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 WC2A 2LL
		13 March 2012

1. MR JUSTICE KENNETH PARKER: On this appeal the United Arab Emirates seeks the extradition of the appellant Constantine Florin Tudor, a Romanian citizen now aged 30, for one offence of robbery committed on 1 July 2007.
2. Extradition between the United Kingdom and the UAE is governed by provisions in part 2 of the Extradition Act 2003, ("the Act") and the Extradition Act 2003 (Designation of Part 2 Territories) Order (S.I. No 3334/2003, as amended).
3. The UAE was designated as a Part 2 territory by the Extradition Act 2003 (Designation of Part 2 Territories) Order 2003 (S.I. No 1589/2008). In the Designation of Part 2 Territories Order the UAE has not been designated for the purposes of certain sections of the Act with the result that the UAE has to furnish evidence of a prima facie case.
4. The appellant is sought in relation to one offence of robbery contrary to Articles 382 and 385 of the Federal Penal Code. The particulars of the offence are that on 1 July 2007, the appellant robbed the Ramalla Jewellery Store in Dubai of several gold rings valued in sterling at about £42,000 by spraying a teargas like substance in the face of the salesman who was showing him the rings and then fleeing with the rings.
5. The appellant is an accused person in relation to the offence which carries a maximum penalty in the UAE of 15 years imprisonment.
6. The relevant section of the Act is Section 84, which I set out:

(1)If the judge is required to proceed under this section he must decide whether there is evidence which would be sufficient to make a case requiring an answer by the person if the proceedings were the summary trial of an information against him.

(2)In deciding the question in subsection (1) the judge may treat a statement made by a person in a document as admissible evidence of a fact if—

(a) the statement is made by the person to a police officer or another person charged with the duty of investigating offences or charging offenders, and

(b) direct oral evidence by the person of the fact would be admissible.

(3)In deciding whether to treat a statement made by a person in a document as admissible evidence of a fact, the judge must in particular have regard—

(a) to the nature and source of the document;

(b) to whether or not, having regard to the nature and source of the document and to any other circumstances that appear to the judge to be relevant, it is likely that the document is authentic;

(c) to the extent to which the statement appears to supply evidence which would not be readily available if the statement were not treated as being admissible evidence of the fact;

(d) to the relevance of the evidence that the statement appears to supply to any issue likely to have to be determined by the judge in deciding the question in subsection (1);

(e) to any risk that the admission or exclusion of the statement will result in unfairness to the person whose extradition is sought, having regard in particular to whether it is likely to be possible to controvert the statement if the person making it does not attend to give oral evidence in the proceedings.

(4)A summary in a document of a statement made by a person must be treated as a statement made by the person in the document for the purposes of subsection (2).

(5)If the judge decides the question in subsection (1) in the negative he must order the person's discharge.

(6)If the judge decides that question in the affirmative he must proceed under section 87.

(7)If the judge is required to proceed under this section and the category 2 territory to which extradition is requested is designated for the purposes of this section by order made by the Secretary of State—

(a) the judge must not decide under subsection (1), and

(b) he must proceed under section 87.

(8)Subsection (1) applies to Scotland with the substitution of " summary proceedings in respect of an offence alleged to have been committed by the person (except that for this purpose evidence from a single source shall be sufficient) " for "the summary trial of an information against him".

(9)Subsection (1) applies to Northern Ireland with the substitution of " the hearing and determination of a complaint " for "the summary trial of an information".

7. The grounds of appeal initially raised two grounds. The first relating to the ECHR is no longer pursued, and the only ground relied upon now is that the appellant's extradition is barred under Section 84 of the Act.
8. The district judge, relying on a number of signed records of interviews conducted by a prosecutor with five persons, found that there was a case to answer. It is that finding that is challenged in this appeal and it is the signed records of interviews that constitute the principal focus of the appeal. It is therefore convenient briefly to set out the nature and content of those records.
9. The first is a record of interview given by Iyont Marius Marin. The statement was made by Mr Marin to the public prosecutor on 10 July 2007. It is signed by him, the translator, the secretary and the prosecutor on every page. Mr Marin provides evidence in his statement that the appellant told him over the telephone that he had stolen the rings in question from Ramalla Jewellery's at the Gold Souk. He states:

"He told me on the phone that on Sunday corresponding to 1 July 2007 at 2.00 pm he managed to usurp the gold jewelries before several hours from a shop called Ramalla Jewelries located in Gold Souq after he managed to spray the teargas on the eyes of the salesman."

