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
		23 October 2015

1. MR JUSTICE BLAKE: This is an appeal from the decision of District Judge Zani given on 10 February 2015 when he ordered the appellant's return to Romania on a conviction warrant for a number of offences for which he had been convicted in Romania and sentenced in his absence on 3 October 2013to a total term of 5 years and 4 months.
2. The offences are grouped into four separate items of misconduct. In chronological order they are as follows: on 18 May 2003 the appellant was stopped by the police driving a vehicle. He was asked for his licence; he did not produce his licence. It would appear that he was detained and was being taken to the Alba County Hospital for biological evidence, which I think means a blood sample, but he fled on his way and escaped from detention. He was charged with failing to provide a specimen for the purpose of a test as to whether he was under the influence of alcohol. For that offence he was given total of 14 months' imprisonment. Originally that sentence was suspended but in the light of his other behaviour and convictions it has been activated.
3. Second, between 2003 and 2004 it is said that the appellant associated with "other persons for obtaining unfair material leverage, by fraudulent misleading the injured persons" and a number of Romanian names are then given. That was charged as "felonies perpetrating association" and it was also charged as a "qualified fraud" and 10 material acts of perpetration were charged separately contrary to the same provisions of the penal code. So there were both, it seems, substantive obtaining by deceptions and also being in a criminal association for the purpose of perpetrating them. For the fraudulent conduct taken together he was sentenced to 3 years and 3 years 8 months' concurrent, making a total of 3 years 8 months.
4. Then in February 2010 he is said to have assaulted someone causing an injury, for which he received 6 months' imprisonment. So adding together 6 months, 3 years 8 months, and 1 year 2 months, one comes to the total sum of 5 years 4 months' imprisonment.
5. The District Judge was satisfied that he had attended his trial for the fraud and was legally represented and then absconded in breach of a direction that he remain in Romania pending sentence, and came to the United Kingdom I think at some point in 2011. So he was present at the time of each of those convictions but in 2011 he went to the United Kingdom to join a partner with whom he had a stable relationship. The partner had come to the United Kingdom in 2009. He has a daughter from another marriage who is now 16, and after he had come to the United Kingdom the appellant invited or brought over his daughter from a previous relationship who is now 20, and she arrived in 2012, having completed her schooling. It seems the four of them lived from that time until his arrest on the warrant in the United Kingdom, and he was arrested on 29 September 2014, and accordingly has spent some 13 months or so in detention here.
6. On those brief facts, it is first contended that the warrant was defective because it did not give sufficient particulars of the offence for which he was convicted. What that drills down to in substance here is the contention that the particulars given in the warrant do not identify the location of the crime. This is said to be important because it can only be confirmed that it warrant is for an extradition crime if it is stated that the conduct took place in Romania.
7. This is a conviction case, it is recognised that the degree of detail required to be provided to the appellant is different from an accusation case for two reasons. The statutory criteria are different as to what must be spelt out in the warrant. The court is entitled to act on the basis that in conviction case details of the conduct will have been provided in the proceedings in Romania.
8. In my judgment, it was perfectly open to the appellant to contend that this was not an extradition offence if he had any reason at all to think that any part of the conduct was taking place outside of Romania, but the names of the victims and the description of the conduct and the date when it happened, as well as the fact that on his own account he was in Romania, as the warrant makes plain, in 2003 and 2004 are sufficiently clear to indicate that there is no difficulty with ascertaining whether it was an extraditable offence within the meaning of section 65 of the Extradition Act. The statutory requirement is that the particulars of the conviction are given and I conclude, not notwithstanding Mr Hawkes's submission to the contrary, that the particulars spelt out in the warrant met that test. Accordingly, the District Judge was right in his decision on that point.
9. Next, it is contended that the appellant's extradition is a disproportionate interference with his article 8 private life. Essentially the submission is directed to the road traffic matters: driving without a licence and failing to provide a sample. Mr Hawkes focuses upon those to say these are not serious offences and, accordingly, the public interest in extraditing him to Romania to serve a sentence for those offences is outweighed by a respect for his private and family life that has been briefly described.
