AC-2025-LON-000375 - [2025] EWHC 2562 (Admin)

Section 2 of the Extradition Act 2003 (“the Act”) requires that there must be adequate particularisation of the offences covered by the warrant. The purpose is to allow the requested person to have full details of the offences and potential or imposed sentences for which their extradition has been requested.

In Edutanu v Iasi Court of Law [2016] EWHC 124 (Admin), the Divisional Court gave guidance on the correct approach to the requirement in s 2(6)(b) for conviction warrants to contain particulars of conviction in situations where the sentence for an extradition offence was ‘merged’ with sentences for other offences. In short it concluded that where the total sentence to be served was in respect of offences which had not been particularised then the warrant would not be valid.

In Alexander v Public Prosecutor’s Office, Marseille District Court of First Instance, France; Benedetto v Court of Palermo, Italy [2017] EWHC 1392 (Admin), the Divisional Court held that in such a situation further information can cure defects in a deficient warrant. Nevertheless a “wholesale failure” renders a warrant a nullity. Save where there has been such a fundamental failure, Edutanu is to be read in the light of Alexander which allows for deficiencies of particularisation to be remedied.

In the recent case of Jipa v Romania [2024] EWHC 2785 (Admin), the appellant challenged a decision ordering his extradition to Romania. The extradition was based on a conviction warrant for tax evasion, with a six-year sentence. The warrant stated that this sentence had been merged with a four-year sentence from a 2016 offence, resulting in a seven-year total. The warrant did not include detailed particulars of the 2016 offence. The appellant argued that this omission rendered the warrant invalid. Before the hearing, Romania provided additional details about the 2016 offence (also tax fraud). The judge accepted this further information as supplementing the warrant. The appeal was dismissed. The warrant was not a nullity despite the lack of full particulars. The additional information cured the defect and could be treated as incorporated into the warrant. The judge was accordingly entitled to consider the warrant and the further information together. This case is factually similar to the present and is an example of the approach approved in Alexander of which the court in Jipa said:

“In Alexander the Divisional Court analysed what it described as “the considerable line of English authority” which followed that analysis and in so doing found there to have been a “sea change” in approach. The court concluded at [73] that the effect of Bob-Dogi’s case [2016] 1 WLR 4583 and Goluchowski’s case [2016] UKSC 36 was that the previous approach to the requirements of an EAW and the role of further information must be taken no longer to apply. The formality of Lord Hope’s approach based on the wording of the Act has not survived and “it is clearly open to a requesting judicial authority to add missing information to a deficient EAW so as to establish the validity of the warrant.” At [74] the court underlined that the effect of these two decisions was that missing required matters may be supplied by way of further information.”

In the present case reference to the merged, activated suspended sentence was made in the warrant and included the date, court and court reference numbers. The Applicant was present at the trial to which the merged sentence relates and appealed the decision. He was also aware of the later decision which merged the sentences since he also appealed that decision. Whilst the Respondent accepted that further information was necessary to provide the required particulars this is not arguably an example of a wholesale failure so that it was open to the judge, as she did, to take the warrant and the further information together. The arguments advanced by the Applicant under this ground are not therefore arguable.

The challenge under Article 5 arises from the submission that at least one of the offences for which the Applicant is sought was wholly based upon the reception of inadmissible evidence at trial, in the form of wiretap evidence, and that this material had informed the investigation into the other offences. The covert recording evidence had been obtained by the Romanian security services; a practise which the Romanian Constitutional Court had characterised as unlawful and contrary to the constitution. It was submitted that this could not have been challenged at trial because it only arose from the declassification of protocols at a later date. The Applicant called evidence from an expert, Dr Chirita. The high point of his evidence was that:

“.. even if the wiretaps are not the only evidence in the file, without them, there is an extremely high probability that the criminal file would not have followed the same route, or that the necessary authorizations for the other evidence in the file would not have been obtained. Basically, the wiretaps were the basis of the case, of the other evidence administered in the case and of the conviction verdicts.”

This was qualified by the observation made in the paragraph which follows in the report:

“Beyond these aspects, to the extent that we have removed the wiretaps, keeping in the file only the other evidence administered without the involvement of SRI, I cannot say with certainty that the court’s solution would have been diametrically opposed, in the sense of acquitting RP due to the lack of necessary evidence. This is because in Romanian criminal procedural law the principle of free appreciation of evidence is applicable. Thus, the court, assessing itself as a whole the evidence that does not have a predetermined probative value, must form its belief that the facts were committed beyond any reasonable doubt.”

It is true that Dr Chirita went on to say that:

“... it seems that as regards the offence of setting up an organised criminal group, the only relevant evidence is that resulting from the wiretaps, which is how the connection between the members of the group was proved. Consequently, with regard to this offence, there is a high probability that, in the absence of wiretaps, a judgment of acquittal would have been rendered due to lack of evidence.”

