Toma Baceanu v Court of Law Segarcea (Romania)

MRS JUSTICE HEATHER WILLIAMS Introduction

1. In Case No. AC-2024-LON-000832, the Appellant appeals from the judgment of District Judge Curtis (“the DJ”) dated 7 March 2024 ordering his extradition to Romania (“Appeal 1”). Permission to appeal was granted on the papers by Bennathan J on 29 July 2024. At the substantive appeal hearing on 12 February 2025, Mr Zalewski indicated that the only ground of appeal pursued was that extradition would constitute a disproportionate interference with the rights of the Appellant and his family guaranteed by Article 8 of the European Convention on Human Rights (“ECHR”). There is a related application to rely upon fresh evidence, namely the Appellant’s proof of evidence dated 12 July 2024 and a report from Dr Rahman, a Consultant Paediatrician, in relation to the Appellant’s son. Although submissions on the Article 8 issue were completed at the 12 February 2025 hearing, I was not in a position to give judgment at that stage due to a rather unusual procedural complexity that had arisen.

2. The Appellant’s extradition was sought pursuant to an Arrest Warrant (“AW”) issued by the Court of Law Segarcea, Romania on 24 December 2020 and certified by the National Crime Agency on 28 July 2021. As I explain in more detail below, the AW related to five offences but the DJ’s extradition decision only referred to four of these offences. On the face of it, the same issues arose in relation to all five offences and this seemed to have been a simple oversight on the part of the DJ. After discussing the available options with counsel at the 12 February 2025 hearing, I decided the appropriate course was to reserve judgment until the position was regularised in relation to the fifth offence, as currently this offence remained before the Westminster Magistrates’ Court (“WMC”). If the DJ ordered extradition in relation to the fifth offence and there was no appeal, I would proceed to determine Appeal 1. If the DJ ordered extradition and there was an appeal to this Court, I reserved consideration of the new appeal to myself, so that I could then proceed to decide all outstanding appeal issues in relation to the AW in one judgment.

3. Proceedings relating to the fifth offence were duly listed before the DJ, who accepted that he had indeed overlooked the fifth offence in his earlier 7 March 2024 judgment. In a decision dated 19 February 2025, he ordered the Appellant’s extradition in respect of the fifth offence, relying on the reasons he had given in his earlier judgment.

4. The Appellant then appealed the extradition order in respect of the fifth offence, Case No. AC-2025-LON-000557 (“Appeal 2”). The Appellant relied on the earlier Article 8 contention, but also introduced a new ground, namely that the requesting state had failed to satisfy the requirements of section 20 of the Extradition Act 2003 (“ EA 2003 ”). By order dated 15 April 2025, I directed that the application for permission in relation to the section 20 ground be adjourned to be considered by me at a “rolled up” hearing, on notice to the Respondent, with the substantive appeal to follow if permission was granted. This appeared to be the most efficient and effective way of addressing the section 20 issue. As the Article 8 ground in Appeal 2 was in the same terms as has been raised in Appeal 1, I granted permission on that ground, indicating that no further submissions were required and that I would address it in my subsequent judgment. I also noted in my order that although the new Grounds of Appeal made reference to all five offences, no application had been made to amend the Perfected Grounds of Appeal (“PGA”) in Appeal 1 to add the section 20 ground.

5. Thereafter, the Appellant did apply to amend to add the section 20 ground in Appeal 1. By order dated 29 April 2025, I directed that the application to amend be considered at the rolled up hearing that was to be listed in relation to Appeal 2. If the application to amend was granted in Appeal 1, permission to appeal on the section 20 ground would be considered on the same rolled up basis.

6. By application notice dated 9 May 2025, the Respondent applied to adduce fresh evidence, namely Further Information dated 20 April 2025 in relation to the section 20 ground. The Appellant objected to the introduction of this material and both parties made submissions on this point at the rolled up hearing, which took place on 24 June 2025.

7. At the outset of the hearing on 24 June 2025, I indicated that I would hear submissions on all of the section 20 related issues de bene esse and then I would address those issues in this reserved judgment.

8. Mr Baceanu is an appellant in relation to Appeal 1 and an applicant in respect of Appeal 2. In the interests of simplicity, I will refer to him as the Appellant throughout this judgment. The proceedings in Romania and the extradition request

9. Box B of the AW describes the decision on which the warrant is based as follows: “Final and enforceable judicial decision: Criminal Judgment no. 91/07.07.2020 of the Court of Law Segarcea, final on 05.11.2020 by the judgment in a criminal case no. 1363/05.11.2020 of the Court of Appeal Caraiova Reference: The criminal judgment no. 91/07.07.2020 was rendered by the Court of Law Segarcea in the file no. 586/304/2019 and became final on 05.11.20 by the judgment in a criminal case no. 1363/05.11.2020 of the Court of Appeal Craiova in the file no. 586/304/2019.”

10. I will refer to the judgment of the Court of Law Segarcea on 7 July 2020 as “the first instance decision” and the judgment of the Court of Appeal Craiova as “the appeal decision”.

11. Box (E) of the AW indicates it relates to five offences. Placing them in chronological order, they are as follows: i) On the night of 10/11 November 2012, the Appellant broke into a house and stole a welding machine; ii) On 17 June 2014, he drove a moped on a public road without possessing a driving licence; iii) On 21 June 2014, he drove a moped on a public road without possessing a driving licence; iv) On 21 June 2014, he drove a moped on a public road that was not registered or listed; and v) On 8 September 2017, he drove a moped on a public road without possessing a driving licence.

12. As I come on to explain in more detail below, the driving an unregistered / unlisted moped was the offence that was overlooked by the DJ in his original extradition decision. I will adopt the parties’ terminology of referring to this as “the fifth offence”.

13. As the AW explained in Box C, punishment of one year imprisonment was imposed for committing the offence of driving on a public road without possessing a driving licence. This was the last in time offence committed on 8 September 2017. The AW indicated that this offence was committed within the probation term of three years directed in respect of the suspended penalty of two years and five months, imposed in relation to the four earlier offences by the Court of Law Segarcea by criminal judgment no. 234/12.12.2016, which was made final by Mr Baceanu not filing an appeal on 4 January 2017.

14. The text of Box C continued: “”Based on Article 96(4) Criminal Code related to Article 43(1) Criminal Code it revokes the suspension of the execution of the penalty of 2 years and 5 moths imprisonment imposed through the criminal judgment no. 234/12.12.2016 of the Court of Law Segarcea in the file no. 146/304/2015 and it orders its execution together with the penalty imposed by this one, the defendant is about to serve the penalty of 3 (three) years and 5 (five) months imprisonment. ” (Emphasis in the original.)

15. Box C also indicated that the entire three years and five months sentence of imprisonment remained to be served.

16. Box D of the AW was ticked to indicate “Yes, the person appeared in person at the trial resulting in the decision”. The DJ’s first judgment

17. The Appellant appeared unrepresented at the first extradition hearing. He was assisted by an interpreter. The DJ refused his application for an adjournment to enable him to instruct legal representatives, on the basis that he had done very little in that regard since instructing the duty solicitor on his arrest. The DJ gave the Appellant further time to consider the bundle of documents before starting the hearing.

18. At para 4 of his decision, the DJ said that the AW “comprises 4 offences from two Judgments”. He went on to refer to the dwelling burglary and the three occasions when the Appellant had driven within a licence. He made no reference at any point in his judgment to the offence of driving an unregistered moped.

19. The DJ noted that no issue had been raised as to the validity of the warrant. He was satisfied that the requirements of section 2 EA 2003 were met. He was also satisfied that the requirements of sections 10 and 65 were met and that there were no statutory bars to extradition.

20. The DJ proceeded to note that the Appellant had been on conditional bail since his arrest on 25 October 2023 and that he had no convictions or cautions in this jurisdiction.

21. The DJ explained that the issues identified on behalf of the Appellant at the first appearance (when he was represented by the duty solicitor) were Articles 8 and 3 ECHR. Section 20 EA 2003 had not been raised on that occasion, although an issue as to the Appellant’s presence at the trial did arise from the evidence he gave before the DJ.

22. The Appellant had not submitted a written proof of evidence, but he gave oral evidence on oath. The DJ summarised his evidence at paras 15 – 23. The Appellant has three children, twin daughters and also a son who was three years old. His son had a glandular problem which required daily medication that he usually gave him. The Appellant said he helped his wife obtain the prescriptions for his son and in administering the doses. When he worked at the fruit factory, his wife looked after the children as she did not work. Both the Appellant and his wife were in good health. The Appellant had no other family in the United Kingdom. He thought his wife would receive benefits if he were to be extradited.

23. When he was cross-examined by Mr Squibbs, the Appellant said he had not been in Romania when the imprisonment was imposed, although he had been back to Romania to lodge an appeal and after doing this he returned to the United Kingdom to work. He said he had tried to keep in touch with his lawyer in Romania, but he had lost his phone and did not know the outcome of the criminal proceedings. It was put to the Appellant that his account was untruthful and that he had been present at his trial and knew of the sentence of 3 years and 5 months he had to serve. In relation to this aspect of his case, the DJ concluded: “23. I did not find the RP a credible witness. I did not believe he was being honest and open about the extent of his involvement or knowledge of the Romanian proceedings. I took the view he knew there was a sentence to be served and he left before he was going to have to serve it.”

24. The DJ went on to conclude at para 24 that the evidence clearly and unambiguously supported the proposition that the RP was “present for the decision which underpins the warrant”. He said he did not believe the Appellant’s account which was “wholly unsupported by evidence”. Accordingly, the DJ found that section 20(1) EA 2003 was satisfied.

25. The DJ conducted the conventional balancing exercise in relation to the Article 8 ECHR issue.

26. He identified the following factors in favour of extradition: i) The constant and weighty public interest in extradition and in ensuring that this jurisdiction upholds its treaty obligations; ii) The strong public interest in ensuring that those convicted of committing crimes are returned to serve their sentences; iii) The offending was serious, as reflected by the value of the items stolen, the repeat offending and the sentence imposed. There was three years and five months to serve; iv) It was submitted that the Appellant was a fugitive from justice (as the DJ went on to find); and v) Any time that had passed since the convictions was due to the Appellant’s actions in seeking to avoid serving his sentence in Romania. The Romanian authorities had acted diligently in seeking to locate the Appellant and in progressing matters.

