Octavian Radu v The Vaslui Court of Law, Romania

This application raises a point of practice and procedure concerning renewed applications for permission to appeal made in appeals under the Extradition Act 2003 (“the 2003 Act”), a point that does not appear previously to have been considered. In accordance with Practice Direction (Citation of Authorities) [2001] 1 WLR 2001 I give permission for this judgment to be cited in other proceedings.

An order made on 1 November 2022 at Westminster Magistrates’ Court, requires Octavian Radu to be extradited to Romania. The warrant that underlies the extradition order was issued by the Requesting Judicial Authority on 1 September 2016 and was certified by the National Crime Agency on 14 December 2021. The warrant is a conviction warrant, seeking Mr Radu’s surrender to serve a sentence of imprisonment of 2 years, 2 months and 20 days. That sentence is a merged sentence. In November 2014 Mr Radu had been convicted of drug offences and received an 8 month suspended sentence. In February 2016 he was convicted on a charge of selling cannabis. He was sentenced to 2 years’ imprisonment, and the 2014 suspended sentence was activated. By a judgment that became final in June 2016 the two sentences were merged.

Mr Radu came to the United Kingdom in early 2016. He was arrested pursuant to the warrant on 24 February 2022. At the extradition hearing, extradition was opposed on the basis of section 14 of the 2003 Act, that by reason of the passage of time extradition would be oppressive; and on the ground that extradition would be a disproportionate interference with Mr Radu’s article 8 rights. These contentions failed. As to the former, the District Judge concluded that Mr Radu was a fugitive; as to the latter the District Judge concluded that any interference with Mr Radu’s article 8 rights was justified.

On 7 November 2022 Mr Radu applied for permission to appeal. The grounds of appeal filed with the Notice of Appeal were as follows:

“(a)

The District Judge was wrong to decide the warrant complied with the requirements of Section 21 of the Act as the consequences of extradition in terms of the private and family life of the Applicant would be exceptionally severe.

(b)

The District Judge was wrong to decide the warrant complied with the requirements of Section 14 of the Act as it would be unjust or oppressive to extradite the Applicant given the passage of time.”

The application for permission to appeal was considered on the papers by Lane J. By an order made on 23 February 2023 he refused the application for an extension of time to file the perfected grounds, refused the application to rely on new evidence, and refused permission to appeal. Lane J’s reasons were as follows:

“1.

The application to extend time to admit the perfected grounds seeks relief in respect of a delay of 11 days. Given the time limit, that is serious breach. The explanation given is weak. If particular counsel is over burdened with work, alternative counsel could and should have been instructed. The substantive challenge to the District Judge’s decision cannot be described as particularly strong. Accordingly, the application for the extension is refused.

2.

The application to adduce fresh evidence is misconceived. The Appellant seeks to make entirely unwarranted use of the fact that the District Judge regarded the appellant’s drug-free state whilst in the United Kingdom as a point in his favour. That finding did not enable the appellant belatedly to seek to introduce evidence about his mental condition at or around the time of his offending in Romania. That information could and should have been procured and adduced in time for the hearing before the District Judge.

3.

Taken at its highest, the challenge to the District Judge’s conclusions on article 8 is hopeless. She was unarguably entitled to her finding on fugitivity. The appellant has no family life in the United Kingdom. His article 8 case is inherently weak, and was inevitably overwhelmed by the factors pointing in favour of his extradition.”

A notice of renewal was filed on 1 March 2023 using Form EXREN. In section 5 of the form, which asks an appellant to “set out below the grounds for seeking reconsideration”, the answer given was “Renewal Grounds attached”. The document attached was a pleading headed “Renewal Grounds and Application to Amend Grounds of Appeal”. Paragraph 2 of the document said as follows:

“Lane J refused leave to appeal on 22 February 2023. The Applicant does not seek to renew on the basis of either of the grounds that were originally pleaded. Instead the applicant intends solely to rely on Section 2(6)(b) of the Extradition Act 2023. There is also no application to adduce further evidence.”

