AC-2024-LON-002640 - [2025] EWHC 2702 (Admin)

For organisational clarity, I divide the discussion under three main heads. First, the status of the indictment step for section 20; second, its implications for Limb 2; third, the appropriate inferences to be drawn.

First, I consider the question of the status for the section 20 test of a characteristic step in Romanian criminal procedure following charge where there is review by the prosecuting authorities before an indictment is “issued”. Mr Sandru’s evidence is to the effect that in the Romanian criminal process there are three statuses: suspect, defendant, accused. A person under suspicion moves from suspect to defendant once formally charged. The defendant then becomes the accused once an indictment is issued. Mr Sandru says that the person is not being “prosecuted” until an indictment is issued. He said in his report:

“(57)

At the time of 10 May 2016, the case was still at the investigative stage (urmărirea penală). On the same date, a decision to charge RP was issued - in the Romanian system, this is known as ‘punerea în mișcare a acțiunii penale’ and marks the moment of bringing formal charges against a suspect, who then acquires the status of defendant (inculpat). The decision to charge DOES NOT move the case out of the investigation phase.

(58)

Notification of the status of defendant is not a guarantee that a referral to trial will take place. It might be, for example, that an order for discontinuance is made in a defendant’s case when it is decided that a trial would be uneconomic and that a caution would suffice. Notification of defendant status and referral to trial are distinct steps. They cannot be merged into one. There is a strict rule against doing so and there must be a reasonable period of time between the two stages. He could not have been aware at that time that the matter would be referred for trial, because that is a distinct procedural step: whatever his status at that time, whether suspect or defendant, there was no guarantee that the matter would go to court.

(59)

No decision to prosecute had been made at that point. In the Romanian legal framework, a decision to prosecute corresponds to the issuing of the indictment (rechizitoriu) and the referral of the case to trial. In this case, the indictment was issued at a much later date, on 29 August 2017.

(60)

Therefore:

• The proceedings were still at the investigative stage.

• A decision to charge had been made.

• A decision to prosecute had not yet been made as of 10 May 2016.”

The appellant’s original position was that as a result of this third procedural step in Romania, the Limb 1 section 20 test was not met. This was said to be the result of a combination of Mr Sandru’s evidence and the guidance by the Divisional Court in Mohammed. The submission was that Mohammed “moved the law on”. Thus, it was submitted in the skeleton argument thatMohammed “has narrowed the aperture through which ‘deliberate absence’ may be proven in Romanian cases.” This was made as the first submission made at the appeal hearing. In oral submissions, the argument was refined following questions from the court, and it was submitted that Mohammed provided “guidance”. Inevitably, counsel was asked what the guidance was. The appellant resiled from his initial submissions and put the matter in a different way, accepting that Mohammed provided “no fresh guidance as to principle” in general, nor for Romanian cases in particular.

The court’s concern was that the appellant appeared to maintain that Mohammed provided a new or additional test in Romanian cases. I was not persuaded that Mohammed had done this in the way the appellant sought to assert. When the question was posed whether Mohammed is authority for the proposition that there must be an indictment before a person charged with criminal offences in Romania can be extradited, Mr Joyes said that he could not make that submission. This is clear from the decisions (plural, importantly) in the Mohammed case. The Divisional Court’s judgment also dealt with a second requested person sought by the Romanian judicial authorities called Oprea. In Oprea’s case, the court rejected the appeal and confirmed the return order to Romania. Oprea was a person who was charged but not indicted, as is the position with this appellant. Oprea’s case makes it impossible to sustain the submission that in Romanian cases being indicted is a precondition to extradition. To my mind, examining the content of article 6 makes this clear. Article 6(3) provides:

“3.

Everyone charged with a criminal offence has the following minimum rights: (a) to be informed promptly, in a language which he understands and in detail, of the nature and cause of the accusation against him”

Article 6 does not require an indictment to be laid. The nature of the protection and the requirement of fairness is that the accused understands the substance of what he is accused of. Indeed, in Sejdovic, the ECtHR said at para 99 that “established facts” may “unequivocally show that he is aware of the proceedings pending against him and of the charges he faces” and the court could not “rule out the possibility that [such] established facts might provide an unequivocal indication”, that is, of waiver of article 6 rights. It seems to me that this is why the test enunciated at para 58 of Bertino assumes the form it has. Awareness of criminal proceedings and charges may be sufficient in place of awareness of a formal indictment and this is why the Supreme Court said at para 38 that cases are “fact specific” and the boundaries of behaviour remain “open” (para 58).

