Bicioc v Baia Mare Local Court, Romania, Court of Appeal - Administrative Court, December 21, 2017, [2017] EWHC 3391 (Admin)

Issuing Organization:Administrative Court
Actores:Bicioc v Baia Mare Local Court, Romania
Resolution Date:December 21, 2017
 
FREE EXCERPT

Case No: CO/1296/2016

Neutral Citation Number: [2017] EWHC 3391 (Admin)

IN THE HIGH COURT OF JUSTICE

QUEEN'S BENCH DIVISION

ADMINISTRATIVE COURT

Royal Courts of Justice

Strand, London, WC2A 2LL

Date: 21/12/2017

Before :

MR JUSTICE DOVE

- - - - - - - - - - - - - - - - - - - - -

Between :

- - - - - - - - - - - - - - - - - - - - -

- - - - - - - - - - - - - - - - - - - - -

Benjamin Seifert (instructed by J Benson Solicitors Limited) for the Appellant

Jonathan Swain (instructed by CPS) for the Respondent

Hearing date: 30th November 2017

- - - - - - - - - - - - - - - - - - - - -

JudgmentMr Justice Dove :

The Facts

  1. On 19th May 2010 the appellant was found driving a car in Baia Mare having a concentration of alcohol in his blood of 1.30 g/l or ``the equivalent of 130 milligrams per 100 millilitres of pure alcohol in blood'' according to the European Arrest Warrant (``the EAW''). It appears that when he was encountered by the police and provided a sample, he gave the police an address where he had not lived for some time but which was still on his identification card. He has previously explained in evidence at the first hearing referred to below that that was because at that time he was living in Austria and only temporarily a resident in Romania. In fact, he is convinced that the date of the offence was the day prior to that recorded in the documentation, namely 18th May 2010, on the basis that when he was stopped by the police he was celebrating his birthday which was the 18th May. He never supplied the police with his correct address.

  2. In October 2010 he came to the UK. He was convicted in his absence by the court in Romania, and on 29th May 2012 a sentence of two years, six months imprisonment for this drink driving offence was made final. On the same date the first EAW in his case was issued. He was arrested pursuant to this first arrest warrant on 11th December 2012, the same date that it was certified by the UK authorities.

  3. The hearing in relation to that extradition request was heard by DJ Coleman who ordered extradition on 13th September 2013. One of the grounds upon which extradition was resisted relied upon section 20 of the Extradition Act 2003. It was contended that having been convicted in his absence he had not deliberately absented himself from the trial and would not be entitled to a retrial upon return. The District Judge's conclusions in respect of the section 20 aspect of the case were as follows:

    ``My findings on this issue are as follows:

    i. The defendant was not convicted in his presence.

    ii. As to his absence from his trial, the evidence is clear. At the time he was arrested for the offence he deliberately provided police with an address in Romania where he had not lived for 4 years and where he is going to reside. Not only was he not living there, but on his own evidence, he was living in Austria at that time. He made no attempt to correct the information he had given. He certainly did not tell the Romanian police that he had moved to the UK.

    I have listened to the RP's evidence on the point, but did not find it to be truthful. I find to the required standard that Mr Bicioc deliberately set out to deceive the police in order to avoid prosecution. He made it impossible for process to be served on him and therefore deliberately absented himself from his trial.''

  4. The appellant appealed this decision and the appeal came on before Mitting J on 26th February 2014. Mitting J allowed the appellant's appeal. Having reviewed the relevant authorities Mitting J was satisfied that in order for an effective trial in a person's absence to occur it was always necessary for the true name and address of that individual to have been ascertained so that they could be served with the relevant papers in order to commence the trial process. Only if the trial process had been properly commenced and set in train in that sense could subsequent extradition proceedings be legitimately formulated. He expressed his conclusions pithily in paragraph 17 of his judgment in the following terms:

    ``17. In the light of those considerations, I am satisfied that the proper interpretation of section 23 of the 2003 Act requires at a minimum that a trial process must have been initiated from which the appellant has deliberately absented himself. It is not enough that he should be arrested in circumstances in which a trial is likely or even inevitable. He will in those circumstances undoubtedly be a fugitive and will not be able to rely on the passage of time to resist extradition, but that is all. The structure within which cases of this kind should be dealt within the Member States is, in my judgment, that set out in the 2009 Framework Decision. As it happens, our law is capable of being aligned with it and was for several years thought to be so aligned. It should revert to that position. On the District Judge's findings, adverse though they were to the appellant, he did not deliberately absent himself from his trial. What happened was that he made it difficult or impossible for the prosecuting authorities to serve him with the documents which would have notified him of the fact, date and place of the trial. If he had been entitled unequivocally to a right of retrial or to have his case reheard on the merits of the appeal his extradition could have been ordered. It is only because it is for the time being accepted that Romanian law does not give him that right I must allow this appeal.''

