Andre Eugen Miron v Tirgu Bujor District Court, Romania

THE HON. MR JUSTICE DEXTER DIAS Table of Contents I - Introduction 1 II - Background 2 III - Judgment at first instance 3 IV - Legal framework 5 V - The appeal test 6 VI - Curfew 6 VII - Early release 12 VIII – Overall discussion 13 IX - Disposal 19 Mr Justice Dexter Dias :

1. This is the judgment of the court.

2. To assist the parties and the public to follow the main lines of the court’s reasoning, the text is divided into nine sections, as set out in the table of contents above. The table is hyperlinked to aid swift navigation. I - Introduction

3. This is an appeal in extradition proceedings.

4. The appellant is Andre Eugen Miron. He was born on 9 December 1999 and is now aged 25. The appellant is represented by Ms Stevens of counsel. The respondent is the Tirgu Bujor District Court in Romania. The respondent by Ms Herbert of counsel. The court is grateful to both counsel for their first-class assistance.

5. By way of a notice of appeal dated 20 June 2024, the appellant seeks to appeal the decision of District Judge Louisa Cieciora (“ the Judge ”) sitting at the Westminster Magistrates' Court on 14 June 2024. The Judge ordered his extradition to Romania. The appellant was found by the Judge to be a fugitive from Romanian justice. He came to the United Kingdom in 2019 following committing a criminal offence in Romania. He was convicted in his absence of a criminal offence of breach of a court restraining order through contact with his father. A 6-month custodial sentence was imposed by the Romanian District Court. The full custodial term remains to be served.

6. The appellant was granted of permission to appeal by Chamberlain J at an oral renewal hearing on 18 February 2025, following refusal of permission on the papers by Heather Williams J on 4 November 2024. The appellant submits that the Judge was wrong to order his extradition under section 21(3) of the Extradition Act 2003 (“the 2003 Act”) as surrender to the Romanian authorities is disproportionate and incompatible with the appellant’s article 8 rights under the European Convention on Human Rights (“ECHR”). Further, if the court finds that the Judge was correct in her assessment, the court is invited to undertake the “ Celinski balancing exercise” afresh ( Celinski v Poland [2015] EWHC 1274 (“ Celinski ”)). The court is invited to conclude that owing to the length of time the appellant has now spent on non-qualifying curfew, with a substantial period of time having passed since the Judge’s extradition order, extradition would now in any event amount to a disproportionate interference with the appellant’s article 8 rights. Consequently, the appeal should be allowed.

7. The appellant relies on two matters not raised with the Judge. First, the question of curfew restriction while on bail; second, the possibility of early release. As Ms Stevens puts it, the balancing exercise should therefore be “recalibrated in favour of discharge”. Ms Herbert in opposing the appeal submits that the Judge was right; nothing should have been decided differently. Even if the court were to consider matters afresh, the result would be the same. The impact on the appellant’s private life is “nowhere near” the needed level of severity.

8. Following this introduction, I structure the judgment by setting down the (II) background relevant facts, (III) extract the relevant parts of the judgment below, (IV) identify the relevant legal framework, (V) state the appeal test, examine in turn the two factors not considered by the Judge ((VI) curfew and (VII) early release), before (VIII) conducting an overall discussion of the merits of the appeal. II - Background

9. The warrant is issued for one offence. On 17 April 2019 the police were called by Miron Viorel in Baneasa stating that earlier in the day he had been hit with a shovel on the left shoulder by his son (the appellant) and further that the appellant’s grandmother was punched in the chest by him. The appellant’s contact with his father was in breach of a restraining order from the Tirgi Bjor District Court.

10. The warrant sets out that the appellant was not present at the hearing which led to the Judgment but was personally summoned for all hearings on 10 June 2020, 23 September 2020 and 18 November 2020. He was therefore informed of the date and place of the hearing which led to the judgment, and was informed that a judgment could be rendered if he was not present. Box 3.4 indicates that he has retrial rights. The warrant further sets out that during the criminal investigation the appellant benefited from legal assistance from a chosen defender (through a legal assistance order) who exercised the defendant’s trial rights.

