“17. Specialty, as set out in Article 27 of the Framework Decision, is the rule whereby a person surrendered under an EAW [European Arrest Warrant] may not be prosecuted, sentenced or otherwise deprived of his or her liberty for an offence committed prior to his or her surrender, other than that for which he or she was surrendered. Specialty can be infringed in two ways: where the individual is extradited and then subjected to unrelated charges or proceedings; or where the individual is prosecuted for enhanced charges based upon the conduct which gave rise to the EAW in the first place. It appears that it is the first possibility to which Ground 1 goes; there is no suggestion that the appellant in the present case faces enhanced charges arising out of his driving offence. 18. There are a number of well-established principles: a) There is a strong presumption that EU Members States will respect specialty rights in accordance with their international obligations: see the judgment of Dyson LJ (as he then was) at [67]-[68] in Ruiz and others v Central Court of Criminal Proceedings No5 of the National Court of Madrid[2008] 1 WLR 2798 and Brodziak (citation below) at [46]. b) Accordingly, this court will presume that the State in question will act in compliance with those obligations unless there is compelling evidence to the contrary: see Arronategui v 1st, 2nd, 3rd and 4th Sections of the National High Court of Madrid, Spain and others[2012] EWHC 1170 (Admin) at [47]. c) The court must be satisfied that there are practical and effective arrangements in the requesting territory to ensure that specialty will not be infringed: see Farid Hilali v Central Court of Criminal Proceedings No.5 Madrid[2006] EWHC 1239 (Admin) at [46] . d) This primarily goes to the substantive law operating in the requesting territory. As Scott Baker LJ pointed out at [49] of Hilali, the basic question was whether the rule of specialty was catered for in the law of the requesting territory. The same emphasis was provided by Dyson LJ in Ruiz at [67]-[68]. He said that what was important was that Spain (the State in question in that case) had incorporated the specialty rule into their law; that there was no compelling evidence that the Spanish authorities would act in breach of the rule; and that the requested person had a remedy in domestic law. e) The burden is therefore on the requested person to show that the presumption has been rebutted in the particular case and that appropriate speciality arrangements were not in place: Brodziak and others v Circuit Court in Warsaw, Poland[2013] EWHC 3394 at [42].” a) There is a strong presumption that EU Members States will respect specialty rights in accordance with their international obligations: see the judgment of Dyson LJ (as he then was) at [67]-[68] in Ruiz and others v Central Court of Criminal Proceedings No5 of the National Court of Madrid[2008] 1 WLR 2798 and Brodziak (citation below) at [46]. b) Accordingly, this court will presume that the State in question will act in compliance with those obligations unless there is compelling evidence to the contrary: see Arronategui v 1st, 2nd, 3rd and 4th Sections of the National High Court of Madrid, Spain and others[2012] EWHC 1170 (Admin) at [47]. c) The court must be satisfied that there are practical and effective arrangements in the requesting territory to ensure that specialty will not be infringed: see Farid Hilali v Central Court of Criminal Proceedings No.5 Madrid[2006] EWHC 1239 (Admin) at [46] . d) This primarily goes to the substantive law operating in the requesting territory. As Scott Baker LJ pointed out at [49] of Hilali, the basic question was whether the rule of specialty was catered for in the law of the requesting territory. The same emphasis was provided by Dyson LJ in Ruiz at [67]-[68]. He said that what was important was that Spain (the State in question in that case) had incorporated the specialty rule into their law; that there was no compelling evidence that the Spanish authorities would act in breach of the rule; and that the requested person had a remedy in domestic law. e) The burden is therefore on the requested person to show that the presumption has been rebutted in the particular case and that appropriate speciality arrangements were not in place: Brodziak and others v Circuit Court in Warsaw, Poland[2013] EWHC 3394 at [42].”
