the convict."

14. The material that was before the District Judge and is now before us addresses the question whether, in order to avail himself of a retrial, a person must first be extradited. In a letter from the Directorate for International Law in the Romanian Ministry of Justice dated 22 March 2006, it is clearly stated that Article 522 "is applicable only if the extradition is granted". This was repeated in a letter of 4 May 2006 which stated that "in the event of the extradition" the respondent will be entitled effectively to a retrial. These documents were before the District Judge. Mr Sidhu submits that Article 522 does not say "only if" the person is extradited will he be entitled to a retrial. He also refers to a document before this court (but which was not before the District Judge) in which a Romanian lawyer on behalf of the respondent states that "it is not necessary for Mr Ceausescu to be present in Romania during the whole retrial/rehearing". In my judgment, that is at best ambiguous. It does not address the question whether extradition is a condition precedent to a retrial under Article 522. I see no reason not to accept the interpretation proffered by the Ministry of Justice. I say that not only because of its source but also as a matter of common sense. The point of Article 522 is surely that a person who has been tried in his absence should, in certain circumstances, have the opportunity to be tried in his presence. If the second trial were no more than a second trial in the absence of the accused person, in very many cases it would be otiose. So far as this ground of appeal is concerned, I conclude that the District Judge ought not to have proceeded on the basis that the respondent can avail himself of a retrial without returning to Romania.

Conclusion

15. It follows from what I have said that, in my judgment, the three grounds of appeal are all well founded. This leads me to the conclusion that we should allow the appeal because the conditions set out in section 106(4) are fulfilled, that we should quash the order for the discharge of the respondent and that we should remit the matter to the District Judge under section 106(6)(b) with the direction to proceed as she would have been required to do if she had decided the relevant questions differently and in accordance with this judgment.

Mr Justice Bean

16. I agree.