Second, I consider the implications of the indictment step. If, as is now common ground, an indictment is not a necessary requirement, the question arises about its significance. The appellant submits that it is a relevant factor going to Limb 2 awareness. The respondent submits that it can “be safely ignored” and this additional procedural step in Romanian criminal process is a “red herring” for Bertino test purposes.

The appellant cited the case of Manciuca v District Court of Bacau, Romania [2025] EWHC 766 (Admin) (“Manciuca”), a first instance decision of Eyre J. The appellant submitted that in Manciuca, proceedings had progressed to a decision to prosecute. The judgment says at paras 9 and 60:

“9.

The Appellant travelled to the United Kingdom in October 2016 shortly after he had been interviewed and had learnt that the control measures had come to an end. As the District Judge found he did so knowing that he had the status of defendant in respect of both charges and that the proceedings had moved from the stage of investigation to that of prosecution.

“60.

… As the District Judge found the Appellant was aware that he was no longer just a suspect but the defendant and that the proceedings were continuing with a view to a trial.”

However, it is not ascertainable from the judgment what is meant by the “prosecution” stage and whether the additional stage of being indicted was examined by the first instance judge or on appeal. This authority does not assist the appellant.

The appellant then sought to draw a close comparison between his case and that of the requested person in Mohammed, and to distance his facts from Oprea’s. Mohammed had his extradition order quashed by the Divisional Court. The order was upheld in Oprea’s case. The similarities with Mohammed are said to include that both had been charged, notified an address and then changed address without notification. For this reason, the cases are said to possess “no material difference”. The respondent submits that detailed factual comparisons between cases is of limited assistance. The appellant submits that his position was not dealt with by the Supreme Court in Bertino. This is taken from para 45 of Mohammed, where the court said:

“45.

The failure to notify the Italian authorities of the change of address amounted to a lack of due diligence. Taken in isolation, it was not sufficient to lead to a conclusion of deliberate absence. This was because Mr Bertino had not been charged with a criminal offence and whilst he was a suspect had done nothing which might permit the inference to be drawn that he was evading the criminal process. The Supreme Court did not address the hypothetical question of whether Mr Bertino would or might have been deliberately absent if he had been charged and then, once in this country, failed to notify the Italian authorities of his change of address. Nor did the Supreme Court address the issue of deliberate absence on the hypothesis that, instead of doing nothing, Mr Bertino whilst in this country and still a suspect, was contacted by the Italian authorities and actively misled them with the intention of evading future prosecution.”

The submission is that the failure to notify post-charge amounts only to a general “lack of diligence”, not a greater intention to evade, and thus cannot be an unequivocal waiver. For my part, one must return to the test in Bertino and strictly apply it without gloss. Limb 2 of Bertino requires “an unequivocal intention (usually proved inferentially) not to participate in a trial or to escape prosecution”.The appellant made very substantial admissions of guilt. It is difficult to envisage what his defence would have been. The progression of the initiated criminal proceedings to what in Romanian law is called “prosecution”, that is, being formally indicted and with the trial as the end result, was all but inevitable. The correctness of this conclusion is supported by the fact that this is precisely what happened, a completely unsurprising eventuality. I must note that I have not been assisted by the particulate factual comparisons between this case and Mohammed. I remind myself of what the Divisional Court said in Celinski in respect of article 8 factual comparisons:

“14(iii) Decisions of the Administrative Court in relation to Article 8 are often cited to the court. It should, in our view, rarely, if ever, be necessary to cite to the court hearing the extradition proceedings or on an appeal decisions on Article 8 which are made in other cases, as these are invariably fact specific and in individual cases judges of the Administrative Court are not laying down new principles. Many such cases were referred to in the skeleton arguments.

We have referred to none of them in this judgment, as the principles to be applied are those set out in Norris and HH. If further guidance on the application of the principles is needed, such guidance will be given by a specially constituted Divisional Court or on appeal to the Supreme Court. It is not helpful to the proper conduct of extradition proceedings that the current practice of citation of authorities other than Norris and HH is continued either in the extradition hearing or on appeal.”