11. The appellant was not personally present at the hearing which pronounced the sentenced on 25 November 2020. For the hearing on 16 June 2020, the appellant was summoned at his residence in Baneasa, through a resident at the address. For hearing 23 September 2020, the appellant was summoned at the court headquarters. On 18 November 2020, he was summoned at his residence and a resident at the address received it, and at the headquarters of the court.

12. The case hearing was held in public session on 18 November 2020. As more time was needed, the ruling was postponed to 23 December 2020. Romanian law provides that parties need not be summoned for pronouncement of the ruling. The sentence of 25 November 2020 was sent to the defendant at his residence on 15 April 2021 and receipt provided by Miron Viorel. It was not appealed.

13. During the trial, the obligation not to leave the country was not imposed on the appellant. However, Article 259 (2) of the Romanian Criminal Procedure imposes an obligation on the appellant to inform the court within 3 days of any change in his address. During the criminal prosecution, when the appellant was a “defendant in the trial”, the appellant was informed on 12 May 2019 “under signature” that he was obliged to notify in writing any change of address, in the absence of which, the summons and other documents would be deemed served. III - Judgment at first instance

14. In her detailed and balanced judgment, the Judge carefully sets out the evidence given by the appellant at paras 21-33.

15. He came to the UK on 20 July 2019 with a friend and works as a contractor in construction. He has friends, a job and stable accommodation and a girlfriend who lives in Austria. He stated that he thought his father would withdraw the complaint and does not recall signing anything about needing to provide an address. He did not choose a lawyer. The Judge proceeds to provide her analysis at paras 44 to 52: “44. … Notwithstanding that I do not accept the Requested Person’s account in respect of fugitivity, in respect of his personal circumstances in the UK, I accept that he was telling the truth. I accept that he came to the UK in 2019, and since then has built a life for himself which includes employment, accommodation and a friendship circle. I accept that he has no other convictions.

45. The Requested Person therefore has a private life to the extent set out above. Extradition will, of course, interfere with that private and family life. The interference is lawful and also necessary in a democratic society for the UK to honour its international treaty obligations. The test is whether the interference is outweighed by the public interest in extradition.

46. I start the balancing exercise by noting that the Requested Person is a fugitive; he built up his life in the UK knowing that he was placing himself beyond the reach of the legal process in Romania. He was therefore aware that his life in the UK may be interrupted. As per Celinski, where a Requested Person is a fugitive from justice, very strong counter-balancing factors would need to exist before extradition could be regarded as disproportionate. I have that principle in mind when considering the Requested Person’s private life.

47. If extradited, the Requested Person would be returning to the country of his birth. He speaks the language. He is somewhat estranged from his family, but he did say there was some contact. His physical and mental health is, at present, satisfactory. There is nothing that would particularly hinder his reintegration into Romanian society, should that become necessary.

48. The offending is serious, amounting to an assault using a weapon, in a domestic context, and in breach of a court order. Whilst the sentence is not the lengthiest for which extradition has been ordered, it marks the seriousness of the offence.

49. The delay is as a result of the Requested Person leaving the jurisdiction and failing to inform the authorities of his whereabouts.

50. I note the strong and continuing important public interest in the UK abiding by its international extradition obligations, the importance of the UK not being perceived as a safe haven for those avoiding justice and the public interest in extradition, including in those who are accused of crimes being tried, and those convicted of offences serving sentences imposed.

51. Against all that is a relatively modest private life which was, in any event, established when the Requested Person was aware that he could be returned to Romania. There is a brief mention of a behavioural condition, but there has been no evidence confirming a specific diagnosis, or setting out the way in which any such condition affects the Requested Person. In the absence of any such information, I cannot place any great weight on this.

52. Even taking into account the Requested Person’s age at the time of conviction, the fact that he has no other convictions, and the fact that he has established a life for himself in the UK (in terms of work, accommodation and a friendship circle), this does not begin to approach the ‘very strong counter-balancing factors’ needed.” IV - Legal framework

16. Article 8 ECHR grants the right to respect for one’s private and family life. The approach to article 8 in extradition cases is well-established and not in dispute. It has been set out in a series of cases of high authority: Norris v USA [2010] UKSC 9, [2010] 2 AC 487; HH v Italy [2012] UKSC 2; Celinski v Poland [2015] EWHC 1274 (Admin) (Divisional Court).

