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
		7 February 2017

1. MR JUSTICE GARNHAM: The judicial authority of Romania appeals, with permission granted by me in November 2016, against the order of District Judge Ashworth made on 7 June 2016 discharging the Respondent from an order for his extradition. The sole ground of appeal is that the District Judge erred in finding that the extradition was barred pursuant to section 13 of the Extradition Act 2003. It is argued there was no proper basis for the finding that there was a reasonable chance that the Respondent would be punished more heavily because of his Greek nationality if surrendered.
2. There is very little dispute about the background to this case. Accordingly, I can summarise the facts relatively shortly. The European arrest warrant was issued on 28 October 2014 and certified on 13 September 2015. It was a conviction warrant based on a domestic warrant for the execution of a custodial sentence of 1 year's imprisonment. The domestic warrant was issued on 8 October 2014. The EAW asserts that the Respondent was convicted on 26 January 2013 of one offence classified in Romanian law as bribery. That offence was committed in September and October 2006. The sentence became final on 8 October 2014 after an appeal to the High Court of Cassation and Justice.

The further information

3. Further information received from the Romanian authorities confirms how the final sentence of 1 year's imprisonment was calculated.
4. The Respondent was convicted on 29 January 2013 and initially sentenced to 6 months' imprisonment, suspended for 2 years. That sentence was appealed by the prosecution and on 8 October 2014 the appeal was allowed. The sentence was increased to 1 year's immediate imprisonment. Searches for the Respondent began on 10 October 2014 and on 27 October 2014 information was received that he had left Romania. As a result the EAW was issued the following day.
5. Attached to the letter setting out the further information from the appointed judge for Criminal Enforcement at the Polish Court of Appeal was an excerpt from the High Court's judgment. The excerpt concluded as follows:

"In choosing the way of serving the punishment imposed for the offence committed by the Defendant [...] the instance of judicial control [an expression used in the judgment to mean the Court of Appeal or the High Court] also regards that we are facing a corruption offence committed by a foreign person, manager of a commercial company, a person that does not have the first conflict with the criminal law [...] a person who considers that the application of the country's laws where he carries out his activity may be subject to the financial interests of the police officer who understood to use his title in order to achieve personal patrimony purposes.

Consequently, also having regard to the nature and severity of the committed offence, the instance of judicial control (court) appreciates that all these aspects represent objective and clear criteria based on which one shall increase the imprisonment punishment and that lead to the conclusion that the purpose of punishment provided by Article 52 of the Criminal Code may be achieved only in its serving it in detention."

The District Judge's decision

7. District Judge Ashworth provided a careful and thorough judgment in this case. He dismissed the challenges to the effect that the proceedings were an abuse of process or would breach Mr Vassos's human rights. However, he upheld the challenge under section 13 and dismissed the EAW on that basis. He expressed his conclusion on section 13 as being a decision to uphold the challenge under section 13(a). I say immediately that I am satisfied that that is a simple typographical or dictation error. He plainly meant to express himself as upholding the challenge under section 13(b).
8. The relevant part of the judgment begins on page 14 and concludes on page 16. At page 15 the District Judge said this:

"For Mr Vassos Miss Lindfield argued that the extracts from the judgment demonstrate bias due to the reference to him being a foreign national and from the view of the police officer that Marian would fare better under the system as he was a Romanian national. The comment attributed to the police officer, as I have stated above, carries little or no weight. It is a hearsay account of what a co-defendant said in the case and has no context as to when or why it was said and amounts to nothing more than his opinion.

However, the comment in the judgment, 'that we are facing a corruption offence committed by a foreign person [...] and [...] all these aspects represent objective and clear criteria based on which one shall increase the imprisonment punishment', does suggest that corruption offences committed by foreigners are worse than those committed by domestic offenders [...]

[...] The judgment makes it clear that the major grounds for raising his penalty to 1 year from 6 months are public confidence in sentencing and deterrence. However, I find as a fact that [the fact that] the Defendant was not a Romanian national was one of a number of subordinate factors which taken together led to an increase in the sentence. Hence, in my evaluation, there exists a reasonable chance that he would be punished more heavily due to his nationality. As a result, I am required to discharge the warrant under section 13(a)", for which he meant 13(b).

