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

Appellant. In Brindusa v Romania [2023] EWHC 3372 (Admin) (“Brindusa”), Holgate J said at para 9 that it is appropriate to take into account non-qualifying curfews, that is, those of less than 9 hours restriction.

“9.

The High Court has decided that the deprivation of liberty resulting from a curfew of less than 9 hours a day, in other words a non-qualifying curfew, may be taken into account as a factor weighing against extradition in the balancing exercise required under Article 8 (see Einikias v Lithuania [2014] EWHC 2325 [14-15] 1; Prusianu v Romania [2023] 1 WLR 495 [49] 2; and Muizarajas v Latvia [2022] EWHC 2751 (Admin) [21-22]) 3. It is common ground in this case that the same must also apply to a longer, qualifying curfew.”

The court in Brindusa continued at para 14:

“Given the length of time over which the appellant has been subject to the curfew requirements, compared to the length of the custodial term for which extradition is sought, I agree that it is necessary for the balance to be struck again in this appeal.”

The appellant also relied on the case of R v Rice [2025] EWCA Crim 352, in which the Court of Appeal (Criminal Division) considered the application of a non-qualifying curfew and whether this would afford a reduction in sentence in the United Kingdom. The court said at paras 37 and 41:

“37.

We do not accept that the ability of a sentencer to take into account time spent on non-qualifying curfews is limited to “rare” or “exceptional” cases. We do not consider, for the reasons given, that we are bound to reach that conclusion by previously decided cases. The ability to do this is based on the requirements of justice and is not prescribed or circumscribed by statute. The fact of the statutory scheme supports a conclusion that Parliament considers that qualifying curfews constitute a significant constraint on liberty. That proposition can be carried across into the non-qualifying curfew case, without carrying with it the unfortunate or even sometimes absurd aspects of the statutory scheme, see [24] above. The court, when dealing with the issue in cases which are outside the statutory scheme for credit, should address the issue in a non- mechanistic way and neither simply apply the statute (which does not apply) nor refuse to make any adjustment on the grounds that the case is not “rare” or “exceptional”.

…

41.

There will be many factors which may be relevant in deciding whether or not to exercise the discretion to reduce the final sentence to reflect time spent on a non- qualifying curfew. It may be helpful to identify some of those which feature in this case. This is not an exhaustive list of all possible relevant factors. The level of restriction actually imposed on the accused by the non-qualifying curfew is of great importance. It is unlikely that most bail conditions will justify any adjustment at all. Where there is a 12 hour curfew with a “doorstep” condition this is likely to be enough to start the process of deciding whether and, if so, how to make an adjustment to sentence. The length of time that the accused had spent on the non-qualifying curfew will also be important. It is likely that only long periods of time will lead to an adjustment. If the reason for the onerous bail conditions is some further misconduct by the accused, this may negative or reduce any adjustment. Any evidence of non- compliance with those conditions is likely to have the same effect. Evidence of particular difficulty caused to the accused, over and above the simple fact of the restriction caused by the non-qualifying curfew, may lead to a more generous adjustment.”

The respondent counters that the restriction caused by the curfew carries little weight. In any event, there is no evidence that such bail restriction would affect the length of sentence in Romania. This court should discount it.