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Cite as: [2014] EWHC 4401 (Admin)

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		Neutral Citation Number: [2014] EWHC 4401 (Admin)
		CO/5749/2014

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

Royal Courts of Justice
Strand
London WC2A 2LL

12 December 2014

B e f o r e :

MR JUSTICE HOLROYDE
____________________

Between:

	MARCEL ARAVA	Appellant
	v
	COURT OF CONSTANTA, ROMANIAN JUDICIAL AUTHORITY	Respondent

____________________

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____________________

Mr David Jones (instructed by Lansbury Worthington) appeared on behalf of the Appellant
Mr Nicholas Hearn (instructed by the Treasury Solicitor) appeared on behalf of the Respondent
____________________

HTML VERSION OF JUDGMENT
____________________

MR JUSTICE HOLROYDE: This is an application for bail pending extradition proceedings by Marcel Arava. The history is a lengthy and rather complicated one. In very brief summary, Mr Arava was arrested in 1990 in his native Romania and was accused of murder. He denied that allegation. He was detained in custody for some ten days, during which, he says, he was badly treated, but was then released without charge and without being subject to any form of bail. In 1991, on a date which does not emerge with clarity from the papers before the court, he legitimately obtained a passport in Romania, left that country and went to the United States of America. He entered the United States illegally, but having done so he successfully claimed asylum.

Meanwhile, on I believe 19 June 1991, an indictment charging him with murder had been issued against him in Romania. In the following months he was tried and convicted in his absence, and on 5 February 1992 he was sentenced to 14 years' imprisonment in Romania. That conviction and sentence were successfully appealed. Quite what mechanism brought about that favourable result is, as yet, unclear, because Mr Arava's case is that he was ignorant of the conviction and indeed ignorant of the successful appeal until he was told about some proceedings by his parents in 1994. Mr Jones, who represents Mr Arava's interests today, suggests to me that it may simply be a feature of the Romanian legal system that the court may appoint a legal representative who may conduct proceedings and bring appeals on behalf of the accused person without the accused person necessarily knowing about it.

It seems that in 1994 Mr Arava was again tried for murder in Romania and was again convicted in his absence. His case is that he learned from his parents that that was so, and he returned to Romania where he successfully appealed against his conviction. He then remained in Romania for a number of years, during which time he married, later divorced and then met his present wife. In I think 1995, it seems he was arrested and detained for about 30 days, but no charge was brought.

Although again the date is uncertain, it seems that Mr Arava and his wife came to the United Kingdom in about 1998. They entered this country illegally. Mr Arava made a claim for asylum which failed. He nonetheless remained in the United Kingdom with his wife, and over the years which have passed since then three children have been born to them.

It seems that the applicant Mr Arava was yet again tried in his absence in about 2000, and in 2002 was sentenced to 12 years' imprisonment. It may be that that was his second rather than his third such conviction; the chronology is, as I have indicated, a lengthy and rather complicated one. In any event, it does appear that the 2002 conviction and sentence of 12 years' imprisonment were the subject of unsuccessful appeals, both to the Appeal Court and then to the Supreme Court in Romania. Again, these events are less than clear because Mr Arava says he knew nothing about that conviction and he did not initiate any appeal.

So it comes about that Mr Arava stands convicted in his native country of murder and sentenced to 12 years' imprisonment. An arrest warrant has been issued against him on the basis of that conviction. It was issued by the Court at Constanta in Romania on 27 March 2014, and was certified by the National Crime Agency on 23 April 2014.

The request to extradite Mr Arava from this country to Romania is contested by Mr Arava. It is apparent from the submissions of counsel, and from a very helpful document prepared by counsel previously instructed on behalf of Mr Arava, that substantial issues will be raised in the extradition proceedings as to the very lengthy delay involved in the criminal proceedings in Romania; as to whether Mr Arava had any knowledge of the trials in his absence; as to whether he has any guaranteed right to a retrial in Romania; and as to the likely conditions in prison should he be returned to that country. I accept the submission that there are serious matters to be raised, but they are, in my view, matters to be considered fully at the extradition proceedings, presently listed for 16 January 2015.

Mr Arava was arrested pursuant to the warrant on 10 June 2014, outside the home which he shares with his wife and children. He immediately gave a false name and date of birth. It may well be those are the personal details of his brother-in-law. Whether or not they are, it is significant that they were the same false details which Mr Arava had given when he was arrested in 2003 for an offence of driving with excess alcohol, which is his only conviction in this country. Thus, the immediate response of Mr Arava when questioned by a police officer as to his identity was to give false details. He sought most unconvincingly to maintain that false identity for a short time, but quite soon afterwards conceded that he had given false information and confessed his correct name. It may be noted, however, that he only made that confession after he had been told by a police officer that his fingerprints matched those in the Romanian records of Mr Arava's conviction.

That then is the background to the present application. On behalf of the Judicial Authority, Mr Hearn submits that this is a conviction case and there is therefore no presumption of an entitlement to bail. He submits that there is here a substantial risk that the applicant Mr Arava will fail to surrender if granted bail. Mr Hearn points in particular to two features of the case: the nature of the conviction and the length of the sentence which await Mr Arava if he returns to Romania; and the history of Mr Arava's illegal arrival in this country and use of an alias both in 2003 and 2014. In those circumstances, submits Mr Hearn, no conditions of bail could reassure the court that Mr Arava would surrender to bail for his extradition hearing in January.

Mr Jones, on behalf of Mr Arava, submits that the court can and should grant bail, notwithstanding his acceptance that there is here a conviction of murder. Mr Jones relies on the fact that two close friends of Mr Arava in this country have expressed their willingness to put forward a total sum of £15,000 by way of security. He submits, and I readily accept, that the proposed securities are not wealthy men and that their willingness to give security in such an aggregate sum is a powerful indication of their trust in their friend, Mr Arava.

Mr Jones invites the court to regard the giving of a false name on arrest as a panic reaction and not something to be held against Mr Arava on this application. He submits that the arguments which Mr Arava can put forward to resist his extradition are cogent arguments and that Mr Arava therefore has every reason to wish to attend his extradition hearing so as to defeat the application made against him. In this regard, Mr Jones points to some documentary evidence supportive of Mr Arava's basic contention that he was not aware of the proceedings taken against him in his absence in Romania.

I have weighed the competing submissions on each side. I accept, as I have already indicated, that there are serious issues to be raised in the extradition hearing. However, the giving of a false name when confronted by the police, the attempt to maintain that false name even when challenged and the fact that the same false name had been given on a previous encounter with the police are, in my judgment, significant factors. So too is the fact that many years ago he entered the United States unlawfully and that some years later he entered this country unlawfully.

No doubt Mr Arava wishes to stay with his family, but that, in my judgment, does not mean that he is not a flight risk. Even if the giving of a false name were regarded as a panic reaction, it is nonetheless relevant to the present application, because any such panic would probably be attributable to the fear of the serious consequences which Mr Arava faces if returned to his native country.

In those circumstances, I am satisfied that there is a substantial risk here that if granted bail Mr Arava would not surrender to that bail and appear at the extradition hearing in January. Accordingly, and notwithstanding Mr Jones' endeavours on Mr Arava's behalf, this application fails and is refused.