AC-2023-LON-001835 - [2025] EWHC 2770 (Admin)

Section 21A of the Extradition Act 2003 provides:

“(2)

In deciding whether the extradition would be disproportionate, the judge must take into account the specified matters relating to proportionality (so far as the judge thinks it appropriate to do so); but the judge must not take any other matters into account.

(3)

These are the specified matters relating to proportionality—

(a)

the seriousness of the conduct alleged to constitute the extradition offence;

(b)

the likely penalty that would be imposed if D was found guilty of the extradition offence;

(c)

the possibility of the relevant foreign authorities taking measures that would be less coercive than the extradition of D.”

Mr Beraru accepts that that the offending alleged is serious and that a substantial sentence of imprisonment is likely if he is convicted. The focus of this proposed ground of appeal is whether the availability of less coercive measures render extradition disproportionate. The “less coercive” measure relied upon is allowing Mr Beraru voluntarily to participate remotely.

In Mirazewski v Poland [2015] 1 W.L.R. 3929, a Divisional Court (Pitchford LJ and Collins J) considered the approach to be taken to proportionality issues of this kind. At [32], the Court did not accept that “the draftsman created a predetermined rank of importance” but did “accept that in most cases the seriousness of the offence will be determinative of the likely sentence and, for that reason, of proportionality.”

As to s.21A(3)(c):

In Vascenkovs v Latvian Judicial Authority [2023] EWHC 2830 (Admin), [10], Swift J held:

“The same principle of mutual recognition requires, so far as this proportionality analysis rests on consideration of domestic practice, the court should allow a significant margin before concluding extradition would be disproportionate, since reaching such a conclusion too readily could call into question the requesting authority's decision to issue the warrant (as a disproportionate use of that court's power). A conclusion that extradition would be disproportionate would not necessarily be at odds with the notion of mutual recognition. For example, it might rest on information not available to the requesting authority when it made its decision to issue the warrant. However, the principle of mutual recognition means that a conclusion that extradition is disproportionate in this sense will be an occurrence more rare than common, likely to arise only in unusual circumstances.”

Applying these factors, I am not persuaded that ordering Mr Beraru’s extradition would contravene the s.21A proportionality requirement:

In those circumstances, I propose to give permission to advance Ground 2 and to adduce the additional evidence relied upon in support of it, but to dismiss the Ground 2 appeal.

In these circumstances, it is not necessary to decide a further issue relied upon by the Respondent, by reference to the Second Additional Protocol to the European Convention on Mutual Assistance in Criminal Matters (ETS No. 182) (“the Second Additional Protocol”). However, as I heard argument on this point I will address it briefly.

Article 9(1) of the Second Additional Protocol permits the judicial authorities of a state (“the requested party”) to request that a witness or expert in the territory of another signatory state (“the requested party”) give evidence in criminal proceedings being conducted in the requesting party by video conference. Article 9(8) allows states “at their discretion” to apply Article 9(1) to “hearings involving video conference involving the accused person or the suspect”. However, Article 9(9) allows contracting states to declare that they will not avail themselves of “the possibility … of applying the provisions of this article to hearings by video conference involving the accused person or the suspect”.

Where applicable (i.e. to witnesses or experts, or the accused or a suspect where there is no Article 9(9) derogation), Article 9 provides for various safeguards:

On 2 July 2024, the Foreign Secretary made a declaration in respect of Article 9(8) of the Second Additional Protocol as follows:

“In accordance with Article 9, paragraph 9, of the Second Additional Protocol, the Government of the United Kingdom declares that it will not apply the provisions of this article to hearings by video conference involving the accused person or the suspect, where the hearings are, or form part of, the trial of that person. This position applies irrespective of whether or not the hearings involve oral or written evidence from the accused person or the suspect.”

(emphasis added).

This argument raised three issues:

Mr Beraru’s contention that Article 9(9) is not engaged by pre-trial procedures has considerable force when considering the terms of the UK’s declaration, albeit it might be necessary to know rather more about the nature of the criminal process in Romania before reaching a final view as to whether the hearings “form part of” Mr Beraru’s trial. However, I shall assume in Mr Beraru’s favour that the Article 9(9) declaration would not be engaged by an Article 9(8) request so far as it concerns the pre-trial proceedings.