The arguments

9. The Appellant authority was represented before me by Miss Julia Farrant. She argues that the District Judge conflated the tests appropriate for sections 13(a) and 13(b). As I have already indicated, I reject the suggestion that there was any such error and have concluded that the reference to section 13(a) was simply a typographical or dictation error. It is clear from his discussion of the Polish court's approach to the appeal on sentence that the District Judge had in mind the consequences of the fact that he was a foreigner for the Respondent's sentencing, not for the decision to issue the warrant.
10. Miss Farrant says on the substantive issue that the further information does not support the contention that there is a serious possibility that the Respondent will be punished by reason of his race or nationality. She says that the excerpt referred to by the District Judge is found in the concluding paragraphs of a lengthy judgment in which the court gave a coherent explanation for the increase in sentence. She points out that there are explicit references in the judgment to the need to ensure that any penalty is fair and proportionate. She says that the mere reference to the Respondent being a foreign national is incapable of establishing a serious possibility that the Respondent might be punished by reason of his race or nationality. She says that is particularly so given the strong presumption in favour of Romania complying with its obligations under the ECHR. She says that the reference to the sentence being increased by virtue of "objective and clear criteria" refer back to the recital of the aggravating features of the offending and does not refer to the Respondent's nationality. She says that if there remained concerns about the basis for this sentence, the correct course would have been to adjourn for clarification to be sought from the judicial authority, given the possibility of ambiguity in a translated document and the serious nature of the conclusion he was being invited to draw from it.
11. For the Respondent, Mr Vassos, Miss Gemma Lindfield points to the consistent authority of the Divisional Court that this court should not readily interfere with the District Judge's conclusions on the facts. She points to the well-known observations of Aikens LJ in Belbin v Regional Court of Lille, France [2015] EWHC 149 (Admin) as to the nature of the review conducted by this court of a district judge's decision. She says that in the absence of evidence that he misapplied a legal principle, made a finding of fact that was not properly open to him, failed to take into account a relevant fact, took into account an irrelevant fact or reached a conclusion which was perverse, this court should not interfere.
12. She says that the natural reading of the passage from the Romanian High Court's judgment, which I have set out above, is that the nationality of the Respondent was taken by the court as a relevant factor in determining the "quantum of the sentence".
13. The Respondent has obtained alternative translations of the additional information provided by Romania and I have regard to both that and the Appellant's translation.

Discussion

14. In my judgment, what is determinative of this appeal is whether the reference to the fact that the offence was committed by a foreign person is a descriptive or operative part of the Romanian High Court's analysis: was the court merely noting as an incidental matter of background that the Respondent happened to be foreign or was that a feature that fed into the court's consideration of whether the sentence should be increased or whether it should be served immediately.
15. Before turning to that critical question, I address Miss Farrant's suggestion that if the District Judge was contemplating a conclusion of the sort he eventually drew, he should have given the CPS a chance to go back to the requesting authority to seek further information. In my judgment the Respondent is right to point out that the CPS had been on notice of the point for some time and had had ample opportunity to seek such additional information as they required on what was obviously an important issue. The District Judge cannot in my judgment be criticised for not providing a yet further opportunity.
16. In referring to the submissions of Miss Lindfield, I have noted her reliance on the Divisional Court's decision in Belbin. In my judgment those observations of the Divisional Court were directed to appeals that turn on proportionality.
17. Towards the end of paragraph 66 Aikens LJ said:

"In our judgment, generally speaking, and in cases where no 'fresh evidence' arises on an appeal on 'proportionality', a successful challenge can only be mounted if it is demonstrated that [the judge erred]" in the ways I have sought to summarise earlier in this judgment.

