Alberto-Mohamad Calin v Braila Court of Law and Ploiesti Court of Law (Romania) [2025] EWHC 1196 (Admin)

[2025] EWHC 1196 (Admin)

Case No AC-2024-LON-003452

IN THE HIGH COURT OF JUSTICE

KING'S BENCH DIVISION

ADMINISTRATIVE COURT

Venue Royal Courts of Justice, Strand, London, WC2A 2LL

Date 16/05/2025

Before

THE HONOURABLE MR JUSTICE SWEETING

Between

Alberto-Mohamad CALINAppellant

Braila Court of Law and Ploiesti Court of Law (ROMANIA)Respondent

Mary Westcott (instructed by Dalton Holmes Gray Solicitors) for Respondent

Counsel for Appellant did not appear.

Hearing Hearing dates: 8 th May 2025

Approved Judgment

This judgment was handed down remotely at 10.00am on 16.05.2025 by circulation to the parties or their representatives by e-mail and by release to the National Archives.

.............................

THE HONOURABLE MR JUSTICE SWEETING

Introduction

[1]This is a renewed application for permission to appeal against the order for the Applicant's extradition made by District Judge Bristow ("the District Judge") on 16 October 2024. The application was previously refused on paper by Cavanagh J on 20 February 2025. The renewed application comes before me pursuant to section 26 of the Extradition Act 2003 (EA 2003). The issue whether it is reasonably arguable that the District Judge ought to have decided the issues differently, leading to discharge.

Background

[2]The Applicant is a Romanian national, who moved to the United Kingdom in late 2018. He has a history of convictions in Romania stretching over several years. His record includes convictions for theft on multiple occasions, dating back to at least 2010. Specific examples include theft offences committed in 2010, 2011, 2012, 2018, 2019, 2020, and 2022, alongside driving without a licence in 2018. Some of these offences, particularly theft, form the basis of the current extradition requests (AW 3 and AW 4 – see further below). AW 4 alone comprises six theft offences committed between 2016 and 2017.

[3]The applicant has also committed offences in the United Kingdom since arriving here in 2018. His UK record includes a caution for shoplifting in 2020, a conviction for going equipped and theft in April 2022, and attempted theft and then theft in July 2024, which resulted in a suspended sentence imposed in September 2024. Notably, the July 2024 offence was committed whilst the applicant was on extradition bail in the present proceedings.

[4]The characterisation of the applicant's offending behaviour by the District Judge included findings that the offences across both AWs, taken together, were "serious dishonest offence[s]". This was based on a series of seven offences over a two-year period involving targeting shops for shoplifting. The District Judge considered the offending across both warrants as examples of "repeat offending" and observed that the applicant "has committed a further offence in this jurisdiction".

[5]In the context of his history, the District Judge noted that the applicant was "no stranger to the Romanian criminal justice system" and that his experience would have informed him of the obligations of those within the justice system and the potential consequences of failing to comply with those obligations. Given the numerous convictions in Romania across different years, including those forming the basis of the current requests and other prior convictions, and his subsequent offending in the United Kingdom, the applicant's record demonstrates a pattern of repeated engagement in criminal activity, consistent with the description of a recidivist offender well acquainted with the criminal courts in both this country and Romania.

[6]He is sought for extradition pursuant to two conviction arrest warrants ("AW3" and "AW4"). AW3 relates to a conviction for aggravated theft on 20 December 2017, resulting in a sentence of 1 year and 6 months. AW4 relates to six theft offences committed between 2016 and 2017, for which a cumulative sentence of 3 years and 10 months was imposed. Both warrants concern convictions imposed in the Applicant's absence in November 2020.

[7]The extradition hearing took place on 18 September 2024, and judgment was handed down on 16 October 2024, ordering extradition. The District

Judge found the Applicant to be a fugitive:

“The Requested Person entered the United Kingdom (“the UK”) on 21 December 2018, just under two months after he was notified that a criminal prosecution was ordered against him in AW3. The proximity of the two dates is significant. In my judgment, it is powerful evidence that he fled Romania to avoid prosecution and potential punishment. The Requested Person then failed to appear at both trials on 10 November 2020 and 23 November 2020.”

[8]The Applicant lodged an application for permission to appeal on 22 October 2024. Perfected grounds were filed on 19 November 2024. The renewed application followed refusal on the papers by Cavanagh J on 20 February 2025.

[9]The Applicant had been the subject of previous extradition requests. He was arrested in 2019 on three European Arrest Warrants ("EAWs") which were subsequently withdrawn as, it appears, no translation had been provided. He was arrested again in March 2023 in respect of two warrants (AW1 and AW2). The extradition hearing for those warrants was adjourned. AW1 and AW2 were eventually withdrawn by the Romanian Judicial Authority ("the JA") on 18 January 2024. It might be inferred that they had been superseded by AW3 and AW4. The Applicant was subsequently arrested on the current warrants, AW3 and AW4, on 23 January 2024.

The Grounds of Appeal

[10]The Applicant seeks to renew the application for permission to appeal on the following grounds: i) Section 20 EA 2003 – the District Judge was wrong in finding deliberate absence from the underlying convictions for AW3 and AW4. ii) Section 21 EA 2003 /

Article 8 European Convention on Human Rights

(ECHR) – the District Judge was wrong overall in finding extradition was compatible with Article 8. iii) Abuse of Process – the District Judge was wrong in his conclusion on the 'broad merits-based test' regarding previous extradition requests. iv) The grounds relating to section 14 EA 2003 (passage of time) and section 21 EA 2003 /

Article 3 ECHR

(prison conditions) are no longer pursued. Discussion Section 20 – Deliberate Absence

Discussion

[11]The Applicant challenges the District Judge's finding that he was deliberately absent from the trials resulting in the convictions underlying AW3 and AW4. As the Applicant was not present at either trial, the question for the District Judge, under section 20(3) EA 2003, was whether he had deliberately absented himself.