The point Mr Radu now wishes to rely on is that the warrant did not meet the requirements of section 2(6)(b) of the 2003 Act to provide “particulars of the conviction” (“the section 2 ground of appeal”). The pleading filed on 1 March 2023 with the Notice of Renewal puts the point as follows:

“14.

Box E of the warrant states that the Applicant ‘provided for consumption and sold without right risk drugs to the consumers of Bariad municipality and Vaslui municipality.’ There is no information about the types of drugs or the quantum of substances which were being provided and sold.

15.

It is on that basis that there is a wholesale failure to provide information in the Part 1 Warrant which complies with the requirements of the Act and the Trade and Cooperation Agreement. As Farbey J held in Doga the court was required, firstly, to consider the information in the warrant by itself. If there is such a failure to provide the necessary particulars and there is a broad omnibus description of the offending then defects cannot be cured. In the instant case that is the problem.”

The point of practice that arises is whether this course, abandoning the grounds of appeal originally pleaded and applying in the Notice of Renewal for permission to rely on a new ground of appeal, amounts either to an effective renewal of the application for permission to appeal under Crim PR 50.22 or to some other permissible course of action that does not involve the need for an application under Crim PR 50.27, i.e. an application to reopen an appeal that has already been determined.

The submission made by the Requesting Judicial Authority is that the Notice of Renewal filed in this appeal was not an effective notice because it did not meet the requirement in Crim PR 50.22(3) that a renewal notice “must explain the grounds for renewal”. The Requesting Judicial Authority’s second submission is that the substance of the point now raised by the notice of renewal is an application for permission to amend the grounds of appeal which is an application that must be determined in accordance with Crim PR 50.20(5). Thus, contends the Requesting Judicial Authority, the application to amend is to be dismissed as it has been made “out of time” (i.e. outside the period permitted by Crim PR 50.20(5)(b)) and there is no good reason to extend time to permit the application to amend to be made. The Requesting Judicial Authority further submits, on the premise that the Notice of Renewal was ineffective, that the appeal is at an end and that the only route for Mr Radu to raise the argument that the extradition order should be set aside for failure to comply with the requirements of section 2 of the 2003 Act is by an application to reopen the appeal under Crim PR 50.27.

Was the notice of renewal in accordance in with the Criminal Procedure Rules?

A number of provisions in the 2003 Act and Part 50 of the Criminal Procedure Rules are material. Section 26 of the 2003 Act provides for appeals against extradition orders in Part 1 cases. Section 26(4) requires that notice of an application for leave to appeal “must be given in accordance with rules of court before the end of the permitted period, which is 7 days starting with the date on which the [extradition] order is made”. Section 210 of the 2003 Act states that rules of court may make provision for the practice and procedure to be followed in connection with proceedings under the Act. Crim PR Part 50 performs that purpose.

Crim PR 50.19 supplements section 26 of the 2003 Act and makes provision for service of a Notice of Appeal. Rule 50.20 concerns the form of the Notice of Appeal. The content of the notice is prescribed by Rule 50.20(3). By Crim PR 50.20(3)(b) the Notice of Appeal must “identify each ground of appeal on which the appellant relies”. Rule 50.20(6) and (7) further prescribe matters that must be addressed in notices of appeal against extradition orders made by magistrates, but these requirements are not material for the purposes of the present decision. Crim PR 50.20(5) provides a right to amend grounds of appeal. One issue in this application is whether that rule is the sole source of the power to permit a notice of appeal to be amended, or whether a general power to permit amendments to notices of appeal is to be found in Crin PR 50.17(6)(b) such that Rule 50.20(5) is no more than the equivalent of a “free hit” for an appellant that, subject only to meeting the conditions in that rule, allows a one-time right to amend not dependent on any grant of permission by the court.

In the ordinary course, applications for leave to appeal are first considered without a hearing. This is permitted by Crim PR 50.17(1)(b)(ii). Crim PR 50.22 is headed “Renewing an application for permission to appeal, restoring excluded grounds etc”. When an application for permission to appeal is considered without a hearing and either refused or refused in part, the appellant may renew the application “… by serving notice… not more than 5 business days after service of notice of the court’s decision on the appellant”; the notice “must explain the grounds for the renewal”. (see, respectively, Crim PR 50.22(2) and (3)).