27. The DJ then identified the following factors against extradition: i) The Appellant had a daily input into his family life in the UK, providing for his wife and children as the sole breadwinner, so that they would suffer financially if he was extradited; ii) The Appellant was involved in the provision of medicine for his child who has a medical condition and he helped with the children when he is not at work; and iii) The Appellant’s wife would be alone and without support if he were extradited.

28. The DJ set out his conclusions in respect of the Article 8 analysis as follows: “31.I considered all the factors present in this case, I made allowance for the fact that the RP was unrepresented and thus possibly not able to fully present his case, I helped as far as I could to draw out the relevant factors in his favour, but they are limited here. The RP’s wife will no doubt find life more difficult in his absence, whilst I didn’t accept his evidence entirely, I am prepared to accept he has an input into family life when not at work. I accept the family will suffer some financial hardship if he is extradited but that is tempered by the concession his wife would be eligible for state benefits. It does not seem to me this is any more that what would normally be expected in extradition cases. Whilst he gave evidence of his son’s medical condition no evidence was presented to suggest this in his absence his wife couldn’t administer the medicine required (she does so when he is work).

32. On the evidence I was satisfied the RP was a fugitive, he knew there was a sentence to serve and left Romania to avoid it, there is always a high public interest in ensuring fugitives from justice do not benefit from their conduct and the principle [sic] reason it erodes any passage of time argument, although in this case he has not been in the UK for a substantial time in extradition terms and has limited ties.

33. Accordingly, I have concluded that the weighty factors for extradition here clearly outweigh those against and that it is not a disproportionate interference with his and his family’s Article 8 rights to order extradition.”

29. The DJ went on to note that an issue regarding prison conditions and Article 3 ECHR had not been pursued; and that an adequate assurance had been provided.

30. The DJ expressed his conclusion as follows: “39.For all the reasons set out above I order the extradition of Toma Baceanu to Romania pursuant to s 21(3) of the Extradition Act 2003 .” Appeal 1

31. Appeal 1 was lodged and issued on 11 March 2024. PGA were filed on 25 March 2024. As Bennathan J noted when granting permission to appeal, the PGA did not identify numbered grounds of appeal. The PGA challenged the DJ’s conclusion on the Article 8 issue, indicating that an expert medical report would be obtained in relation to the Appellant’s son. It was also alleged that the AW referred to five offences but had only identified particulars in respect of four offences.

32. The Respondent’s Notice disputed the Appellant’s proposed grounds of appeal but accepted that the DJ had erred in stating that the AW related to four (rather than five) offences and in not referring in his judgment to the offence of driving an unregistered / unlisted vehicle on 21 June 2014. It was accepted that, in turn, this had the following consequences: i) The DJ did not consider whether the fifth offence amounted to an extradition offence for the purposes of section 10 of the EA 2003 ; ii) The DJ did not consider whether the fifth offence satisfied the requirements of section 20 of the EA 2003 ; and iii) The DJ had not specifically ordered the Appellant’s extradition in respect of the fifth offence.

33. The Respondent’s Notice explained that the DJ’s error had likely come about because the contents of the Respondent’s Opening Note (not drafted by Mr Squibbs) had contained this error. However, Mr Squibbs had emailed the DJ on the morning of the hearing pointing out the error and clarifying the position. The Respondent submitted that if the DJ had addressed all five offences, he would have found that the requirements of sections 2 , 10 and 20 were satisfied in respect of each of them.

34. In granting permission to appeal, Bennathan J indicated that he was just persuaded that a medical report on the Appellant’s son could have made a difference to the order the DJ made. He observed that the proposed report should “focus on the issues of the care of the child and the impact of the Appellant’s absence”. He emphasised that he was not deciding on the admissibility of the report, which he had not seen at that stage. He said that he would not have granted permission in respect of the points regarding the fifth offence alone, but as he was granting permission in relation to the Article 8 ground the Appellant could also make submissions on this topic. The Judge observed that the Respondent would need to be in a position to assist the Court “on how those admitted errors can be remedied so as to avoid inflicting a complex speciality argument on the Romanian Courts in what should be a simple case”. The further evidence from the Appellant

35. As I have indicated, the Appellant filed applications to rely on fresh evidence in the form of a proof of evidence and the report from Dr Rahman.

36. The proof describes the Appellant’s life growing up in Romania and his subsequent arrival in the United Kingdom in 2018. He says that he registered with the Inland Revenue and has worked legally in a fruit factory, a vegetable factory and as an Amazon driver. He currently works as a casual labourer at a car wash. He had been with his partner for seven years and they have three young children. His son, born in December 2020, had been diagnosed with a medical condition at birth and will have to take medication for the rest of his life. The Appellant says that his family will suffer emotionally and financially if he is extradited. Neither his family, nor his partner’s family, have the means to assist with financial support. His wife would have to raise their three young children and would not be able to work. He also worries about the emotional impact on his children, whom he loves very much.

37. Dr Rahman’s report indicates that the Appellant’s son was born prematurely and has been diagnosed with congenital hypothyroidism. He has to take thyroxine medicine once daily, but does not require any other treatments. Dr Rahman did not identify any specific physical disability and notes that his development is age appropriate. Dr Rahman opines that provided the Appellant’s son takes his prescribed medicine daily “he is very likely to continue to show good growth and development”. Dr Rahman adds that he does “not anticipate any specific future issues secondary to hypothyroidism if he is given his medicine regularly”. Dr Rahman notes that the Appellant appears to be mainly involved in giving the medication to his son and that his presence in the family home “would facilitate good compliance with the treatment”. The appeal hearing

38. There were three grounds of appeal raised in Mr Zalewski’s skeleton argument for the appeal hearing. In addition to the Article 8 grounds, these were that: (i) there was a lack of proper particularisation of the fifth offence, so that section 2 EA 2003 was not complied with; and, (ii) in these circumstances, there was significant doubt as to whether the Requesting State would be able to give effect to the requisite Specialty protection so as to be compliant with section 17 EA 2003.

39. However, at the appeal hearing, Mr Zalewski accepted that all five offences were properly identified in the AW (see para 11 above) and that, accordingly, he did not pursue the latter two grounds. As I recorded in the order made on the following day (13 February 2025), Mr Zalewski accepted that only the Article 8 ground was maintained.

40. In his skeleton argument for the hearing, Mr Squibbs argued that the effect of the DJ’s decision was to order extradition in respect of all five offences. However, he invited the Court to adopt the following course if that proposition was not accepted: (i) to hear the appeal and reserve judgment; (ii) to then wait until the DJ could accommodate a hearing in respect of the fifth offence; (iii) if / when the Appellant’s extradition was ordered in respect of the fifth offence and an appeal lodged, grant permission to appeal against that order; and (iv) hand down judgment in respect of all five offences.

41. I heard full arguments on the Article 8 issue at the appeal hearing. After hearing submissions as to how I should approach the position regarding the fifth offence, I rejected Mr Squibbs first proposition. It was quite clear to me from the terms of paras 3 and 39 of his judgment and the absence of any reference to the fifth offence in any part of the decision, that the DJ had overlooked the fifth offence and his judgment had not addressed this. I recorded this in a recital to my order dated 13 February 2025.

42. However, broadly, I adopted Mr Squibbs’ alternative proposal. My order dated 13 February 2025 adjourned the appeal proceedings pending WMC’s determination of the extradition request in respect of the fifth offence. I included directions aimed at avoiding unnecessary delay and ensuring that any subsequent appeal came to me for determination. My order also recorded that in due course I would give one judgment in respect of all five offences. At that stage, it was not anticipated that any new ground/s of appeal would be raised if a second appeal was brought and I did not, as matters stood, envisage that there would be a need for a further hearing, although my order provided an opportunity for the parties to make representations on that matter (if a second appeal was lodged).

43. I mention for completeness that I did consider whether I could determine the outstanding extradition request myself at the 12 February 2025 hearing. However, a High Court Judge is not an “appropriate judge” for these purposes. The expression is defined by section 67(1) EA 2003 as a District Judge (Magistrates’ Courts) designated for the purposes of Part 1 of the Act by the Lord/Lady Chief Justice after consulting the Lord Chancellor. High Court Judges have not been so designated: Kasprzak v Warsaw Regional Court, Poland [2011] EWHC 100 (Admin) at para 37. The DJ’s second judgment

44. Following the Court’s order of 13 February 2025, the Respondent contacted the WMC and an extradition hearing in respect of the fifth offence was promptly listed for 17 February 2025. Both Mr Zalewski and Mr Squibbs appeared at that hearing. No new arguments were raised and the DJ indicated that the omission of the fifth offence from his judgment of 7 March 2024 had been a simple oversight. The DJ indicated that he intended to hand down an addendum judgment on 19 February 2025, ordering the Appellant’s extradition on the fifth offence.

45. On 18 February 2025, Mr Zalewski emailed the DJ raising a section 20 challenge for the first time.

46. On 19 February 2025, the DJ declined to hear further evidence or submissions on the section 20 contention on the basis that the omission of the fifth offence from the original judgment was simply an error and his Addendum Judgment was simply correcting that error.

47. In his Addendum Judgment, the DJ accepted that the 7 March 2024 judgment had erroneously referred to four, rather than five offences (para 2). He confirmed that the error had arisen from the contents of the Opening Note and he apologised for not acting on Mr Squibbs’ correction (para 33 above). The DJ recorded that counsel accepted that the previous judgment was in error in not referring to the fifth offence and that, “No submissions were made that the fifth offence was in any other way capable of challenge other than by its omission within the judgment” (para 4). He confirmed that para 3 of his original judgment should have referred to the five offences. He indicated he was satisfied that the fifth offence was sufficiently particularised in the AW for the purposes of section 2 EA 2003 and that it is an extradition offence for the purposes of section 10 . He was also satisfied that there were no bars to extradition and that: “6. ….For the reasons I gave in my judgment dated 7 th March 2024, the requirements of section 20(1) are met in respect of the offence, and extradition is compatible with Toma Baceanu’s rights under the European Convention on Human Rights.”

