Weekly Digest: 4 November 2019

The extradition was sought by a European Arrest Warrant (“EAW”) issued on 6 June 2016 by the 1^st Criminal Division of the Bucharest Appeal Court. The conduct constituting the two offences for which the applicant (the requested person) was sought was, firstly, during June 2013 and December 2013, together with Dan Adamescu and with the help of Daniel Onute and Monica-Angela Borza, the requested person remitted €10,000 in June 2013 and €5,000 in December 2013 to Magistrate Ion Stanciu, the judge within the Bucharest Court 7^th Civil Division in order to secure a favourable decision from that judge in insolvency proceedings. Secondly; on 10 December 2013, together with Dan Adamescu and with the help of Onute and Borza, the requested person remitted 23,000 Romanian Lei, the equivalent of €5,000 to Elena Roventa, the judge of the Bucharest Court 7^th Civil Division, in order to obtain a favourable decision in two cases. This conduct constituted the offences of bribery, contrary to the Romanian Criminal Code, punishable with imprisonment of between six months and five years.

The applicant was born in Bucharest in 1978 and was a German national. Since 2012 he had resided in the United Kingdom. His father, Dan Adamescu, founded a significant business conglomerate in Romania, the Nova Group, in which the applicant was involved. Within the background material it was stated that Romania Libera was critical of Romania’s Social Democratic Party, in particular Prime Minister Ponta who held office from May 2012 until November 2015. Both judges were prosecuted for accepting bribes, they were convicted and sentenced to terms of imprisonment. Dan Adamescu was tried and convicted upon the offences of bribery. In February 2015 he was sentenced to four years and four months’ imprisonment. In January 2017 he died when serving his sentence of imprisonment in Romania.

Pursuant to the EAW the applicant was arrested in London on 13 June 2016. From the outset he has contested the extradition proceedings. Following the final submissions, and the production to the court of a forged document by the applicant, which resulted in his remand in custody, the District Judge ordered the applicant’s extradition. The applicant sought permission to appeal on five grounds of appeal, ground one cannot be pursued. The grounds, using original numbering, were:

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), Extradition Act 2003 (“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.

Permission to appeal upon grounds two to five were granted. Permission to appeal upon ground six was refused.

Grounds two to four

The essence of the applicant’s appeal in respect of grounds two to four was that the reasoning and analysis of the District Judge was inadequate, he failed to grapple with the extensive evidence before the court, in particular from the expert witnesses Dr Basham and Dr Bratu as to the political system in Romania. It is the applicant’s case that such evidence demonstrated an abusive and politically motivated process, directed at the applicant (and his father), initiated upon the direction of the former Prime Minister Ponta. [12] In his judgment at [200] the District Judge observed that Dr Basham is not legally qualified and at [201] noted that Dr Basham had not carried out any review of the evidence presented by the Romanian authorities in the prosecution of the applicant, nor had he interviewed or spoken to any of the judges, witnesses or co-defendants involved in case, nor attended the trial. [15] The District Judge appeared to be dismissive of or to have rejected the evidence of both experts. The court considered that District Judge did not grapple with such evidence, in particular, the expert evidence of Dr Basham and Dr Batu, nor with the issue of whether or not any nexus could be identified between the political and prosecutorial processes in Romania and the prosecution of the applicant. [16]

Therefore, in respect of grounds two to four it was reasonably arguable that his reasoning for rejecting the evidence called on behalf of the applicant was inadequate and was insufficient to permit an understanding of the route to his final conclusion. Accordingly, the court granted permission to appeal upon grounds two to four. [17]

Ground five

Before the District Judge was evidence from two psychiatrists as to the mental health of the applicant. Professor Eastman, instructed on behalf of the applicant, and Dr Joseph, on behalf of the respondent. It was the applicant’s case that a diagnosis of bipolar disorder, which was made by Professor Eastman, was an important factor to be taken into account when considering the article 3 challenge. At [348] the District Judge dismissed this point and stated:

“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 were 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 the court considered that it would grant permission in respect of the article 3 ruling. In so doing the Court accepted that the issue of the assurances given by the Romanian Government and the criticism of them by the applicant, would form a part of the applicant’s case in respect of ground five at the hearing of the appeal. [32]

Ground six – speciality

This was not an argument raised before the District Judge. Predecessor Leading Counsel originally abandoned the point in his skeleton argument but it was resurrected in a further written submission. On the evidence available to her, Elizabeth Laing J rejected ground six on the basis that the formal arrangements between the UK and Romania were sufficient.

The applicant did not seek to contest that conclusion but sought to rely on fresh evidence. [34] Although his submission engages section 27(4) of the 2003 Act and the need to point to decisive evidence, Mr Keith QC submitted that this was so in relation to the evidence in the form of witness statements from three recent Romanian prisoners or former prisoners, Messrs Edutanu, Ticu and Balan. According to these statements, these men were dealt with in Romania for offences completely separate from those for which their extradition had been ordered by these courts.