“64. When an offender has to be sentenced for a number of offences, it may often be the case that simple addition of the sentences which would be appropriate for each individual offence, if viewed in isolation, will result in a total sentence which is unjust and disproportionate to the seriousness of the offending as a whole. In England and Wales, the Sentencing Council's definitive guideline on Totality sets out overarching principles to be followed by judges and magistrates when sentencing for more than offence but does not suggest that those principles can be expressed in, or reduced to, an arithmetical formula. (…) Romanian law adopts a different approach to the cumulation of sentences: "the hardest sentence plus an increase of 1/3 of the total of other sentences". That approach results in a single final sentence: not, as in England and Wales, in a number of discrete sentences which are ordered to be served either concurrently or consecutively. 65. The submission on behalf of Mr Enasoaie was that the resulting sentence cannot be disaggregated so as to avoid his serving any part of that sentence in respect of offences (vii), (viii) and (ix), which were said not to be extradition offences. The consequence of that submission, if correct, would seem to be that a Romanian offender who was subject to a resulting sentence imposed for multiple offences, not all of which were extradition offences, could not be returned to serve any part of his sentence because he could not be returned to serve all of it. That would lead to surprising results. It would mean, for example, that an offender who had been convicted of one offence could be returned to serve his sentence, but an offender who had convicted of multiple offences, all but one of which were extradition offences, could not be returned. It would mean that the principle of speciality, which protects a returned person against punishment for anything other than the offences in respect of which he has been extradited, would be used as a means to prevent his serving any sentence for his extradition offences. 66. (…) When FI 3 is read as a whole, we understand it to mean (a) that a resulting sentence, reflecting all the offences covered by a warrant, cannot be enforced against a defendant who has only been extradited for some of the offences; and (b) that it is not possible to disaggregate the resulting sentence so as to restore the original separate sentences if, cumulatively, they will lead to imprisonment for longer than the final sentence. Neither of those restrictions necessarily means that the Romanian courts are powerless to enforce the appropriate total sentence for the offences in respect of which a defendant has been extradited. 67. That understanding is strengthened by the later further information. FI 4 (see [27] above) confirms that the reason why the final sentence cannot be enforced in full is "due precisely to the application of the specialty principle". It goes on to describe the appeal procedures by which "the Court would be able to decide, to what extent, the punishments ordered against the convict, could actually be enforced". FI 5 (see [29] above) is to similar effect. 68. The further information demonstrates that Romania does have in place effective arrangements to comply with its international obligations as to speciality. Article 117 directly implements Article 27(2) of the Framework Directive, and Article 598 provides a remedy if there is an obstacle to enforcement of the resulting sentence. Whether there is such an obstacle will no doubt depend on the details of an individual case and the length of the sentences for individual offences which were taken into account in calculating the resulting sentence. The important point, however, is that the further information shows Romania to have complied with its international obligations as to speciality and to have put in place effective arrangements to implement the principle of speciality. 69. Mr Enasoiae has not been able to adduce any compelling evidence to the contrary. The reports of Dr Mares do not contain any clear evidence that Article 598 cannot be used as a means of ensuring that a returned person will only serve his sentence for the offence(s) for which he was extradited. Indeed, Dr Mares refers to a case in which Article 598 was used in that way. Other cases to which Mr Hall invited our attention do not in our view support his argument. The decision in Edutanu turned on the specific information provided in that case and does not in our view assist Mr Enasoaie in the circumstances of this case. We are not persuaded that there is any evidence of there being any real problem in practice in ensuring that the principle of speciality is observed. (…) 70. We are unable to accept the submission that the terms of FI 4 and FI 5 leave open the possibility that an appeal court in Romania might consider the matter pursuant to Article 598 but uphold the sentence in its entirety. There is in our view no compelling evidence that such a decision might be made in circumstances where exclusion of the sentences for any non-extradition offences should lead to a reduction in the resulting sentence. There is no compelling evidence that Romania, having put in place effective arrangements to implement the principle of speciality, will then abandon that principle. 71. For those reasons, if it had been necessary for us to decide this ground of appeal, we would have rejected it.”