48. Accordingly, the DJ ordered the Appellant’s extradition in respect of the offence of driving an unregistered vehicle on 21 June 2014 (para 7). Appeal 2

49. On 24 February 2025, the Appellant lodged the Notice of Appeal in respect of Appeal 2. PGA were filed on 10 March 2025. Two grounds were relied upon. In addition to the Article 8 contention also raised in Appeal 1, it was alleged that “the Respondent State has failed to satisfy the requirements of said section [ section 20 ] and/or Article 4a of the amended Framework Decision”. It was said that the Appellant was entitled to raise this new issue as it was an issue of law, requiring no new evidence and it related to the mandatory requirements of the statute.

50. The crux of the new section 20 ground was that Box D of the AW, containing the statement that the Appellant had “appeared in person at the trial resulting in the decision” related to the first instance decision, whereas the appeal decision was the relevant “trial resulting in the decision” for the purposes of section 20 EA 2003 and there was no information in the AW regarding the Appellant’s presence at that appeal.

51. In the Respondent’s Notice, Mr Squibbs pointed out that if the Appellant was intending to raise the section 20 ground in respect of all five offences (as appeared to be the case from the text of the recent PGA), an application to amend would need to be made in respect of the PGA in Appeal 1. He indicated that the Respondent was neutral as to whether such an application should be granted if it was made. Although maintaining that the ground was not reasonably arguable, Mr Squibbs accepted that permission to appeal should be given on the Article 8 ground in order to achieve consistency with Bennathan J’s grant of permission in Appeal 1, but he contended that the appeal should be dismissed for the reasons he had advanced in Appeal 1. He suggested that the Court list a rolled up hearing to address permission to appeal in respect of the new section 20 ground and submitted that the ground was not reasonably arguable, in short, because whilst the Appellant was correct in saying that Box D referred to his presence at the first instance hearing, that was the relevant “trial resulting in the decision” for the purposes of section 20(1) , as the AW made clear. The document also indicated that the Respondent was intending to obtain Further Information.

52. I then made the order dated 15 April 2025, summarised at para 4 above. In para 3 of my accompanying observations, I noted that section 20 had never been a ground of appeal in Appeal 1 “in respect of which the Court, without objection from the parties, proceeded on the basis that submissions had concluded and reserved judgment on 12 February 2025”. I also indicated that if any application was to be made by the Appellant to amend the PGA in Appeal 1 to add a section 20 ground, this was to be done very promptly and “must include a detailed explanation as to why the section 20 ground was not raised at an earlier stage in [Appeal 1] given the material that is now relied upon was available prior to the 12 February 2025 hearing”.

53. By Application Notice dated 17 April 2025, the Appellant applied for an extension of time to amend the PGA in Appeal 1 to add the section 20 ground. The Court’s inherent jurisdiction and/or Crim PR 50.17(6)(a) were relied upon. No explanation was given for the failure to include this ground at an earlier stage, save for the fact that the Appellant was unrepresented at the hearing before the WMC and that the case law relied upon was relatively recent. It was suggested that a section 20 ground would not have been “effective” at the 12 February 2025 hearing because of the outstanding position regarding the fifth offence. It was also pointed out that the Appellant’s liberty was at stake. I made the order dated 29 April 2025 in response to this application, as I have summarised at para 5 above.

54. In Mr Zalewski’s skeleton argument for the 24 June 2025 hearing, he raised an abuse of process contention for the first time. However, at the hearing itself he confirmed that he was not pursuing this point either as a free-standing ground of appeal or as part of his objection to the Court admitting the Further Information.

55. In Mr Zalewski’s “Addendum Submissions” filed the afternoon before the hearing, he argued (in the alternative) and for the first time that the relevant decision for the purposes of section 20(1) was the 12 December 2016 decision of the Court of Law Segarcea (paras 13 and 14 above). The Further Information

56. The Respondent seeks to rely upon Further Information dated 20 April 2025 in relation to the section 20 ground (para 6 above).

57. The Request for Further Information asked, firstly, whether the Appellant was present at the trial that led to the criminal judgment of 12 December 2016 (paras 13 and 14 above); and, if not, the Requesting State was asked to confirm which section(s) of Box D3 of the AW applied to the trial and to provide information about how the conditions in the relevant section(s) had been met. Secondly, the Request asked the same questions in respect of the trial that led to the appeal decision.

58. The Further Information states in relation to the judgment of 12 December 2016, that the Appellant “appeared in person at several court hearings and was assisted or, as the case may be, represented (at the court hearings he missed) by a lawyer appointed ex officio by the court” and that he was “heard as a defendant” at the hearing on 4 July 2016. The following was said in respect of the question relating to the appeal decision: “ Mr Baceanu Toma did not appear at either of the two court hearings granted by the Court of Appeal Craiova in case no. 586/304/2019, in which the criminal decision no. 1363/05.11.2020 was rendered, by which the criminal judgment no. 917/07.07.2020 of the Court of Law Segarcea in the same case, no. 586/304/2019 became final. On 24.09.2020 Baceanu Toma submitted a written request to the Court of Appeal Craiova, requesting the case to be adjourned to the trial date of 28.09.2020, in order to hire a lawyer to assist or represent him in case no. 586/304/2019. The Court of Appeal Craiova granted the request of the defendant Baceanu Toma and adjourned the judgment of the case to 05.11.2020, but neither the defendant nor a lawyer hired by him to represent him in the criminal proceedings appeared at this trial date. In this situation, we consider that section 3.1a under D3, namely that the defendant Baceanu Toma was personally summoned for both trial dates, and therefore informed of the date and place set for the trial which resulted in the decision, and was aware that a decision may be handed down if he does not appear for trial, applies. Thus, the summons for the two trial dates of 28.09.2020 and 05.11.2020, were served both to the address indicated by the defendant Baceanu Toma (at the trial date of 26.11.2019 at the Court of Law Segarcea, when he was heard in case no. 586/304/2019) and to his home address (mentioned in his identity card submitted to the file, in copy) and was received under the signature of Ms. Mihai Lenuta, the person who lived with the addressee. Certainly, the defendant Baceanu Toma was aware of the trial dates, since prior to the court hearing of 28.09.2020 at the Court of Appeal Craiova he requested the adjournment of the case in order to hire a lawyer, and, although he was granted the request for adjournment of the case, at the next trial date, being legally summoned, in bad faith he did not appear himself, nor did he hire a lawyer to represent him before the court of appeal. Certainly, Ms Mihai Lenuta has informed the defendant Baceanu Toma about the court hearings, she being the person who received under her signature, and all summons issued on behalf of the defendant Baceanu Toma for the court hearings granted by the Court of Law Segarcea in case no. 586/304/2019 (he being present at some court hearings), as well as the criminal judgment no. 91/07.07.2020 rendered in this case, against which the defendant Baceanu Toma appealed – appeal, being resolved by the criminal decision no. 1363/05.11.2020 rendered by the Court of Appeal Craiova.”

59. The second paragraph of this text refers to the Appellant having applied to adjourn the hearing “ to the trial date of 28.09.2020” (emphasis added). However, read in context, it is clear that the intention is to refer to an application to adjourn the hearing from the trial date of 28 September 2020. Firstly, as other parts of the Further Information make clear, there were two hearings listed and the Appellant was summoned to attend those two hearings, namely on 28 September 2020 and 5 November 2020; whereas there is no reference to an earlier hearing which the Appellant applied to defer to 28 September 2020. Secondly, when the Appellant wrote to the court on 24 September he was seeking additional time in order to hire a lawyer to represent him at a future hearing. In these circumstances, where he had yet to hire a lawyer, it is unlikely that he wrote asking for so short an adjournment (of only four days) and unlikely that he was then in a position to specify a particular date for the adjourned hearing. It is much more likely that he was seeking a deferral of the hearing already listed for 28 September 2020, in respect of which he had been summoned. When I put the point to Mr Squibbs, he agreed with this interpretation and Mr Zalewski did not dissent from it.

60. As set out in his skeleton argument, Mr Squibbs sought to rely upon the Further Information if the Court found (contrary to his primary contention) that the relevant “trial” for section 20(1) purposes was the appeal decision. He submitted that this material showed that the Appellant had been deliberately absent within the meaning of section 20(3) . The legal framework

61. Romania is a designated Category 1 territory pursuant to section 1 of the EA 2003 . Accordingly, Part I of the Act is applicable to these proceedings.

62. The appeal is brought pursuant to section 26(1) of the EA 2003 , which provides that a person may appeal to the High Court against an order for his extradition made by an appropriate judge. Such an appeal may be brought on a question of law or fact with the leave of the High Court ( section 26(3) ).

63. The powers of the High Court on an appeal brought under section 26 are set out in section 27, which provides as follows: “ 27 Court’s powers on appeal under section 26 (1) On an appeal under section 26 the High Court may–– (a) allow the appeal (b) dismiss the appeal. (2) The court may allow the appeal only if the conditions in subsection (3) or the conditions in subsection (4) are satisfied, (3) The conditions are that–– (a) the appropriate judge ought to have decided a question before him at the extradition hearing differently; (b) if he had decided the question in the way he ought to have done, he would have been required to order the person’s discharge. (4) The conditions are that–– (a) an issue is raised that was not raised at the extradition hearing or evidence is available that was not available at the extradition hearing; (b) the issue or evidence would have resulted in the appropriate judge deciding a question before him at the extradition hearing differently; (c) if he had decided the question in that way, he would have been required to order the person’s discharge. (5) If the court allows the appeal it must–– (a) order the person’s discharge, (b) quash the order for his extradition.” Fresh evidence

64. Fresh evidence that was not raised or available at the extradition hearing, may be relied upon by an appellant pursuant to section 27(4) (a) of EA 2003 .

