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

However, a prime focus of this appeal has been “fresh” factors, that is, factors that were not before the Judge. I note that in Lauri Love v USA (2018) EWHC 712 (Admin) (“Love”), in relation to an extradition appeal, the Divisional Court stated the following, at para. 26:

“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.”

While I have found that on what was before the Judge, she was undoubtedly right, in fairness to the appellant, and despite the powerful submissions of Ms Herbert, I am prepared to consider any “significant changes” that may result in a different decision on proportionality (see Brindusa, para 14, where De Zorzi v Attorney General Appeal Court of Paris, France [2019] 1WLR 6249, para 66 is cited). This is in recognition of the far-reaching impact of extradition decisions allied to the importance of article 8 rights. The prime factors the appellant relies on are the curfew, early release, the passage of time (and delay), his pre-settled status and other aspects of his private life, including his personal relationship and his lack of convictions in the United Kingdom and the absence of any further offending in Romania.

First, I note that the curfew point was not before the Judge. Examining it now, it adds nothing of substance, as explained above. I reject the argument that his non-qualifying curfew is a “weighty factor” that “weighs heavily” in the appellant’s favour.

Second, the Supreme Court in Andrysiewicz has recently clarified the proper approach to early release. There is nothing before me that satisfies the constituent elements of the test laid down for such a factor to begin to be relevant. The extract from the Romanian Criminal Code raises more questions than it provides answers. These questions exemplify precisely why the Supreme Court has framed the approach to early release in the way that it has. For example, at Article 100(1)(1)(d) of the Code, release may (not will) be ordered if the Romanian court “is convinced that the convicted person has reformed and is able to reintegrate into society”. It is inconceivable that this court sitting in London could begin to reach such a conclusion in substitution for the Romanian judicial authorities and without any evidence from probation or other services. It would be an act of impermissible usurpation. To put it in Celinski terms (para 13(ii)), it is to “second guess” the policy of the other Convention member. As the court in Celinski continues in para 13, and adapting the analysis, the place for any such “leniency” to be exercised in a Romanian case is Romania, not the United Kingdom.

Third, I turn to the rest of the article 8 balancing exercise. There is no interference with the appellant’s family life. All that is left is his private life. The Supreme Court in Andrysiewicz, emphasised that successful article 8 challenges in extradition will be “rare” and those based on the private life, as in the appellant’s case, “most unlikely”:

“43.

We have set out above relevant passages in Norris, H(H) and Celinski at some length because it is clear that there is a need to reiterate the essential points they make. Cases in which a submission founded on article 8 ECHR may defeat the public interest in extradition will be rare. It is most unlikely that extradition will be held to be disproportionate on the ground of interference with private life. Even in cases where interference with family life is relied upon, it will only be in cases of exceptionally severe impact on family life that an article 8 ECHR “defence” will have any prospect of success.”

The Supreme Court continued at para 81, in a section entitled “Conduct of cases in future”:

“We emphasise again that “the public interest in extradition will outweigh the article 8 rights of the family unless the consequences of the interference with family life be exceptionally severe.”

The appellant is, as Ms Stevens put it, “trying to establish a new relationship”. It has only existed for a few months. There are no children. The highest that counsel could realistically put it is that “he appears to be settling with a partner”. He has pre-settled status in the United Kingdom (having started living in the United Kingdom before the withdrawal from the European Union transition date of 31 December 2020). Even combined with his friendship group, these facts together provide little counterbalance to the strong public interest in extraditing fugitives from justice, such as the appellant. While he has no convictions in the United Kingdom, and no other convictions in Romania, these facts were known to the Judge. In any event, despite his previous good character, the Romanian court sentenced him to a 6-month custodial term, reflective of the seriousness of his breach offence. While he has not committed criminal offences in the United Kingdom during his evasion of Romanian justice, he has been here deliberately placing himself beyond the reach of the Romanian judicial authorities. I cannot place much store in his submission that he was “trusted on bail by the Romanian authorities”. The fact is that he had a duty to inform them of changes of his address and deliberately did not. The Judge’s finding that he is a fugitive from justice remains in place.

Fourth, such delay as cannot be properly attributed to the appellant’s fugitivity is of very little weight in the balance. While it is a fact that the arrest warrants were not issued until 3 years after the judgment became final, as noted, he left Romania in deliberate breach of his obligations to the court to inform it of his change of address. Counsel accepted that “some of the delay is attributable to his actions”. This is obviously the case. It is submitted on the appellant’s behalf that it is now 6 years since the extradition offence. However, I concur with the Judge that the appellant is very substantially culpable for the delay. In any event, it is unclear what identifiable “detriment” arises from the delay as set out in our jurisprudence. Undue delay since apprehension is specified as a mitigating factor in the Sentencing Council’s General Guidance: Overarching Principles (Step 2: personal mitigation et cetera). Where the cause of the delay is not the offender’s fault, the court may take delay into account if it has had a “detrimental effect on the offender”.

“Where there has been an unreasonable delay in proceedings since apprehension which is not the fault of the offender, the court may take this into account by reducing the sentence if this has had a detrimental effect on the offender.” (original emphasis)

I have been directed to no clear detriment here attributable to the delay beyond the interference with his private life as outlined. Further, there is nothing relevant to section 25 of the 2003 Act rendering his extradition unjust or oppressive because of any “physical or mental condition”.