Turning to the present case, the first matter to address is whether the Notice of Renewal filed on 1 March 2023, counted as a notice of renewal for the purposes of the Criminal Procedure Rules. The nature of a notice of renewal was considered by Irwin J in Opalfvens v Belgium [2015] EWHC 2808 (Admin). That case arose shortly after the requirement for permission to appeal had been added to section 26 of the 2003 Act (by the Anti-Social Behaviour, Crime and Policing Act 2014, with effect from 15 April 2015) and the Criminal Procedure Rules had been amended to include provisions for making and renewing applications for permission to appeal.

Irwin J refused a renewed application for permission to appeal having considered the application on its merits. He then went on to consider the form of the Notice of Renewal. In that case the grounds of appeal had concerned section 20 of the 2003 Act (the bar to extradition if the requested person has been convicted in his absence, was not deliberately absent, but has no right to retrial on surrender). The Notice of Renewal, which continued to pursue the section 20 ground of appeal, stated only the following:

“The application is renewed for all of the reasons set out fully in the original grounds .”

These observations reflect the practical effect of the requirement (now at Crim PR 50.22(3)) that a renewal notice “must explain the grounds for renewal” and are, obviously, correct. However, they were made in the context of a Notice of Renewal that relied only on grounds of appeal originally pleaded in a Notice of Appeal when those grounds had been considered and rejected by a judge who had considered the application for permission to appeal on the papers. I do not consider it can be inferred from Irwin J’s observations in Opalfvens that the provision in the rules that permits an appellant to renew an application for permission to appeal is to be understood as requiring that any renewed application must rely only on all or some of the grounds of appeal contained in the Notice of Appeal either (a) as served in accordance with Crim PR 50.19; or (b) as amended as permitted by Crim PR 50.20(5).

The ability to renew an application for permission to appeal is not restricted in this way. As drafted, Crim PR 50.22(2) permits an application for permission to appeal to be renewed by service of a notice, and by Crim PR 50.22(3) that notice must explain the grounds for renewal. Those provisions do not exclude either the possibility that an application for permission to appeal originally made on grounds A and B might be renewed on grounds A, B and C (being a ground not previously pleaded) or the possibility, as happended in the present case, that a renewal application might be made only on a ground or grounds of appeal that had not previously been pleaded. In such a case, the renewal notice would need to explain those grounds for renewal.

This is not the end of the matter. Even though a new ground of appeal may be included in a Notice of Renewal or may be the sole ground on which a renewed application for permission for appeal is advanced, I also consider that where this happens, the new ground, whether it stands alone or whether it stands together with grounds pleaded in the Notice of Appeal as it stood at the time of the application for permission to appeal was first considered on the papers, ought also to be the subject of an application to amend. In many instances the determinative issue on the application for permission to amend will be materially the same as the issue to be determined in relation to the new ground of appeal on the renewed application for permission to appeal, namely whether the new ground of appeal raises an arguable issue, an issue that needs to be considered at a final hearing. However, there may be occasions when considerations other than the substantive merits of the proposed new ground of appeal are relevant to, or determinative of, the application for permission to amend; for instance, when it is contended by a respondent that permitting the new ground to be pursued would give rise to material prejudice. A requirement that a new ground of appeal that appears for the first time in a Notice of Renewal also be the subject of an application to amend which can be considered at the same time as the renewed application for permission to appeal, will ensure that the court will have the opportunity to consider, on a single occasion, any and all matters that may be relevant to deciding whether an appeal relying on such a ground should be permitted to proceed.

This leads to the point raised by the Requesting Judicial Authority’s second submission: whether the application to amend must be treated as an application governed by Crim PR 50.20(5). Crim PR 50.20(5) provides as follows:

“(5)

Unless the High Court otherwise directs, the appellant may amend the appeal notice –

(a)

by serving on those listed in Rule 50.19(1) the appeal notice as so amended; and

(b)

not more than 10 business days after service of the appeal notice.”

