CO/2575/2006 
Neutral Citation Number: [2006] EWHC 1977 (Admin)
IN THE HIGH COURT OF JUSTICE 
QUEEN'S BENCH DIVISION  
DIVISIONAL COURT 
Royal Courts of Justice 
Strand
London WC2 

Wednesday, 7th June 2006
 
B E F O R E:
 
LORD JUSTICE MAURICE KAY 
MR JUSTICE MITTING 
 
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CRISTIAN MITOI
Appellant

-v- 

GOVERNMENT OF ROMANIA
Respondent 
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Computer-Aided Transcript of the Palantype Notes of 
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MISS CAMPASPE LLOYD-JACOB (instructed by Messrs Tuckers, London W1T 6AF) appeared on behalf of the Appellant
MR BEN WATSON (instructed by Crown Prosecution Service, Casework Directorate, 50 Ludgate Hill, London EC4M 7EX) appeared on behalf of the Respondent
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J U D G M E N T
1.	MR JUSTICE MITTING:  On 20th September 2002 the appellant, Cristian Mitoi, and his brother, Misu Mitoi, were convicted of several offences of dishonesty by the criminal section of the Dambovita District Court in provincial Romania.  The official record of the court proceedings reveals that the appellant was convicted of five separate offences, three of fraud contrary to section 215 of the Romanian Criminal Code and two of theft contrary to article 208.  The offences comprised the issuing of four cheques totalling 294 million odd lei for goods supplied by two different companies for which there were no funds to cover them in the bank account on which the cheques were drawn.  Two of the cheques were also stolen.  All five offences were committed in May 1999.
2.	Neither the appellant nor his brother was present at the trial.  The appellant says that he left Romania on the night of 30th/31st May 1999.  He told the District Judge at the extradition hearing that he and his brother left Romania together and arrived in the United Kingdom on 26th June 1999.  Though the two brothers were not present at the Dambovita court on 20th September 2002, they were represented by counsel, described by the court in the official record as "chosen counsel".  There is no indication in the record that the facts on which the prosecution was based were disputed.
3.	Three questions were argued: (1) on the prosecutor's application whether or not the offences should be treated as one, in which case it seems it would have attracted a more severe total penalty; (2) whether or not the brothers had evaded the criminal investigation by leaving Romania; (3) whether or not extenuating circumstances, in the case of both brothers their previous good character and partial recompense of the victims of their dishonesty, and in the case of Misu Mitoi ill health, should mitigate the penalty.
4.	The court concluded that the offences were separate, not one; that the brothers had not evaded the criminal investigation; and that extenuating circumstances should mitigate the penalty.  Concurrent sentences for each offence were imposed on the appellant, of which the longest was 12 months' imprisonment.  The sentence was suspended for three years.
5.	The prosecutor appealed to the criminal section of the Ploiesti Court of Appeal on two grounds.  First, the District Court should have treated the offences as one single offence of fraud.  Secondly, the court imposed a sentence below the statutory minimum for fraud and should not have suspended the appellant's sentence.  The Court of Appeal upheld the prosecution appeal on 18th June 2003.  It held that both brothers had acted in an organised manner, not spontaneously, with a "global image" of the offending activity they were going to carry out.  The court substituted a single offence of fraud for the five offences of which the appellant had been convicted, and increased his sentence to three years' imprisonment, no part of which was suspended.  There is no indication in the official record of the Court of Appeal that either brother was represented by counsel at the appeal.
6.	Both brothers then appealed to the High Court of Cassation and Justice in Bucharest.  They were represented by Gheorghe Birsan, described in the official record as "chosen counsel for defence".  On 6th February 2004 the High Court rejected their appeal, holding that the Court of Appeal had been correct to treat the offences as one and to "remove" the extenuating circumstances found by the District Court, and to increase the appellant's penalty to three years' immediate imprisonment.  Both the Court of Appeal and the High Court held that the brothers had evaded trial, not quite the same question as that answered by the District Court which had simply held that they had not evaded the criminal investigation.
7.	On 26th February 2004 a warrant for the arrest and detention of the appellant was issued by the Dambovita court.  On 3rd March 2005 the Republic of Romania requested the extradition of the appellant.  On 15th March the Secretary of State certified that the request was validly made under Part 2 of the Extradition Act 2003.