65. The receipt of fresh evidence from an appellant was addressed in Szombathely City Court, Hungary v Fenyvesi [2009] EWHC 231 (Admin) at [28]-[35] from which the following principles emerge: i) Evidence that “was not available at the extradition hearing” means evidence which either did not exist at the time of the extradition hearing, or which was not at the disposal of the party wishing to adduce it and which he could not with reasonable diligence have obtained (para 33); ii) The fresh evidence must have been decisive, that is, had the evidence been adduced, the result would have been different, resulting in the person’s discharge (para 36).

66. Fenyvesi was considered by the Supreme Court in Zabolotnyi v Mateszalka District Court, Hungary [2021] UKSC 14 . Lord Lloyd-Jones said at paras 57-58: “57. In my view these conditions in sub section 27(4) are, strictly, not concerned with the admissibility of evidence. I agree with the observation of Laws LJ in District Court of Slupsk v Piotrowski [2007] EWHC 933 (Admin) , with regard to the parallel provision in section 29(4)…that it does not establish conditions for admitting the evidence but establishes conditions for allowing the appeal. In my view this applies equally to section 27(4) which is not a rule of admissibility but a rule of decision. The power to admit fresh evidence on appeal will be exercised as part of the inherent jurisdiction of the High Court to control its own procedure. The underlying policy will be whether it is in the interests of justice to do so….In this context, however, an important consideration will be the policy underpinning sections 26 -29 of the 2003 Act that extradition cases should be dealt with speedily and not delayed by attempts to introduce on appeal evidence which could and should have been relied upon below….

58. Parliament in enacting sections 26 -29 of the 2003 Act clearly intended that the scope of any appeal should be narrowly confined. The condition in section 27(4) (b) that the fresh evidence would have resulted in the judge deciding the relevant question differently is particularly restrictive. This is reflected in the judgment of the Divisional Court in Fenyvesi …”

67. The section 27(4) EA 2003 conditions have no application where new evidence is relied upon by a respondent to an appeal. The Court has an inherent jurisdiction to admit further evidence from a respondent and will assess such an application against the measure of whether it is in the interests of justice to admit the evidence: FK v Stuttgart State Prosecutor’s Office, Germany [2017] EWHC 2160 (Admin) at paras 39 – 40. Availability of the evidence at the time of the extradition hearing below is relevant, but it is only one of several material considerations; whether it is in the interests of justice to admit the evidence will depend upon the circumstances of the particular case: para 40. Section 20 EA 2023

68. Section 20 EA 2003 implemented Article 4a(1) of Council Framework Decision 2002/584/JHA, as amended by Council Framework Decision 2009/2999/JHA. Article 4a(1) provided that the requested state is entitled to refuse to execute an European Arrest Warrant (“EAW”) issued for the purpose of executing a custodial sentence if the requested person did not appear at the “trial resulting in the decision”, unless the warrant states that one of the four exceptions set out in sub-paragraphs (a) – (d) of Article 4a(1) applies. Domestic courts are required to give effect to the Framework Decision when interpreting the EA 2003 to the extent that it is possible to do so without contradicting the clear intent of the legislation: Cretu v Local Court of Suceava, Romania [2016] EWHC 353 (Admin) at paras 16 and 18.

69. The Framework Decision provisions are now to be found in Article 601 of the Trade and Cooperation Agreement. It is not suggested that there is any material difference between the two for present purposes. Given the date of the Appellant’s arrest, Article 601 applies in this instance.

70. The four exceptions are reflected in the options included in the EAW. As Burnett LJ (as he then was) explained in Cretu : “25.Exception (a) enables the judicial authority to state in the EAW that the requested person was summoned in person and thereby informed of the date and place of the trial which resulted in the decision. Alternatively, it may state he received the information by some other means. In either case it must confirm that he was told that the court may proceed in his absence. The amended pro forma covers those two alternatives in points 3.1a and 3.1b. 26.Exception (b) covers circumstances where the requested person instructed a lawyer to represent him in the trial; and exception (c) covers the situation where the requested person (whether represented or not) is informed of the judgment and the right to a re-trial, but does not avail himself of that option. Exception (d) is concerned with the right to a retrial.”

71. Section 20 states: “ 20 Case where person has been convicted (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 sub section (1 ) in the affirmative he must proceed under section 21 . (3) If the judge decides that question in the negative he must decide whether the person deliberately absent himself from his trial. (4) If the judge decides the question in subsection (3) in the affirmative he must proceed under section 21 . (5) If the judge decides that question in the negative, he must decide whether the person would be entitled to a retrial or (on appeal) to a review amounting to a retrial. (6) If the judge decides the question in subsection (5) in the affirmative he must proceed under section 21 . (7) If the judge decides the question in the negative he must order the person’s discharge. (8) The judge must not decide the question in subsection (5) in the affirmative unless, in any proceedings that it is alleged would constitute a retrial or a review amounting to a retrial, the person would have these rights – (a) The right to defend himself in person or through legal assistance of his own choosing or, if he has not sufficient means to pay for legal assistance, to be given it free when the interests of justice so required; (b) The right to examine or have examined witnesses against him and to obtain the attendance and examination of witnesses on his behalf under the same conditions as witnesses against him.”

72. Accordingly, where the requested person was not convicted in his presence within the meaning of section 20(1) , the judge must consider whether he “deliberately absented himself from his trial” within the meaning of section 20(3) . If he did not do so, the judge must go on to decide whether the person “would be entitled to a retrial or (on appeal) a review amounting to a retrial” within the meaning of section 20(5) . If the judge is not so satisfied, then the requested person must be discharged. It is not suggested in this case that re-trial rights apply. Accordingly, the Appellant’s discharge must be ordered unless he was convicted in his presence or he deliberately absented himself from his trial. These matters are in dispute.

73. In relation to each of the section 20 questions, the requesting authority bears the burden of proving the relevant matter to the criminal standard: section 206 EA 2003 and Merticariu v Judecatoria Arad, Romania [2024] UKSC 10 , [2024] 1 WLR 1506 at para 11. The contents of the Arrest Warrant and the Further Information

74. The leading judgment of Lord Stephens and Lord Burnett in Merticariu addressed the significance that is to be attached to statements contained in the EAW and any Further Information: “24. …paragraph (1) of article 4a contemplates that the exceptions in article 4a(1)(a)-(d) will be established by statements in the EAW itself. Paragraph (1) does not envisage a general evidential inquiry into those matters, and it does not call for one Member State in any given case to explore the minutiae of what has occurred in the requesting Member State or to receive evidence about whether the statements in the EAW are accurate. The requesting judicial authority is expected to convey the relevant information in the EAW itself, including information relating to absence from trial and the possibility of retrial, which is necessary to determine whether the executing judicial authority has the power to refuse to execute the warrant under article 4a. If the information set out by the requesting judicial authority in the EAW meets the requirements of article 4a that will provide the evidence upon which the executing judicial authority will act. If a requested person is surrendered on what turns out to be a mistaken factual assertion contained in the EAW relating to article 4a, then they will have the protections afforded by domestic, EU and Convention law in that jurisdiction: Cretu at paras 4, 24, 32, 35, 36 and 42. …..

26. …The issue at the extradition hearing will be whether the EAW contains the necessary statement: Cretu at paras 34(v) and 35…

27. …it will not be appropriate for the requesting judicial authorities to be pressed for further information relating to the statements made in the EAW pursuant to article 4a save in cases of ambiguity, confusion or possibly in connection with an argument that the warrant is an abuse of process: Cretu at para 35. However, if the requesting judicial authority does provide further information there is no reason why that information should not be taken into account in seeking to understand what has been stated in the EAW: Cretu at para 37.”

75. Para 35 in Cretu (referred to by Lord Stephens and Lord Burnett in the passage I have just cited) emphasised that Article 4a was drafted to require surrender if the EAW stated that the person fell within one of the four exceptions and that it “does not contemplate that the executing state will conduct an independent investigation into those matters”. Burnett LJ went on to comment that this was not surprising as the EAW system was “based on mutual trust and confidence” and that to explore all of the underlying facts would “generate extensive satellite litigation and be inconsistent with the scheme of the Framework Decision”.

76. To similar effect, in Lazo v Government of the United States of America [2022] EWHC 1438 (Admin) , Cavanagh J observed (in the context of a challenge to the Arrest Warrant’s validity) that the task of deciding whether to order a requested person’s extradition “should be undertaken with firm regard to mutual cooperation, recognition and respect…In extradition cases, as a result of mutual respect between nations, the starting point should be that the Requesting State has behaved properly” (para 47). At para 49 Cavanagh J added, “the starting point in extradition cases…is that unless the contrary is established, things said and done by the Requesting State are to be taken at face value and are to be trusted”. Section 20(1) and the “trial which resulted in the decision”

77. The Divisional Court in Cretu held that in order to conform with Article 4a(1) of the Framework Decision, the reference to “trial” in section 20(3) EA 2003 mut be interpreted as meaning the “trial which resulted in the decision” (para 34(i)). In the same paragraph, Burnett LJ made the point that whilst the onus remained on the requesting state to satisfy the court conducting the extradition hearing to the criminal standard that one (or more) of the four exceptions applied; the burden of proof would be discharged to the requisite standard if the information required by Article 4a was set out in the EAW.