However, this is predicated on the absence of wiretap evidence and must therefore itself be subject to the qualification expressed by Dr Chirita as to the principle of the free appreciation of evidence by the Romanian Court. Further, whilst the covert recording may have initially directed the investigation of the offences, that investigation led to other evidence.

It is clear that the judge considered the Applicant’s submissions on this point carefully and accepted that the involvement of the security service in criminal prosecutions had been found to be a violation of the right to a fair trial. Nevertheless, she was entitled to refer to Dr Chirita’s conclusion that he could not say that the outcome would have been any different and to reject the argument that there had been a flagrant denial of justice simply because some evidence in the case had been obtained unlawfully. On the expert evidence that did not reflect Romanian law, nor indeed would it be the position under English law. Dr Chirita expressed a clear and fair expert assessment on which the judge relied. The judge carefully analysed the entirety of the evidence, of which the wiretap material was a part. The submission before me was that Dr Chirita’s overarching conclusion had been taken out of context. That was, I consider, an implicit recognition of its significance. I have considered this submission carefully but on any reading of the report and the judgment I consider it to be unarguable.

The judge accepted that there had been a delay on the part of the judicial authority, but this was to be set against the fact that the Applicant was a fugitive and, as she found, could hardly be said to have been lulled into a false sense of security. The judge said:

“141.

I have factored in the delay on the part of the JA. I have accepted there has been a 6 year delay since the RP was previously discharged with no proper explanation by the JA. However, that is weighed against the RP being a fugitive, he has continued to build his life here in the UK knowing this sentence is still outstanding and has been given no false sense of security. The offending is serious; he was said to be the leader of the group in a significant international conspiracy and the sentence to be served is lengthy, it is 6 years and 6 months.

142.

I recognise there are occasions, even when someone is a fugitive, where delay may reduce the public interest in extradition but I do not accept this one of those occasions. I find therefore that, despite the 6 year delay in reissuing the warrant, this is not a case where that delay should weigh so heavily in the balancing exercise that extradition is disproportionate.”

It is not arguable that this conclusion was not reasonably open to her.

In considering what the impact of extradition would be on family life the judge carried out the required balancing exercise. Amongst other things she concluded that it was relevant to take into account that the Applicant’s wife drives, that she would be able to work in his absence and that his son’s promising football career would not be impeded albeit that there might be logistical difficulties to be surmounted.

It was submitted that these conclusions had been overtaken by events because the Applicant’s wife had been involved in a car accident in June 2024. This of course predated the extradition hearing in November 2024. The accident had not been mentioned at that hearing and it would be fair to say that the Respondent expressed considerable scepticism before me about whether any accident or accident-related injury had in fact occurred. There appears to be no contemporaneous material which evidences the accident. The details given are sparse amounting to the assertion that the Applicant’s wife had been hurt, had recovered physically but continued to suffer mentally. The explanation given by the Applicant’s wife, in her addendum statement, is that she hid the full effects of the accident from her family and returned to Romania to seek medical help. More recently her condition, it is said, had worsened following the extradition hearing, so that she suffers from anxiety and depression, was signed off from work and was unable to drive long distances.

The Applicant had paid privately for his wife to be seen by a consultant psychotherapist and consultant psychologist who produced a detailed letter identifying a “phobic” response to the accident and describing her symptoms as characteristic of a severe depressive episode. There is already therefore a clear indication as to what the position might be if further expert evidence was obtained.

In Andrysiewicz v Poland [2025] UKSC 23, at [81], the Supreme Court emphasised 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.

The Respondent submitted that evidence as to the mental condition of the Applicant’s wife could not tip the balance because the material did not suggest exceptionally severe consequences. Rather it described the ordinary hardship and likely consequences of extradition for the Applicant’s family. The fact that this might be exacerbated because of the role performed by the Applicant within the family, including supporting his son in pursuing sport, is not an exceptionally severe consequence.

Equally a generalised anxiety disorder and depression on the part of a spouse were not unusual in the aftermath of an extradition hearing and when faced with the prospect of the Applicant having to serve his prison sentence. Psychological treatment would be supported by the NHS if the Applicant’s wife was no longer able to afford treatment privately. Any limitation on her ability to drive was mitigated by the fact that the family live in Greater London and public transport is widely available. Mrs Ardeleanu is not incapable of any work and would be entitled to financial assistance from the State if she was out of work.

I have considered the Applicant’s submissions carefully but it is not in my view arguable that any of the new matters relied on, even taken at their highest, would have made a difference to the assessment by the judge or amount to exceptionally severe consequences which would outweigh the clear public interest in extradition for serious offences which merited a substantial sentence of imprisonment. The judge’s assessment of the matters for and against extradition is not arguably wrong.

For those reasons I refuse the application for further evidence, and I refuse permission to appeal.