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

To assist the parties and the public follow the court’s line of reasoning, the text is divided into six sections and an appendix, as set out in the table below.

This is an appeal in extradition proceedings.

The appeal is against an extradition order made by District Judge (MC) Sarah Turnock (“the Judge”) sitting at the Westminster Magistrates' Court on 29 July 2024. By her order, the Judge ordered the return of the appellant Nicolae-Alfredo Toloii (“the requested person”), born in Romania on 24 June 1994, back to Romania (“the requesting state”). The respondent in the appeal is the Gaesti Court in Romania (“the judicial authority”). The order is made under section 21 of the Extradition Act 2003 (“the Act”). Romania is a Category 1 territory under the Act and thus extradition is governed by Part 1 of the statute, with the initial decision to be made by a district judge, as has happened here. Such an extradition order may be appealed to the High Court with permission. Permission has been granted in this case.

The requesting state seeks the appellant’s extradition on an arrest warrant issued under the EU-UK Trade and Cooperation Agreement 2020 on 22 December 2023. It was certified by the National Crime Agency on the same day. The warrant seeks the requested person’s return to serve an outstanding sentence of 8-months’ imprisonment (consisting of two sentences of 6 months’, consolidated as a sentence of 8 months’ imprisonment). The sentence was imposed for two offences in 2014 involving illegal tree-felling in a forest under the administration of the Valea Mare Forestry Office. The allegation is that with another person, he cut down two oak trees and three hornbeam trees and appropriated all the resulting wood. When interviewed by Romanian police on 10 May 2016, he made extensive admissions. Following his leaving Romania for the United Kingdom in 2017, he was tried in his absence. He was convicted and sentenced on 15 June 2018. The sentence was made final due to non-appeal on 4 July 2018.

The appellant does not consent to his extradition. He appeals the Judge’s return order on two grounds. They are, put shortly, that the Judge erred in finding that (1) for the purposes of section 20 of the Act he deliberately absented himself from his trial; (2) his extradition is not incompatible with his right to family life under article 8 of the European Convention on Human Rights (“ECHR”), when in fact it is a disproportionate interference.

On Ground 1, it is common ground that the appellant was not warned that he may be tried and convicted in his absence. Therefore, the question is that identified by the Supreme Court in the recent case of Bertino v Italy [2024] UKSC 9 (“Bertino”): whether notwithstanding such warning, the requested person’s behaviour establishes an “unequivocal waiver” of his right under article 6 of the ECHR to be present at trial. The section 20 question also requires consideration of a distinctive feature of Romanian criminal proceedings, where after formal charge there is a further step of assessment by the prosecuting authorities and, if justified, the issuing of an indictment. This additional procedural step was not argued before the Judge and she did not therefore consider it.

On Ground 2, the question is whether the instant case is one of the rare cases envisaged by the Supreme Court recently in Andrysiewicz v Poland [2025] UKSC 23 (“Andrysiewicz”) where the impact on family life is of such severity that it outweighs the public interest in making a return order.

The appellant is represented by Mr Joyes of counsel. The respondent is represented by Mr Davies of counsel. I am grateful to both counsel for the quality of their submissions and their assistance to the court.

Permission was refused in the first instance by Johnson J on the papers on 4 November 2024.

Following a renewed oral hearing on 23 January 2025, permission was granted on two grounds by Pepperall J on 23 April 2025 on the two grounds for the following reasons:

“Ground 1:

Since the Appellant was tried in his absence and has no right to seek a retrial, the critical issue under s.20(3) of the Extradition Act 2003 is whether he deliberately absented himself from his trial. The district judge’s finding that he did depends upon whether (as the judge found) the Appellant was heard by prosecutors in Romania on 10 May 2016 and a decision had then been made to initiate criminal proceedings against him, or whether (as he seeks to argue) the case remained under police investigation on 10 May 2016 and there was then no certainty that a prosecution would follow.

… there is now evidence before the court which (if admitted) might indicate that the case was still with the Romanian police and under investigation on 10 May 2016 such that, on a proper application of s.20, the judge was required to discharge the Appellant. Ground 1 is therefore arguable and it is appropriate to grant permission to allow the Appellant to appeal the judge’s conclusion under s.20.

Ground 2:

Both the Judge and Johnson J identified that the Article 8 arguments were very finely balanced. There is now further evidence which (if admitted) might affect the analysis under Article 8 even if ground 1 fails. Accordingly, it is also appropriate to grant permission to appeal on ground 2.”