In its submissions, the Requesting Judicial Authority relied on the proviso in the opening words of Crim PR 50.20(5) to contend that this rule is the one that must govern any/all applications for permission to amend, whenever made, in the course of an appeal. Thus, goes the submission, the application for permission to amend in this case, made when the Notice of Renewal was filed, must be treated as an application under Crim PR 50.20(5), made out of time.

I do not agree. The substance of the rule is that an appellant is able to amend his grounds of appeal in the original Notice of Appeal by serving an amended Notice within the time permitted in that rule “unless the High Court otherwise directs”. The proviso in the opening words qualifies what is otherwise the right contained in the remainder of the rule, to amend a notice of appeal within the stated 10-day period. On this analysis, while exercise of the proviso may result in the 10-day period being reduced or removed, the proviso is not the source of a power to extend the 10 day period. Thus, it is wrong to read the proviso as the source of a general power to grant permission to amend on an application regardless of when that application is made in the life of an appeal. Rather, the general power to permit amends to Notices of Appeal is to be found in Crim PR 50.17(6)(b): the court’s power “to allow or require a party to vary or supplement a notice that that party has served”. Notwithstanding the absence of the word “amend” from Crim PR 50.17(6)(b), the substance of a power to permit a notice to be varied or supplemented is a power to amend the notice, and a Notice of Appeal is as much a notice as any other notice that might be served in an appeal under Part 1 of the 2003 Act.

In this way, Crim PR 50.20(5) and Crim PR 50.17(6)(b) are complementary, rather than competing powers. An appellant wishing to make an application to amend his Notice of Appeal does not need to choose between the two: if the amendment is made within the 10-day period, Crim PR 50.20(5) applies; if the application to amend is made later (or if the proviso to Crim PR 50.20(5) is applied) the application should be made under Crim PR 50.17(6)(b).

My conclusion on the effect and scope of application of these two rules will mean a departure from present practice. For now, the practice in cases where perfected grounds of appeal are served later than 10 business days after service of the Notice of Appeal tends to be to rely on Crim PR 50.20(5) as the provision permitting amendment and to combine that application with one under Crim PR 50.17(6)(a) for an extension of the time permitted in Crim PR 50.20(5). The present appeal is a case in point: the perfected grounds of appeal were served outside the 10 day period, and on 8 December 2022 Mr Radu applied under Crim PR 50.17(6)(a) to extend the time permitted under Crim PR 50.20(5) for service of perfected grounds of appeal. This practice is unnecessarily onerous. Where an application is made under Crim PR 50.17(6)(a) the application is decided by reference to the principles stated by the Court of Appeal in Denton v TH White Ltd [2014] 1 WLR 3926; see Zelenko v Latvia [2021] 1 WLR 133 at paragraphs 47 to 52. On the approach I have described above, in a case where an appellant missed the period specified in Crim PR50.20(5) an application to amend grounds of appeal as filed when the appeal was commenced, should be made pursuant to Crim PR 50.17(6)(b). On that application, the timing of the application (i.e. whether it had been made promptly or only after delay, or whether the timing of the application was a cause of prejudice to the respondent) would be relevant to the merits of the application. However, the fact that the application had been made later than 10 days after service of the notice of appeal would not, of itself erect an obstacle, or require the application to be treatred as an application made “out of time”. On this analysis the notion of an “out of time” application under Crim PR 50.20(5) is redundant.

This analysis is better because applying the approach contended for by the Requesting Judicial Authority is unduly complex, and in practice is an unduly restrictive approach to the possibility of amendment to notices of appeal. That approach: (a) requires every application for permission to amend a notice to appeal to be made in reliance on Crim PR 50.20(5); and (b) in consequence, means that many such applications will fall to be treated as applications made “out of time” i.e. outside the 10 day period specified in Crim PR 50.20(5), and as such would also require an application under Crim PR 50.17(6)(a). I do not consider that this is necessary or required to protect any legitimate interest of requesting judicial authorities, or necessary in the public interest to promote the proper operation of the scheme in the 2003 Act.

