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You are here: BAILII >> Databases >> England and Wales High Court (Administrative Court) Decisions >> Adamescu v Bucharest Appeal Court Criminal Division, Romania [2019] EWHC 2898 (Admin) (31 October 2019) URL: https://www.bailii.org/ew/cases/EWHC/Admin/2019/2898.html Cite as: [2019] EWHC 2898 (Admin) |
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QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
DIVISIONAL COURT
Strand, London, WC2A 2LL |
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B e f o r e :
MR JUSTICE JAY
____________________
BOGDAN ALEXANDER ADAMESCU |
Applicant |
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- and - |
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BUCHAREST APPEAL COURT CRIMINAL DIVISION, ROMANIA |
Respondent |
____________________
Tim Owen QC and Daniel Sternberg (instructed by Crown Prosecution Service) for the Respondent
Hearing date: 23 October 2019
____________________
Crown Copyright ©
Lady Justice Nicola Davies and Mr Justice Jay:
The criminal proceedings in Romania
The applicant's extradition proceedings
Grounds of appeal
- Ground two: The lower court erred in deciding that Mr Adamescu's extradition was not barred by the first limb of the "extraneous considerations" bar (section 13(a), 2003 Act).
- Ground three: The lower court erred in deciding that Mr Adamescu's extradition was not barred by the second limb of the "extraneous considerations" bar (section 13(b), 2003 Act).
- Ground four: The lower court erred in deciding that Mr Adamescu's extradition would not be incompatible with his rights under Article 6, ECHR (section 21A(1)(a), 2003 Act).
- Ground five: The lower court erred in deciding that Mr Adamescu's extradition would not be incompatible with his rights under Article 3, ECHR (section 21A(1)(a), 2003 Act).
- Ground six: Mr Adamescu's extradition is barred by reason of specialty under sections 11(1)(f) & 17 of the 2003 Act.
Grounds two to five are each advanced on the two statutory bases of appeal in Part 1 of the Extradition Act 2003 ("the 2003 Act"):
(i) under section 27(3)
"(a) the appropriate judge ought to have decided a question before him at the extradition hearing differently; (b) if he had decided the question in the way he ought to have done, he would have been required to order the person's discharge";
and alternatively,
(ii) under section 27(4)
"(a) […] evidence is available that was not available at the extradition hearing; (b) the […] evidence would have resulted in the appropriate judge deciding a question before him at the extradition hearing differently; (c) if he had decided the question in that way, he would have been required to order the person's discharge".
Ground six is pursued under section 27(4) only and on the basis that:
"(a) an issue is raised that was not raised at the extradition hearing […]; (b) the issue […] would have resulted in the appropriate judge deciding a question before him at the extradition hearing differently; (c) if he had decided the question in that way, he would have been required to order the person's discharge."
The Extradition Act 2003
"11. Bars to extradition
(1) If the judge is required to proceed under this section he must decide whether the person's extradition to the category 1 territory is barred by reason of—
…
(b) extraneous considerations;
…
(f) speciality;
…
13. Extraneous considerations
A person's extradition to a category 1 territory is barred by reason of extraneous considerations if (and only if) it appears that—
(a) the Part 1 warrant issued in respect of him (though purporting to be issued on account of the extradition offence) is in fact issued for the purpose of prosecuting or punishing him on account of his race, religion, nationality, gender, sexual orientation or political opinions, or
(b) if extradited he might be prejudiced at his trial or punished, detained or restricted in his personal liberty by reason of his race, religion, nationality, gender, sexual orientation or political opinions.
…
17. Speciality
(1) A person's extradition to a category 1 territory is barred by reason of speciality if (and only if) there are no speciality arrangements with the category 1 territory.
(2) There are speciality arrangements with a category 1 territory if, under the law of that territory or arrangements made between it and the United Kingdom, a person who is extradited to the territory from the United Kingdom may be dealt with in the territory for an offence committed before his extradition only if—
(a) the offence is one falling within subsection (3), or
(b) the condition in subsection (4) is satisfied.
