England and Wales High Court (Administrative Court) Decisions

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

		Royal Courts of Justice Strand, London, WC2A 2LL
		22 October 2010

Mr Justice Silber:

I. Introduction

1. Teodor Florinel Ficuta ("the appellant") appeals against the decision of District Judge Nicholas Evans sitting at the City of Westminster Magistrates Court made on 8 June 2010 by which he ordered the extradition of the appellant to Romania pursuant to section 21(3) of the Extradition Act 2003 ("the 2003 Act").
2. The proceedings are based on a European Arrest Warrant ("EAW") issued by the trial court of Piatra Neamt Trial Court ("The respondent") on 5 August 2009 and certified in this country by the Serious Organised Crime Agency on 4 November 2009. Romania is a Category 1 territory as described in the 2003 Act, which means that Part 1 of the 2003 Act applies.
3. The EAW relates to one conviction of theft which was committed on 19 July 2007 ("the 2007 offence") when the appellant broke the windows of a motor car and stole a mobile phone and a radar detector. On 20 November 2007, the appellant made a statement in court in which he admitted the offence. The appellant was aware of but failed to attend subsequent hearings in the case and he was absent on delivery of the sentence.
4. Previously on 11 December 2006 ("the 2006 offence"), the appellant had been sentenced for a different offence of aggravated theft and he had received a sentence of one year and six months imprisonment which was conditionally suspended for a period of 3 years and 6 months.
5. For the 2007 offence, the appellant was sentenced on 13 November 2008 for the 2007 offence to one year's imprisonment but the suspension of the previous term of imprisonment for the 2006 offence was revoked because the appellant had committed another offence in the probation period. The total term of imprisonment was therefore 2 years and 6 months comprising of a combination of those two sentences.
6. On 27 January 2010 the appellant was arrested under the authority of the EAW. The extradition proceedings were adjourned because the appellant was serving a custodial sentence in this jurisdiction following his recall on licence. The full argument in respect of the EAW was heard in the Magistrates Court and the extradition order was made.

II. The Issues

7. The grounds of appeal are that the District Judge erred by finding that the EAW met the requirements of section 2 of the 2003 Act because (a) it referred to more than one offence and did not particularise both the convictions for the 2006 and the 2007 offences as was required by section 2(6)(b) of the 2003 Act; and/or (b) the EAW failed to specify the correct particulars of the sentence imposed for the single offence particularised namely the 2007 offence as required by section 2(6)(e) of the 2003 Act.
8. I should add that although speciality agreement arrangements are in place between the United Kingdom and Romania, it was submitted on behalf of the appellant that if the EAW is found to be based on a single offence, then following extradition there would be a real risk to the appellant's speciality rights which emphasises the seriousness of the deficiencies of the warrant. It was correctly accepted by Miss Mary Westcott counsel for the appellant that this is not a free-standing ground of appeal because if the appellant is unsuccessful on the other grounds, he cannot succeed on this one.
9. Before considering the grounds, it is appropriate to set out the powers of the Court on this appeal, which are set out in sections 26 and 27 of the 2003 Act and which state that:-

"26. Appeal against extradition order

(1) If the appropriate judge orders a person's extradition under this Part, the person may appeal to the High Court against the order.

(2) But subsection (1) does not apply if the order is made under section 46 or 48.

(3) An appeal under this section may be brought on a question of law or fact.

(4) Notice of an appeal under this section must be given in accordance with rules of court before the end of the permitted period, which is 7 days starting with the day on which the order is made."

"27. Court's powers on appeal under section 26

(1) On an appeal under section 26 the High Court may —

(a) allow the appeal;

(b) dismiss the appeal.

(2) The court may allow the appeal only if the conditions in subsection (3) or the conditions in subsection (4) are satisfied.

(3) The conditions are that—

(a) the appropriate judge ought to have decided a question before him at the extradition hearing differently;

(b) if he had decided the question in the way he ought to have done, he would have been required to order the person's discharge.

(4) The conditions are that—

(a) an issue is raised that was not raised at the extradition hearing or evidence is available that was not available at the extradition hearing;

(b) the issue or evidence would have resulted in the appropriate judge deciding a question before him at the extradition hearing differently;

(c) if he had decided the question in that way, he would have been required to order the person's discharge.

(5) If the court allows the appeal it must —

(a) order the person's discharge;

(b) quash the order for his extradition."

