The appellant Requesting State (‘RS’) appealed against the decision of the District Judge (‘DJ’) to order the Requested Person’s (‘RP’) discharge under section 20(7) of the Extradition Act 2003. The RP was sought pursuant to a conviction European Arrest Warrant (‘EAW’) for two offences of trafficking vulnerable women for prostitution for which she received a sentence of five years’ imprisonment. The RP was not physically present at her trial but, according to the terms of the EAW, a summons had been served at her parents’ address and she was represented by, and therefore present through, “the chosen public defender”. The EAW was unclear as to whether the RP instructed the public defender or whether the Romanian authorities did so on her behalf but the latter position was considered more likely.
Before the DJ, the RP and her husband gave contradictory evidence about the extent to which the RP had maintained contact with her parents and her sister – who had herself been convicted in Romania for her involvement in the same trafficking offences. Despite expressing “deep suspicions” about the RP’s knowledge of the proceedings against her in Romania, the DJ held that the evidence before the court was insufficient to establish to the criminal standard that she had in fact been aware and that her absence was therefore voluntary.
Grounds of appeal
The RS appealed on two grounds. It was argued, on ground one, that the DJ failed to apply the principles of mutual trust and confidence to the statement in the EAW that the RP was represented by her “chosen” defender, and, on ground two, that if the DJ found that the RP was not represented by a defender she had a role in choosing, then he should have considered whether she was entitled to a retrial.
Court’s decision and reasoning
The court considered the correct approach to determining whether a RP had been absent from their trial as laid down by the Divisional Court in Cretu v Romania  1 W.L.R. 3344. Paragraph 34(iii) of Cretu states that “an accused who has instructed a lawyer to represent him in the trial is not, for the purposes of section 20, absent from his trial, however he may have become aware of it.” The court in Cretu went on to highlight the principles of mutual trust and confidence and said that it would be inappropriate for the RS to be pressed for further information relating to matters set out the in EAW save for in cases of ambiguity, confusion, or where relevant to and argument of abuse of process.
In the instant case, the court held that paragraph 34(iii) had to be read in context. A person who has instructed a lawyer to act on her behalf to represent her at her trial must, by definition, have found out about the criminal proceedings otherwise such instructions would not have been given. The final clause is merely making it clear that there need not have been personal service; any means of finding out, proven to the criminal standard, will suffice. Paragraph 34(iii) does not, therefore, cover a situation where the RP may have had a lawyer appointed by the relevant State, the RP being ignorant at all material times of the underlying criminal proceedings. Though this was precisely the factual scenario put forward by the RP in the instant case, to ascertain whether the RP’s claim was correct would entail the sort of factual inquiry cautioned against in Cretu. There was before the court some evidence to call into question the statement in the EAW that the RP had chosen legal representation, however, the courts in this jurisdiction are ill-equipped to investigate these issues and, a fortiori, the tenets of mutual trust and confidence preclude the inquiry undertaken by the DJ. The first ground of appeal was therefore allowed
The second ground of appeal hinged on the decision of the Divisional Court in BP v Romania  EWHC 3417 (Admin), by which the instant court was bound and, in any event, which it considered to have been correctly decided. In BP, the court held that, if a Romanian court found that the appellant RP had not instructed a lawyer, she would be entitled under Romanian law to a retrial and the principle of mutual trust mandated that nothing further could be required of the RS. The effect of that decision and reasoning in the instant case was that the possibility that the RP may have been “awarded” a lawyer by the authorities in the RS, and did not know of the criminal proceedings against her, was not a matter that could be raised in the extradition proceedings. The RP’s recourse is to litigate the issue upon her surrender in the context of an application for a retrial. The RS also succeeded on ground two.
The court’s reasoning in respect of both appeal grounds relied in part on the principles of mutual trust and confidence underlying the EAW regime, derived from the principle of mutual recognition of criminal decisions, commonly described as the ‘cornerstone’ of judicial cooperation in the EU . The Trade and Cooperation Agreement 2020 (‘TCA’), which replaced the EAW regime for the purposes of extradition arrangements between the UK and the EU at 11 pm on 31 December 2020, removed all reference to these principles from the new arrangements. Critics of the EAW regime tended to regard mutual recognition and mutual trust as legal fictions, stifling the UK courts’ capacity to properly address genuine concerns about judicial independence, human rights and fair trials in some European countries. However, as is evident from the instant case, mutual trust and confidence serve a number of purposes in extradition proceedings, including the avoidance of potentially lengthy and complex factual inquiries and of the extensive satellite litigation such inquiries might generate.
It remains to be seen how the courts will approach the question of mutual trust and the practical implications of its deliberate omission from the new arrangements in the context of a warrant issued under the TCA. The case law is clear that mutual trust and mutual recognition were derived from the UK’s membership of the EAW club. Therefore, relying on mutual trust to close off avenues of inquiry because the RS has simply asserted a fact to be true may not be defensible under the TCA. However, the courts have time and again made clear their desire to avoid engaging in factual inquiries in the RS. Therefore, it may be that future decisions seek to re-invent the principles in the context of the new regime. Article 524(1) of the TCA provides a potential avenue through which such an approach might be possible. It says that the judicial cooperation under the TCA will be “based on the Parties’ and Member States’ longstanding respect for democracy, the rule of law and the protection of fundamental rights and freedoms of individuals, including as set out in the Universal Declaration of Human Rights and in the European Convention on Human Rights, and on the importance of giving effect to the rights and freedoms in that Convention domestically.” It is not difficult to see how this acknowledgment of the signatories’ longstanding respect for, by way of example, Article 6 of the European Convention on Human Rights could be deployed to negate the need to make complicated legal and factual inquiries in other jurisdictions.