AC-2024-LON-002099 - [2025] EWHC 1980 (Admin)

The appellant has been remanded on conditional bail since 2 February 2024. While it can be pointed out that he has been granted bail and not remanded in custody despite his failure to comply with criminal procedure notification obligations in Romania, there can be no doubt that the time the appellant has spent on curfew is an interference with his liberty. The question for the court is what weight can be put on this Convention rights infringement.

At first he had to be home before 20:00 hours each night and was unable to sleep at a different location due to the condition of residence. The time-condition was varied on 30 April 2025 to a restriction to having to be home by midnight and sleep there until 04:00 hours. The variation was to permit him to travel from home to his job in Swindon on workdays. Nevertheless, the bail condition remained that he slept at his home each night.

By the time of the substantive appeal hearing of the appeal, the curfew had been in place for 1 year 4 months and 23 days or 510 days. The appellant’s original mathematical calculation based on the 8-hour restriction is that this amounts to the equivalent of 7.4 months’ custody. That, it is submitted, exceeds the appellant’s outstanding sentence. Following the development revealed at the oral hearing of a recent variation to a 4-hour restriction, counsel recalculated the figures and supplied them to the court the day after the hearing. The new figures provided by Ms Stevens are that the appellant has served the equivalent of 6.6 months’ custody when on the 8-hour restriction. To this must be added 57 days of 4-hours’ restriction. There are a number of observations that must be made about this analysis.

First, this is a non-qualifying curfew. That is because it has not reached the 9 hours per day restriction required to be a qualifying curfew. Indeed, it was reduced by 50 per cent to a four-hour restriction. Nevertheless, it infringes the appellant’s liberty.

Second, counsel was asked in terms whether there is any evidence about whether a Romanian court would take an electronic curfew into account as the equivalent of time served or as a basis for early release from sentence. Ms Stevens confirmed that there is no evidence that the Romanian court would take the curfew into account. Thus any positive assertion is unsupported and unevidenced speculation, which to her credit Ms Stevens refrained from doing. On this, the respondent had submitted at para 21 of its skeleton argument that the appellant’s submission “that the time spent [means he] ‘has served his total sentence’ on ‘non qualifying curfew’ is incorrect”. The Appellant has “a full 6 months’ custodial sentence to serve in Romania. There is no evidence that the Romanian court will take this into consideration in Romania.” There is force in this submission.

Third, therefore, there is no evidence before the court that the outstanding 6-month sentence would be discounted by the overnight curfew and residence condition. I note in particular what Holgate J said at para 8 of Brindusa about qualifying curfews:

“8.

It is common ground that this restriction on personal freedom would not be taken into account in Romania so as to reduce the sentence of 11 months’ imprisonment to be served. But in this jurisdiction the curfew would be treated as a qualifying curfew under section 240A of the Criminal Justice Act 2003. Each day of the curfew would be treated as equivalent to a half-day in custody.”

I also note in passing that very recently Chamberlain J cited this paragraph from Brindusa in the Romanian extradition case of ZA v Cornetu District Court [2025] EWHC 595 (Admin), para 19.

Fourth, I have considered the case law helpfully summarised by Morris J in Leszczynski v Poland [2025] EWHC 1024 (Admin) (“Leszczynski”). It repays setting out the analysis at para 47:

“47.

I have been referred to a substantial number of extradition cases where the issue of time spent on an electronically monitored curfew and other bail conditions has been considered, namely: R (Einikis) v The Ministry of Justice, Lithuania [2014] EWHC 2325 (Admin) ; Dezda v Regional Court in Olsztyn (Poland) [2022] EWHC 838 ; Prusianu v Braila Court of Law (Romania) [2022] EWHC 1929 (Admin) ; The King on the Application of Muizarijis v The Prosecutor General of the Republic of Latvia [2022] EWHC 2751 (Admin) ; Hojden v Poland [2022] EWHC 2725 (Admin) ; Brindusa v Law Court of Targoviste (Romania) [2023] EWHC 3372 (Admin) ; Begum v District Court of Zutphen (Netherlands) [2023] EWHC 3291 (Admin) ; Toma v Romania [2024] EWHC 183 (Admin) ; Mario Bakai v District Court in Dunaiska Streda (A Slovakian Judicial Authority) [2024] EWHC 1768 (Admin) ; and, most recently, Polom v Regional Court in Bydgoszcz (Poland) [2024] EWHC 2708 (Admin) . From these authorities, I derive the following principles:

(1)

For the purposes of domestic law on sentencing, "qualifying curfew" is an electronically monitored curfew of at least 9 hours duration a day. However, it is clear that, in an extradition case, both qualifying curfew and non-qualifying curfew (i.e. less than 9 hours duration per day) in the UK is capable of being a factor properly to be taken into account in the Article 8 balancing exercise: Hojden §49.

(2)

What falls to be assessed is the degree of the deprivation of liberty or restriction on freedom of movement and autonomy: Prusianu §49. This might arise both from an electronically monitored curfew and from an obligation to report to a police station ( Einikis ) (or perhaps other bail conditions) or a combination of these elements. The court will consider whether the curfew has had a material effect on a person's ability to work, study or maintain family life, in which case the curfew will be afforded greater weight (than, for example, merely preventing late-evening socialising): Hojden §50.

(3)

Each case turns on its own facts. The assessment of a curfew as a relevant factor and the overall balance is an intensely fact-specific exercise: Polom §44. Little is to be gained by comparing the facts of previous cases. The cases vary as regards the seriousness of the underlying offence, the length of sentence to be served, the number of hours of the daily curfew and the amount of time that the requested person has been subject to that curfew.

(4)

In the cited cases where curfew was considered, in some cases, extradition was ordered; in others it was taken into account as a factor which led to extradition being discharged. As a matter of fact, the shortest curfew duration which has been taken into account in the cases referred to above, was a curfew of 4 hours in the case of Prusianu

(5)

Amongst the factors relevant to the court considering the issue is whether or not it has before it evidence as to how the requesting state will deal with the time spent under UK curfew: see, for example, Polom §44.

(6)

As a matter of general principle, where the public interest in extradition is otherwise very strong, time spent on curfew is unlikely to tip the balance against extradition. On the other hand, in a case which is otherwise marginal, time spent on curfew might tip the balance against extradition.”

Fifth, I judge that it is highly significant that the conditions of the curfew were varied on the appellant’s application. This indicates that where there was interference that was problematic, the court was receptive to adapting the restrictions to support the appellant’s private life in work. Counsel were asked whether there was any application made by the appellant to vary the condition of residence at his home address. They confirmed that none had been made. If, therefore, the restriction was interfering unduly with any significant aspect of his private life, such an application would undoubtedly have been considered by the court on application. Indeed, as to employment, a variation has been granted.

Sixth, as to the impact on relationship matters, the appellant has not felt it necessary to make any variation application. In any event, before the Judge he was said to have developed a relationship with a woman in Austria. Naturally, given the circumstances of his fugitivity, it would be unrealistic to vary the curfew for him to travel to be with her. More recently, he has formed a new relationship with a woman who attended the appeal hearing with him. The relationship started a little over 4 months ago, on 2 February 2025. Ms Stevens informed the court that they are “living together”, which must be at the appellant’s premises as he has a condition of residence. Thus, there appears to be little meaningful interference. Further, the adjustment of start-time of the restriction to midnight means that he is able to socialise in the evening until then when not working. This is causing minimal practical interference.