17. Most recently, the Supreme Court has revisited article 8 in Andrysiewicz v Poland [2025] UKSC 23 (“ Andrysiewicz ”), and particularly between paras 31-43. This is an authority it will be necessary to come to. The appellant’s case involves a conviction warrant. In Celinski , the Divisional Court said at para 13: “13. Sixth in relation to conviction warrants: (1) The judge at the extradition hearing will seldom have the detailed knowledge of the proceedings or of the background or previous offending history of the offender which the sentencing judge had before him. (2) Each member state is entitled to set its own sentencing regime and levels of sentence. Provided it is in accordance with the Convention, it is not for a UK judge to second guess that policy. The prevalence and significance of certain types of offending are matters for the requesting state and judiciary to decide; currency conversions may tell little of the real monetary value of items stolen or of sums defrauded. For example, if a state has a sentencing regime under which suspended sentences are passed on conditions such as regular reporting and such a regime results in such sentences being passed much more readily than the UK, then a court in the UK should respect the importance to courts in that state of seeking to enforce non-compliance with the terms of a suspended sentence. (3) It will therefore rarely be appropriate for the court in the UK to consider whether the sentence was very significantly different from what a UK court would have imposed, let alone to approach extradition issues by substituting its own view of what the appropriate sentence should have been . As Lord Hope of Craighead DPSC said in HH [2013] 1 AC 338 , para 95 in relation to the appeal in the case of PH, a conviction warrant: “But I have concluded that it is not open to us, as the requested court, to question the decision of the requesting authorities to issue an arrest warrant at this stage. This is their case, not ours. Our duty is to give effect to the procedure which they have decided to invoke and th e proper place for leniency to be exercised, if there are grounds for leniency, is Italy .” V - The appeal test

18. This appeal falls under sections 27(3) and 27(4) of the Act. They provide: “(3) The conditions are that— (a) the appropriate judge ought to have decided a question before him at the extradition hearing differently; (b) if he had decided the question in the way he ought to have done, he would have been required to order the person’s discharge. (4) The conditions are that— (a) an issue is raised that was not raised at the extradition hearing or evidence is available that was not available at the extradition hearing; (b) the issue or evidence would have resulted in the appropriate judge deciding a question before him at the extradition hearing differently; (c) if he had decided the question in that way, he would have been required to order the person’s discharge.”

19. As to the approach to review of the Judge’s decision below, the Divisional Court said in Belbin v Regional Court of Lille, France [2015] EWHC 149 (Admin) (“Belbin”) at para 66: “If, as we believe, the correct approach on appeal is one of review, then we think this court should not interfere simply because it takes a different view overall of the value-judgment that the District Judge has made or even the weight that he has attached to one or more individual factors which he took into account in reaching that overall value-judgment. In our judgment, generally speaking and in cases where no question of “fresh evidence” arises on an appeal on “proportionality”, a successful challenge can only be mounted if it is demonstrated, on review, that the judge below; (i) misapplied the well established legal principles, or (ii) made a relevant finding of fact that no reasonable judge could have reached on the evidence, which had a material effect on the value-judgment, or (iii) failed to take into account a relevant fact or factor, or took into account an irrelevant fact or factor, or (iv) reached a conclusion overall that was irrational or perverse.” VI - Curfew Submissions

20. 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.”

21. 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.”

22. 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.”

23. 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. Discussion: curfew

24. 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.

25. 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.

26. 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.

27. 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.

28. 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.

29. 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.”

30. 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.

31. 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.”

32. 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.