  5. For the purposes of the submissions of Mr Seifert, who appeared on behalf of the appellant, the essence of the appellant's evidence is that his wife had moved with him to the UK in October 2010. Their son (born 4th April 2005) had initially stayed with family in Romania, but in April 2011 the appellant and his wife had returned to Romania to fetch their son to live with them. Since June 2011 the appellant and his wife and son had been living in the UK. In the evidence which was before DJ Coleman the records of the flights to Romania were available. In addition, it is important to note that in her evidence before DJ Coleman the appellant's wife noted the impact on her health which the extradition proceedings had been having, causing her to suffer mental ill health and seek treatment from her GP in that respect. On two occasions in 2013, whilst the extradition proceedings were on foot, she had found that she had accidentally fallen pregnant and had to undergo a termination of each of those pregnancies because of the uncertainties in their domestic circumstances caused by the extradition proceedings.

  6. The first EAW having been discharged as a consequence of the appeal to Mitting J, the appellant and his wife and son continued their family life in the UK. Both the appellant and his wife have worked and supported themselves independently during their time in the UK. As a consequence of the extradition proceedings having apparently gone away they had a second child, a son, born 5th April 2015.

  7. It appears that at some point in 2014 there was a change in the law in Romania so as to permit the retrial of a person tried in their absence. This change in the law was designed to overcome the lacuna which had led in the appellant's case to the discharge of the EAW against him in the circumstances described by Mitting J. On 3rd September 2015 the EAW relevant to the present proceedings was issued. It was certified on 29th November 2015 and on 6th January 2016 the appellant was again arrested. A hearing occurred before DJ Wright on 1st March 2016 and on 3rd March 2016 she ordered the appellant's extradition. The pertinent parts of the District Judge's judgment for the purposes of the appeal are as follows:

    ``3. Before dealing with this matter it is right to say that Mr Bicioc was the subject of an earlier EAW for the same matter. On the 13th September 2013 Mr Bicioc's extradition was ordered by District Judge Coleman. The issues in the case at the time were the question of whether the requested person was a fugitive and the lack of a right to a retrial following conviction in absence and there was an argument under section 2 Extradition Act 2003 because the date of the offence was incorrectly stated on the warrant. Mr Bicioc appealed to the High Court and although the court held that the error in relation to the date of the offence was not material, it also held that as Mr Bicioc was not a fugitive and there was then no right to a retrial in Romania, his appeal against the extradition was allowed.

    ...

  8. The warrant relates to an offence of driving with excess alcohol. He was convicted for committing an offence in that on 19th May 2010 he drove on public roads in Baia Maria with an alcohol concentration which exceeded the prescribed limit. It is an extradition offence because the blood alcohol concentration was 130 micrograms of alcohol per 100 ml/breath. He was arrested by the police after being involved in a collision.

    ...

    My Findings

  9. I did not accept that Mr Bicioc did not know that it was inevitable that court proceedings would follow his arrest given that he accepted that he would be disqualified and that he expected to be sentenced to a suspended sentence of imprisonment. Nor did I accept that the police didn't ask him for his current address. That is so inherently unlikely that I can discount it. He provided an address which he knew was no longer current and I am sure that he was deliberately trying to evade the consequences of his actions in driving whilst over the prescribed limit. Clearly he did not know of the proceedings themselves and that was because he could not be contacted because he had failed to give the police his address.

    ...

  10. I have no doubt that Mr Bicioc has settled in the UK, that he has worked and that his wife and children are also settled. I accept that if he is extradited it will have an adverse effect on his Article 8 rights and those of his family. Denis [his first son] is due to start secondary school, a time which is pivotal in his education and very important to him....

To continue reading

REQUEST YOUR FREE TRIAL