“(a) particulars of the person’s identity; (b) particulars of the conviction; (c) particulars of any other warrant issued in the category 1 territory for the person’s arrest in respect of the offence; (d) particulars of the sentence which may be imposed under the law of the category 1 territory in respect of the offence, if the person has not been sentenced for the offence; (e) particulars of the sentence which has been imposed under the law of the category 1 territory in respect of the offence, if the person has been sentenced for the offence.”
“126. In this case, it is to be recalled that box (e) of the EAW stated that it related to counts of aggravated theft and bribery, which were particularised. The sentence for those totalled one year and 11 months imprisonment, but was merged into the heaviest penalty of one year and six months imprisonment. That information was given in box (c). Box (c) stated that “the total penalty to be executed is of three years and six months imprisonment”
“We accept Miss Malcom's submission that the requirements of section 2 have been met: the EAW contained the necessary particulars of "the sentence which has been imposed". We are not persuaded by Mr Hall's submission that although valid and enforceable when issued, the EAW would cease to be enforceable if extradition was refused in respect of one or more offences. If that argument were correct, it would again mean that the principle of speciality would have the effect of preventing a defendant from being returned to serve his sentence for the offences in respect of which he would otherwise be extradited. We cannot accept that an EAW which is enforceable at the start of an extradition hearing becomes unenforceable, on this basis, by the end of the hearing.”
“The [appellant’s] own evidence contradicted this statement in two ways. Firstly, [he] conceded that his son had remained in Romania with his ex-partner when he first came to the UK. His ex-partner was much younger then and she was alone to bring up a small child. There was some help from her mother but she did this without the [appellant] and whilst he was in another country. Further, the [appellant] stated that his ex-partner took their son back to Romania between November and December 2022 for a medical assessment. Again, she did this on her own and the evidence was that she coped. The [appellant’s] partner also copes with his son during the day, for long hours, whilst he is at work. Again, whilst the [appellant] sought to say his son was difficult to manage and only he could manage his son when he was in crisis, he was unable to explain how his partner coped on a day to day basis for 12 hours a day whilst he was at work. The evidence before me was that she did cope. She clearly loves his son, as they both accept. I accept that there will be emotional distress to the [appellant], his partner and son should he be extradited. Emotional distress, sadly, is not unusual in extradition cases. Further, the [appellant’s] son would likely remain with his current partner or indeed return to his ex-partner, the mother of his son, who would cope emotionally. There is no evidence from his ex-partner that she would not or could not care for her son, should the [appellant] be extradited. The [appellant] has friends and family in the UK. They are close. Again, I do not accept the [appellant’s] evidence that they would not help. The [appellant] has sought to exaggerate his own role and importance in his son's life. I accept that he is an important figure in his son's life and that he lives with his son but this is not a sole carer case. The son would be able to be cared for by his current partner and/or ex-partner with the support of family and friends in the UK who are all close. The evidence before me, that whilst difficult, they would cope.”
“The [appellant] says that his son has autism. The [appellant] has produced a medical record from his GP in the UK. This shows a number of matters on the short document but it makes no reference to his son having autism. The [appellant] also said his ex-partner took his son to Romania in November 2022 until December 2022 to be medically assessed in Romania for autism. The [appellant] told me that he had a diagnosis of autism following this visit and whilst he said he had medical evidence this had not been served and has not been provided to me.”
“The holder of this certificate benefits from all the rights and accessibility provided by the Law no 448/2006, … corresponding to the established disability degree. The certificate obliges all persons and authorities to comply with it in accordance with the provisions of the legislation in force.”
“…I am prepared to accept that the [appellant’s] son has suspected autism. The difficulty is that autism is a spectrum, which affects different people in different ways and to different extents. I have limited evidence, other than what the [appellant] and his partner tell me, about how his son is affected as a result of this condition.”