78. In Foster Taylor v The Prosecutor General’s Office of Florence [2019] EWHC 2938 (Admin) , the Divisional Court held that the same Article 4a(1) interpretation of a “trial resulting in the decision” was to be applied to the section 20(1) question of the requested person’s presence (para 48). The Court discussed and applied the leading case of the Court of Justice of the European Union (“CJEU”) on the interpretation of this phrase, Tupikas ( Case C-270/17PPU ) (paras 49 and 61). Giving the leading judgment (with which Hamblen LJ agreed), Lane J explained the CJEU had held that the expression “trial resulting in the decision” was an autonomous EU law concept that was to be interpreted uniformly through the European Union (para 26). He then cited passages from paras 69 – 99 of Tupikas . The text included the following points: i) The concept of the “trial resulting in the decision” must be understood as referring to the proceeding that led to the judicial decision which finally sentenced the person whose surrender is sought in connection with the EAW ( Tupikas , para 74); ii) Where the state in question has a two-tier system of jurisdiction, with the result that the procedure in criminal matters involves several instances that could give rise to successive judicial decisions, it is important to establish which of these is to be regarded as containing the final sentence ( Tupikas, para 77); iii) Consequently, in the event that there have been successive decisions, at least one of which was given in absentia, it is important to understand the instance which led to the last of those decisions “provided that the court at issue made a final ruling on guilt of the person concerned and imposed a penalty on him… following an assessment, in fact and law, of the incriminating and exculpatory evidence, including, where appropriate, the taking account of the individual situation of the person concerned ( Tupikas , para 81, emphasis added); iv) It is the judicial decision “finally disposing of the case on the merits , in the sense that there are not further avenues of ordinary appeal available”, which is decisive for the person concerned ( Tupikas , para 83, emphasis added); v) The information that must be provided by the issuing judicial authority in respect of Box D of the EAW “relates only to the last procedural step during which the merits of the case were examined” ( Tupikas , para 89); vi) Where there was a first instance followed by appeal proceedings, it is the instance which led to the decision on appeal which is solely relevant for the purposes of Article 4a(1) of the Framework Decision “provided that those proceedings led to the final decision which is no longer subject to an ordinary appeal and which, accordingly finally disposes of the case on its merits ” ( Tupikas , para 90, emphasis added); vii) The concept of the “trial resulting in the decision” within the meaning of Article 4a(1) must be interpreted as relating only to the instance at the end of which the decision is handed down which finally rules on the guilt of the person and imposes a penalty on him “ following a re-examination, in fact and in law, of the merits of the case” ( Tupikas, para 98, emphasis added); viii) Whilst an appeal such as the one in issue in Tupikas in principle fell within this concept, it is “up to the referring court to satisfy itself that it has the characteristics set out above” ( Tupikas , para 99).

79. As Lane J explained in Foster Taylor , the CJEU’s decision in Tupikas made it plain that where a conviction at first instance was followed by an appeal on fact and law against that conviction, it was only the proceedings on appeal that comprised the “trial resulting in the decision” for the purposes of Article 4a(1); the fact that the person appeared at first instance is irrelevant (para 69).

80. Foster Taylor was concerned with appeal proceedings in Italy. The Divisional Court held that the appeal to the Assize Court of Appeal was the “trial resulting in the decision” as it was a full merits appeal against conviction and sentence, whereas the subsequent appeal to the Court of Cassation was only on points of law (paras 50, 51, 53, 71). In applying the test, the Court observed that it was impossible to read Tupikas as supporting the proposition that appeals on points of law where no new findings of fact were made were to be equated with “merits” appeals (para 61). The Divisional Court also concluded that the sentencing aspect of the Court of Cassation’s judgment was not the “trial resulting in the decision”, as it involved no exercise of discretion, but merely an arithmetical re-calculation of the appellants’ sentence in light of conclusions it had reached on issues of law (paras 76 – 78).

81. In Ghinea v Gaesti Law Court, Romania [2024] EWHC 1895 (Admin) , a case relied upon by Mr Zalewski, Linden J found that section 20(1) was not satisfied as the Arrest Warrant showed that the appellants had attended trial at the Gaesti Law Court, but it did not indicate whether they had attended or been represented at the subsequent appeal hearing/s (para 45). In that case, the appeal was the ”trial resulting in the decision”, as the Arrest Warrants indicated that it was by way of a retrial (paras 40 and 46).

82. The primacy given to the contents of the Arrest Warrant is also shown by Fordham J’s decision in Bocianski v Poland [2025] EWHC 658 (Admin) . The application for permission to appeal raised issues as to whether the requested person had been present at their trial for the purposes of section 20 EA 2003 . Box B indicated that the EAW was based on the “enforceable …judgment of the Lublin-Wschod Provincial Court” dated 5 December 2017. Box D recorded that the requested person appeared in person at the hearing resulting in the decision. However, Box F (optional information) referred to the judgment of 5 December 2017 imposing a sentence of two years and six months imprisonment, having been “altered by the judgment of the District Court of Lublin dated May 30, 2018” to a sentence of two years and nine months imprisonment. Fordham J was clear that section 20(1) was satisfied and declined to admit the Appellant’s fresh evidence that was said to indicate otherwise. Box D referred to the Provincial Court judgment described in Box B as the “hearing…resulting in the decision”. Box D said that the requested person appeared at that hearing. In the circumstances there was no ambiguity and, consistent with Cretu and Merticariu , “That is the end of it” (para 11).

83. Having also found that section 20(1) was satisfied by the presence of the requested person’s lawyer (para 16), Fordham J identified a further reason for refusing permission to appeal at para 17: “Mr Squibbs had another answer. He says an alteration in the District Court, by which 2y 9m became 2y 6m may very well have been automatic/arithmetical, rather than merits-evaluative. That being so there is nothing about the ExAW which is ‘ambiguous’ or ‘confused’ ( Merticariu ¶27). There is no tension or contradiction. Mutual trust and confidence starts from the position that the RJA understands the applicable legal standards, and faithfully applies them.”

84. Whilst the reasoning in para 17 is obiter dicta , it is a further illustration of the proposition that the Court’s starting point when analysing the contents of an Arrest Warrant is that the requesting state has understood and applied the relevant legal standards. Section 20(3) and deliberate absence

85. The leading authority on the meaning of when the requested person “deliberately absented himself from his trial” is now Bertino v Public Prosecutor’s Office, Italy [2024] UKSC 9 , [2024] 1 WLR 1483 , in which Lord Stephens and Lord Burnett gave the leading judgment. The Supreme Court held that this phrase in section 20(3) of the EA 2003 should be understood as synonymous with the European Court of Human Right’s (“ECtHR”) concept of an accused unequivocally waiving their right to be present at trial; and that, accordingly, if the circumstances suggested a violation of Article 6 ECHR, the answer to the section 20(3) question would be “no”, whereas if the circumstances suggested that the trial of the requested person in their absence did not give rise to a violation of Article 6, then they would be taken to have absented themselves deliberately from the trial (para 45).

86. Between paras 27 – 41, Lord Stephens and Lord Burnett reviewed domestic, EU and ECHR caselaw on trial in absence. Their review included their Lordships noting that in Sejdovic v Italy (App No 56581/00), the ECtHR said that a waiver cannot be inferred merely from a defendant’s status as a fugitive and that before concluding that a right to trial in person had been implicitly waived, “it must be shown that he could reasonably have foreseen what the consequences of his conduct would be” (para 33). The meaning of “reasonable foreseeability” in this context was addressed in Pischchalnikov v Russia (App No. 7025/04) where it was said that a waiver of the right must not only be voluntary, but must constitute “a knowing and intelligent relinquishment of a right” (para 34).

87. Lord Stephens and Lord Burnett said it was apparent from their review of the cases that the standard imposed by the ECtHR for a waiver to be “unequivocal and effective, knowing and intelligent, ordinarily the accused must be shown to have appreciated the consequences of his or her behaviour”; and that this will usually require the defendant to have been warned one way or another (para 55).

88. Lord Stephens and Lord Burnett provided guidance as to the application of the section 20(3) test at para 58 of their judgment. They observed that the certified question had posed the issue in black and white terms (“…must the requesting authority prove that he had actual knowledge that he could be convicted and sentenced in absentia?”), whereas: “The Strasbourg Court has been careful not to present the issue in such stark terms although ordinarily it would be expected that the requesting authority must prove that the requested person had actual knowledge that he could be convicted and sentenced in absentia. As we have already indicated, in Sejdovic …the court was careful to leave open the precise boundaries of behaviour that would support a conclusion that the right to be present at trial had been unequivocally waived. The cases we have cited provide many examples where the Strasbourg court has decided that a particular indicator does not itself support that conclusion. But behaviour of an extreme enough form might support a finding of unequivocal waiver even if an accused cannot be shown to have had actual knowledge that the trial would proceed in his absence. It may be that the key to the question is in the examples given in Sejdovic at para 99. The court recognised the possibility that the facts might provide an unequivocal indication that the accused is aware of the existence of the criminal proceedings against him and of the nature and the cause of the accusation and does not intend to take part in the trial or wishes to escape prosecution. Examples given were where the accused states publicly or in writing an intention not to respond to summonses of which he has become aware; or succeeds in evading an attempted arrest; or when materials are brought to the attention of the authorities which unequivocally show that he is aware of the proceedings pending against him and of the charges he faces. This points towards circumstances which demonstrate that when accused persons put themselves beyond the jurisdiction of the prosecuting and judicial authorities in a knowing and intelligent way with the result that for practical purposes a trial with them present would not be possible, they may be taken to appreciate that a trial in absence is the only option.”

89. In summary, therefore, the Supreme Court determined that an unequivocal, knowing and intelligent waiver was required and that ordinarily the requesting authority would be expected to show actual knowledge on the part of the requested person that they could be convicted and sentenced in their absence, but that in certain circumstances, even where they did not have this actual knowledge, the facts might establish unequivocally that they were aware of the criminal proceedings but did not intend to take part in the trial or wished to escape prosecution. Some examples of where this may be established were given, including where the requested person is shown to have been aware of the proceedings pending against them but put themselves beyond the jurisdiction in a knowing and intelligent way. Article 8 ECHR

90. If the executing judicial authority is required to proceed under section 21 EA 2003 , the judge must decide whether the person’s extradition would be compatible with Convention rights, within the meaning of the Human Rights Act 1998 .

