QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
Strand, London, WC2A 2LL |
||
B e f o r e :
____________________
Dragos Eugen Iacob |
Appellant |
|
- and - |
||
Courthouse of Bacau (Romania) |
Respondent |
____________________
Amanda Bostock (instructed by CPS Exdradition Unit) for the Respondent
Hearing dates: 12th January 2017
____________________
Crown Copyright ©
Mr Justice Garnham :
Introduction
Preliminary Matters
"The article 8 argument is hopeless whatever the basis of sentencing. These were serious thefts and could have been charged as such in the UK, and not just as fishing offences. The impact on family life could not possibly out-weight the public interest in extradition if the section 2 point is wrong. If the Appellant wants to renew this ground that will be dealt with at the appeal together with the substantive appeal if leave on article 8 is granted."
The Statutory Provisions
2 Part 1 warrant and certificate
(1) This section applies if the designated authority receives a Part 1 warrant in respect of a person.
(2) A Part 1 warrant is an arrest warrant which is issued by a judicial authority of a category 1 territory and which contains—
(a) the statement referred to in subsection (3) and the information referred to in subsection (4), or
(b) the statement referred to in subsection (5) and the information referred to in subsection (6).
(3) The statement is one that—
(a) the person in respect of whom the Part 1 warrant is issued is accused in the category 1 territory of the commission of an offence specified in the warrant, and
(b) the Part 1 warrant is issued with a view to his arrest and extradition to the category 1 territory for the purpose of being prosecuted for the offence.
(4) The information is—
(a) particulars of the person's identity;
(b) particulars of any other warrant issued in the category 1 territory for the person's arrest in respect of the offence;
(c) particulars of the circumstances in which the person is alleged to have committed the offence, including the conduct alleged to constitute the offence, the time and place at which he is alleged to have committed the offence and any provision of the law of the category 1 territory under which the conduct is alleged to constitute an offence;
(d) particulars of the sentence which may be imposed under the law of the category 1 territory in respect of the offence if the person is convicted of it.
(5) The statement is one that—
(a) the person in respect of whom the Part 1 warrant is issued [has been convicted] 1 of an offence specified in the warrant by a court in the category 1 territory, and
(b) the Part 1 warrant is issued with a view to his arrest and extradition to the category 1 territory for the purpose of being sentenced for the offence or of serving a sentence of imprisonment or another form of detention imposed in respect of the offence.
(6) The information is—
(a) particulars of the person's identity;
(b) particulars of the conviction;
(c) particulars of any other warrant issued in the category 1 territory for the person's arrest in respect of the offence;
(d) particulars of the sentence which may be imposed under the law of the category 1 territory in respect of the offence, if the person has not been sentenced for the offence;
(e) particulars of the sentence which has been imposed under the law of the category 1 territory in respect of the offence, if the person has been sentenced for the offence…
The EAW
"EUROPEAN ARREST WARRANT No. 28 from 08-07-2014
The warrant hereby is issued by the Courthouse of Bacau the competent judicial authority.
Request arrest and surrender of the person listed below to the judicial authorities in order to make the execution of a custodial sentence.
a) Information regarding the identity of the requested person:
Name: IACOB
Second Name: DRAGOS EUGEN
……………….
(B) The decision on which the warrant is based:
1. The arrest warrant of the judicial decision:
Type: The warrant for the execution of the prison sentence no. 1394/2014 from 27.05.2014, issued by the Courthouse of Bacau in the file no. 7752/180/2013,
2. Final and enforceable judgment:
Criminal sentence no. 1193 from 23-04-2014 pronounced by the Courthouse of Bacau, final on 27.05.2014 by lack of appeal, on the basis of which it was disposed:
…
I. On the basis of article 396, paragraph 1, 2 from the New code of Penal Procedure condemns the defendant for the offense stipulated by 48 New Penal Code related to article 64 letter I from GEO no. 23/2008 by applying the article 36 New Penal Code and by applying the article 5. New Penal Code to the fine penalty amounting to 1000 lei (100 days-fine multiplied by 10 lei day-fine).
…
II. On the basis of article 396, paragraph 1,2 from the New Penal Procedure condemns the same defendant for the offence foreseen by article 65 paragraph 1 letter a from GEO no. 23/2008 by applying the paragraph 36 New Penal Code and by applying the article 5 New Penal Code to the punishment of one year of prison.