10. The specific ground of complaint of the appellant is that the EAW failed to comply with the requirements for EAWs which are set out in section 2 of the 2003 Act and which state that an EAW must contain the information referred to in section 2(6). The relevant parts of that section state that:-

"The information is:-

....

(b) particulars of the conviction;

....

(e) particulars of the sentence which has been imposed under the law of the Category 1 territory in respect of the offence, if the person has been sentence for the offence".

III. The Appellant's Case

11. The case for the appellant is that it is common ground that the requirements in section 2(6) are mandatory but it has not been complied with in the EAW.
12. The relevant and material terms of the EAW issued in respect of the appellant are that:

(a) At (b), the EAW states that the final judicial order is:-

"Penal sentence no. 279/08.04.2008 pronounced by the Trial Court Piatra Neamt within the file no 5493/279/2007: Penal decision no. 324/A/13.11.2008 of Trial Court Neamt…";

(b) At (c), the EAW states that the sentence imposed is "2 years and 6 months imprisonment";

(c) At (e), the EAW states that it "addresses an amount of ONE deed";

(d) At (e), the particulars of that single offence are provided: "On 19.07.2007 the accused broke the window of a motor car, entered it and purloined a mobile phone and a radar detector";

(e) At (e), the EAW also states:-

"…According to art.83 par 1 Penal Code, it revokes the conditional suspension of the punishment of 1 year and 6 month's imprisonment which was applied to the accused by the penal sentence no 3240/11.12.2006 of the Trial Court Bacau which punishment is to be executed alongside of the punishment applied by this decision so that eventually the accused have to execute the resulting punishment of 2 years and 6 month's imprisonment of which the period of detention and preventative arrest from 22.05.2005 to 30.11.2005 is to be subtracted."

13. The first piece of further information provided by the respondent (tab 3) reiterates that the EAW refers to "ONE deed". However it also explains that where a person re-offends during a "probation term", it will trigger:-

"… the execution of the entire punishment, which is not to be integrated with the punishment applied for the new offence".

14. This information explains that the appellant was subject to a "probation term" for the punishment of 1 year and 6 months in prison imposed by the Trial Court Bacau (3240/11.12.2006). It states that the probation term was revoked due to "a new offence":-

"… thus the conditional probation for the punishment of 1 year and 6 months in prison applied to the accused by means of the above-mentioned penal sentence was revoked and is to be executed sequentially to the sentence applied through the Criminal Sentence No. 279/08.04.2008 of the Trial Court P. Neamt. THUS, THE RESULTING PUNISHMENT TO BE EXECUTED IS OF 2 (TWO) YEARS AND 6 (SIX) MONTHS IN PRISON."

15. The respondent provided a second supplementary document repeating that the EAW is based on sentence 279.08.04.2008 and "the minimum punishment of 1 (one) year".
16. However, page two of the respondent's second supplementary document states that:-

"…the instance ordered the recall of the conditional suspension of execution of punishment of 1 (one) year and 6 (six) months applied to the same accused person by means of S.P. 3240/2006 of the TRIAL COURT BACAU, WHICH PUNISHMENT IS TO BE EXECUTED ADJOINING TO THE PUNISHMENT OF 1 (one) year in prison.. FICUTA TEODOR FLORINEL BEING TO EXECUTE A RESULTING MERGED PUNISHMENT OF 2 (TWO) YEARS AND 6 (SIX) MONTHS IN PRISON. (THE RESULTING PUNISHMENT TO BE EXECUTED BY FICUTA TEODOR FLORINEL WAS MENTIONED IN THE EUROPEAN ARREST WARRANT)."