91. The approach to be taken where Article 8 is engaged in extradition proceedings was considered by the House of Lords in Norris v United States of America [2010] UKSC 9 , [2010] 2 AC 487 . In HH v Deputy Prosecutor of the Italian Republic, Genoa [2012] UKSC 25 , [2013] 1 AC 338 at para 8, Baroness Hale (giving the leading judgment) summarised the conclusions to be drawn from Norris , as follows: “(1) “There may be a closer analogy between extradition and the domestic criminal process than between extradition and deportation and expulsion, but the court has still to examine carefully the way in which it will interfere with family life. (2) There is no test of exceptionality in either context. (3) The question is always whether the interference with the private and family lives of the extraditee and other members of his family is outweighed by the public interest in extradition. (4) There is a constant and weighty public interest in extradition: that people accused of crimes should be brought to trial; that people convicted of crimes should serve their sentences; that the United Kingdom should honour its treaty obligations to other countries; and that there should be no ‘safe havens’ to which either can flee in the belief that they will not be sent back. (5) That public interest will always carry great weight, but the weight to be attached to it in the particular case does vary according to the nature and seriousness of the crimes involved. (6) The delay since the crimes were committed may both diminish the weight to be attached to the public interest and increase the impact upon private and family life. (7) Hence it is likely that the public interest in extradition will outweigh the Article 8 rights of the family unless the consequences of the interference with family life will be exceptionally severe.”

92. Baroness Hale went on to highlight that the best interests of the child or children impacted by an extradition must be a primary consideration, albeit they could be outweighed by countervailing factors (para 15).

93. In Polish Judicial Authority v Celinski [2015] EWHC 1274 (Admin) , [2016] 1 WLR 551 (at paras 15 – 17), the Divisional Court commended the “balance sheet” approach to assessing whether the interference with the private life of the extraditee is outweighed by the public interest in extradition. The Divisional Court also emphasised “the very high public interest in ensuring that extradition arrangements are honoured” and the public interest in discouraging persons seeing the United Kingdom as a state willing to accept fugitives from justice (para 9). Furthermore, where a requested person is a fugitive from justice, very strong counterbalancing factors would need to exist before extradition could be regarded as disproportionate (para 39).

94. The Court in Celinski also addressed the domestic courts’ approach to the sentence imposed in the requesting state, indicating (at para 13): “…Each member state is entitled to set its own sentencing regime and levels of sentence. Provided it is in accordance with the Convention, it is not for a UK judge to second guess that policy. The prevalence and significance of certain types of offending are matters for the requesting state and the judiciary to decide… …It will rarely be appropriate for the court in the UK to consider whether the sentence was very significantly different from what a UK court would have imposed, let alone to approach extradition issues by substituting its own view of what the appropriate sentence should have been.”

95. In Andrysiewicz v Circuit Court in Lodz, Poland [2025] UKSC 23 the Supreme Court recently reiterated the key passages from Norris , HH and Celinski (including those cited above), indicating: “43. …it is clear that there is a need to reiterate the essential points they make. Cases in which submissions founded on article 8 ECHR may defeat the public interest in extradition will be rare. It is most unlikely that extradition will be held to be disproportionate on the ground of interference with private life. Even in cases where interference with family life is relied upon, it will only be in cases of exceptionally severe impact on family life that an article 8 ECHR ‘defence’ will have any prospect of success.”

96. Long unexplained delays can weigh heavily in the balance against extradition. I have already referred to Lady Hale’s judgment in HH . In the case of F-K, (one of the joined appeals before the Supreme Court), she indicated that the requested person’s fugitive status did not preclude the Justices from relying on the overall length of the delay.

97. The question for this Court on the appeal is whether the District Judge’s ultimate decision was wrong: that is a question which considers the overall outcome of the determination arrived at via the balancing exercise, rather than the identification of any individual errors or omissions. In Love v United States of America [2018] EWHC 712 (Admin) , the Divisional Court summarised the position at para 26: “The appellant court is entitled to stand back and say that a question ought to have been decided differently because the overall evaluation was wrong: that crucial factors should have been weighed so significantly differently as to make the decision wrong, such that the appeal in consequence should be allowed.”

98. However, where the Appellant is permitted to rely on fresh evidence, the approach on appeal is modified. The appellate court must make its own assessment de novo based on the material as it now stands, in order to determine whether extradition would be a disproportionate interference with Article 8 rights: Jozsa v Tribunal of Szekesfehervar, Hungary [2023] EWHC 2404 (Admin) at para 18. The section 20 ground of appeal The application to amend in Appeal 1

99. I begin with the question of whether I should permit the PGA to be amended in Appeal 1 to raise the section 20 ground. The situation is highly unsatisfactory. The hearing on 12 February 2025 concluded on the basis that all of the submissions had been made in Appeal 1. The only reason I reserved judgment at that stage on what would otherwise have been a straightforward Article 8 case, was because of the fifth offence (para 42 above). No indication was given at that juncture that a further, entirely new ground of appeal was in contemplation. Insofar as the argument is said to rest on Linden J’s decision in Ghinea ; judgment in that case was handed down on 23 July 2024, nearly six months before the 12 February 2025 hearing. The section 20 argument does not depend upon any legal or factual developments that have taken place since the 12 February 2025 hearing.

100. Furthermore, the fact that the section 20 argument was first raised at such a late stage has had a direct impact on the length of these appeal proceedings and upon the Court’s limited resources. If the section 20 argument had been raised in Appeal 1 and addressed in submissions at the 12 February 2025 hearing, it is very likely that there would have been no need for a further hearing after Appeal 2 was lodged. The relevant submissions would already have been made and the section 20 ground could have been dealt with in the same way that I have dealt with the Article 8 ground in Appeal 2.

101. However, having recorded my concern over the way that this matter has been raised, I will grant permission to amend the PGA to add the section 20 ground in Appeal 1 and the necessary extension of time for doing so. I do so because it is in any event necessary for the Court to hear and determine whether permission to appeal should be granted for the section 20 ground in Appeal 2 and, given the arguments are essentially the same in respect of the five offences, it would be somewhat illogical not to entertain those same arguments in respect of the other four offences. I therefore grant permission to amend on this pragmatic basis and without, at this stage, addressing the extent to which the substantive arguments have any merit. The parties’ submissions

102. Mr Zalewski’s primary submission is that whilst Box D of the AW applies to the first instance decision, Box B indicates that the appeal decision is the “trial resulting in the decision”. He says that, in turn, as the AW contains no indication that the Appellant was present at the appeal hearing/s, the requesting state has not satisfied the section 20(1) requirement and the DJ was wrong to proceed on the basis that the first instance decision was the relevant decision and to conclude that it had. Furthermore, whilst Box B in itself may be ambiguous, the appeal decision is the relevant “trial” for the purposes of section 20(1) , as there was an appeal on fact and law and thus the position is analogous to that in Ghinea .

103. As I have indicated, Mr Zalewski also advanced a new, alternative argument in his Addendum Submissions, namely that the earlier judgment of 12 December 2016 (when the suspended sentence of two years and five months was imposed in respect of the first four in time offences) was the relevant decision for the purposes of section 20(1) . He said that the AW did not establish the Appellant’s presence at this trial. Although his Addendum Submission suggested that this argument only applied to the fifth offence, he accepted during his oral submissions, that the fifth offence was in the same position as the other offences that were before the Court of Law Segarcea in 2016.

104. Mr Zalewski objected to the Respondent relying upon the Further Information in support of its alternative contention that the Appellant was deliberately absent from the appeal hearing. He submitted that the Further Information went well beyond correcting any ambiguity in the AW and, as such, was inadmissible. He also suggested that it was unfair for the Appellant to have to face this new material for the first time on appeal. If the Respondent wanted to rely upon the Further Information, it should have adduced it before the DJ; its late production meant that the Appellant had not had a proper opportunity to respond to it. In his Addendum Submissions and at the hearing Mr Zalewski further contended that as a High Court Judge was not the “appropriate judge” (para 43 above), I had no power to make a determination on a statutory bar matter that had not been decided by the DJ, in this instance whether the Appellant was deliberately absent within the meaning of section 20(3) . In an email to my clerk received after I had prepared this draft, Mr Zalewski indicated that he no longer relied upon the latter point.

105. Mr Zalewski also contended that the Further Information did not provide a sufficient evidential basis to prove that the Appellant was deliberately absent. He said it was unclear why the Appellant was not represented by a lawyer at the 5 November 2020 appeal hearing and unclear whether it was reasonably foreseeable that the hearing would proceed in the Appellant’s absence.

106. Mr Squibbs submitted that the section 20 ground was not reasonably arguable and that permission to appeal should be refused in respect of it. He said there is a clear statement in Box B of the AW that the decision upon which the warrant is based is the first instance decision. In turn, this was consistent with the indication in Box D that the Appellant had been present at this trial. Pursuant to the principle of mutual trust and confidence, the Respondent can be expected to have completed the AW in a way that faithfully applied the appropriate legal standards. If the appeal decision in this case had been an appeal on fact and law, then the Respondent would have specified that decision in Box B and addressed that decision in Box D. Further, there is no indication in the AW or elsewhere that the appeal in this case was one that involved a fresh consideration of law and facts. Accordingly, the DJ was correct to find that section 20(1) was satisfied in this instance. As for Mr Zalewski’s alternative argument, there was no indication at all in the AW that the 12 December 2016 judgment was the relevant decision for section 20 purposes.

107. Mr Squibbs argued in the alternative that if the Court concluded that the appeal decision was the relevant “trial” for section 20 purposes, then the Further Information showed that the Appellant had deliberately absented himself from the appeal hearing. The material indicated that the Appellant was aware of the appeal hearing and aware that the case could proceed in his absence. Even if he was not aware of the appeal trial dates and/or that the appeal could proceed in his absence, he was aware of the appeal proceedings having initiated the appeal himself and he must have appreciated that a trial in his presence would not be possible if he did not attend the hearings and instead absconded to the United Kingdom.