The final strand of the Requesting Judicial Authority’s submission is that the application now made by Mr Radu to rely on the section 2 ground of appeal should be treated as an application under Crim PR 50.27 to reopen a decision of the court “which determines the appeal or the application for permission to appeal”. Given my analysis above, at paragraphs 15 and 16, I do not think this course is either appropriate or necessary.

Mr Radu’s submission on this point relies on section 35 of the 2003 Act and, in particular, on section 35(4ZA). Among other matters, section 35 concerns when extradition must take place in cases where a requested person has applied for permission to appeal against an extradition order and permission to appeal has been refused. In such circumstances extradition must take place “within the required period” which is defined as starting on “the day on which the decision of the High Court refusing leave to appeal to it becomes final” (see section 35(4)(a)(ii)). Section 35(4ZA) provides that the decision becomes final “… when, in accordance of rules of court, there is no further step that can be taken in relation to the application for leave to appeal” (by section 35(6), this must be determined ignoring the possibility of any extension of time or permission to act out of time). Thus, goes the submission for Mr Radu, the need for an application under Crim PR 50.27 to reopen a decision that determines an application for permission to appeal could not arise until expiry of the time allowed under Crim PR 50.22(2) to serve a notice of renewal, and in this case the Notice of Renewal was served within that time.

I accept this submission. For the reasons set out above, the Notice of Renewal served on 1 March 2023 was an effective notice of renewal and, that being so, meant that Lane J’s order would not comprise a determination of the application for permission to appeal in this case.

Drawing matters together, the position is as follows. The Notice of Renewal filed in this appeal on 1 March 2023 complied with the requirement in Crim PR 50.22(3) to “explain the grounds for the renewal”. It was effective to renew the application for permission to appeal. In principle, a renewed application for permission for appeal may rely on some or all of the grounds of appeal pleaded when the original application was made, or on those grounds and grounds of appeal not pleaded at the time of the original application for permission to appeal, or only on grounds first pleaded in the notice of renewal. In the present case the section 2 ground of appeal set out in the Notice of Renewal was also a point that had not been contested at the extradition hearing. In the circumstances of this case, and on the application of the principle stated at paragraphs 18 and 19 of Stanley Burnton LJ’s judgment in Hoholm v Norway [2009] EWHC 1513 (Admin), this does not prevent the section 2 ground being relied on as a ground of appeal.

Where a previously unpleaded ground is raised in a renewal notice the renewal notice should be accompanied by an application to amend the grounds of appeal. That happened in this case. Such an application for permission to amend is an application made pursuant to Crim PR 50.17(6)(b), not an application governed by Crim PR 50.20(5) made out of time.

On the facts of the present case, since the Notice of Renewal met the requirement in Crim PR 50.22(3) and was otherwise properly made, no question arises that any part of Mr Radu’s application need be characterised as an application under Crim PR 50.27 to reopen an appeal that has already been determined.

The merits of the renewed application for permission to appeal/ the application to amend on the section 2 ground.

In the circumstances of this case the applications for permission to appeal and permission to amend turn on the same issue: does the section 2 ground of appeal raise an arguable point?

The section 2 ground of appeal can be shortly put. Where the warrant is a conviction warrant it must contain the information prescribed at section 2(6) of the 2003 Act. This includes, at section 2(6)(b) “particulars of the conviction”. The submission is that particulars of the conviction have not been provided either on the face of the warrant or in further information provided by the Requesting Judicial Authority (first on 4 May 2022, and later on 30 May 2022) because there are no details about the amount of cannabis Mr Radu was convicted of selling when he was convicted in 2016.

