England and Wales High Court (Administrative Court) Decisions

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

		Royal Courts of Justice Strand London WC2A 2LL
		13 October 2010

1. MR JUSTICE OUSELEY: The first matter which I have to decide in relation to this extradition appeal under part 1 of the 2003 Act is whether to accede to an application for an adjournment made today by Mr Florescu, the appellant.
2. The appellant's extradition is sought by the High Court of Law ERC Romania for him to serve a one year sentence for possession of cannabis. The matter came before Tubbs DJ on 18 May, when the appellant was represented by the duty solicitor. No grounds were raised to contest the extradition and so extradition was ordered. The appeal was lodged within due time, the grounds of appeal were lodged on 23 June 2010 by Blavo and Co Solicitors. The first ground complained that the duty solicitor had been rushed and did not raise the issue that the sentence originally imposed was suspended. It sought information from the requesting state as to when, whether and in what circumstances the suspension would be activated. The grounds of appeal also raised issues concerning prison conditions, notably the absence of treatment for bronchitis and hepatitis in prison in Romania; persecution by gypsy gangs, in prison and out of it; and an irrelevant point concerning the clarity of the warrant.
3. On 6 August 2010 a solicitor advocate, Mr Fidler, put in a skeleton argument. There were essentially two grounds of appeal. The first ground was that the sentence had been suspended and there was no sufficient information as to how the custodial sentence came to be imposed, and the second issue was that the sentence of one year for possession of cannabis was disproportionate and contravened the provisions of Article 49 of the Charter of Fundamental Human Rights in the European Union. The skeleton argument did not deal with the issues in relation to prison condition and protection from gangs raised in the grounds of appeal.
4. The advocate, Mr Fidler, spoke to the appellant on about Monday 6 October. On or by 7 October, Mr Florescu had told Mr Fidler that he wished to dispense with the services of both Blavo and Mr Fidler. On the morning of 8 October Mr Florescu wrote a letter to the court saying that that was indeed the position. The matter came before King J on 8 October who adjourned the matter until today. He did so on the basis that it would provide an opportunity for Mr Fidler to speak to Mr Florescu and enable Mr Florescu to continue, if he was so minded, with the representation he already had, or alternatively to enable Mr Florescu to be produced and to proceed, representing himself had he not been able to obtain alternative representation.
5. Mr Florescu this morning has confirmed that he does not wish to continue to be represented by Mr Fidler or Blavo and Company. Mr Fidler, courteously, has been present to explain the background i.e. that he had had discussions with Mr Florescu but his services had been dispensed with, as Mr Florescu himself confirmed.
6. Mr Florescu now seeks an adjournment in order that he can instruct a different firm of solicitors. He has made contact, through an intermediary, with a firm of solicitors in Manchester which he tells me has been willing to consider or take on his case. No letters confirming that have yet been received but he says that that is the position. He asks for the adjournment therefore on two bases. First, he contends that he should be represented; and secondly he wants an adjournment so that he can provide or obtain evidence which would deal with what to him is the real point of concern, which is whether his treatment in Romania in and out of prison, putting it in legal language, would amount to a breach of Article 3 such that his extradition, risking such a breach, should be stopped under section 21 and the appeal allowed. This application for an adjournment is opposed.
7. Dealing first with the question of fresh representation, it is only too easy for an appellant to contend that his representation is inadequate; not "professional enough" is how Mr Florescu put it; he did not like the way they did it. He accepted that there had been video conference contact before Mr Fidler spoke to him on Monday, again on Thursday and Friday, and again this morning. I am unwilling to conclude on the basis of what Mr Florescu has said and on the basis of what I have seen that there has been any deficiency in the representation which he has received. He has, in my judgment, decided to take his own chances, in trying to switch representatives, that no adjournment would be granted. The extradition procedures are intended to be operated expeditiously and last minute switches of representation are not conducive to that if they lead to adjournments being granted. I do not consider there is an adequate basis for an adjournment in terms of deficiency of representation. I am not satisfied, therefore, that an adjournment to enable a new firm to be instructed, on the tentative evidence which I have had, would be justified either.
8. In reaching those views I have necessarily formed some preliminary view about the merits of the points being raised in the grounds of appeal and skeleton argument. I emphasise that is a provisional view. Of course if an adjournment is refused but argument persuades me that, nonetheless, an adjournment should be granted, so be it.
9. The second basis upon which Mr Florescu seeks an adjournment is, in reality, so that he can put in evidence relating to his assertion that he would be at risk of a breach of Article 3 rights were the case to be continued and his extradition appeal dismissed. Before any such case could be made, evidence would have to be provided to this court. It is perfectly clear that such evidence would have been available before the district judge because it concerns things which Mr Florescu knew of at the time of the hearing before the district judge. Nothing was said about it, no adjournment was sought, even for a short time, to enable evidence to be provided.
10. In my judgment, it would require cogent material to have been provided now for an adjournment to be granted in order for further evidence to be provided. The matter in Mr Florescu's mind has been around as an issue for several months. He has done nothing, as he could have done, to provide evidence. He is obviously an intelligent man with a good command of English and, I believe, of legal procedure, but nothing has been forthcoming, even in whatever informal manner. It is, in my judgment, too late, absent anything that may emerge here after in the course of what he may tell me, to allow an adjournment for further evidence, which would include expert evidence, to be received.
11. I am also mindful of the fact that the burden on somebody seeking that an appeal be allowed on the grounds that there is a risk to his rights under Article 3 is a very high one, bearing in mind that the requesting country here is a party to the ECHR and is a member of the European Union. For those reasons, I refuse this application for an adjournment.
12. I will hear what Mr Florescu wishes to say in relation to his appeal representing himself.
13. MR FLORESCU: My Lord, I am not in a position -- I am not prepared to defend myself.
14. MR JUSTICE OUSELEY: Very well. There is nothing you wish to say, thank you, sit down.
15. MR FLORESCU: Thank you, my Lord.
16. Mr Florescu, representing himself, adds nothing by way of support to the arguments set out in the grounds of appeal and in his skeleton argument in the light of my refusal of an adjournment, but I ought to deal with the points that are raised. The first ground concerns the question of whether the sentence imposed was a suspended sentence. In order for that to be understood I should read the warrant:

"The enforceable judgment is described as penal sentence number 806 from 4 November 2004, pronounced by the High Court of Law of Lasi, modified by the penal sentence number 178 from 3 May 2005 pronounced by the Court of Appeal of Lasi, maintained and remained definitive sentence by penal sentence number 5910 from 20 October 2005 pronounced by the High Court of Cassation and Justice penal section". (Sic)

There is no reference in that to the sentence being suspended. Nonetheless, Mr Florescu is in the United Kingdom and his extradition is sought.

17. On the face of it, there is nothing in the warrant that confirms what he says but it is not impossible that the description of the sentencing process is that there was originally a suspended sentence and the later decisions were decisions which activated that suspended sentence. However, in my judgment, where that happens the European Arrest Warrant is not defective and is effective to require the return of the appellant to serve the sentence that has been activated. In my judgment, that is clear from the decision of the Divisional Court in Cushter(?) v District Court of Czestochowa Poland [2010] EWHC 432 Admin
18. If activation of a suspended sentence were evidenced, then for there to be a possible argument against extradition, there would have to be some evidence that the procedures for activating the sentence were not complied with or could not be re-examined on return, and their activation was the basis upon which extradition was sought. That is not the position here.
19. The second ground of appeal concerning proportionality does not relate to Article 8. It is perfectly clear that the sentence is not so disproportionate as to breach Article 3 of the European Convention on Human Rights. The case is put on the basis of Article 49(3) of the Fundamental Charter of Human Rights, which does not apply to the United Kingdom and Poland in the way that it applies to other countries. In any event, it would be a mistake to read Article 49(3) as enabling a court in this country to examine proportionality of sentence in the way it would have to for the argument to have any force. On any view, and I bear in mind the article by Vogel and Spencer to which Mr Fidler drew attention in the course of his skeleton argument, the disparity between offence and sentence would have to be a very remarkable one, even were Article 49(3) to be available as a potential bar to extradition. It is not possible to suggest that such disproportionality exists here.
20. Finally, Mr Florescu relies upon the grounds of appeal that he would face persecution by gypsy gangs and not receive treatment for his health problems. Even if there had been evidence that he faced a risk in those respects, the approach of the court would be that evidence would also be required that the Romanian prison system would be unable, even with the potential for action through the European Court of Human Rights or other enforcement measures, to afford a proper, though not guaranteed, degree of protection from persecution in prison by non-state agents. The fact there may be a risk, if what Mr Florescu says is correct, could not of itself act as a bar to extradition.
21. This court would, in relation to a part 1 case, as has been made clear time and again, reach its decisions on the basis that it would expect, absent very cogent evidence, that a member of the Council of Europe, and more particularly a member of the European Union, would afford an adequate degree of protection. The health care point does not engage Article 3 at all in view of what has been said and the high threshold for a possible breach of Article 3 in relation to health care.
22. For those reasons this appeal is dismissed.
23. I do not consider, having dealt with the matter in that way, that any adjournment would be appropriate in the light of anything that I have heard or the reasoning that I have given, so I do not think it necessary to revisit my earlier refusal of an adjournment.
24. Thank you, Mr Florescu. Your appeal has been dismissed.
25. MR FLORESCU: Thank you, my Lord.