10. He goes on to state that the appellant gave him some of the golden rings stolen by him in order to pay for the expenses of his stay which Mr Marin had paid.
11. The second statement is by a Ms Mehala Sitshifisi. She gave a statement in the same form. She says that the appellant gave her two of the gold rings he had taken from the Gold Souk.
12. The third was from Ms Maarta Shescoviskey, again a statement in the same form, in which she says that the appellant gave her 30 gold rings on 1 July 2007.
13. A fourth statement is from Ms Nenka Te Abat Adazi. This witness gave a statement again in the same format in which she stated she that she handled some of the rings taken by the appellant.
14. Then the fifth and final statement is from the victim, a Mr Bhai. He gave a statement in which he provided a description of his assailant and of being sprayed with teargas and of a large number of rings being stolen from the Ramalla Jewellery Store on 1 July 2007.
15. The victim's statement corresponded with the description of the robbery given by the witness Marin. The first four witnesses were subsequently prosecuted for possessing stolen property, namely the rings stolen from the Ramalla Jewellery Store. Adazi was acquitted, Marin received three months custody and was ordered to be deported. On 22 February 2012 the senior chief prosecutor in the office of the Attorney General in Dubai wrote on behalf of the government of the UAE that Marin had been deported from the UAE on 15 February 2008. Sitshifisi initially received three months custody and was ordered to be deported but that sentence was reduced to a fine on appeal. Shescoviskey was fined. Legal proceedings against all these persons had been concluded by the time of the hearing before the district judge.
16. The first issue on the appeal is whether the records of interview, in particular the interview with Marin, who, as set out earlier, directly implicated the appellant in the robbery of the Ramalla Jewellery Store, are statements within Section 84(2) of the Act. As Mr Steven Vullo on behalf of the appellant points out, and as the district judge noted, they are not in a form that witness statements obtained for the purpose of criminal proceedings would take in the United Kingdom. They do not, for example, contain an explicit statement of truth or an acknowledgment of the consequences that could result if the statement were known by the maker to be false.
17. However, Section 84(2) of the Act does not require that something that on its face is a statement within the ordinary meaning of that term should take the exact form of statements made for the express purpose of prosecution in the United Kingdom. Under Section 84(3a) the court must consider, in determining whether a statement should be treated as admissible evidence, the nature of the document. In this case, all the relevant statements contained averments of fact and fell within the criteria of Section 84(2a). Furthermore, they were signed in the presence of the prosecutor as an indication of the witness's belief in the accuracy of their contents.
18. Mr Vullo also submits that the statement of Marin could not under Section 84(2b) be treated as admissible evidence of any relevant fact because he says direct oral evidence by Marin of any relevant fact would not be admissible if the proceedings were the summary trial of an information against him. Mr Vullo contends that Marin is a co-accused and that in the putative summary trial referred to in Section 84(1) he would not be able to give admissible evidence. Therefore direct oral evidence of Marin would not be admissible at such a trial.
19. That is undoubtedly the position in domestic law so far as co-accused are concerned: see the Youth Justice and Criminal Evidence Act 1999, Section 53(4) and (5) which is set out in Archbold at paragraph 853. This preserves the long-standing restriction imposed by the Common Law and illustrated by R v Payne [1951] All ER 102. However, prosecutors have long been able to circumvent this restriction in practice either by terminating the proceedings against the accused, for example through a nolle prosequi by the Attorney General or by first completing the accused's trial before prosecuting his co-accused. In either case, the accused ceases to be a co-accused within the meaning of the Youth Justice and Criminal Evidence Act and the legal restriction on the competency of an accused no longer pertains. If it had been the case that Mr Marin was simply an incompetent witness, I can see that an argument could properly be advanced under Section 84(2) that direct evidence from Mr Marin would not have been admissible at a summary trial.
20. That, in my judgment, is the only criterion that needs to be satisfied. Mr Vullo suggested that it was necessary to go further, that a further criterion should be read into section 84 whereby domestic rules about admissibility of interviews made at a time when an accused is a co-accused may not be admitted in evidence. However, there is no such reference at all in Section 84 to any such further matters. The only matter that has to be considered is whether Marin would have been a competent witness.