“31. There are differences between extradition and other reasons for expulsion. (…) In particular, extradition is an obligation owed by the requested state to the requesting state in return for a similar obligation owed the other way round. There is no comparable obligation to return failed asylum seekers and other would-be immigrants or undesirable aliens to their home countries (which would sometimes be only too pleased never to see them again). But there is no obligation to return anyone in breach of fundamental rights. Furthermore, although domestic immigration policy does try to strike a balance between competing interests, article 8 typically comes into play when it has not done so. That is why an “exceptionality” test was disapproved in immigration cases in Huang v Secretary of State for the Home Department[2007] UKHL 11 ,[2007] 2 AC 167 , just as it was later disapproved in extradition cases in Norris. Hence, as Lord Hope observed, “there are [no] grounds for treating extradition cases as falling into a special category which diminishes the need to examine carefully the way the process will interfere with the individual's right to respect for his family life” (para 89). 32. The second main criticism of the approach in later cases is that the courts have not been examining carefully the nature and extent of the interference in family life. In focussing on “some quite exceptionally compelling feature” (para 56 in Norris), they have fallen into the trap identified by Lord Mance, tending “to divert attention from consideration of the potential impact of extradition on the particular persons involved … towards a search for factors (particularly external factors) which can be regarded as out of the run of the mill” (para 109). Some particularly grave consequences are not out of the run of the mill at all. Once again, the test is always whether the gravity of the interference with family life is justified by the gravity of the public interest pursued (see also Lord Wilson, at para 152). Exceptionality is a prediction, just as it was in R (Razgar) v Secretary of State for the Home Department[2004] UKHL 27 ,[2004] 2 AC 368 , and not a test. We are all agreed upon that. 33. These two points clarified, what more needs to be said about the interests of children? There appears to be some disagreement between us about the order in which the judge should approach the task. I agree entirely that different judges may approach it in different ways. However, it is important always to ask oneself the right questions and in an orderly manner. That is why it is advisable to approach article 8 in the same order in which the Strasbourg court would do so. There is an additional reason to do so in a case involving children. The family rights of children are of a different order from those of adults, for several reasons. In the first place, as Neulinger and ZH (Tanzania) have explained, article 8 has to be interpreted in such a way that their best interests are a primary consideration, although not always the only primary consideration and not necessarily the paramount consideration. This gives them an importance which the family rights of other people (and in particular the extraditee) may not have. Secondly, children need a family life in a way that adults do not. They have to be fed, clothed, washed, supervised, taught and above all loved if they are to grow up to be the properly functioning members of society which we all need them to be. Their physical and educational needs may be met outside the family, although usually not as well as they are met within it, but their emotional needs can only be fully met within a functioning family. Depriving a child of her family life is altogether more serious than depriving an adult of his. Careful attention will therefore have to be paid to what will happen to the child if her sole or primary carer is extradited. Extradition is different from other forms of expulsion in that it is unlikely that the child will be able to accompany the extraditee. Thirdly, as the Coram Children's Legal Centre point out, although the child has a right to her family life and to all that goes with it, there is also a strong public interest in ensuring that children are properly brought up. This can of course cut both ways: sometimes a parent may do a child more harm than good and it is in the child's best interests to find an alternative home for her. But sometimes the parents' past criminality may say nothing at all about their capacity to bring up their children properly. Fourthly, therefore, as the effect upon the child's interests is always likely to be more severe than the effect upon an adult's, the court may have to consider whether there is any way in which the public interest in extradition can be met without doing such harm to the child.”