….
II.1. On the basis of article 85 Penal Code, cancels the conditional suspension of the execution of two years of prison applied to the defendant Iacob Dragos-Eugen through the penal sentence no. 140/10-07-2012 pronounced by the Courthouse of Adjud in the file no.913/2012, final by the lack of appeal on 24-07-2012.
III. On the basis of article 396 paragraph 1,2 New Code of Penal Procedure condemns the same defendant for the offense of qualified theft foreseen by article 228 paragraph 1 related to article 229 paragraph 1 letter b New Penal Code by applying the article 36 New Penal Code and by applying the article 5 New Penal Code to the punishment of one year and six months of prison.
…
III.1. On the basis of article 85 Penal Code, cancels the conditional suspension of the execution of two years of prison applied to the defendant Iacob Dragos-Eugen through the penal sentence no. 140/10-07-2012 pronounced by the Courthouse of Adjud in the file no. 913/2012, final by the lack of appeal on 24-07-2012.
On the basis of article 33 letter a related to article 34 paragraph 1 letter e merges the punishments from point I., II.1 and III.1 and applies to the defendant Iacob Dragos-Eugen the biggest punishment of two years of prison to which adds an increase of 6 months of prison.
…
Punishment to execute: the main punishment of 2 years and 6 months of prison, the complementary punishment of prohibition of exercising the rights foreseen by article 66, paragraph 1, letter a,b,h,k from the New Penal Code and the prohibition of fishing right for a period of three years and the additional punishment of the prohibition of exercising the rights foreseen by article 66 paragraph 1, letter a, b, h, k from the New Penal Code and the prohibition of fishing right.
Punishment to execute: 2 years and 6 months of prison……..
………
2. Duration of punishment or of the applied custodial security measure: 2 years and 6 months imprisonment.
3. Punishment remained to be performed: 2 years and 6 months imprisonment…….
………..
(E) The offense (the offenses):
The hereby warrant is referring to a total of: 4 offenses
Description of the circumstances in which it / they committed the act/acts, including the moment (date and time), place and degree of participation in this/these of the followed person:
It held that: within the period from 20-25 July 2010 (three offences), he helped the defendant Chitoi Vasile, to poach fish with monofilament nets and electrical device supplied by an electric power source, the monofilament net belonging to the defendant Chitou Vasile, without having an authorization of ownership and use of the tools for commercial fish, taking away in this way a part of the fishes from the lakes S.C.Gan Fis S.R.L. Bacau, working point Orbeni, meaning 500 kilo of fish.
Thus:
During July 2010 the co-defendant Chitoi Vasile asked him to pick him from the lake Beresti because he (Chitoi Vasile) had a bag with fish and he couldn't transport it to his domicile. Next evening (22-07-2010) they went together to Orbeni where they thrown the fish nets in the water, the defendant Chitoi Vasile telling him that was not the first time he was fishing there. They got around 60 kilos of fish which was taken by the defendant Chitoi Vasile. The next day IACOB Dragos Eugen received from his friend 300 lei.
They came back the next evening (23-07-2010) they installed in the lake the monofilament net and one thread net, linked to one another and the next morning they noticed that the monofilament net was clinged to the trees roots, broke that's why they abandoned it there while the thread net catched around 25 kilos of fish which was valorised by the defendant Chitoi Vasile, the defendant Iacob Dragos Eugen receiving 30 lei.
As Chitoi Vasile's boat was broken in the third evening (24/25-07-2010) they took the boat of the defendant Dragos Eugen Iacob. Chitoi Vasile had with him an electrical device for catching fish and the defendant Iacob Dragos Eugen helped him to poach fish with the electrical device supplied by a power supplier, without having an authorization to own or to use for fishing the devices for commercial fish, taking from the lakes of S.C. Gan Fich SRL Bacau, working point Orbeni.
Meanwhile, through the penal sentence no. 140/10-07-2012 pronounced by the Courthouse Adjud in the file no, 913/2012, final by lack of appeak at 24-07-2012 was condemned to prison sentence for 2 years with conditional suspension for the fact that in the evening of 31-01-2012, following an understanding with the defendants Mazilu Boby Petrica and Ghiurca Cosmin Petrut, he transported these ones with his Dacia 1310 in Adjud town in order to commit the offences……
(my emphasis throughout).