17. So the case for the appellant is that the resulting punishment consists of punishment for the 2006 and the 2007 offences with the result that the EAW is defective as it is wrong in two ways. The first is that it does refer to more than one offence as the sentence relates to both the 2006 and the 2007 convictions but in breach of section 2(6)(b) of the 2003 Act, the EAW does not particularise the conviction for the 2006 offence which led to the imposition of 18 months imprisonment which formed part of the total sentence of 2 ½ years referred to in the EAW. The second defect is that if the EAW was based on "one offence" as stated in the EAW, the correct particulars of the sentence imposed for the 2007 offence (which was only a twelve month sentence) are not particularised as is required by section 2(6) (e) of the 2003 Act.
18. Miss Westcott's case is that the EAW is defective as it does not comply with these statutory requirements and the court has no jurisdiction to make any order in respect of it. She stresses that these defects are fatal because article 8(1)(e) of the European Council Framework Decision of 13 June 2002 ("the Framework Decision".) which is the genesis of the 2003 Act and which was enacted to transpose the decision into our domestic law. It provides guidance as it states that a EAW should contain "(e)... a description of the circumstances in which the offence was committed, including the time, place and degree of participation in the offence by the requested person".
19. So it is said that the appellant did not have sufficient details to know what he had been convicted of and that the further information put in by the respondent is not admissible to remedy the defective EAW. Miss Westcott submits that even if that evidence was admissible, it did not provide sufficient details of the aggravated theft conviction for the 2006 offence.

IV. The Respondent's Submissions

20. Miss Lauren Rafter, counsel for the respondent contends that the EAW complies with the provisions of the 2003 Act. Her case is that the sentence that flowed from this offence was a one year term of imprisonment together with the activation of a previously suspended term of imprisonment imposed for the 2006 offence. Her case is that the activation of the suspended term in the 2006 offence was not a re-sentencing exercise but merely a punishment that automatically flowed from the conviction for the 2007 theft offence. In consequence Miss Rafter says that it follows that the EAW is correct only to refer to the 2007 offence which led to a total sentence of 2 ½ years imprisonment.

V. Discussion

21. In my view it is necessary to bear in mind that the policy of the Framework Decision on which the 2003 Act was based was to ensure mutual recognition of judicial decisions in criminal matters. Indeed the last sentence of paragraph 5 of the Preamble of the Framework Decision states that:-

"Traditional co-operation relations which have prevailed up until now between Member States shall be replaced by a system of free movement of judicial decisions in criminal matters, covering both pre-sentence and final decisions, with an area of freedom, security and justice."

22. This means that the scrutinising role of an executing member state is fairly limited. Thus Lord Hope of Craighead giving the reasoned speech of the unanimous decision of the House of Lords explained in Pilecki v. Circuit Court of Legnica Poland [2008] 1 WLR 325, 334 that:-

"28.. There is no indication [in paragraph 8] or anywhere else in the Framework Decision that the sentence needs to be examined more closely to see how it was arrived at. There is no indication that it is any concern of the executing member state to enquire as to the number of offences to which the sentence relates, if there was more than one. It is the length of sentence that the requested person is to be required to serve, and the length of that sentence alone, that determines whether or not it falls within the scope of a European arrest warrant."

23. Lord Hope proceeded to say that:-

"29..All the executing state needs to know in these circumstances is whether the sentence was one for at least four months. It is not for the judicial, authorities and the executing member state to question how the sentence was arrived at".

24. This shows that this court should not embark on the exercise contended for by the appellant of looking in detail to see how the total sentence of 2 ½ years was comprised. The EAW stated that that the total sentence was 2 ½ years as I have explained in paragraph 12 above. To my mind, that is an answer to the appeal.
25. There is an additional reason why I am unable to accept the able submissions made on behalf of the appellant and that is because extradition is being sought solely on the basis of the conviction for the 2007 theft offence which triggered the extradition application. The sentence imposed for it was not merely the term of 12 months but also the activated suspended sentence for the 2006 offence as until the sentencing for the 2007 offence had taken place, there was no prison sentence in force for the 2006 offence.
26. I must stress that the underlying philosophy behind the Framework direction and the 2003 Act is that the spirit of cooperation between EAW member states has to be respect. That means in the words of Richards LJ in Sidlauskaite v Lithuania [2006] EWHC 3486 Admin was that:-

"12…this is an area where... it seems to me one should not be too astute to look for technical points concerning the precise meaning given to individual words used in the warrant".

27. Those sentiments seem to be highly relevant here even taking into account as Lord Hope of Craighead explained in Office of King's Prosecutor Brussels v. Candoarmas [2006] 2 AC 1:-

"[24]... The liberty of the subject is at stake here, and generosity [on the construction of extradition treaties and statutes] must be balanced against the rights of persons who are sought to be removed under these proceedings".

28. This approach leads to the conclusion that even if there was an error in the EAW, it was not material because it would have been clear that the total sentence was 2 ½ years.
29. For all those reasons and notwithstanding the clear and careful submissions of Miss Westcott this appeal must be dismissed.