“Therefore, other than the evidence of the [appellant] and his partner, that his son can be difficult to manage and does not like being with strangers, there is no evidence in this case that that the son requires attention over and above any other child of his age. Of course, I also accept that the separation of a young child, of the [appellant’s] son's age, will be emotionally distressing and difficult. This is not, as I have said, unusual in extradition cases. There is no evidence that the emotional distress will be any more in this case than with any other child of this age, who faced a separation from his father in such circumstances. The [appellant’s] son, has the love and support of the [appellant’s] partner, who he has lived with since April 2021. They have a close bond. It is his partner who cares for his son during the day on her own when the [appellant] is at work. Whilst it may be difficult for her, she copes. His son also sees his mother and she spends time with her son. There was no evidence from the mother of his son that she could not and/or would not be able to take care of her son, should the [appellant] be extradited. She is her son’s life and would no doubt be there to support him should the [appellant] be extradited. Further, it was clear from the [appellant’s] evidence that his partner and ex-partner are, able to cope with his son on a day to day basis. Further, the [appellant’s] intention was for his son to start nursery as soon as possible, the only reason this had not happened already was because the [appellant] did not have the documents to enrol his son in nursery and so it is not his medical condition that has meant his son cannot start nursery but a practical one. In conclusion, as I have said, this is not a sole carer case. Should the [appellant] be extradited, the son would remain with the [appellant’s] partner or could return to his mother. Between them, the [appellant’s] son would cope with their love and support. The [appellant’s] son could start nursery, which would enable his partner to work in the day so she can look after him at night. Alternatively, as I have said, his son could return to live with his mother. The [appellant] has family and close friends in the UK who would no doubt rally around and offer support to the family. The evidence before me is that whilst difficult, it is no more difficult than in many other extradition cases and I find that the [appellant’s] son would be cared for and loved and would be supported.”
“60. I have firmly in mind the guidance given by the former Lord Chief Justice in Celinski and others in considering whether it is incompatible with the RP's [i.e. the appellant’s] Article 8 rights to order his surrender. I remind myself that there is a very high public interest in ensuring that extradition arrangements are honoured as is the UK not being regarded as a haven for those fleeing foreign jurisdictions or seeking to avoid criminal proceedings in other countries. 61. I give weight to the emotional distress that the RP, his partner and child would undoubtedly suffer should he be extradited. The RP came to the UK on his own. His ex-partner and son remained in Romania. The RP's son remained in Romania in the care of his mother until they came to the UK in December 2020. The RP lived separately from his ex-partner and child at this time as by then he was in a new relationship with his current partner. The RP would visit his son at his ex-partner's home. The RP's ex-partner wished to study in the UK, so their son went to live with the RP and his current partner in April 2021. The RP's son is cared for by the RP and his partner and both have a close and loving relationship with their son. Whilst the RP said that his son spent time with his mother he said that she would not be able to care for their son as she was not able to do so. I do not accept this. The RP's own evidence contradicted this statement in two ways. Firstly, the RP conceded that his son had remained in Romania with his ex-partner when he first came to the UK. His ex-partner was much younger then and she was alone to bring up a small child. There was some help from her mother but she did this without the RP and whilst he was in another country. Further, the RP stated that his ex-partner took their son back to Romania between November and December 2022 for a medical assessment. Again, she did this on her own and the evidence was that she coped. The RP's partner also copes with his son during the day, for long hours, whilst he is at work. Again, whilst the RP sought to say his son was difficult to manage and only he could manage his son when he was in crisis, he was unable to explain how his partner coped on a day to day basis for 12 hours a day whilst he was at work. The evidence before me was that she did cope. She clearly loves his son, as they both accept. 