21. In this case it is not disputed that Marin had already been sentenced and dealt with by the time of any putative summary trial. At the putative summary trial he would be competent to give evidence on behalf of the prosecution and his evidence that the appellant had confessed to the robbery would be admissible evidence of the fact that the appellant had indeed committed the robbery, under the relevant Common Law exception to the exclusionary hearsay rule, specifically preserved by Section 118 of the Criminal Justice Act 2003.
22. However, Mr Vullo also contends that it does not appear that Marin would attend any actual trial in the UAE if the appellant were returned and stood trial for the robbery. That is in my view a matter of some speculation. Marin could, notwithstanding the terms of the letter, still be summoned to give evidence although I accept that it might be improbable that he would return to the UAE for that purpose. He might alternatively give evidence by video link if the appropriate technology were available. But the essential point in this context is that Section 84(2)(b) does not require the court deciding whether there is a case to answer to speculate whether direct oral evidence by the maker of the statement will in fact be given at the actual trial of the accused person in the requesting state. The only criterion under that section is whether in the putative summary trial such direct oral evidence would be admissible and the answer to that question in the present case for the reasons already given is plainly in the affirmative.
23. It may be that the court in deciding whether to admit a particular statement would have regard, and is directed to have regard, to section 84(3e), dealing with the specific risks of admitting on the putative summary trial hearsay statements, given that in some circumstances it may be unfair to do so because the requested person would not be able to controvert in a sensible way the material set forth in a statement unless the maker of that statement were at the trial giving evidence that could be cross-examined upon.
24. On making enquiry with Mr Vullo this morning as to whether any specific submissions along those lines were advanced to the district judge in this case, it did not appear that the argument had been presented in that way. However, there is no reason to believe that the district judge did not have regard to the matters set out in Section 84 but nonetheless concluded that in this particular case the interests of justice did not require the exclusion of the hearsay statement of Marin, notwithstanding the content of the statement and the circumstances in which it was given.
25. That deals with the first contention. In summary, Section 84 creates a specific code for extradition proceedings, the criteria in Section 84 have to be satisfied. They were satisfied for the reasons given in this case.
26. The final question touched upon is whether the material would be sufficient to make a case requiring an answer by the appellant, see the Government of India v Shri Palanlappan Rajarathinam [2006] EWHC 2919 (Admin) at paragraph 8 by Lord Justice Latham. The district judge, applying the well-known principles of Galbraith found that there was a case to be answered.
27. There was a suggestion in the grounds of appeal that there could not be a case to answer because the sole or decisive evidence against the appellant was a hearsay statement by Marin that the appellant had confessed to the robbery. It is questionable whether Marin's statement would be the sole or decisive evidence, given that the evidence of four other witnesses tended to show that the appellant was in possession of a large number of rings stolen from the jewellery shop shortly after the robbery. How the appellant had so shortly after the robbery a large quantity of rings stolen in the robbery in his possession remains wholly unexplained.
28. In any event, it is now established that a conviction based solely or to a decisive extent on the statement of a witness whom the defendant has had no chance of cross-examining does not necessarily infringe the right to a fair trial, see the R v Horncastle and Others [2009] UK Supreme Court 14. In this case it was necessary to look at the evidence as a whole, namely the statement of the victim as to how the robbery was committed, the evidence of Marin that the appellant had been committing a robbery that fitted the victim's description, and the evidence of the other witnesses confirming that the appellant had in his possession shortly after the robbery a substantial quantity of rings stolen in the robbery.
29. I agree with the district judge that this evidence taken together established a case to answer. For these reasons I would dismiss this appeal.
30. LORD JUSTICE RICHARDS: I agree.
31. MR JONES: My Lords, the transcript may require one small correction. I believe on the first occasion your Lordship referred to the robbery as occurring on 10 November 2009.
32. MR JUSTICE KENNETH PARKER: Did I? I am sorry about that.
33. MR JONES: I can see why because it was misstated in the papers but the second time it was correctly stated as 1 July 2007.
34. MR JUSTICE KENNETH PARKER: 1 July, isn't it? Yes, I will note. Thank you very much.
35. LORD JUSTICE RICHARDS: Thank you both.