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

If the respondent proves deliberate absenting, the court then proceeds to consider ECHR compatibility, particularly in respect of article 8 and the associated proportionality question. In addition to Andrysiewicz, I have considered the seminal cases of Norris v United States of America [2010] UKSC 9 (“Norris”), HH v Deputy Prosecutor of the Italian Republic, Genoa [2012] UKSC 25 (“HH”), Celinski v Poland [2015] EWHC 1274 (Admin) (“Celinski”). Reduced to its bare minimum, the issue is that identified by Lady Hale in HH at para 8(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.”

For each ground, I set out the relevant principles I have applied in the section of this judgment addressing it, placing them closer to the discussion of the merits of the rival submissions.

I should record that the appellant made a fresh evidence application to admit various strands of evidence. This included an expert report by a Romanian criminal procedure expert (Adrian Sandru) that went to the Ground 1 section 20 question and a further statement by the appellant’s partner (Ms Chitu), going to Ground 2 article 8 incompatibility. The respondent’s objection is that the evidence is not “decisive”. This objection is based on the principled approach to the admissibility of fresh evidence set out in Hungary v Fenyvesi [2009] EWHC 231 (Admin) (“Fenyvesi”). The Divisional Court said:

“32.

In our judgment, evidence which 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. If it was at the party's disposal or could have been so obtained, it was available. It may on occasions be material to consider whether or when the party knew the case he had to meet. But a party taken by surprise is able to ask for an adjournment. In addition, the court needs to decide that, if the evidence had been adduced, the result would have been different resulting in the person's discharge. This is a strict test, consonant with the parliamentary intent and that of the Framework Decision, that extradition cases should be dealt with speedily and should not generally be held up by an attempt to introduce equivocal fresh evidence which was available to a diligent party at the extradition hearing. A party seeking to persuade the court that proposed evidence was not available should normally serve a witness statement explaining why it was not available. The appellants did not do this in the present appeal.

[…]

34.

… there may occasionally be cases where what might otherwise be a breach of the European Convention in Human Rights may be avoided by admitting fresh evidence, tendered on behalf of a defendant, which a strict application of the section would not permit…

35.

Even for defendants, the court will not readily admit fresh evidence which they should have adduced before the district judge and which is tendered to try to repair holes which should have been plugged before the district judge, simply because it has a Human Rights label attached to it. The threshold remains high. The court must still be satisfied that the evidence would have resulted in the judge deciding the relevant question differently, so that he would not have ordered the defendant's discharge. In short, the fresh evidence must be decisive.”

The parties invited me to consider the evidence de bene esse and assess the case as a whole without occupying a significant part of the allotted time with a detailed admissibility argument. This seemed to me to be a sensible and practical way forward and it was the course taken. Therefore, I emphasise that in fairness to the appellant, and in recognition of the implications of an extradition order, I have considered the evidence as a whole before me. This includes evidence in response filed by the respondent.

The appeal is brought under section 26 of the Act. Section 27 provides the relevant appeal test:

The proper approach to the application of the appeal test was considered by the Divisional Court in Love v USA [2018] EWHC 172 (Admin). The court said at para 26:

“26.

The true approach is more simply expressed by requiring the appellate court to decide whether the decision of the district judge was wrong. What was said in Celinski and Re B (A Child) are apposite, even if decided in the context of article 8. In effect, the test is the same here. The appellate court is entitled to stand back and say that a question ought to have been decided differently because the overall evaluation was wrong: crucial factors should have been weighed so significantly differently as to make the decision wrong, such that the appeal in consequence should be allowed.”