8.	On 13th January 2006 District Judge Tubbs rejected the appellant's contention that his extradition was barred by reason of extraneous considerations under section 79(1)(b) and section 81 of the 2003 Act.  There is no challenge to that element of her decision.  The sole ground of appeal arises out of the second element of her decision, that the appellant had deliberately absented himself from his trial before the Dambovita court on 20th September 2002.
9.	The relevant statutory provision is to be found in section 85(1) to (4), which repeats in identical terms the provisions in Part 1, section 20(1) to (4):
"(1) If the judge is required to proceed under this section he must decide whether the person was convicted in his presence. 
 (2) If the judge decides the question in subsection (1) in the affirmative he must proceed under section 87. 
 (3) If the judge decides that question in the negative he must decide whether the person deliberately absented himself from his trial.
 (4) If the judge decides the question in subsection (3) in the affirmative he must proceed under section 87."
Section 87 requires the District Judge to send the case to the Secretary of State for his decision whether the person is to be extradited, unless his extradition would be incompatible with his Convention rights.
10.	It was common ground that the trial was in the appellant's absence.  The sole question was therefore that which arose under section 85(3): had the appellant deliberately absented himself from his trial?  This required the District Judge to determine two questions.  First, was he aware of the trial?  Secondly, if so, did he deliberately fail to attend it?  Each question is a question of fact.  The appellant's case was that he was not aware of the trial or, for that matter, of either set of appeal proceedings.  The District Judge rejected that case for the following reasons:
"I am required to consider whether Cristian Mitoi was aware of the trial at Dambovita that concluded in the Judgment of that Court on 30th September 2002 and/or the 2 appeal hearings that followed from that conviction.  'Chosen counsel' that appeared on behalf of both brothers at this first trial was clearly in touch with Misu Mitoi as he produced medical documentation on his behalf that can only have been supplied through Misu Mitoi himself.  This gives weight to the contention that this was not court-appointed or court-chosen counsel but the defendants' own chosen counsel.  Further I am not persuaded that a court appointed lawyer without contact or instructions from a defendant would take an appeal on his behalf to the High Court or make points in relation to mitigation of sentence on his behalf.  The appeal in this case to the High Court was on behalf of both brothers.  The subsequent orders for costs were against both brothers.  The appeal to the High Court on behalf of Cristian Mitoi and the references throughout the court proceedings to his representation by 'chosen counsel' is evidence that Cristian Mitoi was aware of all three court proceedings.  Misu Mitoi was clearly aware of the trial proceedings.  Cristian Mitoi said he had lost contact with his brother and not been informed of, or discussed, the trial and appeal proceedings with him at any stage.  The court is entitled to look carefully at the account given by the defendant to form a view as to its credibility.  On Cristian Mitoi's own evidence he and Misu had run the company in Romania together, they had worked closely together, they saw each other nearly every day at that time and, of course, their family and children were known to each other and close.  They had both left Romania and had travelled together and arrived in the United Kingdom on 26th June 1999.  It was Cristian Mitoi's evidence before me that he had not spoken to, or had contact with, his brother since September 1999 following a big argument over money.  Given the closeness of their personal and business relationship before they left Romania and the circumstances that led to their travelling to the United Kingdom together and evidence that they both then remained in the United Kingdom, I do not find it credible that there has been no contact between them since September 1999.  The assertion of non contact is required to distance himself from his brother's demonstrable knowledge of the trial and the appeals.  In all the circumstances I am satisfied that Cristian Mitoi was aware of the trial and deliberately absented himself from the trial proceedings."
11.	That reasoning can be broken down into five elements:
 (1) the brothers were represented by counsel of their choice at their trial;
 (2) both appealed by counsel of their choice to the High Court;
 (3) the two brothers had a close personal and business relationship in Romania and left together for the United Kingdom.  It was not credible that there had been no contact between them since September 1999;
 (4) if the appellant was in contact with his brother he must have known about the trial, to which his brother was clearly tied by the medical document which was supplied to and produced by their chosen counsel;
 (5) in those circumstances the District Judge did not believe the appellant's denial of knowledge.
It seems to me that had the matter rested there, in other words on the information which she had, the District Judge's reasoning and conclusions would have been unimpeachable. 