33. 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. Conclusion: curfew

34. The weight to be attached to a curfew restriction is highly fact-specific (Morris J’s proposition 3 in Leszczynski ). I accept the respondent’s submission that there is little evidence of any “material effect” on the appellant’s private life caused by the curfew. I do not accept the mathematical analysis advanced by the appellant in modified form as accurately reflecting the objective weight to be attached in this case. There is no evidence that in Romania curfews act to reduce a prison sentence and indications from other cases is that they do not. Therefore, I accept the respondent’s submission that the full 6 months’ custodial term remains outstanding, subject to the early release argument that I must consider next.

35. I do accept, however, that the fact of the limited degree of restriction on the appellant’s liberty should be taken into account in considering whether it is proportionate to extradite him in any article 8 reconsideration. I must emphasise that I regard this factor as possessing little weight in his favour, given the limited nature of the interference. VII - Early release Submissions

36. The appellant submits that the “little weight” that the Supreme Court in Andrysiewicz says can be attached to early release unless the specified conditions are met does not mean no weight can be attached to the Romanian early release conditions. It is submitted that these release conditions “would be considered in Romania”.

37. The respondent submits that the position is clear following the Supreme Court’s decision: no meaningful weight can be attached to the mere existence of the Romanian Criminal Code provisions without clear evidence about their effect and implementation. Discussion: early release

38. It seems to me that the starting-point is to focus carefully on what the Supreme Court held: “78. Because (save in rare cases) a court in this jurisdiction should not embark on predicting the likelihood of the outcome of the application in Poland, the bare possibility of early release on licence adds “little weight” in determining whether extradition is a disproportionate interference with article 8 ECHR rights.

80. We envisage that a rare case is confined to cases where there is agreed or uncontested evidence sufficient to demonstrate an overwhelming probability: (a) that the requested person would be released under article 77 of the Polish Penal Code upon an application; (b) as to when that release would take place; (c) as to what the probation period and conditions attached to that release would be; and (d) that the inability of a court in this jurisdiction to provide for such a probationary period and to attach such conditions would not adversely affect the interests of the offender or of the public.”

39. One then applies these principles to what we know of the Romanian Criminal Code. It provides at Article 100(1): “Conditional release may be ordered if: a) a convict served at least two thirds of the penalty, in case of a term of imprisonment no longer 10 years, or at least three quarters of the penalty, but no more than 20 years in prison, in case of a term of imprisonment exceeding 10 years; b) a convict is serving sentence in an open or semi-open regime; c) a convict fulfilled completely all civil obligations established by the judgment of conviction, unless he/she proves to have been unable to do so; d) the court is convinced that the convicted person has reformed and is able to reintegrate into society.”

40. It is here that the appellant’s submission fails. There is no agreed or uncontested evidence sufficient to demonstrate “an overwhelming probability” that the appellant would be released under early release provisions in Romania, nor when that release would take place, nor what probation period or conditions would be attached. It cannot be said that the inability of this court to attach such conditions or a probationary period would not “adversely affect” the interests of the public. Put another way, the appellant fails each limb of the Supreme Court’s “rare case” test. Conclusion: early release

41. In consequence, I conclude that how the Romanian authorities would approach early release of the appellant in the context of his having been a fugitivity from Romanian justice for several years must be speculation. That is impermissible. The Supreme Court emphasises the need for evidence and an “overwhelming probability” of result. This is completely absent. Therefore, I can attach little if any meaningful weight to the theoretical possibility of the appellant’s early release. VIII – Overall discussion

42. I divide my overall discussion of the merits of the appeal into the two prime arguments advanced by the appellant (1) the Judge’s extradition decision; (2) the renewed balancing exercise. The Judge’s extradition decision

43. The approach I take to evaluation of the Judge’s decision is taken from Celinski . The Divisional Court said at para 22: “The single question therefore for the appellate court is whether or not the district judge made the wrong decision. It is only if the court concludes that the decision was wrong, applying what Lord Neuberger said, as set out above, that the appeal can be allowed. Findings of fact, especially if evidence has been heard, must ordinarily be respected. In answering the question whether the district judge, in the light of those findings of fact, was wrong to decide that extradition was or was not proportionate, the focus must be on the outcome, that is on the decision itself. Although the district judge's reasons for the proportionality decision must be considered with care, errors and omissions do not of themselves necessarily show that the decision on proportionality itself was wrong.”