The Court considered that the responses from Romania on this issue were clear and detailed. Edutanu’s sentences were merged at his request; Ticu was not proceeded against for other matters without the consent of the courts of this jurisdiction; Balan’s sentences were merged at his request. Their witness statements amount to no more than a series of assertions which have been effectively contradicted by compelling documents. [37] Therefore, permission on ground six was refused.

A considerable amount of new evidence had been filed by the applicant since the extradition hearing. Given the grant of permission upon grounds two to five, the Court did not consider it appropriate to make any ruling upon such evidence, this will be a matter for the court at the full hearing. [39]

The Claimant was a serving prisoner at HMP The Mount. He applied for judicial review of a decision by an independent adjudicator, the Defendant, to refer disciplinary charges to the police, instead of deciding them for herself. There were two ‘adjudicators’ in the relevant legislative scheme, an adjudicator, usually a prison governor, who first makes an inquiry into a disciplinary charge (“the adjudicator”), and an independent adjudicator, to whom the adjudicator must refer certain cases for him or her to inquire into them (“the IA”).

Permission to apply for judicial review was granted on the papers, on two grounds, by Andrew Baker J. He refused permission to apply for judicial review on three further grounds. When those grounds were renewed, Lang J ordered that, at the substantive hearing, there should also be a ‘rolled-up hearing’ of the application for permission to apply for judicial review on those renewed grounds, to be followed by a substantive hearing of those grounds if permission were granted.

The Defendant did not appear on this application and was not represented. The application has, in practice, been defended by the first two interested parties- the Governor of the Majesty’s Prison The Mount and the Secretary of State for Justice.

The main issue was whether, under the relevant legislative scheme, the IA had power, a charge having been referred to her by the adjudicator to her for her to inquire into, not to inquire into it, but, instead, to refer it to the police for them to investigate, with the result either, that she would not inquire into it all (if a prosecution followed) or that she would only inquire into it much later (if at all) if, in the event, there was no prosecution. There were two further issues. The first was whether, if the IA did have power to refer the charge to the police, her decision to do so was unlawful because it was taken pursuant to a policy which is not published and was in any event unlawful. The second as whether, in referring the charge to the police, she breached, and is liable for a breach of, the Data Protection Act 1998 (‘the DPA’). Those two further issues were the grounds for which, in effect, Andrew Baker J refused permission, and which were renewed at the hearing before the Court. The parties agreed that the fourth issue stood or fell with the first issue.

The Court held that the IA acted unlawfully in the Claimant’s case on 21 February 2018 by directing that two charges of possession of a mobile phone be referred to the police, and not inquiring into them herself.

(1)  Does the IA have power to refer a charge to the police?

The IA has no express power to refer a charge to the police. The question, therefore, was whether a power to refer a charge to the police is an incidental power which is ‘necessary’ to enable the IA to exercise the statutory power which has been conferred on her. The answer to that question depends on an analysis of the power in question, in its legislative context. In short, the Court was satisfied that a power to refer a disciplinary charge to the police, instead of inquiring into it herself, is not necessarily incidental to the functions which were conferred on the IA by the legislative scheme. [66]

The first aspect of the legislative context is The Prison Act 1952. Section 1 shows that, subject to the express provisions of the Act, Parliament intended the Secretary of State (and not the court) to have all powers and jurisdiction in relation to prisons. Section 4 shows that Parliament intended the general superintendence of prisons to be vested in the Secretary of State. There is therefore ample statutory authority for the issue of Prison Service Instructions (“PSI”) by the Secretary of State, regulating any aspect of prisons in as much detail as the Secretary of State considers appropriate. The second aspect of the legislative context is the Prison Rules 1999 SI No 728 (“the Rules”). In this scheme, the IA has a limited, express, function: that of inquiring into a charge. The governor, not the IA, is deeply involved in all aspects of prison discipline. The IA does not need such a power in order discharge her function, which is to investigate the charge which is referred to her by the governor in accordance with the Rules. Such a power is quite different from the IA’s powers, for example, to ask for evidence to further her inquiry, and to regulate the conduct of the hearing into the charge, which were obviously necessarily incidental to her express functions. [67]

If, however, what comes to light is that the facts of the existing charge seem to be more serious than they did at first, as here, because a further similar offence has come to light, that, in the first instance, is a matter for the governor. What went wrong in this case is that first, neither governor seems to have been aware of the adjudication which took place in March 2017. Second, the governor who referred the second charge to the IA did not know about the first charge. Had the second governor known about the first charge, she would have been able to consider whether or not to refer the second charge to the police. What went wrong, therefore, is not a risk which is inherent in the legislative scheme but the result of poor coordination within the prison. But this sequence of events did not entitle the IA to abandon her inquiry which had been referred to her by the second governor in accordance with the Rules. [71]