The District Judge's decision on Section 2 and the parties' arguments
At the hearing I concentrated mainly on the s2 point raised by the lawyer at the first hearing. Mr Iacob himself did not argue it, but I thought it necessary to do so on his behalf.
There are four offences. A cumulative sentence of 2 years and 6 months has been imposed to cover all four. These are conviction offences and the defendant has been provided with enough information to enable him to know what he has been convicted of and sentenced for. He was present at the trial and clearly understands the nature of the offences, as he told me about them. Section 2(6) requires, for a conviction warrant: particulars of identity; of the conviction; of any other warrant; of the sentence that may be imposed; and of the sentence that has been imposed.
For three of the offences the details provided are clear, giving facts and legal sections. However, for the fourth there are inadequate particulars of the conviction to enable me to establish, from the warrant alone, whether this is an extradition offence. That is fatal as far as that offence is concerned. It cannot be corrected by extraneous information, even though here we know from the defendant what the conviction involved…
This brings us to s10, extradition offence, which was not advance by the defendant or his lawyer, when he had one. Mr Madurai suggests the remaining three offences are theft or the separate offence under Schedule 1 of the Theft Act of taking fish from water which is private property. Looking at the warrant as a whole it is clear that the lakes in question belong to SC Gan Fich SRL Bacau. The Romanian authorities refer to poaching and using unauthorised devices, which may also be offences here. I am satisfied the three sets of conduct would amount here to the Schedule 1 offence, and possible other offences.
One of the offences, that under article 64, is not imprisonable. However I accept Mr Madurai's argument based on Pilecki [2008] UKHL that it is sufficient that the aggregated sentence was for four months or greater. Also Brodziak and others [2013] EWHC 3394 decided, after examining earlier cases that "neither s2 (6 (c)) nor s65(3)(c) creates an obstacle to extradition in circumstances where the warrant refers to a single sentence imposed for multiple offences that include one or more non- extradition offences". In those circumstances the fact that one offence is discharged is not a ground for refusing extradition.
Decision
Offence four, classified as robbery is discharged. Otherwise there is no bar to extradition, and no human rights argument prevails. I must order that Mr Iacob be extradited to Romania……….."
"put simply, the EAW does explain the period of imprisonment which relates to each offence. There is no mystery period of imprisonment which could be the result of an unknown or un-particularised offence. The position, whilst complex, is clearly set out for every offence which forms a part of the request and accordingly the EAW is valid".
Discussion – Section 2
"97 The starting point must be the words of the statute. Section 2(5) of the 2003 Act refers to the person in respect of whom the warrant has been issued and whose extradition is sought as (a) one who has been convicted of an offence specified in the warrant and (b) one where the warrant has been issued with a view to his extradition for the purpose of being sentenced for the offence (which is not relevant in the cases before us) or of serving a sentence of imprisonment imposed "in respect of" the offence.
98 It is clear from section 2(6)(c), (d) and (e) and it is implicit in section 2(6)(b) that the particulars referred to must be particulars of the conviction "in respect of" which the warrant was issued and extradition is sought. What, however, is the significance of the use in section 2(5)(b) and section 2(6) of the phrase "in respect of" the offence rather than "for" the offence. Although it may be a pointer to understanding these provisions as having a broader ambit and including some or all of the different ways in which other offences may become "merged" in the offence in respect of which extradition is sought, in my judgment the basic position is that "the" offence in section 2(5)(b) is the offence in respect of which extradition is requested. I thus accept Mr Knowles's submission that box (e) of the EAW which deals with the offence or offences to which the warrant relates is important. I do not, however, consider it conclusive as to what the total sentence reflects.
