England and Wales High Court (Administrative Court) Decisions

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

		Royal Courts of Justice The Strand London WC2A 2LL
		28 March 2012

Wednesday 28 March 2012

MR JUSTICE COLLINS:

1. This is an appeal against a decision of a district judge ordering the appellant's extradition to Romania to serve sentences totalling five years' imprisonment which were imposed for offences of what in this country would be causing death by dangerous driving and also causing serious injury when he was in drink and did not have a licence. Although he was represented before the trial court, he clearly was not believed. He appealed against the conviction in Romania. His appeal was dismissed. There is a system there, applied in his case, that the sentence did not have to be served until the appeal was dealt with. In the meantime he left Romania and came to this country.
2. When the extradition warrant was executed here the appellant first pretended that he was not the individual to whom it related, that that was his brother. That lie was very shortly known. When he appeared before the district judge he gave evidence initially that he had not attended the trial in Romania because he had not been aware of the proceedings. Further information was obtained from Romania which established clearly not only that he had attended but that he had been represented at the hearing. When cross-examined he admitted that what he had originally said was not true. His case then was that the Romanian system was corrupt and that his defence lawyer was also corrupt and had not properly represented him.
3. No evidence was produced before the district judge to support those contentions but the appellant asked for an adjournment in order, he said, to produce such material. That application was refused, in my view properly refused, on the basis that it is not the business of the court in this country to go into issues as to the propriety of the trial in the country which requests extradition. That is not consistent with the basis upon which the European Arrest Warrant system depends. My only caveat would be that it may be that if there were unimpeachable evidence that something had gone badly wrong in the country in which the conviction had been recorded, this court might, for example because there was a clear breach of Article 6, act, but it would need a very clear and a very strong case to produce that result. This case comes nowhere near that.
4. Very much at the last minute, before this court, the appellant has sought to introduce through his solicitor general material showing, it is said, concerns about corruption in the court system and in the justice system generally in Romania. There is nothing that deals directly with the circumstances of the appellant.
5. The problem, as Mr Otchie recognises, is that the general rule is that this court will not entertain evidence which could and should have been produced before the district judge when there is no good excuse for the failure to produce it earlier. The reason it was not, one suspects, was because the appellant chose to tell lies initially and to perjure himself about the circumstances of the trial in Romania.
6. Be that as it may, I am doubtful whether that evidence would properly have been admitted, but even if it had been, it takes the appellant's case nowhere because it is all very general and does not in any way deal with the circumstances of the appellant's case. He lied initially by pretending that he was his brother, perjured himself in the evidence that he gave before the district judge and so, not surprisingly, the district judge took the view that he was not a trustworthy witness in any way and did not believe any of the account that he gave about the corruption and the difficulties that resulted in Romania in his case. There is no good reason for me to go behind those findings which were based upon the evidence heard by the district judge.
7. The reality is that this is a completely hopeless appeal. It is surprising, to put it no higher, that the solicitors and counsel should have felt it appropriate to pursue the arguments to this court. They are totally without merit. This appeal is accordingly dismissed.
8. Mr Otchie, I have seriously considered whether this is an appropriate case for a wasted costs order.

MR OTCHIE: My Lord, I do hear your judgment, and indeed it is a very difficult procedure to appeal any extradition.

MR JUSTICE COLLINS: No, it is not, it is very easy. It should be relatively easy to see whether there is actually any merit in an appeal.

MR OTCHIE: My Lord, it is on firm instructions that that is what the appellant says. He maintained, until the prison visit which took place earlier this week, his innocence and indeed his evidence has been as it is. So it is the duty of counsel to put those arguments before the court.

MR JUSTICE COLLINS: That is not the case. It is contrary to the Code of Conduct of the Bar, and indeed of the solicitors, to pursue arguments which are known to be without merit, whatever your client may want you to do. You are aware of the Code of Conduct, I imagine?

MR OTCHIE: Indeed, yes. My Lord, there are human rights arguments and indeed the possibility that he did not commit the crime. I appreciate that you have made your judgment. He insists on his innocence on those grounds. Indeed, that is the basis of the appeal.

MR JUSTICE COLLINS: Yes, all right. You have come within a whisker, but I am aware of the problems in relation to wasted costs, so in the circumstances I will not make such an order. But watch it in the future. You and your solicitors must consider carefully whether the arguments, whatever the client may want, are arguments that can properly be pursued before the court.

MR OTCHIE: Noted, my Lord.

MR JUSTICE COLLINS: Mr Gibbins, I imagine that, as usual, you make no application?

MR GIBBINS: No, my Lord.

LORD JUSTICE COLLINS: Very well.