Furthermore, the governor of a prison has no express power, statutory or otherwise, to report to the police crime or suspected crime within the prison but such a power is necessarily to be implied to enable him to carry out his express functions, in particular to maintain prison discipline. There is nothing in the Rules, which were delegated legislation and take precedence over the PSIs, to prevent the governor reporting crime to the police; the two PSIs give guidance to governors about the circumstances in which criminal offences should be referred to the police, and assume that there is such a power. The Court was satisfied that the governor has power to report to the police crime or suspected crime within the prison. Counsel for the first and second interested parties pointed out that the IA is sitting in the place of the governor and so retains the Governor’s powers to report a case to the police even at the stage of adjudication. The Court did not accept that submission. The IA is not sitting as a substitute governor; he is independent of and sits instead of the governor. He does not have the governor’s powers. He has only the powers of the IA. [74]

(2) Did the IA have an unlawful policy to refer second possession charges to the police?

The Court considered that this question only arises if the IA had power to refer the charges in this case to the police. The key point was that the IA told Ms Koska, who represented the Claimant at the hearings before the Defendant, that she (the IA) had not looked at the additional evidence, had decided to refer the cases to the police when she arrived (and had discovered that the Claimant had a second adjudication for possession of a mobile phone listed to be heard that day). In the previous case, by contrast, the IA asked for, and listened to, submissions about why she should not refer the charge to police, and (as it happens) acceded to those submissions (see Nichole Warren’s witness statement). There was, it seemed to the Court, no arguable apparent pre-determination in that case. [81]

(3) Was there a breach of the DPA?

In the light of the parties’ agreement that this ground adds nothing to the first ground, the Court did not consider it necessary to add much to what the Court has said about this point in paragraph 74, above. Section 4(4) of the DPA requires the data controller (in this case, the IA) to comply with the data protection principles Part 1 of Schedule 1 of the DPA, and in Schedules 2 and 3 of the DPA. The first data protection principle is that data must be processed fairly and lawfully; in particular, sensitive personal data must not be processed unless one of the conditions in Schedule 3 is met. The only potentially relevant condition in Schedule 3 is condition 7(a), ‘The processing is necessary for the administration of justice’. If the IA had no power to refer the charge to the police, the IA breached the first data protection principle.

The Court added that it should not be thought that there is an absolute prohibition on an IA reporting to the police crime that has come to his or her attention via the IA process. The Court had in mind cases where corruption has occurred or cases of gross error when the public-policy imperative that crime should be investigated and prosecuted may require that matters discovered in the IA process be reported to the police. That is not this case. These offences could and should have been reported to the police by the governors, as the interested parties accepted. The Court acknowledged that by her actions the Defendant corrected the effect of the errors made by the governors but the course she took was not open to her for the reasons set out in the judgment. [84]

Regarding the appropriate remedy, the only issue between the parties was whether the decision should be quashed or whether a declaration that it was unlawful was sufficient remedy. The Court considered that the declaration of unlawfulness is sufficient. [86]

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Prison violence rises to record level

Official figures released on 31 October 2019 reveal that violence in prisons has increased by 5% to a record level of 34,100 in the year to June 2019 with an increase in assaults on staff and prisoner-on-prisoner attacks, and that self harm among prisoners is also at an all-time high, with almost 1,000 incidents in young offender institutions.

The full piece can be read here.

The Independent Office for Police Conduct (IOPC) has endorsed the tactic of knocking thieves off their motor scooters as a “legitimate use of force” for specially-trained officers. A Bill in the Queen’s speech is to give police more protection to pursue criminals on scooters through a new legal test that assesses their actions against that of a highly-trained driver, rather than a member of the public driving at such speeds.

The full piece can be read here.

A former partner is to sue EY for £13 million via a claim being brought by the law firm Leigh Day, after he was allegedly forced out for claiming to have exposed large scale money laundering. A three-week hearing begins in January 2020 at the High Court. EY have stated that his claim is denied and is being vigorously defended.

The full piece can be read here.

A Treasury Committee report on economic crime and consumers concludes that: firms should consider retrospectively reimbursing victims of push-payment fraud; the Contingent Reimbursement Model should be compulsory; a 24-hour delay on all first-time payments is needed; firms missing confirmation of payee deadline should be sanctioned; targeted information campaigns were needed for potential money mules; and banks should be more transparent around de-risking.

The full piece can be read here.

Information Commissioner, Elizabeth Denham’s first Commissioner’s Opinion under the Data Protection Act 2018, sets out her advice and recommendations on the police’s use of “live facial recognition” (LFR). As a result of the Information Commissioner’ s Office investigation into the trials of LFR by the Metropolitan Police Service and South Wales Police which raised “serious concerns about the use of a technology that relies on huge amounts of sensitive personal information”, Ms Denham’s key recommendation is to call for the Government to introduce a statutory and binding code of practice on the deployment of LFR.

The full piece can be read here.