In similar vein, comparisons with different factual cases for the purposes of section 20 provide, to my mind, little material assistance to the court, particularly when both the ECtHR and the Supreme Court have emphasised the openness of the boundaries of factual combinations that may amount to unequivocal waiver of article 6 rights. In any event, the appellant’s submissions as advanced ignore vital differences between Mohammed and the instant case. I turn to them to emphasise, as envisaged by the ECtHR and the Supreme Court, the perils of making factual comparisons rather than examining each case on its own facts.

Mohammed notified the Romanian authorities of an address in the United Kingdom. He then changed his address in this country without notification. But he had informed the Romanian judicial authorities that he would be in the United Kingdom. This appellant provided his family address in Romania. He then left Romania for the United Kingdom and at no point informed the Romanian judicial authorities that he was in this country. It seems to me that there is a stronger inference of an intent to evade justice in this appellant’s case. The appellant could have gone almost anywhere in the world. In Mohammed’s case, they knew he had travelled to the United Kingdom, and that was a starting-point for locating him. Further, this appellant made extensive admissions of guilt. Mohammed had not. That is a factor undoubtedly relevant to the inferences that may be drawn from the appellant’s failure to notify. The prospects of proceedings advancing to trial and conviction are significantly higher where detailed admissions have been made as the admissions provide substantial additional evidence of guilt. The appellant points to his not having legal representation at the police station. However, there is no evidence before the court that this would or would be likely to have been a basis for the exclusion of the evidence at trial in Romania or that it was in contravention of proper Romanian procedure.

Overall, I am not persuaded by the respondent’s submission that the court can “simply ignore” the lack of indictment. I conclude that the fact that an indictment has not been “issued” (to use the Romanian term) is a factor relevant to the Limb 2 intention question and I accept the appellant’s submission on this point. The reason is that once a person knows that they have been indicted in Romania, that final step towards trial has been taken. However, as correctly accepted by the appellant (based on Mohammed/Oprea), the absence of the step cannot of itself invalidate the making of an extradition order. Thus, it is an additional relevant factor in determining whether the requisite Limb 2 intention can be inferred as part of the structured deliberate absenting test. Therefore, while the lack of indictment seems to me to be a relevant factor, there must be clarity about what it goes to, and does not. Mr Sandru said elsewhere in his report at para 29:

“(29)

The bringing of formal charges by the prosecutor – acquiring defendant status: The bringing of formal charges by the prosecutor, as governed by Article 309(1) RCCP, is the act by which the criminal action is formally initiated against a person, marking the transition from suspect to defendant. It is ordered by means of an ordinance when there is evidence indicating that the person has committed an offence and none of the grounds for non-prosecution under Article 16(1) RCCP apply. Although this evidentiary threshold is higher than that required for suspect status, in the Romanian legal system, the bringing of formal charges occurs during the criminal investigation, prior to the issuance of the indictment.”

In Romania, the decision to charge does not bring the investigation to a halt, but it continues as the criminal proceedings that have been initiated proceed towards trial. The appellant was told by the police that criminal proceedings had been initiated, and that was in conformity with article 309 of the Romanian code, following a decision to initiate by the prosecutor. While the lack of indictment is not a Limb 1 prohibition to extradition, it has relevance to Limb 2 in respect of the strength of inference that may or may not be drawn. If a person wanted by the Romanian judicial authorities knew an indictment had been issued, the failure to notify may provide a stronger inference of deliberate absence. On the other hand, I accept the respondent’s submission that it is speculative whether this appellant would have returned should he have known that he had been indicted. There is no evidence that he would. It was open to him to file such evidence; he did not. It is here that the evidence of his refusal to return to Romania since 2019 when he knew of the sentence imposed on him has relevance. He remains opposed to cooperating with Romanian judicial authorities. He continues to evade Romanian justice. Further, the correct inference about the lack of indicting is informed by his substantial admissions. He would have appreciated once he was indicted that he faced serious difficulties in contesting the case. His was not an incidental or cursory admission, but a very full and detailed account of his guilt, what he had done, how he had done it and his recognition that he did so without permission.

At trial in the lower court, the appellant testified that he had been told of the initiation of criminal proceedings. He was aware, therefore, that proceedings had progressed beyond his being a mere suspect. There was a degree of formality and vital progress in the criminal proceedings. He admitted his guilt to the allegation. When he left Romania for the United Kingdom, he knew the risk of criminal sanction was more than a theoretical risk: there was charge and admission. Furthermore, the appellant accepts that the nature and substance of the case against him and the charges did not change from those he was confronted with and answered questions about when he made his admissions. In Sejdovic, the court said at para 89:

“the provision of full, detailed information concerning the charges against the defendant, and consequently the legal characterisation that the courts might adopt in the matter, is an essential prerequisite for ensuring that the proceedings are fair....”

