England and Wales High Court (Administrative Court) Decisions

IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
DIVISIONAL COURT

		Royal Courts of Justice Strand London WC2
		4 May 2007

1. MR JUSTICE GAGE: This is an appeal by an appellant who challenges the decision of the Secretary of State for the Home Department made on 22 March 2005. By his decision and order the Secretary of State directed the extradition of the appellant to Romania pursuant to an order of District Judge Tubbs made on 5 February 2007. He was committed in relation to various charges of bribery, corruption and theft which, it is alleged, were committed by him between September 2000 and March 2001.
2. The alleged facts are as follows. The appellant 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. Subsequently, on 4 March 2004, he was convicted in his absence. On 29 September 2004 convictions were declared final by the High Court of Cassation. However in the event of his return to Romania the appellant would be entitled to a re-trial. The latter fact is common ground in this appeal. He was sentenced to a term of 5 years' imprisonment.
3. So far as these proceedings are concerned, the warrant was issued by the Pitesti Court of Appeal on 14 October 2004. On 8 December 2005 the appellant was arrested. On 13 December 2005 there was a request for extradition which was certified by the Secretary of State on 16 December 2006. There was a hearing before District Judge Tubbs. On 13 June 2006, as a result of that hearing, she discharged the order for extradition. She found on that occasion that extradition would be in breach of Article 5.1 (c) of the European Convention of Human Rights and Fundamental Freedoms.
4. The Government of Romania appealed against that decision. The appeal was heard by this court. By a judgment of the court, the neutral citation of which was [2006] EWHC Admin 2615, the court allowed the appeal. The case was then remitted back to District Judge Tubbs. It is clear from the note of those proceedings made by the solicitor then acting for the appellant that no further submissions were made on his behalf to the district judge. Importantly no submissions were made to her in respect of a potential breach of Article 6 of the appellant's Convention rights. The result was that the district judge sent the matter to the Secretary of State and the Secretary of State made the order to which I have referred. These proceedings have been initiated by an appeal and grounds of appeal against the decision of the Secretary of State. There is no appeal against the decision of the district judge. Accordingly the matter proceeds before this court as an appeal against the decision of the Secretary of State pursuant to Section 108 of the Extradition Act 2003.
5. The Secretary of State's powers, when the matter comes before him from the magistrates' court, are as follows. They are contained in Section 93, under the heading The Secretary of State's Functions. As originally enacted, it states as follows:

"(i) This section applies if the appropriate judge sends a case to the Secretary of State under this Part for his decision whether a person is to be extradited.

(ii) The Secretary of State must decide whether he is prohibited from ordering the person's extradition under any of these sections:

(a) Section 94 (death penalty);

(b) Section 95 (specialty);

(c) Section 96 (earlier extradition from the United Kingdom from other territories).

(iii) If the Secretary of State decides any of the questions in sub-section (2) in the affirmative he must order the person's discharge.

(iv) If the Secretary of State decides those questions in the negative he must order the person to be extradited to the territory from which his extradition is requested unless -

(a) he is informed that the request has been withdrawn;

(b) he makes an order under Section 126 (2) or 179 (2) for further proceedings on the request to be deferred on persons discharged under Section 180; or

(c) he orders the person's discharge under Section 208.

(v) In deciding the question in sub-section (2) the Secretary of State is not required to consider any representations received by him after the end of the permitted period.

(vi) The permitted period is the period of six weeks starting with the appropriate day."

6. The way in which this appeal is framed is on the basis that the decision of the magistrates' court ought to be reviewed and that the magistrates' court ought to have found that there was a breach of Article 6 of the appellant's Convention rights.
7. As it was originally framed in the notice of appeal, the submission made on behalf of the appellant was that the district judge on the first occasion made no finding on the fairness of the trial and the safety of the conviction. So, it was submitted, there is no evidence that the trial was fair and the conviction safe. Indeed it is now submitted that due to the absence of the appellant from the trial it was a trial which breached his Article 6 rights which Mr Cartwright, on his behalf, submits are fundamental rights. The argument went on that accordingly the trial should be treated as a nullity and in those circumstances there would be a re-trial and the appellant would not be entitled to bail. Accordingly it is submitted that the decision of the district judge on the first occasion, as it turns out, was correct.
8. There are, in my judgment, a number of reasons for rejecting that submission as it stands in the alleged grounds of appeal and skeleton argument.
9. Before this court orally today Mr Cartwright mounts another submission which is, in one sense, more restrictive. It is based upon his submission that the trial of the appellant in Romania in his absence was a breach of Article 6. He submits that the step taken in the extradition proceedings which does not allow for that breach is therefore flawed and the appellant is entitled to succeed on his appeal.
10. I deal first with what is, in my judgment, an insuperable procedural hurdle. As I have already indicated, the appeal is against the Secretary of State's decision. Equally as I have already implied, that decision cannot be challenged. Section 93 of the Extradition Act 2003 restricts the powers of the Secretary of State when the case is sent to him by the appropriate judge. He has no other powers than those set out under Section 93. Accordingly, since none of them are applicable in this case, it follows in my judgment that the appeal against his decision must fail.
11. What then of the proceedings as they stand before this court if that fails? Mr Cartwright submits that in reality this should be treated as an appeal against the magistrates' decision. The reason for that is a paragraph set out in argument in what are said to be grounds of appeal. It reads in the following terms:

"Apart from the matters referred to in S 93 of the Act, the Secretary of State is bound by the findings of the court ordering extradition. This appeal is therefore a review of the judgement of the High Court and the Magistrates' Court following the ruling in law of the High Court."

At the stage that the appeal was entered that part of the paragraph ended there. However by a very recent amendment it continues:

"In particular it should be considered as an appeal against the failure of the District Judge to investigate the human rights implications under Article 6 and should therefore be considered to be also an appeal under S 103 of the Extradition Act, applying S 104 (4) (a)."

I should add that Section 100 (a) (sic) deals with the rights of appeal from a relevant decision, the relevant decision in this case being the decision of the district judge.

12. The problem which the appellant still faces is that if this is to be treated as an appeal against the district judge's decision it is out of time. There is no dispute that the statutory provisions allow 14 days for an appeal to be entered. There is no power to extend that time. Since no appeal has been made against the district judge's decision, then that appeal must fail. Furthermore Mr Cartwright's attempts to get around that difficulty on the basis that the argument in the grounds of appeal against the Secretary of State foreshadowed an appeal against the district judge does not, in my judgment, overcome that difficulty. Accordingly it seems to me that this appeal must fail in any event.
13. However it would not be satisfactory to leave the matter there. I therefore go on to consider the merits of any appeal even if it had been properly instituted against the district judge.
14. As put before this court by Mr Cartwright this morning, it is that Article 6 has been breached by the original trial taking place in the absence of the appellant. He submits that although that was not raised before the district judge on the first occasion, nor indeed, it has to be said, on the second occasion, it is foreshadowed to some extent in the decision of this court on the previous occasion when there is reference to it in paragraph 11 of the judgment of Lord Justice Maurice Kay. The passage to which he has referred reads as follows:

"I find it impossible to escape the conclusion that, when he [the appellant] 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."

That passage ought to be read in the light of the issue before that court.

15. That issue was whether or not there was likely to be a breach of Article 5 if the appellant was returned to Romania. Nevertheless this does throw some light on the way in which that court dealt with the Article 5 point. There are, in my judgment, a number of reasons why that argument cannot and could not possibly have succeeded.
16. First of all, the argument was never put before the district judge. The district judge therefore has had no opportunity to make any findings of fact in respect of it. Accordingly the procedural hurdle to which I have referred is not simply an academic point. The district judge at no time considered the argument, and might have made findings of fact which would have defeated the appeal in any event. Perhaps of more significance is the fact that it is quite clear from these papers that the appellant, on his return to Romania, will be able to request a re-trial. As Mr Perry QC, who appears on behalf of the Secretary of State, has submitted, in those circumstances the whole of the proceedings must be considered. In that event it seems to me, again as Mr Perry, and Mr Watson on behalf of the Government of Romania, have submitted, there can be no possible question of a flagrant breach of Article 6. I find that there can be no real question of any breach of Article 6 which is of any materiality.
17. In the circumstances, as it seems to me, even if we had had to consider this appeal on the merits as placed before us by Mr Cartwright I would have unhesitatingly rejected the appeal.
18. For these reasons, in my judgment, this appeal must fail.
19. MRS JUSTICE RAFFERTY: I agree.
20. MR JUSTICE GAGE: Is there anything else you want, Mr Cartwright?
21. MR CARTWRIGHT: No.
22. MR PERRY: May I mention one matter?
23. MR JUSTICE GAGE: Yes.
24. MR PERRY: Your Lordship required help when citing Section 93. May I invite you to say in the judgment "as originally enacted". It avoids discussing all the recent amendments that were affected by the Police and Justice Act.
25. MR JUSTICE GAGE: I hope I did read it from the amended one.
26. MR PERRY: Your Lordship read from the Act as originally enacted - - - - -
27. MR JUSTICE GAGE: It does not affect it in any way.
28. MR PERRY: It does not affect it in any way. It does not affect the issues in this case.
29. MR JUSTICE GAGE: I am grateful. Are there any other matters?
30. MR PERRY: No.
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