12.	However, since that decision was reached there have been further developments.  I need say little more about them, save that apparently authentic witness statements have been obtained from two Romanian lawyers, first Gheorghe Birsan, who represented the appellant and his brother in the High Court of Cassation and Justice, and secondly, Adriana Dascalu, who appears to have played some part in the trial and perhaps in the appeal proceedings to the Ploiesti Court of Appeal.  The witness statement of Gheorghe Birsan takes matters no further.  All that it makes clear is that he stood in for other counsel in the appeal to the High Court of Cassation and Justice, which is not in fact a step relevant for these proceedings.
13.	The witness statement of Adriana Dascalu is, on reading and rereading, curious and obscure, but it may persuade the District Judge, if the matter is to be remitted to her, that one of the conclusions that she reached — that the appellant had chosen counsel, counsel of his choice, to represent him at the trial — was erroneous.  It is a matter which can only be resolved after further exploration of the documentary evidence, and almost certainly of further evidence from and cross-examination of the appellant.  It is therefore a matter which is fit for remission to the District Judge under section 104(1)(b) of the 2003 Act, for her to reconsider the question whether or not the appellant voluntarily absented himself from the trial, and I would propose in relation to that issue that that course be adopted.
14.	There remains, however, one discrete and important question of law not previously determined, or so far as I can tell from the District Judge's judgment directly canvassed before her, as to the burden and standard of proof to be applied to the decision which she made, and is required to make, under section 85(3).  The same question also arises under Part 1, section 20(3) and, given the identity of wording, must in my view be answered in the same way.
15.	Sections 85(3) and 20(3) replace section 6(2) of the Extradition Act 1989, which provided:
"(2)  A person who is alleged to be unlawfully at large after conviction of an extradition crime shall not be returned to a foreign state, or committed or kept in custody for the purposes of return to a foreign state, if it appears to an appropriate authority-- 
 (a) that the conviction was obtained in his absence; and 
 (b) that it would not be in the interests of justice to return him on the ground of that conviction."
No change other than that of wording is effected by section 85(1) and section 20(1).  The court must decide if the appellant was convicted in his presence or his absence.  That is unlikely ever to be a live issue.
16.	If convicted in his absence, section 6(2)(b) of the 1989 Act required the court to make a judgment: would it be in the interests of justice to return him?  The range of issues which might inform that judgment were outlined in the interdepartmental working paper referred to by the Divisional Court in R v Governor of HM Prison ex parte Barone 7th November 1997, in section 4(A) of the judgment.  Some of the issues are factual, but it would not have been apt to determine the judgment which had to be made by applying a burden or standard of proof to it, viewed as a whole.
17.	Sections 85(3) and 20(3) by contrast separate out one of the elements of the issues which the interdepartmental working party identified as relevant to the judgment: whether the person deliberately absented himself from the trial.  This is a pure question of fact, to which a court would expect to apply a burden and a standard of proof.  Parliament anticipated that expectation and made provision for how it should be exercised in section 206(1) and (2), which provides:
"(1) This section applies if, in proceedings under this Act, a question arises as to burden or standard of proof. 
 (2) The question must be decided by applying any enactment or rule of law that would apply if the proceedings were proceedings for an offence."
18.	In so doing, Parliament in my view followed the observations of Rougier J in this court in In Re Anderson, 17th March 1993, page 4B-C, in which he stated:
"Two points arise.  The first is: to what standard must the court be satisfied?  Since these are matters concerned with crime and criminal procedure, the answer must be to a standard of proof appropriate in criminal cases since it is the person seeking the extradition who effectively is the prosecutor."
19.	The rule in English criminal proceedings is not in doubt.  Statutory exceptions apart, where the burden of proof is on the Crown the standard of proof is so that the fact-finder is sure, whether the fact-finder is a judge or a jury (see Ewing (1983) 77 Cr App R 47, at pages 53-54.  It might therefore be thought that the question was capable of a simple answer.  If the burden of proof is on the requesting state, section 206 in terms requires that proof to be discharged to the criminal standard.
20.	Mr Watson, for the government of Romania, submits that the question in extradition law is not, however, that straightforward.  His submissions have changed during the course of the day.  I set them out not to embarrass him, but to disclose the conceptual difficulty of the approach that he proposes.