10. The flaw with that submission is that it invites this court to make an article 8 assessment on each individual offence, all of which are extraditable offences. The correct approach is to assess the public interest having regard to the total criminality for which extradition is being sought. Here the sentences are of 5-years 4 months are being sought and it is not possible to break down the article 8 balance into individual offences.
11. With that conclusion, it seems to me that the appellant's article 8 submission, such as it is, falls away, but for completeness it can be said, as Mr Hawkes realistically acknowledged, that the impact on the family in this case would have to be seen in the light of the following considerations. He is not the primary carer for any under age children; there is another wage earner in the family now, his adult daughter; he came to the United Kingdom in 2011 in the knowledge that he had a sentencing hearing to attend in Romania. He is therefore someone who is a fugitive from the process of justice, and that does affect the weight to be attached to the respect for the family life here, and overall the offending for which his return is now sought is substantial.
12. Having dismissed the section 2 challenge that I have, in my judgment there is no substance in the article 8 challenge, and the District Judge's conclusions on that were not wrong.
13. Finally, in the grounds of appeal and skeleton argument, reliance is placed upon the fact that prison conditions in Romania have frequently been found by the European Court of Human Rights in Strasbourg to be defective. In the case of Florea [2014] EWHC 2528 (Admin) the Divisional Court examined the Strasbourg case law and concluded that it would be a bar to extradition if there were substantial grounds for a real risk of a person facing extradition serving his sentence in a prison where minimum personal space requirements were not met. The relevant personal space requirements that the court identified in that case in Romania were 3m² when serving a sentence in closed conditions and 2m² when serving a sentence in open conditions. Romanian domestic law might have required greater space but sometimes, or often, that was not met.
14. In the case of Florea was most likely to have to serve his sentence, the court sought undertakings from the government in Romania that that appellant would not serve any part of the sentence in less than 2m² in open or semi-open, and 3m² if serving a sentence in closed. Undertaking were given. They were sought because of the potential risk given the degree of overcrowding in the system of prisons generally in Romania and, in particular, the prison to which the appellant would most likely be sent to on return. Subsequently, in a hearing before the Administrative Court [2014] EWHC 4367 (Admin) I concluded that the undertakings were sufficiently reliable to eliminate the substantial grounds of a real risk of article 3 overcrowding.
15. I accept that simple overcrowding is not the only factor that may lead to a violation of article 3. There is always the possibility of other factors contributing to an violation in Romania by reason of the sufficiency of food, medical treatment, ventilation, sanitation, the state of the premises and such like. They may result in either domestic challenges in Romania for dealing with any problems which may arise or, if they are not dealt with adequately at the domestic level, in Strasbourg. For reasons set out in the first Florea decision, unless a specific prison is being identified as the place where a returnee will serve a sentence, it is not usually possible to indicate that there are substantial grounds of a real risk based on prison specific conditions that may vary from time to time. Accordingly those factors will not generally amount to a bar to extradition, unless they are systemic in nature leading to a degree of likelihood that they would be encountered by the individual appellant. This is not the state of the evidence in Romania.
16. The adequacy of the undertakings given in Florea, which it now appears have been given generally in all United Kingdom extradition cases to Romania, were the subject of a decision of the Divisional Court in the case of Blaj & Ors v Romania [2015] EWHC 1710 (Admin). The court concluded that the undertakings were sufficient to eliminate substantial grounds of a real risk of article 3 ill treatment, judgment being handed down on 17 June 2015, and the judgment of the court was delivered by Aikens LJ.
17. In the skeleton argument of Mr Hawkes it was contended that both decisions, of Florea and Blaj, had been rendered unstable by a decision rendered the following day by the Third Section of the Court of Human Rights in Strasbourg in the case of Oprea & Ors v Romania on 18 June 2015. Shortly put, I see nothing in Oprea or in the schedule of circumstances identified in the judgment finding violations to various prisoners, to throw any doubt at all on the approach in those cases.
18. Accordingly, I find there is no substance in the article 3 contention now advanced on behalf of this appellant, and this appeal is accordingly dismissed.