108. Mr Squibbs submitted that it was in the interests of justice to admit the Further Information, as it had decisive probative value in terms of showing that the Appellant was deliberately absent. The material was not obtained for the extradition hearing as section 20 had not been raised as an issue in the case prior to the Appellant’s evidence at the hearing itself and thereafter was not raised as a ground of appeal in Appeal 1. Until the section 20 appeal ground was raised in Appeal 2, the Respondent was entitled to rely solely on its primary submission that the relevant decision for the purposes of section 20 was the first instance decision. Analysis and conclusions The relevant decision for section 20(1) purposes

109. I will firstly address Mr Zalewski’s alternative suggestion that the 12 December 2016 judgment of the Court of Law Segarcea is the relevant decision for section 20(1) purposes. I can briefly dispose of this point; the argument is hopeless.

110. When asked what he relied upon to support this proposition, Mr Zalewski frankly indicated that it was only the reference in Box C of the AW to the December 2016 decision becoming “final by not filing an appeal on 04.01.2017”. However, it is clear from the guidance given in Tupikas , adopted for the purposes of section 20 in Foster Taylor , that the relevant decision for these purposes is the last decision in which there was an evaluation of the facts and/or the exercise of a sentencing discretion (paras 78 – 80 above). The sheer fact that the December 2016 is described as final, in the sense that it was not appealed, does not meet this criteria. As the AW makes clear, there was the subsequent first instance decision of 7 July 2020 when the Appellant was convicted and sentenced for the most recent of the five offences and the earlier suspended sentence was activated.

111. Furthermore, the contents of the AW directly contradict this submission, the principle of mutual trust and confidence applies and no basis has been shown to go behind the warrant. The indication of the “decision on which the warrant is based” in Box B makes no reference at all to the 12 December 2016 judgment. Further, Mr Zalewski concedes that it is not the decision referred to in Box D. I also note that the December 2016 judgment bears a different criminal file number (146/304/2015) to the file number of the 2020 proceedings that the warrant is based on (586/304/2019).

112. Having addressed the alternative submission, I turn to the central question of whether the relevant decision for section 20(1) purposes is the first instance decision or the appeal decision. If it is the first instance decision, Mr Zalewski does not suggest that there is any basis for challenging the DJ’s factual finding that the Appellant was present.

113. I am quite satisfied that the first instance decision is the “trial which resulted in the decision” for section 20(1) purposes and that the contrary proposition (that it is the appeal decision) is not reasonably arguable.

114. Firstly, this is what the AW says in Box B, where the decision is said to be the “Final and enforceable decision: Criminal Judgment no. 91/07.07.2020 of the Court of Law Segarcea”. As I have set out at para 9 above, the text goes on to say that this decision was made final on 5 November 2020 by the appeal decision, but it is the first instance decision that is identified as the “decision on which the warrant is based”. Mr Zalewski tried to find support for the fact that page 1 of the AW indicates that the warrant is based on criminal file 586/304/2019, but in itself this is neutral as it is the same number that applies to both the first instance and the appeal decisions in 2020 (para 9 above). In turn, Box D of the AW has been completed in a way that is consistent with my interpretation of Box B; I have already indicated that both counsel accept that Box D refers to the first instance decision. Furthermore, as Mr Zalewski accepts, there is nothing in the AW itself that indicates that the appeal decision involved a merits evaluation of both fact and law.

115. In these circumstances, the principle of mutual trust and confidence applies. As confirmed by the Supreme Court at para 24 in Merticariu , where the information set out by the requesting judicial authority in the AW meets the statutory requirements, this provides the evidence upon which the executing judicial authority should act (para 74 above). Furthermore, this Court’s starting point is that the requesting judicial authority has behaved properly and has understood and applied the relevant legal standards: Lazo at paras 47 and 49 (para 76 above) and Bocianski at para 17 (paras 83 - 84 above). As the CJEU made clear in Tupikas at para 89, the information that must be provided by the requesting judicial authority in respect of Box D is “the last procedural step during which the merits of the case were examined” (para 78 (vi) above).

116. Accordingly, this Court proceeds from the starting point that Box D has correctly identified the first instance decision as the last procedural step of the proceedings where the merits of the case were examined. As Burnett LJ confirmed in Cretu ; the burden of proof will be discharged to the criminal standard if the requisite information is set out in the AW (para 77 above).

117. In addition, there is nothing in this case that casts doubt upon the statements contained in the AW. Mr Zalewski contended that the appeal decision involved an assessment of both law and fact because “all appeals in Romania are appeals on fact and law”. However, the Appellant adduced no evidence to support what is simply counsel’s assertion in this regard. The position in the current case is plainly distinguishable from Ghinea , where the Arrest Warrant itself indicated that the appeal was by way of a retrial (para 81 above). The slender basis that Mr Zalewski advanced was an argument that because there is a Court of Cassation in Romania (as referred to at para 13 in Da An Chen v The Government of Romania [2006] EWHC 1752 (Admin) ), this must mean that the system was equivalent to the Italian system considered in Foster Taylor , where the appeal below the Court of Cassation level was an appeal on the merits (para 80 above). Plainly this does not follow at all. Mr Zalewski’s other supporting point was that the Further Information used the phrase the “trial which resulted in the decision” when referring to the appeal decision (para 58 above). However, this is simply because the Further Information was addressing an alternative scenario that only arose if the Court had rejected the Respondent’s primary case that the first instance decision was the “trial which resulted in the decision” and it was responding to the way that the Request had been formulated (para 57 above).

118. Counsel accepted that as the question of whether the first instance decision or the appeal decision was the “trial resulting in the decision” for section 20(1) purposes was not raised at the extradition hearing below, section 27(4) EA 2003 , rather than the section 27(3) , applied (para 63 above). For the reasons I have just indicated, I am quite satisfied that had this issue been raised below, the DJ would not have decided the section 20 question before him any differently and that the contrary proposition is not reasonably arguable. I therefore refuse permission to appeal on the section 20 ground in both Appeal 1 and Appeal 2 and the DJ’s conclusion that the section 20(1) criterion was fulfilled stands. Deliberate absence and section 20(3)

119. In the circumstances, it is strictly unnecessary for me to reach a conclusion on the Respondent’s alternative section 20(3) argument. However, as I heard full argument on this aspect too, I will set out my alternative conclusions briefly. As I have already explained, this argument proceeds on the alternative basis that the appeal decision is the relevant decision for section 20 purposes.

120. Although ultimately not pursued, I will first address Mr Zalewski’s suggestion that this Court could not consider the section 20(3) contention because I am not an “appropriate judge”. I do so because I consider it useful to explain why this contention is plainly misconceived. In the alternative scenario that I am now addressing, the Court would have found that the new issue raised on appeal would have resulted in the DJ deciding a question before him differently, namely that the section 20(1) criterion was not met, and in those circumstances, section 27(4) (b) and (c) explicitly requires that I go on to consider whether, if the DJ had decided the question in that way, “he would have been required to order the person’s discharge” (para 63 above). The High Court can only answer this question posed by the statute by considering the other relevant section 20 provisions and, in this instance, assessing whether the Appellant was deliberately absent from the trial as alleged ( section 20(3) ).

121. Mr Zalewski is also incorrect in his submission that this Court can only receive Further Information where it relates to an ambiguity in the warrant. In this regard he relies upon a passage in para 35 of Cretu where Burnett LJ said that Article 4a provides additional procedural safeguards for a requested person, but “does not call for one member state in any given case to explore the minutiae of what has occurred in the requesting state or to receive evidence about whether the statement in the EAW is accurate”. Read in context, Burnett LJ was there explaining that the domestic courts should not embark upon evidential investigations into the correctness of what was stated in the warrant where the accuracy of its contents were disputed by the requested party. He did not say that the requesting state could not supplement the contents of the EAW. Indeed, at para 37, he specifically observed that, “In the event that the requesting judicial authority does provide further information I can see no reason why that information should not be taken into account in seeking to understand what has been stated in the EAW”. If Burnett LJ had intended that the Courts should only take account of Further Information where there was ambiguity in the EAW, he would have said so. Furthermore, this observation at para 37 of Cretu was cited with approval by the Supreme Court in Merticariu (para 74 above).

122. I do not accept that there is any unfairness to the Appellant in my admitting the Further Information. The application to do so was filed on 9 May 2025, giving the Appellant sufficient time to apply to file evidence in response, had he wished to do so. In the event, he did not do so and nor did he apply for permission to give evidence at the 24 June 2025 hearing.

123. I accept that the Further Information provides probative evidence on the deliberate absence issue and I accept that the Respondent could not reasonably have been expected to provide this information at an earlier stage. The Respondent received no indication before the extradition hearing below that section 20 was in issue and did not know what the Appellant was going to say until he gave evidence (paras 21 and 23 above). The section 20 issue was not raised as a ground of appeal in Appeal 1 prior to or at the substantive appeal hearing on 12 February 2025. Nor was it raised at the subsequent extradition hearing held in respect of the fifth offence (para 44 above). In the circumstances, the Respondent was entitled to proceed on the basis that the contents of the AW were sufficient and that there was no challenge to the proposition that the first instance decision was the relevant decision, until the specific section 20 ground was raised in Appeal 2. The Respondent then acted promptly to obtain the Further Information.

124. Accordingly, I consider that it is in the interests of justice to admit the Further Information (para 67 above). I also consider that it establishes to the criminal standard of proof that the Appellant was deliberately absent from the requisite hearing for these purposes, namely the hearing on 5 November 2020.

125. The Appellant plainly knew of the original appeal hearing date of 28 September 2020. He had initiated the appeal and he asked for this hearing date to be adjourned, so that he could instruct a lawyer to represent him (paras 58 - 59 above). He must also have been aware that his adjournment application was granted; otherwise, he would have attended the appeal court on 28 September 2020, whereas there is no indication that he did so. Thereafter, he must have appreciated that a new hearing date would be fixed by the Court. In addition, the Further Information explains that the summonses did contain warnings that the Appellant could be convicted in his absence. If the Appellant did not know the case could proceed in his absence, he would not have had reason to make the adjournment application at all. The summonses were signed for by Ms Lenuta who lived with the Appellant. It is apparent that he received the summons for the 28 September 2020 hearing (as he made the adjournment application) and that he received earlier summonses, as he attended first instance hearings in 2016 and in July 2020. In the circumstances, it can be inferred that Ms Lenuta also made the Appellant aware of the 5 November 2020 hearing date.