44. In Celinski , the Divisional Court further stated at para 39 that where a requested person is a fugitive from justice, very strong counterbalancing factors would need to exist before extradition could be regarded as disproportionate. The Judge found to the requisite criminal standard that the appellant is a fugitive. That finding has not been challenged (confirmed at skeleton argument, para 49), nor plausibly could be. He signed a document that specifically acknowledges his obligation to inform the judicial authorities of any change of address within 3 days. He did not. He has evaded the Romanian authorities by remaining in the United Kingdom despite the ongoing proceedings against him in the criminal court in Romania.

45. One criticism of the Judge’s decision must be dealt with now. It was submitted by the appellant in his skeleton argument that the Judge wrongly placed weight on the underlying assault on his father as well as the fact of the breach of the restraining order not to contact him. The argument ran that this was a clear error by the Judge since the appellant has not been convicted of the assault. Initially in oral argument, this submission was repeated. It became necessary to examine what the Romanian court in fact decided. This is clear from the arrest warrant: “Description of the circumstances in which the offence(s) was (were) committed , including the time, place and degree of participation in the offence(s) by the requested person On 17.04.2019, the criminal investigation authorities at Section 5 Rural Police in Radesti, Galati County, while being on duty, were notified via SNUAU 112 by the injured party Miron Viorel in the commune of Baneasa, about the fact that during the day of 17.04.2019, in the midst of a spontaneous conflict, he was hit with a shovel into the left shoulder by his son, Miron Andrei-Eugen, and the said Stratulat Vasilica (his grandmother) was punched in the chest, at the same time violating the restraining order issued by the Tirgu Bujor District Court. Based on the aforementioned, the police agents went to the scene and they found that the notified things were confirmed, circumstances in which they drew up an official report ex officio, in relation to the commission of domestic violence offences, provided by art. 199 paragraph 1 in relation to art. 193 paragraph 1 Criminal code and non-compliance with court decisions provided by art. 32 paragraph 1 from Law no. 217/2003 Republished, both with the application of art. 38 paragraph 1 Criminal code, and afterwards, they demanded the beginning of the criminal investigation in relation to the offences of commission of domestic violence and non-compliance with court decisions.”

46. This makes clear that, as Ms Stevens accurately submitted, there was a request for a criminal investigation into the assault rather than evidence of a conviction. However, following argument it was evident that the court in Romania found the facts (“the circumstances”) of the assault that led to the breach of the restraining order. It was thus appropriate for the Judge to consider the factual underpinning as well as the fact of the breach. The two are intimately connected. As the Judge found, his offending is serious “amounting to an assault using a weapon, in a domestic context, and in breach of a court order” (para 48: why it is necessary to clarify the finding of fact of the assault).

47. I also note the terms of the Criminal Practice Direction. Chapter 12 is devoted to extradition. Under “General guidance under s.2(7A) Extradition Act 2003 (as amended), it says at para 12.2.1: “When considering under s.21A(3)(a) of the Act the seriousness of conduct alleged to constitute the extradition offence, the judge will determine the issue on the facts of each case as set out in the warrant …”

48. The Judge’s approach was meticulously in accordance with the Practice Direction. This criticism of the Judge therefore falls away.

49. I turn to another aspect of the judgment. The Judge fairly acknowledged that the appellant has led a lawful life in the United Kingdom and made the best fist of it he can, finding himself employment, accommodation and a “friendship circle”, as the Judge termed it at para 44. But he remains a fugitive from Romanian justice and developed these features of his private life in this country in the full knowledge, as the Judge found, of his fugitivity (para 46).

50. Having examined all the factors in his favour as they stood at the time of extradition decision below, the Judge was correct to conclude that they come individually and cumulatively nowhere near to the high threshold necessary to counterbalance the constant and weighty public interest in returning him for the Romanian judicial authorities to decide how to treat his case once he is in their custody.

