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
		29 April 2015

1. SIR STEPHEN SILBER: Introduction
2. Marcel Arava appeals against a decision of District Judge Snow made on 16 January 2015 at Westminster Magistrates' Court ordering the appellant's extradition to Romania as a result of a conviction European Arrest Warrant issued out of the Court of Constanta in Romania on 27 March 2014 and certified in this country by the National Crime Agency on 23 April 2014. The appellant's extradition is sought to serve a sentence of imprisonment of 12 years in respect of an offence of murder which the appellant committed on the night of 26/27 December 1989.
3. In the lower court the appellant contested the extradition proceedings by raising a number of issues under section 14, section 20 and section 21 of the Extradition Act 2003 (" the 2003 Act"). The District Judge conducted an extradition hearing. He heard live evidence from the appellant, who was cross-examined, and he received written evidence from Mr Marin Abaseaca and Ms Andreea Radu, who were two Romanian lawyers instructed by the appellant as well as further information from the judicial authority. The District Judge delivered a reserved judgment and he dismissed each challenge to the extradition.
4. The appellant's representatives in the amended grounds of appeal have indicated that they only rely on two of the grounds which were raised before the District Judge, they being section 14, which relates to passage of time giving rise to injustice and/or oppression; and section 20, which contains a prohibition on extradition where there was a conviction in absence without the guarantee of a retrial. Mr Gavin Irwin, who appears on the appellant's behalf, accepts that my task is to see if the District Judge was plainly wrong in the decisions at which he arrived.
5. section 14
6. Section 14 of the 2003 Act, that provides that:

i. "Passage of time

ii. A person's extradition to a category 1 territory is barred by reason of the passage of time if (and only if) it appears that it would be unjust or oppressive to extradite him by reason of the passage of time since he is alleged to have—

iii. (a)committed the extradition offence (where he is accused of its commission), or

iv. (b)become unlawfully at large (where he is alleged to have been convicted of it)."

7. It will be seen that two important words in this provision are "unjust" and "oppressive". They were construed in the context of a previous Act by Lord Diplock in Kakis v Government of Cyprus [1978] 1 WLR 779, in which he said:

i. "'Unjust' I regard as directed primarily to the risk of prejudice to the accused in the conduct of the trial itself, 'oppressive' as directed to hardship to the accused resulting from changes in his circumstances that have occurred during the period to be taken into consideration; but there is room for overlapping, and between them they would cover all cases where to return him would not be fair."

8. The matter was revisited by the House of Lords in Gomes & Goodyer v Trinidad and Tobago [2009] UKHL 21, in which consideration was given to the circumstances in which a fugitive from justice could rely upon the statutory passage of time. Lord Brown explained at paragraph 26:

i. "True it is that Laws LJ then added: 'An overall judgment on the merits is required, unshackled by rules with too sharp edges.' If, however, this was intended to dilute the clear effect of Diplock para 1, we cannot agree with it. This is an area of the law where a substantial measure of clarity and certainty is required. If an accused like Goodyer deliberately flees the jurisdiction in which he has been bailed to appear, it simply does not lie in his mouth to suggest that the requesting state should share responsibility for the ensuing delay in bringing him to justice because of some subsequent supposed fault on their part, whether this be, as in his case, losing the file, or dilatoriness, or, as will often be the case, mere inaction through pressure of work and limited resources. We would not regard any of these circumstances as breaking the chain of causation (if this be the relevant concept) with regard to the effects of the accused's own conduct. Only a deliberate decision by the requesting state communicated to the accused not to pursue the case against him, or some other circumstance which would similarly justify a sense of security on his part notwithstanding his own flight from justice, could allow him properly to assert that the effects of further delay were not 'of his own choice and making'."