99 It is also relevant to observe that Article 8(g) of the Framework Decision requires a requesting state to put into the EAW "if possible, other consequences of the offence" but Article 8 does not require a description of the circumstances giving rise to those consequences…
104 With that introduction, I have concluded that the significant aspects of the decisions summarised in section III of this judgment are as follows. First, in Echimov's case, despite stating in section 1 of box (e) that the EAW related in total to one offence, in section 2 of that box information is given about two offences only one of which is particularised. It was thus apparent that extradition was being sought in relation to two separate offences. The consequence was that the EAW did not comply with what I have described as the "basic position"; that "the" offence in section 2(5)(b) is the offence or offences for which extradition is sought and in respect of which by section 2(6)(b) it is a mandatory requirement that particulars be given. I do not consider that Echimov's case is justified solely because the unparticularised offences were dealt with in box (e). It may be easier to conclude that extradition is being requested for offences for which the mandatory requirements of section 2 have not been met where all the material is found in box (e), but EAW as a whole has to be considered and other parts of it may show that the requested person was sought to serve a sentence for an unparticularised offence so that the EAW is not valid…
108 Mr Knowles is correct to submit that Arranz's case shows that the fact that an offence which has been merged with the offence which is the subject of the request for extradition and dealt with in box (e) has not been particularised is not in itself fatal to the validity of the EAW. Mr Jones and Mr Wolstenholme correctly argue that account must be taken of the fact that there was no way that Arranz would serve more than the 30 years for the two offences particularised in the EAW which is the maximum permitted under Article 30 of the Spanish Criminal Code. ..
109 That, however, does not get them home. First, the proposition (see [93] above) that where a sentence relates to another conviction in any way the conviction must be particularised is inconsistent with Arranz . Secondly, and somewhat inconsistently with that proposition, Mr Jones … that an EAW which sets out a number of distinct sentences for which extradition is sought but particularises the convictions in relation to some offences and not others is not necessarily invalid. It appears that he thus draws a distinction between distinct sentences and merged sentences for a number of convictions. …After all, the Pilecki , Kuchera and Brodziak line of cases show that single composite sentences do not render the EAW entirely invalid and can in certain circumstance in effect be disaggregated in the way I have described.
…
113 The discussion above shows that where it appears from the terms of an EAW read as a whole that the IJA is seeking a return that would mean the requested person will serve a longer sentence than the sentences for the offences for which extradition is sought and that the total sentence is in respect of offences which have not been particularised rather than only aggravating those which have been particularised it will not be valid. … particular care must be taken in ascertaining the meaning of the EAW in such cases. The fact that the EAW refers to a total sentence to be served that is longer than the sentence for the particularised offences is a strong pointer to construing the sentence as "originating from" and being for the unparticularised conduct. ... Care also has to be taken where there is a possibility that a requested person will serve a disaggregated shorter sentence in respect of an unparticularised offence…"
i. Box B of the EAW is important but not conclusive as to what the total sentence reflects.
ii. The issue of substance is whether the requested person has sufficient details of the offences to understand of what he has been convicted or sentenced and whether any bars to extradition apply. That must be determined in the light of the warrant as a whole.
iii. Provided that underlying principle can be respected, the EAW should be given a broad purposive construction in order to reflect the principles of mutual trust.
iv. Where it appears from the terms of an EAW read as a whole that either a return which would expose the requested person to serve a longer sentence than the sentences for the offences for which extradition is sought or where the total sentence relates to offences which have not been particularised, the EAW will not be valid.
v. The fact that the EAW refers to a total sentence to be served that is longer than the sentence for the particularised offences is a strong pointer towards regarding the sentence as originating from un-particularised conduct;
vi. Care has also to be taken where there is a possibility that the requested person will serve a disaggregated shorter sentence in respect of an un-particularised offence.
The District Judge's decision on Article 8 and the parties' arguments
"The evidence…relevant to article 8 was uncontroversial and I accept it. Mr Iacob came to this country on 19th April 2014 and has since worked as a labourer/handyman for his brother-in-law Mr Popescu. He is a hard worker, and reliable. The defendant is unmarried but lives with his girlfriend Christine. They are both healthy, and have no children.
As far as article 8 is concerned, the evidence does not come close to amounting to a reason not to extradite. The factors against extradition are that since coming here in 2014 he has had a job, is hardworking, has a girlfriend, a sister and a brother-in-law here. I was not told, but assume he is of good character in this country.
Against that he was at the hearing, knows of (and is aggrieved by) his sentence, and nevertheless came to this country last year. Poaching on this scale is a serious offence, or at the very least not a minor offence, and there is a significant sentence to serve. Mr Iacob wants to attend his appeal, if permission to appeal is granted. Our international obligations, and our respect for the judicial systems of our EU colleagues, outweigh the comparatively recent private and family life Mr Iacob has built here. The article 8 argument fails……
Conclusion