126. However, even if the Appellant did not know the specific date of the adjourned appeal hearing, he left the United Kingdom aware of the appeal proceedings, aware that a hearing was to take place, aware that the hearing could proceed in his absence and aware that a trial in his presence would not be possible if he did not attend.

127. In these circumstances, it is clear that the circumstances meet the Bertino test for deliberate absence, in that the Appellant unequivocally waived his right to be present. The Appellant put himself beyond the jurisdiction of the prosecuting and judicial authorities in a knowing and intelligent way, with the result that for practical purposes a trial with him present was not possible (paras 89 – 90 above).

128. Accordingly, if the DJ was wrong to find that the requirements of section 20(1) were met (contrary to my primary conclusion), he would not have been required to discharge the Appellant as he would have found that he was deliberately absent from the “trial resulting in the decision” within the meaning of section 20(3) . The contrary proposition is not reasonably arguable. The Article 8 ground of appeal The parties’ submissions

129. Mr Zalewski submitted that the DJ’s overall evaluation was wrong in reaching the conclusion that extradition would not amount to a disproportionate interference with the family life of the Appellant, his wife and his children. He said that the offences were relatively old and petty and they would not attract a custodial disposal in this jurisdiction. In this regard, he relied upon Lord Judge JSC’s analysis in the F-K case in HH (paras 140 - 141 below), suggesting that the position here was analogous. He also suggested that there was significant delay between the time when the final judgment was arrived at in November 2020 and when the AW was enforced in 2023; and he emphasised that the Appellant had no convictions in this jurisdiction.

130. Mr Zalewski contended that as the Appellant was the sole breadwinner for the family, the interests of his three very young children were a primary consideration and given the medical condition of his son and the fact that he was his primary medical carer, the scales were tipped against extradition in this case.

131. Mr Squibbs submitted that the DJ had taken all relevant factors into consideration and arrived at a reasoned and unimpeachable conclusion that extradition was compatible with Article 8 rights in this instance. The DJ did consider the impact of extradition on the Appellant’s family, the seriousness of the offending and whether there had been any delay. Dr Rahman’s report provided no reason to revisit the DJ’s assessment. The new evidence

132. I have summarised the Appellant’s proof of evidence at para 36 above. It contains nothing of significance that post-dates the extradition hearing before the DJ; all of its contents could have been raised by Mr Baceanu in the evidence he gave at the hearing below. Indeed, the majority of the topics in the proof were covered in his evidence and were taken into account by the DJ, as can be seen from the terms of his judgment. In the circumstances, it is not in the interests of justice to admit this evidence. It was available at the extradition hearing and in so far as the proof contains matters that were not mentioned by the Appellant in his oral evidence below, no adequate explanation has been provided for those omissions. Furthermore, the evidence is not capable of being decisive. The DJ did take into account the nature and age of the offending and the Appellant’s family circumstances and the impact of extradition upon his wife and his children. Insofar as the proof raises anything new, it is not capable of altering the balance of factors in favour of extradition.

133. I accept that it is in the interests of justice to admit Dr Rahman’s report; it is important for the Court to have as full a picture as possible in relation to the medical situation regarding the Appellant’s son. I acknowledge that it would have been difficult for the Appellant to have obtained the report for the extradition hearing, given he was unrepresented (and for present purposes, I will put to one side the point that he could have obtained legal representation if he had acted on a timely basis). However, deciding to admit the report is not to be equated with determining that the statutory criteria for allowing the appeal have been met (para 66 above). I turn to that question immediately below. The DJ’s evaluation: discussion and conclusions

134. The DJ correctly applied the principles identified in the leading authorities, which I have already summarised. His reasoning shows that he took account of each of the factors raised by the Appellant (paras 27 - 28 above). The weight which he accorded to each factor was a matter for him. I address Mr Zalewski’s specific points below, but I can identify no relevant factor that the DJ failed to consider. The finding of fugitivity is not challenged and, accordingly, very strong counterbalancing factors were required (para 93 above).

135. It is clear from the DJ’s reasoning that he did treat the impact on the Appellant’s family as a central consideration. He was right to note that this was a case where the children would still have the love and support of their mother in the event of the Appellant’s extradition. Their mother was their primary carer, as she was based at home looking after the children, whereas the Appellant worked. The DJ also took account of the financial impact of extradition, noting that the Appellant’s wife would be eligible for state benefits.

136. Dr Rahman’s report does not significantly alter the evidential picture. The DJ took account of the ill health of the Appellant’s son and that the Appellant was involved in the provision of his medication (paras 27 - 28 above). However, the DJ also noted, rightly, that there was no evidence to suggest that his wife could not administer the necessary medication to their son in his absence. Dr Rahman’s report does not provide any basis for revising that assessment; there remains no evidence that the Appellant’s wife would be unable to administer the medication. Furthermore, Dr Rahman indicates that the Appellant’s son does not require any treatment other than the administration of the daily medicine and that his condition is not having any real impact on his day to day living.

137. I have already explained that the DJ specifically considered the impact on the Appellant’s son and why the report from Dr Rahman does not materially change his assessment. This is not a case where the consequences of the interference with family life will be “exceptionally severe” (para 91 above).

138. This is also not a case where there was lengthy delay. The sentence was made final by the appeal decision on 5 November 2020. The AW was issued less than two months later on 24 December 2020 and it was certified on 28 July 2021. The Appellant was arrested just over two years later in October 2023 (para 20 above). He was a fugitive who had left Romania to evade the consequences of the criminal proceedings and was responsible for the time that has passed since his convictions. In any event, he had not been in the United Kingdom for a substantial period of time in extradition terms. In the circumstances, the DJ was right to attach little weight to delay in this case, as he explained at paras 29e and 32 of his judgment (paras 26 and 28 above).

139. As regards the age and nature of the offences, the DJ was entitled to proceed on the basis that the offending was “serious” (para 29(c) of his judgment), given that the Romanian court had imposed a substantial sentence of three years and 5 months imprisonment. The offending involved a dwelling burglary, which is inherently serious in itself. The Appellant had committed five offences in five years, involving a pattern of repeat offending of the same or similar nature. He had committed the most recent driving offence less than 9 months after his initial sentence for the first four offences had been imposed in 2016.

140. Furthermore, the Romanian courts are entitled to set their own sentencing regime and it is not for me to approach the Article 8 issue by arriving at my own assessment of what the appropriate sentence would have been in domestic proceedings (para 94 above). Mr Zalewski sought to draw support from paras 132 – 133 of Lord Judge JSC’s judgment in HH .

141. However, Lord Judge emphasised that “we must exercise caution not to impose our views about the seriousness of the offence or offences under consideration or the level of sentences”. He went on to say that whilst extradition should not be refused just because the sentencing court in this country would not order an immediate custodial sentence, this would become relevant “if the interests of the child or children might tip the sentencing scale here so as to reduce what would otherwise be an immediate custodial sentence in favour of a non-custodial sentence” (para 132). He applied that approach to the F-K case, concluding that extradition would be wholly disproportionate in that instance (para 133).

142. Mr Zalewski’s attempt to draw an analogy between the present case and the circumstances in F-K is without foundation. Firstly, he identified no material to support his assertion that the interests of the children in this case might tip the sentencing scale so as to reduce an otherwise custodial sentence to a non-custodial disposal. Domestic burglary usually results in an immediate custodial sentence in this jurisdiction and the Appellant is not the primary carer of the children. Secondly, there are substantial factual differences between F-K and the present case, including that there had been extreme delay in that case, the requested person (the mother) was the primary carer of the children, the father had physical difficulties and there was compelling expert evidence regarding the psychological damage that the younger children were likely to suffer (paras 35, 36, 41, 42 and 133).

143. Whilst I have considered each of the above discussed factors in turn for the purposes of addressing Mr Zalewski’s submissions, I appreciate that it is the overall impact of the factors for and against extradition that is important. However, this was a case where the DJ was fully entitled to conclude that the relevant factors against extradition when considered cumulatively, were clearly outweighed by the public interest in extradition. The DJ was entitled to attach significant weight to the important public interest considerations that he identified at paras 29a, 29b and 32 (paras 26 and 28 above), to the Appellant’s fugitivity and to the significant sentence of imprisonment that remained to be served for this repeat offending.

144. Accordingly, whilst I have accepted that evidence is available that was not available at the extradition hearing (Dr Rahman’s report) I am quite satisfied that this evidence would not have resulted in the DJ reaching a different decision on the Article 8 issue that was before him. It follows that I will dismiss the Article 8 ground of appeal in both Appeal 1 and Appeal 2, that is to say in respect of all five offences. Outcome

145. For the reasons given at paras 99 – 101 above, I permit the Appellant to amend the PGA in Appeal 1 to add the section 20 ground, granting the necessary extension of time for this.

146. For the reasons given at paras 121 – 124 above, I permit the Respondent to rely upon the Further Information.

147. For the reasons given at paras 109 – 128, I refuse the Appellant permission to appeal in respect of the section 20 ground in both Appeal 1 and Appeal 2 as it is not reasonably arguable.

148. For the reasons given at paras 132 – 133 above, I refuse the application to rely on fresh evidence in the form of the Appellant’s proof of evidence, but grant the application to admit Dr Rahman’s report.

149. For the reasons given at paras 134 – 144 above, the DJ was fully entitled to conclude that the Appellant’s extradition would not be a disproportionate interference with his or his family’s Article 8 rights and I am satisfied that the report from Dr Rahman would not have resulted in him reaching a different decision on the Article 8 issue.

150. I therefore dismiss the Article 8 ground in both Appeal 1 and Appeal 2; and I refuse permission to appeal on the section 20 ground in both Appeal 1 and Appeal 2.