The allegation was put in detail to the appellant and he was able to respond to it. Formal charges were laid against him.

Third, in assessing the appropriate inference to be drawn, the terms of the article 108 warning the appellant was given are significant. It informed him in unmistakable terms that his failure to attend any summons issued could result in arrest and/or judge-ordered detention. Having been warned in these terms, the appellant refused to inform the Romanian authorities that he had left the country for the United Kingdom and where to contact him in this country. This amounts to an effective refusal to be served with the summons. Faced with this, the respondent could either suspend the initiated criminal proceedings or proceed to trial in the appellant’s absence. It was an entirely reasonable, unsurprising and legitimate course under Romanian law for the judicial authorities to try the appellant in his absence.

The Judge put it this way at her para 50:

“when he came to the UK he was fully aware of the ongoing proceedings in Romania and the fact that he was liable to conviction for these offences and that his decision to come to the UK was deliberately engineered to avoid this situation.”

It seems to me that this was a rational conclusion for the Judge to reach and certainly one open to her on the evidence. Her conclusion was sound that the appellant deliberately put himself beyond the reach of Romanian justice in full knowledge of the criminal proceedings and the charges against him and his detailed admissions of guilt. It was supported by the strong temporal connection between the summons being served on his family home in Romania and his applying for a national insurance number in the United Kingdom. The Judge dealt with it this way at para 50:

“I also find it to be highly suspicious that the date of the letter, indicating that the Requested Person had applied for a national insurance number in the UK, was on 12 December 2017. It is reasonable to presume that he will have applied for this shortly after arriving in the UK, in light of his evidence that he started working in the UK almost immediately. And although he stated in evidence that he came to the UK in 2017, he gave no further details as to precisely when this was. And we know that the summons, notifying him about the first trial date in this case, was sent to his family’s home address in Romania on 24 November 2017, i.e. very shortly before this application for a national insurance number was made (as evidenced by the jobcentreplus letter dated 12 December 2017). There does therefore appear to be a temporal connection between the date when notification was sent to his nominated address of the trial date and his decision to move to the UK. This lends further support to the contention that when he came to the UK he was fully aware of the ongoing proceedings in Romania and the fact that he was liable to conviction for these offences and that his decision to come to the UK was deliberately engineered to avoid this situation.”

His filed witness statement in these proceedings simply says at para 9 that he “moved to the UK in 2017”. The Judge was correct to be “highly suspicious” that the appellant’s application for a national insurance number in the United Kingdom is three weeks after the summons being sent to his family’s home address in Romania, which was his nominated address. This concern is supported by his admission that he avoided returning to Romania to avoid his sentence of imprisonment. The Judge said at para 13:

“He conceded that he had not returned to Romania since leaving in 2017 and he was asked whether the reason for this was to avoid being sent to prison for these offences. The Requested Person insisted that, when he left Romania in 2017, he was unaware of these proceedings. He denied having been told by prosecutors on 10 May 2016 that criminal proceedings were being initiated against him and being made subject to an obligation to notify them in writing of any changes to his address. He did, however, accept that sometime in 2019 officers attended his mother’s house in Romania to execute a warrant and that he was aware – from that date – that he was wanted in Romania. He accepted that after then he had not returned to Romania in order to avoid being sent to prison.”

The Judge made a rational inference. I draw the same inference. It is deeply unsatisfactory that the appellant could provide no assistance whatsoever about when in 2017 he left Romania for the United Kingdom. It is an obvious and safe inference that his failure to furnish details is because of the clear temporal connection. The Judge continued at para 50:

“when he came to the UK he was fully aware of the ongoing proceedings in Romania and the fact that he was liable to conviction for these offences and that his decision to come to the UK was deliberately engineered to avoid this situation.”

It seems to me that this was a rational conclusion for the Judge to reach and certainly one open to her on the evidence. Her conclusion was sound that the appellant deliberately put himself beyond the reach of Romanian justice in full knowledge of the criminal proceedings and the charges against him and his detailed admissions of guilt.