62. I accept that there will be emotional distress to the RP, his partner and son should he be extradited. Emotional distress, sadly, is not unusual in extradition cases. Further, the RP's son would likely remain with the RP's current partner or indeed return to his ex-partner, the mother of his son, who would cope emotionally. The RP has friends and family in the UK. They are close. Again, I do not accept the RP's evidence that they would not help. The RP has sought to exaggerate his own role and importance in his son's life. I accept that he is an important figure in his son's life and that he lives with his son but this is not a sole carer case. The son would be able to be cared for my his current partner and/or ex-partner with the support of family and friends in the UK who are all close. The evidence before me, that whilst difficult, they would cope. 63. The RP says that his son has autism. The RP has produced a medical record form his GP in the UK. This shows a number of matters on the short document but it makes no reference to his son having autism. The RP also said his ex-partner took his son to Romania in November 2022 until December 2022 to be medically assessed in Romania for autism. The RP told me that he had a diagnosis of autism following this visit and whilst he said he had medical evidence this had not been served and has not been provided to me. That said, I am prepared to accept that the RP's son has suspected autism. The difficulty is that autism is a spectrum, which affects different people in different ways and to different extents and I have limited evidence, other than what the RP and his partner tell me, about how his son is affected as a result of this condition. Therefore, whilst I accept that I have limited evidence of how the condition affects his son on day to day basis, should his son have autism, there has been plenty of time to get such evidence and to- serve it, such as evidence from the GP in the UK or indeed the document from Romania, which has not been served in this case. Therefore, other than the evidence of the RP and his partner, that his son can be difficult to manage and does not like being with strangers, there is no evidence in this case that that the son requires attention over and above any other child of his age. Of course, I also accept that the separation of a young child, of the RP's son's age, will be emotionally distressing and difficult. This is not, as I have said, unusual in extradition cases. 64. There is no evidence that the emotional distress will be any more than with any other child of this age, who faced a separation from his father in such circumstances. The RP's son, has the love and support of the RP's partner, who he has lived with since April 2021. They have a close bond. It is his partner who cares for his son during the day on her own when the RP is at work. Whilst it may be difficult for her, she copes. His son also sees his mother and she spends time with her son. There was no evidence from the mother of his son that she could not and/or would not be able to take care of her son, should the RP be extradited. She is in her son's life and would no doubt be there to support him should the RP be extradited. Further, it was clear from the RP's evidence that his partner and ex-partner are able to cope with his son on a day to day basis. Further, the RP's intention was for his son to start nursery as soon as possible, the only reason this had not happened already was because the RP did not have the documents to enrol his son in nursery and so it is not his medical condition that has meant his son cannot start nursery. 65. In conclusion, as I have said, this is not a sole carer case. Should the RP be extradited, the son would remain with the RP's partner or could return to his mother. Between them, the RP's son would cope with their love and support. The RP's son could start nursery, which would enable his partner to work in the day so she can look after him at night. Alternatively, as I have said, his son could return to live with his mother. The RP has family and close friends in the UK who would no doubt rally around and offer support to the family. The evidence before me is that whilst difficult, it is no more difficult than in many other extradition cases and I find that the RP’s son would be cared for and loved and would be supported. 66. The RP works. The RP has had a number of jobs in the UK and he has worked illegally in the UK. That said, there will be some financial hardship to the RP and his family should he be extradited as he would lose his employment. I note that the RP conceded that his son would be eligible for some financial assistance as a result of his medical condition, should he have autism. Further, his partner works and her income covers the rent and bills. There are also family and friends in the UK and the RP's ex-partner who I have no doubt would rally around to help. Therefore, whilst there would be some financial hardship should the RP be extradited, I find the RP's partner would cope and would be able to financially support the RP's son. Alternatively, the RP's son could return to live with his mother who whilst at college could send her son to nursery or she could claim benefits. There is no evidence from the mother that she could not care for her son financially or emotionally or that she would not do so.”
“70. These cases are often finely balanced, not least when the RP has a young child, as in this case, as he is the one who will be most affected by the RP being extradited. The child's interests are at the forefront of my mind. That said, when I carry out the balancing exercise in this case, as I must, I find that the balance falls in favour of extradition. Conclusions on Article 8: 71. On the evidence before me, there is nothing to suggest that the negative impact of extradition of the RP is of such a level that the court ought not to uphold this country's extradition obligations. Hardship, both emotional and financial, will be suffered to the RP and his family, especially his son, as is almost always the case.”