18. Nonetheless, the potential grounds of challenge to a District Judge's decision set out by Aikens LJ in Belbin is plainly informative of the approach I should adopt here. I remind myself that the district judge is the finder of fact and must be accorded some margin of appreciation in the conclusions on the facts he reaches. However, given the nature of the task confronting the District Judge here, namely interpreting a judgment of the Romanian High Court, it is my view that that margin will inevitably be narrow. The task that he performed can equally well be performed by this court. This is not a case dependent on oral evidence from witnesses where the District Judge has the obvious advantage over this court.
19. Furthermore, in my judgment Miss Farrant is right to assert that this court should approach the task before it, as indeed should the court below, on the basis of an assumption that Romania will act in a manner consistent with the European Convention on Human Rights, of which it is signatory. That in my judgment is a powerful consideration.
20. There is no doubt that reading the passage of the judgment of the Romanian court set out above leaves the reader with the clear impression that the Defendant had the listed characteristics which were relevant to the sentence to be imposed. Those characteristics included the fact that he was a manager of a commercial company, that he had a previous administrative sentence, that he was someone who was willing to bribe a police officer and the fact that the person concerned was a foreigner.
21. However, it would be mistake to view that passage in isolation. That passage comes at the end of a two-page, closely typed and closely reasoned analysis by the court which explains how it went about fixing the sentence. It identified relevant policy consideration and the aspects of the particular offence and the particular offender which were material to the decision of the court. Nowhere prior to the passage I have cited is there any suggestion that the nationality of the offender is of any relevance.
22. Notably, where the Romanian court was identifying the features of the Claimant's personal situation, which served to aggravate the offence, the court said this:

"In this respect the court appreciates that some of the circumstances retained by the first instance represent worsening elements for the defendant's situation. His age and education should have allowed him to fully understand which would have been the consequences of his act of offering money to a police officer, in order for the latter to improperly fulfil his job tasks in instrumenting a criminal [procedure] that regarded the activity carried out by the defendant ... and the fact that he is carrying out an activity which provides income, proves nothing but the high level of danger, having regard to the fact that the defendant proved the fact that he would use ways that are within the scope of illegality in order to achieve the purpose of managing the company that he controlled.

One should also take into account the defendant's person and, respectively his rehabilitation and social reintegration, as well as the extent of the criminal phenomenon and society's expectation towards the mechanism of criminal justice in order to achieve a real proportionality between the two aspects ..." (sic)

23. There is no suggestion there, or anywhere else in the judgment, that the nationality or race of the Defendant is regarded by the court as of any relevance at all. There is not, in my view, the proper foundation for a conclusion that the paragraph I have cited establishes a serious possibility that race or nationality played a part in the sentencing. In my judgment, the District Judge erred in not considering the significance of the rest of the Romanian High Court judgments in answering the question before him.
24. I say that with some hesitation because the arguments to the contrary are powerful and I well understand how viewing the particular expression on which he focused alone, he could have reached the conclusion he did. On balance, however, I am satisfied that the conclusion of the District Judge was wrong and that it is right for this court to interfere. In those circumstances this appeal by the requesting authority of Romania must be allowed.

Where do we go from there, Miss Farrant?

25. MISS FARRANT: Where we go from there is a direction that the case be remitted back to the District Judge for him to decide the relevant question differently and that is pursuant to I think section 29(5), which provides:

"If the court allows the appeal it must quash the order discharging the requesting person, remit the case to the judge, direct him to proceed as he would have been required to do if he had decided the relevant question differently."

26. MR JUSTICE GARNHAM: I will ask the two of you, please, to draft an order for me but I make it in those terms.
27. MS LINDFIELD: When you were summarising the argument for the Respondent you indicated that it was my submission that the fact that he was a foreign national was relevant to whether it should be an immediate custodial sentence. That was not my argument. My argument was that that was relevant to the quantum of the sentence and that the previous paragraph with the description was mitigation that had been relied on for the suspended sentence.
28. MR JUSTICE GARNHAM: Thank you. If you would be kind enough to send my clerk an email to that effect, when I approve this judgment I will make that alteration. Thank you for pointing it out.
29. Can I say thank you both very much. If I may respectfully say so you both argued what not easy case extremely well. I am grateful for your help.