(3) The offences are—
(a) the offence in respect of which the person is extradited;
(b) an extradition offence disclosed by the same facts as that offence;
(c) an extradition offence in respect of which the appropriate judge gives his consent under section 55 to the person being dealt with;
(d) an offence which is not punishable with imprisonment or another form of detention;
(e) an offence in respect of which the person will not be detained in connection with his trial, sentence or appeal;
(f) an offence in respect of which the person waives the right that he would have (but for this paragraph) not to be dealt with for the offence.
(4) The condition is that the person is given an opportunity to leave the category 1 territory and—
(a) he does not do so before the end of the permitted period, or
(b) if he does so before the end of the permitted period, he returns there.
(5) The permitted period is 45 days starting with the day on which the person arrives in the category 1 territory.
(6) Arrangements made with a category 1 territory which is a Commonwealth country or a British overseas territory may be made for a particular case or more generally.
(7) A certificate issued by or under the authority of the Secretary of State confirming the existence of arrangements with a category 1 territory which is a Commonwealth country or a British overseas territory and stating the terms of the arrangements is conclusive evidence of those matters.
…
21A. Person not convicted: human rights and proportionality
(1) If the judge is required to proceed under this section (by virtue of section 11), the judge must decide both of the following questions in respect of the extradition of the person ("D")—
(a) whether the extradition would be compatible with the Convention rights within the meaning of theHuman Rights Act 1998;
(b) whether the extradition would be disproportionate.
(2) In deciding whether the extradition would be disproportionate, the judge must take into account the specified matters relating to proportionality (so far as the judge thinks it appropriate to do so); but the judge must not take any other matters into account.
(3) These are the specified matters relating to proportionality—
(a) the seriousness of the conduct alleged to constitute the extradition offence;
(b) the likely penalty that would be imposed if D was found guilty of the extradition offence;
(c) the possibility of the relevant foreign authorities taking measures that would be less coercive than the extradition of D.
(4) The judge must order D's discharge if the judge makes one or both of these decisions—
(a) that the extradition would not be compatible with the Convention rights;
(b) that the extradition would be disproportionate.
(5) The judge must order D to be extradited to the category 1 territory in which the warrant was issued if the judge makes both of these decisions—
(a) that the extradition would be compatible with the Convention rights;
(b) that the extradition would not be disproportionate.
…"
The permission to appeal application
Grounds two to four
"I return to one of the basic principles of extradition. It is a rebuttable assumption that requests are made in good faith and that, absent compelling evidence to the contrary, assertions made by or behalf of requesting Judicial Authorities should be accepted by the requested State. The onus is on the defence to rebut the presumption with compelling evidence. I have not received such evidence in this case."
SC Strategy
"In fact some of the material which your Lordships have admitted could not normally have been received as evidence. No doubt such material may carry less weight than properly sworn statements, but it does not surprise me that the Parliament of 1870 intended that on this question of the political character of an offence committed by a refugee nothing of any value should be excluded from consideration."
Mr Keith QC places emphasis on Lord Reid's "any value". However, this was material whose only evidentiary defects were that it was hearsay and may well have included inadmissible opinion. It was not material which was anonymised and whose credibility and reliability on key facts in issue were simply incapable of fair testing and evaluation.
"In any event, any relaxation in the areas of extraneous considerations, human rights and abuse of process cannot affect the normal rule that applies to a witness called to give evidence before a court, viz that his or her evidence must be given and capable of being tested inter partes. Any relaxation, on whatever basis, does not therefore help on the present issue whether the district judge can operate a closed material procedure without any statutory authority."
Ground five
"Having received expert testimony from Prof. Eastman and Dr. Joseph I am not persuaded that such health difficulties of Mr Adamescu may have, add any significant weight to this challenge."
The diagnosis of bipolar disorder was not seriously disputed by Dr Joseph. It is a disorder which is controlled by medication, the condition requires monitoring and appropriate adjustment of medication. No reasons are given for the dismissal of this aspect of the applicant's case, nor for the finding that the mental health difficulties of the applicant would not add "any significant weight to the applicant's case". On this point alone we would grant permission in respect of the article 3 ruling. In so doing we accept that the issue of the assurances given by the Romanian Government and the criticism of them by the applicant, will form a part of the applicant's case in respect of ground five at the hearing of the appeal.
Ground six – speciality