The second and third issues present more obvious difficulties. I was referred to the decision in Zilinskas v ŠIauliai Regional Court [2025] EWHC 1068 (Admin), a case concerned with a conviction arrest warrant in which a criminal trial had taken place in Lithuania, with the defendant participating remotely from the UK, and without any request for Mutual Legal Assistance having been made of the UK (i.e. an informal procedure of the kind Mr Beraru suggests is appropriate in this case).

It was common ground that the conduct of the trial on a remote basis was inconsistent with the UK’s Article 9(9) declaration, a concession which Ms Beatty says should not have been made. In that case, the sole ground on which extradition was resisted was that it was said to be an abuse of process given the assumed contravention of Article 9(9). That argument failed.

I have very real difficulty with the suggestion that an extradition court should treat an informal arrangement of this kind which involved the accused participating in a criminal trial in another jurisdiction from the UK on a remote basis and without the sanction of the UK authorities as a less coercive measure for s.21A purposes.

In Secretary of State for the Home Department v Agbabiaka [2021] UKUT 286 (IAC), the Upper Tribunal observed at [12]:

“There has long been an understanding among Nation States that one State should not seek to exercise the powers of its courts within the territory of another, without having the permission of that other State to do so. Any breach of that understanding by a court or tribunal in the United Kingdom risks damaging this country’s diplomatic relations with other States and is, thus, contrary to the public interest. The potential damage includes harm to the interests of justice since, if a court or tribunal acts in such a way as to damage international relations with another State, this risks permission being refused in subsequent cases, where evidence needs to be taken from within that State.”

To similar effect, in Kadir v R [2013] [2022] EWCA Crim 1784, the Court of Appeal held at [33]:

“In relation to an application for a live link for a witness who is in another country, it is necessary also to bear in mind the principle that one state should not seek to exercise the powers of its courts within the territory of another state without the permission (on an individual or a general basis) of that other state. It cannot be presumed that all foreign governments are willing to allow their nationals, or others within their jurisdiction, to give evidence before a court in England and Wales via a live link.”

Reflecting these sovereignty concerns, states will often agree by treaties to reciprocal provisions on the taking of evidence in one country for use in the court proceedings of another. The (Hague) Convention on the Taking of Evidence Abroad in Civil or Commercial Matters signed on 18 March 1970 is one such treaty, and the Second Additional Protocol is another. While Ms Beatty sought to cast Article 9 of the Second Additional Protocol as involving a series of obligations of the requested Party, to which it committed itself when Article 9 applies, it also contains a number of recognitions of a state’s sovereign interest in the conduct by another state of judicial proceedings on its territory and a state’s desire to protect the interests of those within its borders.

Thus Article 9(2) permits a requested party to refuse a request where giving evidenced by video conference is “contrary to fundamental principles of its law.” Article 9(5)(a) and (c) and (7) also reflect the requested Party’s sovereign interests, as does Article 9(9). Article 9, where it applies, contains package of obligations and entitlements, including provisions recognising the sovereign interests of its own state and preserving certain protections for the requested person (Article 9(5)(b), (d) and (e)).

For a signatory state to the Second Additional Protocol to seek hear evidence from a witness or expert, or conduct the criminal trial of an accused or suspect, in the territory of another signatory state without complying with the requirements of Article 9 (or engaging its protections) is not consistent with the package of obligations and rights which Article 9 creates. That was the position of the Secretary of State in Zilinskas at set out at [29] of that judgment, which said that the conduct of the trial in that case was “inconsistent with the relevant international treaty obligations” and expressed the view that “the appellant should not have been invited to participate in his trial by video link without the United Kingdom’s central authority”.

In those circumstances, I do not believe that an extradition judge could properly hold that the requirements of proportionality under s.21A of the Act were not satisfied because the state seeking extradition could conduct the proceedings on a remote basis in this jurisdiction, even though the UK would never have consented to such a process if asked. The “less coercive” alternative referred to in s.21A must be one which is compatible with UK sovereignty and policy.

There is a further difficulty with Mr Beraru’s argument which arises in relation to pre-trial trial processes as well. In this case, there has been no request for Mutual Legal Assistance. Against the background of a Warrant, which the Romanian courts have refused to set aside, and pending Mr Beraru’s appeal here, there has been voluntary and informal participation by Mr Beraru in the proceedings but this has not involved any coercive measure at all. The Article 9(4) means of procuring attendance through the judicial authorities of the requested Party are not available.

I am not willing to assume that the Respondent would regard an informal and essentially voluntary process of this kind as a satisfactory and “less coercive” means of ensuring Mr Beraru’s participation in the pre-trial and trial process, nor that it should.