9. It is noteworthy that in paragraph 27 Lord Brown went on to explain that it was only in the "most exceptional circumstances" that a fugitive from justice would be able to rely on the statutory passage of time bar. It is also clear that in order to rely on "oppression" by reason of passage of time the requested person must establish that he would suffer greater personal or family hardship than that which is inevitably inherent in the act of extradition (see Norris v Untied States of America (No 1) [2007] 1 WLR 1730 at paragraph 154).
10. The case for the appellant is that this is a case of oppressive consequences in that the appellant was originally arrested for murder in February 1990 and was held in police detention for 10 days. He claimed that when he was released from custody there was no restriction on his liberty and he believed proceedings to be at an end. So in 1991 he left Romania and was smuggled illegally to the United States where he applied for asylum. His evidence was that although he spoke to his family on the phone about every 3 months, no-one informed him that proceedings had been resumed. In 1994, his parents told him on the telephone that he had been convicted of murder and sentenced to 14 years' imprisonment. He decided to return to Romania to contest his conviction, which he duly did. The appeal was heard by the Supreme Court and his conviction was quashed and he states that he was acquitted.
11. In February 1995, the appellant says he attended a police station to renew his identity card and he was informed that the system showed that he was wanted for murder and he was then arrested. He was then held in police detention under preventative arrest for 30 days and he says that he was then released without restriction and he remained in Romania until 1998.
12. The appellant considered the matters were at an end and he left Romania in 1998 and he was smuggled illegally to England where he applied for asylum but his application was refused. He remained here because he was not served with a deportation order. The appellant was in intermittent contact with his family between 1998 and 2002, speaking to his sister or mother every 2 to 6 months. His case is that no-one told him the prosecution had been renewed until either his mother or sister told him that he had been sentenced to 12 years for murder. He did not return to Romania.
13. The appellant relied on a report from a member of the Romanian Bar and the report of an expert, Andreea Radu, who had examined the judicial authority's file. The appellant's wife gave evidence that the appellant did not inform her of any of the ongoing prosecution or conviction. The District Judge explained that Judge Apzait had provided further information and he states that it was untrue that the appellant was acquitted on 28 December 1994 by the Supreme Court. In fact, it was remitted back to the District Court for retrial and the District Judge points out that that is corroborated by the report of a defence expert. The judge confirmed the appellant was held in preventative arrest between 6 February and 15 March and the judge had explained preventative arrest "can only be ordered during proceedings against a defendant after he is heard and notified about his procedural capacity and about the proceedings". He was summonsed on 12 occasions to attend the first instance court following his release but he failed to attend.
14. The District Judge, having heard the appellant's evidence, concluded that he was not an honest witness upon whose evidence he could place any weight. It was pointed out that he entered the United States and the United Kingdom illegally and he remained in the United Kingdom after his asylum application had been refused. The District Judge also noted that he perverted the course of justice by giving the name of his brother-in-law when he was arrested, prosecuted and convicted for an offence of driving with excess alcohol in 2013 and in addition when he was arrested under the EAW, he gave the same false particular details. He says he did so because the officer did not identify himself. The District Judge found that to be totally untrue because the officer states that he produced his warrant card and undertook a number of steps by making enquiries of others to establish the true identity of the appellant. The District Judge repeated that the appellant was a fugitive from justice and had been so since 2002. He was also satisfied that he was deliberately absent from his trial.
15. The case for the appellant is that he is not a fugitive. The passage of time in this case has been very great as it is 25 years from the offence, 24 years since his first period of detention and 19 years since the second such period, and 13 years since his conviction. It is pointed out that the appellant's memory will not have been assisted by the lapse of time and his personal circumstances have changed as he is now the father of, and the breadwinner for, three small children.
16. These findings about the lack of integrity of the appellant have been challenged, but it must not be forgotten that unlike me, the District Judge had the opportunity of hearing him give evidence and seeing him doing so after being cross-examined. In those circumstances I cannot say that the conclusions of the District Judge were plainly wrong.
17. The significant features of this case were really what the conclusions were on the appellant's integrity and, as I have explained, they are very powerful points. Indeed, there are further factors which convince me that the appellant was a fugitive and I have referred to what had been said by Judge Apzait, who made a considered statement with access to the relevant information when he said that the appellant was aware of the judicial proceedings but he no longer appeared before the authorities and he left Romania,
18. It is reasonable to assume that he had been absconding from prosecution and the execution of his penalty. The District Judge noted that the appellant had been notified of the existence of the proceedings and he was placed under preventative arrest, which is a measure which can only be ordered against a defendant after he has been notified about his procedural capacity and about the proceedings.
19. It is also a matter of significance that when the appellant was being transported to Westminster Magistrates' Court on 10 June ,he demonstrated he was aware of his sentence in 2002 and chose not to return. He is recorded by an officer as saying: "Yes I am Marcel Arava. I want to sort this out. I wanted to go back in 2002 when they gave me 12 years and sort it but my wife said, how will you come back, because you see I was here illegally". To my mind, this court should be very reluctant to overturn a fact-finding by a judge who had heard evidence and which should in this case be respected in their entirety.
20. It therefore seems clear to me that he was a fugitive. It is quite clear that the test for oppression is a very high one which will not be easily met. I have explained that Lord Brown had said it would be only in the most exceptional circumstances that a fugitive from justice will be able to rely on the statue of passage of time. This case is not an exceptional case. There is very little evidence of any serious oppression. Of course, his extradition will cause hardship to him and his family but in the context of being required to serve a sentence for an extremely serious offence this certainly does not amount to, and falls a long way short from, constituting oppression. I reject this challenge
21. section 20
22. It is accepted that the appellant was convicted in his absence of the extradition offence and therefore the court has to consider section 20 the 2003 Act, which provides that:

i. "Case where person has been convicted

ii. (1)If the judge is required to proceed under this section (by virtue of section 11) he must decide whether the person was convicted in his presence.

