AC-2025-LON-000331 - [2025] EWHC 2236 (Admin)

The principles enunciated in Kalandyk directly bear upon this application. Extradition is sought in relation to the activation of a suspended sentence for driving without a licence, initially imposed on 13 June 2019 and finalised on 10 July 2019. The decision to activate this sentence was made on 14 April 2021. The Applicant was present at his initial trial and subsequently lodged an appeal against the activation decision on 23 April 2021, which was rejected.

Applying the reasoning in Kalandyk, and by extension the principles of Ardic and LU & PH, the proceedings in Romania that led to the activation of the Applicant’s suspended sentence are not a “trial resulting in the decision” for the purposes of Section 20. This is because these proceedings did not determine his guilt in relation to the original offence, nor did they alter the nature or quantum of the sentence initially imposed. They concerned only the execution of a pre-existing, final sentence.

The fact that the Applicant exercised his right to appeal the activation decision, or that he was represented during these proceedings, does not bring them within the scope of Section 20. As Kalandyk highlights, the relevant Article 6 rights apply fully at the point of the original sentence, not subsequently in relation to its execution, even where discretionary judicial decisions are involved, provided these do not alter the sentence itself.

The Applicant’s argument, stemming from Tupikas and reinforced by his interpretation of LU & PH, that the appeal proceedings in Romania are the relevant “trial” is inconsistent with the approach set out above. While Tupikas decided that an appeal can be the “trial resulting in the decision” if it involves a re-examination of the merits in fact and in law, for the reasons set out in Kalandyk this does not extend to hearings concerning the execution of a sentence or the activation of a suspended sentence, unless they modify the core elements of the original sentence. The JA has clarified that the box indicating a right to retrial (D3.4) was ticked by mistake because the Applicant had already exercised his right to appeal the activation decision, which was rejected. The argument that the warrant is ambiguous so leaving opening the possibility of a Tupikas argument is therefore unsustainable on the facts.

It follows that the Section 20 bar to extradition is not engaged in this case. The absence of the Applicant from the activation hearing, or any subsequent appeal in relation to it, would not fall within the ambit of a “trial in absentia” as understood for extradition purposes.

In fact, in the present case, the Applicant states in his written evidence that he pleaded guilty, attended all hearings, and received a suspended sentence. He further states that this suspended sentence was activated in 2021 due to a breach of conditions. He was present at first instance and lodged an appeal on 23 April 2021. The Applicant was represented by a public defender during the appeal. The relevant chronological facts show the original conviction on 13 June 2019, the activation decision on 14 April 2021, and the appeal against activation on 23 April 2021, which was rejected.

I am therefore satisfied that the District Judge was not arguably incorrect in her assessment. The Applicant was present at the original trial, and the subsequent proceedings related to the activation of a suspended sentence, not a new determination of guilt or imposition of sentence that would trigger the protections of Section 20 as interpreted by Tupikas. The Ardic principle, as affirmed in Murin and Kalandyk is clearly to the effect that Section 20 is not engaged by non-attendance at a hearing related solely to the execution of a suspended sentence, where the original conviction was final, and the individual had the opportunity to participate in that initial trial. This is precisely the scenario in this case.

I can find no error in the District Judge’s application of the law, nor in the reasoning of the Single Judge. The Section 20 ground, which hinges on the characterisation of the Romanian proceedings, is not reasonably arguable in light of the established law concerning suspended sentence activation.