51. The gravity of the offence in the eyes of the Romanian authorities is marked by the imposition of a six-month custodial sentence. It is not for this court to intrude and seek to resentence an offender. Despite the evidence from the appellant about the background to the incident, on the facts before the Judge and as she found them to be, it was an entirely reasonable and rational conclusion that this was “serious” offending and she had the finding of fact made by the Romanian court. A weapon was used against one victim, who was supposed to be protected by the restraining order, and an elderly female relative was also assaulted, all at the time of a serious breach of a court restraining order.

52. The appellant then engages in an analysis of how such a breach would be treated in the United Kingdom and whether it would cross the custody threshold here. This is precisely what the court should not do. As the Divisional Court stated in Celinski at para 13, it will rarely be appropriate for this court to consider whether the sentence was very significantly different from what a United Kingdom court would have imposed, let alone to approach extradition issues by substituting its own view of what the appropriate sentence should have been. On this, the fact that the appellant was bailed during the investigation cannot much alter the gravity of the offence given the ultimate 6-month custodial sentence.

53. There is nothing in the section 65(1) point, a statutory provision that sets a minimum sentence of 4 months’ custody to qualify for extradition in a category 1 territory. The sentence imposed is above the qualifying threshold and 50 per cent higher than the minimum.

54. The Judge found that such delay as there is in this case is principally attributable to the appellant’s fugitivity and thus he is chiefly culpable (para 49). She was right to reach this conclusion. Conclusion : Judge’s extradition decision

55. I conclude with no hesitation that in Celinski terms the Judge did not make the wrong decision. She was correct to make the extradition order on the material before her. She should not have reached a different decision. Testing that conclusion using the Belbin rubric, I conclude that the Judge did not misapply well-established principles; did not make unreasonable material findings of fact; took into account the relevant factors before her (note: before her); and reached a conclusion that was rational. Indeed, I judge that on the material at the extradition hearing, she was right. The renewed balancing exercise

56. 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.”

57. 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.

58. 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.

59. 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.

60. 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.”

61. 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.”

62. 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.

63. 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)

64. 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”. Conclusion: private life

65. Overall, I judge that the grounds the appellant puts forward to oppose extradition are not “very strong”, but weak and carry little weight in the necessary balancing exercise. I take note of what Swift J said in Vascenkovs v Prosecutor’s General Office, Republic of Latvia [2023] EWHC 2830 (Admin) at para 10: “the court should allow a significant margin before concluding extradition would be disproportionate, since reaching such a conclusion too readily could call into question the requesting authority’s decision to issue the warrant (as a disproportionate use of that court’s power).”

66. I regard this as an element of mutual recognition and respect. International comity remains a vital consideration and the United Kingdom must meet its treaty obligations. This country cannot become or become regarded as a safe haven for fugitives from justice. On all the material before me at the appeal hearing, it is impossible to find that the interference with the appellant’s article 8 rights even begins to approach the requisite degree of severity. Indeed, it seems to me that such interference as exists is more accurately situated towards the other end of the scale. There has been some limited and insubstantial interference with the appellant’s private life, not family life. That is nowhere near what is required to meet and then outweigh the constant and weighty public interest in extradition. There is little if any identifiable detriment from any delay not attributable to the appellant’s fugitivity beyond an interference with developing private life. The curfew has only marginally impacted his liberty for the reasons explained.

67. I am thus unpersuaded that the balance has changed “very substantially”, as Holgate J succinctly put it in Brindusa at para 20. I can detect no material or substantial alteration in the balance. The factors relied on by the appellant do not or do not sufficiently reduce the public interest in upholding the extradition request. It seems to be that the policy imperatives of mutual confidence and respect for the decisions of the Romanian judicial authority remain intact.

68. Therefore, considering the balancing exercise afresh, I conclude that extradition in the appellant’s case is not disproportionate and the factors the appellant advances do not outweigh the strong public interest in extraditing the appellant who remains a fugitive from Romanian justice. Thus, extradition is not incompatible with his Convention rights. As stated with great clarity by the Supreme Court in Andrysiewicz , such a conclusion in a private life case is “very unlikely”. IX - Disposal

69. Therefore, I reach the following conclusions: (1) The appeal is dismissed; (2) The appellant’s surrender must proceed under section 21(3) of the 2003 Act.