iii. (2)If the judge decides the question in subsection (1) in the affirmative he must proceed under section 21.

iv. (3)If the judge decides that question in the negative he must decide whether the person deliberately absented himself from his trial.

v. (4)If the judge decides the question in subsection (3) in the affirmative he must proceed under section 21.

vi. (5)If the judge decides that question in the negative he must decide whether the person would be entitled to a retrial or (on appeal) to a review amounting to a retrial.

vii. (6)If the judge decides the question in subsection (5) in the affirmative he must proceed under section 21.

viii. (7)If the judge decides that question in the negative he must order the person's discharge.

ix. (8)The judge must not decide the question in subsection (5) in the affirmative unless, in any proceedings that it is alleged would constitute a retrial or a review amounting to a retrial, the person would have these rights—

x. (a)the right to defend himself in person or through legal assistance of his own choosing or, if he had not sufficient means to pay for legal assistance, to be given it free when the interests of justice so required;

xi. (b)the right to examine or have examined witnesses against him and to obtain the attendance and examination of witnesses on his behalf under the same conditions as witnesses against him."

23. There are two issues which arise. First, did the appellant deliberately absent himself and, second if not, would he be entitled to a retrial or an appeal or review amounting to a retrial? The appellant's case in respect of this is that he did not deliberately absent himself from proceedings, he engaged with them whenever he became aware of them. As I have explained, the District Judge took a different view and explained that the appellant was aware of the ongoing criminal proceedings and he made a deliberate decision to leave Romania before those proceedings were concluded. Nothing has been put forward to show that that is plainly wrong or that I should not regard it as correct.
24. In consequence the section 20 point fails but in all deference to the arguments put forward by Mr Irwin, I will consider the next issue, which is whether he has a retrial guarantee offered by the Romanian judicial authorities which complies with section 20(5) of the 2003 Act.
25. It is quite true that in the case of Bohm v Romanian Judicial Authority [2011] EWHC 2671 (Admin) Irwin J had to consider Article 252 of the Romanian Criminal Code and he concluded at paragraph 11:

i. "It is quite clear from her [that is an expert: Viviana Onaca, the director of the Directorate for International Law and Judicial Cooperation] evidence that there is not an automatic and unqualified right to an actual retrial."

26. I need not go into the law as it then stood, because there has been further information provided by the judicial authority which confirms that legislation has now been enacted within Romania to ensure that their domestic legislation is compatible with the 2009 Framework Decision.
27. The procedure is that an individual who has been convicted and extradited may request a retrial but that application had to be lodged within a month of a person being surrendered to Romania.
28. In addition for a retrial to be ordered, a number of statutory criteria had to be fulfilled. The court would only determine whether statutory criteria were fulfilled upon the application being made, in other words after surrender.
29. Therefore it is not possible to indicate what the outcome of the application would be in advance, namely prior to surrender. He also explained that a retrial was only available to individuals who were unaware of the original trial proceedings or absent for justified reasons and unable to inform the court of those reasons. His evidence was also that a retrial would not be afforded to those who appointed their own lawyers to represent them in the proceedings or those who appeared at any time during the proceedings and that where the statutory criteria was fulfilled. the court had to order a retrial and does not retain a discretion. The retrial would be ordered if those circumstances would require the court to examine all the evidence relating to the charges.
30. The case for the judicial authority is that this procedure complies with the Framework Decision. I was concerned about the fact that the only basis upon which he could be refused a retrial would be if the court determined that he was aware of the original proceedings or if he failed to lodge his request for a retrial within stipulated time limits. My attention was drawn to the case of Nastase v Office of the State Prosecutor, Trento, Italy [2012] EWHC 3671 (Admin), which suggests that this does not prevent the retrial guarantees satisfying section 20. I was concerned as to whether there was an automatic right of retrial and I had to be satisfied about it. It appears from what was stated by Gloster LJ in Zeqaj v Government of Albania [2013] EWHC 261 (Admin) at paragraph 12, that under a previous Act:

i. "It does not seem to me that, under the subsection, the judge is required to conclude (before ordering extradition) that, even if the requesting Court were to reach a different conclusion on that factual issue, it would have to afford an automatic right of retrial to the person subject to the extradition request."

31. My provisional view is that the requirement of an entitlement to a retrial would be satisfied in this case but it is unnecessary for me to reach a definite view in respect of that in this case because. as I have explained, I have also found that the appellant fails on the first point that he was not deliberately absent.
32. For all those reasons, notwithstanding the helpful submissions of Mr Irwin, this appeal must be dismissed.