So far as what is required when providing “particulars of the conviction”, Mr Radu relies on observations made by Collins J in his judgment in King v France [2015] EWHC 3670 (Admin). That case, heard by a Divisional Court, also concerned a conviction warrant. At paragraph 17 – 18 of his judgment, Collins J stated as follows:

“17.  I must now consider the decision in Sandi v. Romania. Hickinbottom J gave the only judgment. He cited from Dabas v. High Court of Justice in Madrid, Spain [2007] AC 31 in which it had been said that the provisions of the 2003 Act must be construed purposively having regard to the Framework Decision. In paragraphs 25 and 26 Hickinbottom J said:

“25.  Although they have to be construed in the light of the Framework decision, the starting point for the requirements of a conviction warrant must be the terms of the statutory provisions in section 2 of the 2003 Act….[Counsel] submitted that both section 2(4)(c) and section 2(6)(b) required the same level of information about the underlying conduct, because both use the term ‘particulars'. I do not agree. In those respective provisions, that term governs entirely different things: in section 2(4)(c), it gives the circumstances in which a person is alleged to have committed the offence, whilst in section 2(6)(b) it governs the conviction. As a matter of plain English, the phrase “particulars of the conviction” does not necessarily require the same level of detail in respect of the underlying changes imposed by the words of section 2(4)(c).

26.  In section 2, in respect of information to be included, there is a patent dichotomy between the requirements for accusation warrants on the one hand and a conviction warrant on the other. Section 2(4)(c) expressly requires particulars of the circumstances of the offence to be included in an accusation warrant; section 2(6)(b) does not require those particulars in a conviction warrant. It must be taken that Parliament intended the information as to the circumstances of the underlying offence required in an accusation warrant to be different from that required in a conviction warrant. It cannot have been this intention to have the requirements of section 2(4)(c) read across into section 2(6)(b) as [counsel] contended.”

18.  While I recognise the force of this reasoning, I do not think it is compliant with the approach which Article 8 of the Framework Decision requires. The obligation in section 2(4)(c) to give “particulars of the circumstances in which the person is alleged to have committed the offences” is tautologous and adds nothing to the requirement to give a description of “the circumstances in which the offence was committed” (Article 8(1)(e)). The only distinction between accusation and conviction is that the circumstances are alleged in an accusation case but established in a conviction case. ‘Particulars of the conviction’ are not necessarily limited since time, place and degree of participation are needed in order for there to be compliance with Article 8. I do not believe that the use of the word ‘particulars' in section 2(4)(c) adds anything to the Article 8(1)(e) test and in section 2(4)(b) ‘particulars' must extend beyond a mere recital of the conviction. What is needed in all cases is sufficient information to enable any mandatory or optional bar contained in Article 3 and 4 of the Framework Decision to be considered whether by the authority in the executing state or the requested person.”

In this case the submission is that knowing the quantity of cannabis sold would be relevant to assessing the gravity of the offending and therefore, whether extradition would be a proportionate inference with Mr Radu’s article 8 rights.

There is no one-size fits all approach to what information is sufficient for the purposes of section 2(6)(b) of the 2003 Act. What that provision requires falls to be considered case by case, in context. In this case the information provided in the warrant read together with the further information provided by the Requesting Judicial Authority, is sufficient for purposes of section 2 of the 2003 Act. The contrary is not properly arguable. The information available is that Mr Radu was convicted of selling drugs contrary to article 2(1) of Law 143/2000 because between February and March 2015 he sold cannabis which is a “risk drug” for the purposes at that law. The sentence imposed for the offence was 2 years inprisonment. That information is sufficient for the purposes of any assessment of the seriousness of the offending. It goes well beyond “mere recital of the conviction”. While I accept that more information could have been provided, that is not to the point. The information that was provided was sufficient for the purposes of meeting the requirement in section 2. The warrant was a valid warrant for that purpose.

I note that Mr Radu gave evidence at the extradition hearing. That evidence is noted between paragraphs 22 and 36 of the District Judge’s judgment. Had Mr Radu wished to give further evidence relating to the offending that was dealt with in 2016 to support his article 8 case, he could have done so. Be that as it may, the submission that the warrant did not meet the requirements of section 2 of the 2003 Act is not arguable.

In the premises, notwithstanding that the renewal application was properly made, both the application for permission to amend and the application for permission to appeal are refused.