Popoviciu v Curtea De Apel Bucharest (Romania)

In a conviction extradition case, a requested person who relies on a past flagrant denial of a fair trial must prove that violation on the balance of probabilities. Showing substantial grounds for believing that there is a real risk that the past trial was flagrantly unfair is insufficient.

A specific exception applies where evidence may have been obtained by torture. That exception reflects the unique status and corrupting effect of torture and does not extend to allegations of judicial bias or corruption. By contrast, whether extradition will expose a person to a future denial of an effective means of challenging detention is assessed by asking whether there is a real risk of that consequence.

The Romanian judicial authority sought the respondent’s extradition under a European Arrest Warrant so that he could serve a sentence imposed after his conviction in Romania. A district judge ordered extradition.

The High Court allowed the respondent’s appeal in [2021] EWHC 1584 (Admin). Fresh evidence provided substantial grounds for believing that the Romanian trial judge had an undisclosed and potentially corrupt relationship with an important prosecution witness. Although the allegations were not proved on the balance of probabilities, the High Court considered that the resulting real risk of a flagrantly unfair trial and arbitrary imprisonment satisfied section 27(4) of the Extradition Act 2003.

After the Supreme Court hearing, the European Arrest Warrant was withdrawn. The appeal was consequently dismissed, but the court delivered judgment to answer whether a real-risk standard suffices where the alleged flagrant denial of justice occurred during a completed trial.

1. Appeal dismissed. Lord Lloyd-Jones, with whom Lord Hodge, Lord Kitchin, Lord Hamblen and Lord Stephens agreed, held that withdrawal of the European Arrest Warrant required dismissal under section 43(4) of the Extradition Act 2003. The court nevertheless answered the certified question and addressed the associated issues.

2. The law distinguishes proof of a past fact from assessment of a future risk. Past facts in issue are determined on the balance of probabilities. A future occurrence is assessed by evaluating its likelihood, without restricting consideration to facts individually proved on that standard.

3. In a conviction extradition case, an allegation that the completed trial involved a flagrant denial of article 6 rights concerns historical facts. Subject to the torture-evidence exception, the requested person must prove the flagrant violation on the balance of probabilities. It is insufficient to establish substantial grounds for believing that there is a real risk that the completed trial was flagrantly unfair. The High Court therefore applied the wrong standard. Had the warrant remained in force, the court would have allowed the appeal on this ground.

4. The exceptional approach in Othman for evidence possibly obtained by torture could not be extended to allegations of judicial bias or corruption. The exception reflects torture’s unique wickedness, its status as prohibited by a peremptory norm and its destructive effect on the integrity of criminal proceedings. A variable standard based on the gravity or consequences of other allegations would lack authority and be unworkable.

5. The High Court had considered the Romanian authority’s inadequate response and was entitled to draw only weak inferences from it. Its evaluation that those inferences did not prove the allegations on the balance of probabilities disclosed no basis for appellate interference.

6. The proposed additional evidence did not satisfy the first fresh-evidence criterion because reasonable diligence could have secured it before the High Court hearing. It was also of limited significance and incapable of satisfying the decisive-effect criterion. Had the warrant remained in force, admission and remittal on that basis would have been refused.

7. A distinct, prospective issue arose over the availability in Romania of an effective procedure for challenging the legality of detention in light of the new allegations. That issue attracted the real-risk standard. An application to the Strasbourg court and the limited review afforded by English extradition proceedings did not discharge Romania’s obligation to provide an effective domestic remedy. Had the warrant remained in force, this issue would have been remitted to the High Court.

1. United Kingdom Supreme Court: The European Arrest Warrant was withdrawn after the hearing. The appeal was dismissed under section 43(4) of the Extradition Act 2003, but the certified question and associated issues were determined.

2. High Court: In [2021] EWHC 1584 (Admin), Holroyde LJ and Jay J allowed the requested person’s appeal, discharged him and quashed the extradition order. The court held that substantial grounds for believing there was a real risk of a past flagrant denial of justice were sufficient.

3. Westminster Magistrates’ Court: District Judge Zani ordered the respondent’s extradition to Romania on 12 July 2019.