21.	In the first instance, Mr Watson accepted that the burden of proof was on the requesting state but must be discharged to the civil not the criminal standard.  Secondly, on reconsideration he resiled from his concession as to the burden of proof.  He asserted that the burden of proof was on the defence and that it was to the civil standard.  Finally, having consulted with colleagues, he submitted that the burden of proof was on the requesting state and was to the criminal standard, but, at least in the case of Part 1 requests, could be satisfied simply by ticking a box on the European arrest warrant form.  If, he submitted, the matter was put in issue by the defence, then it was for the defence to prove that the appellant was not voluntarily absent from the trial to the civil standard.  In other words, his final position amounts to a sophisticated proposition.  First, that the burden of proof is on the requesting state and is to the criminal standard; but once the issue is raised, the burden shifts to the defence and the standard falls to the civil standard.  Asked to identify any domestic circumstances in which that changing burden and standard applied, he was unable to suggest any circumstance other than familiar ones where the burden of proof is put by statute on the defence, for example diminished responsibility.
22.	A moment's consideration will, however, show that that proposition does not apply in domestic circumstances.  It is never for the Crown to prove to the criminal standard that the defence of diminished responsibility is not established.  The burden of raising the issue and of proving it is always on the defence.  I am unaware of any domestic circumstance in which the burden and standard of proof changes in the double way advanced by Mr Watson.  Indeed I would find it, if I were a trial judge, a burden and standard that was difficult to apply.  Further, it seems to me to fly in the face of the express words of section 206.  Section 206 requires any question arising as to the burden or standard of proof to be applied as if the proceedings were proceedings for an offence.  No proceedings for an offence carry with them the shifting standard suggested by Mr Watson.
23.	Mr Watson submits in support, or in parallel perhaps, that an appropriate analogy is where the defence raise a contention that the proceedings are an abuse of process.  He submits, correctly, that where such an issue is raised and involves questions of fact, then the burden of proof is on the defence and must be discharged to the civil standard.  It is not for the prosecution to prove to the criminal standard that proceedings would not be an abuse.  But the analogy is not a fair one.  Where the question of abuse of process arises, the burden is always on the defence and must always be discharged where factual questions are involved to the civil standard.  That does not fit in with either the scheme of the Extradition Act or the terms of section 206, or indeed Mr Watson's own final position.
24.	A closer analogy is the decision by an English court to proceed with a trial on indictment in the absence of the defendant.  (The position in Magistrates' Courts is governed by section 11 Magistrates Courts' Act 1980.)  That a power to do so exists was authoritatively established in R v Jones [2003] 1 AC 1.  That it must be exercised with great care and ordinarily only where the defendant deliberately absents himself is also established by the same case.  Their Lordships did not, however, address the question: to what standard it must be proved that the defendant was voluntarily absent?  As far as I know that question has never been addressed in any English domestic case, but I would anticipate that it would unhesitatingly be answered by an English criminal lawyer with the answer: "to the criminal standard".  If ever this issue were to arise, I cannot conceive that an English court would simply proceed on balance of probabilities, so subjecting a man who might be absent for proper reasons to a criminal process which might result in serious deprivation of liberty or other penalties.  If proof to the criminal standard is required, as I believe it to be, in English domestic proceedings, then the express words of section 206(1) and (2) require it also to be applied in extradition proceedings.
25.	I would therefore direct the District Judge when she reconsiders the question under section 85(3) to apply to it the criminal standard of proof. 
26.	LORD JUSTICE MAURICE KAY:  I agree.  Accordingly, the matter will be sent back to District Judge Tubbs in Bow Street in accordance with the judgment.
27.	MISS LLOYD-JACOB:  I am asked to raise two matters, my Lord.  My instructing solicitor has handed me a schedule of charges.  (Pause)  I am asked to point out that there were three charges which were on the schedule of charges in the English courts, but it may well be there were five in the Romanian jurisdiction.
28.	Could I have legal aid assessment for costs?
29.	LORD JUSTICE MAURICE KAY:  Yes.  Certainly.
30.	MISS LLOYD-JACOB:  Thank you.
31.	LORD JUSTICE MAURICE KAY:  Thank you both very much.