[12]The phrase "deliberately absented himself from his trial" in section 20(3) is synonymous with the concept of an accused having unequivocally waived his right to be present at trial, as established in the jurisprudence of the European Court of Human Rights and confirmed by the Supreme Court in Bertino v Public Prosecutor’s Office, Italy

[2024] UKSC 9

. The requesting judicial authority must prove unequivocal waiver to the criminal standard. The test is whether the circumstances suggest the trial in the absence of the requested person did not give rise to a violation of

Article 6 ECHR

[13]The Applicant submits the District Judge was wrong to find deliberate absence or unequivocal waiver, arguing there was reasonable doubt about actual knowledge of each relevant hearing and that he was not clearly warned about the consequences of breaching address requirements.

[14]The District Judge considered this issue and applied the guidance from Bertino. The District Judge made alternative findings: either the Applicant had actual knowledge of the trials, or his behaviour amounted to an "extreme enough form" of unequivocal waiver, so that it was knowing and intelligent. As to actual knowledge he found:

“The Requested Person accepted, in cross examination before me, that he knew there was going to be a trial in respect of AW3, though he claimed not to know the date. In AW4, the Requested Person was “legally summoned”

. He also accepted, under cross examination, that he knew he was required to tell the Romanian authorities if he changed address. When I asked him to confirm this, he answered: “Yes. Of course”. I accept that the test for fugitivity and the test under section 20(3) of the 2003 Act are different but, I nevertheless, am fortified in my view that the Requested Person knew about the trial dates, and the consequences of not attending, because he departed so swiftly after 28 October 2018. This is powerful evidence, in my judgment, of his knowledge. Moreover, the international conviction certificate discloses that the Requested Person has numerous convictions over and above those described in AW3 and AW4. He is no stranger to the Romanian criminal justice system. His experience will have told him that he was required to inform that Judicial Authorities about any change of address, and that he could be convicted and sentenced in his absence. For all these reasons, I am sure, and I find that the Requested Person had actual knowledge of the trial dates in AW3 and AW4 and that he could be convicted if he did not appear.”

[15]These were factual findings for which the District Judge gave reasons. Whether or not, as Ms Westcott submitted, the evidence was “limited” it was nevertheless material on which the District Judge was plainly entitled to reach a conclusion as to actual knowledge having had the benefit of hearing the Applicant give evidence. Equally he was entitled to make a compendious finding as to knowledge for the reasons he gave; the absence of individualised findings for the AW4 offences is not an error in his reasoning.

[16]The District Judge’s finding that the Applicant had “...deliberately avoided the subpoenas and summonses by changing addresses and not informing the Romanian authorities of the same” is likewise a finding of fact. The submission that the District Judge should have recognised “relevant facts” namely that “the Applicant was not moving addresses with the purpose of avoiding ‘subpoenas and summonses’ but because he had nowhere else to go” is essentially disagreement with the District Judge’s conclusions as the factual tribunal and not a ground of appeal.

[17]As Cavanagh J observed, the District Judge was entitled to disbelieve the Applicant's evidence and to conclude that he had deliberately come to the UK to avoid prosecution. He was entitled, on the evidence, to conclude the Applicant had actual knowledge of the trials or, alternatively, that he had deliberately absented himself in a knowing and intelligent way. His absence was, in the circumstances, sufficient to amount to a deliberate waiver, particularly given that he was an "experienced defendant".

[18]I agree with the reasoning of Cavanagh J. The District Judge was entitled to weigh the evidence, including the Applicant's acknowledgments of awareness of the criminal process and his obligations regarding notification of address. The District Judge was also entitled to take into account the Applicant's experience with the Romanian criminal justice system and his subsequent departure from Romania. These factors, combined with the failure to maintain contact information, could reasonably lead a judge to conclude that the Applicant's absence was a deliberate decision amounting to an unequivocal waiver of his right to be present at trial for the purposes of section 20(3) EA 2003, as interpreted by Bertino. The argument that the District Judge was wrong in this conclusion does not, in my judgment, clear the threshold of being reasonably arguable for the purposes of granting permission to appeal.

Section 21 / Article 8 ECHR

[19]The Applicant submits that the District Judge was wrong in his overall assessment of proportionality under

Article 8 ECHR

and his finding that extradition would be compatible. It is argued that the delays in the case significantly reduce the public interest in favour of extradition and that the Applicant's alleged fugitive status does not fully explain these delays.

[20]The legal test under Article 8 requires the court to undertake a balancing exercise, weighing the interference with the Applicant's private and family life against the public interest in extradition. Relevant factors include the strength of ties to the UK, any family life, the seriousness of the offending, the sentence imposed, delay, and whether the requested person has been a fugitive. The ultimate question is whether, in all the circumstances, extradition would be disproportionate.

[21]The District Judge conducted the necessary balancing exercise. Factors favouring extradition included the strong public interest in honouring international arrangements with an EU member state and the substantial period of imprisonment to be served. Factors militating against extradition included the Applicant's Article 8 rights, his family life in the UK (though his connections here, according to the District Judge's findings, were limited to a partner and uncle, neither of whom gave evidence, and no dependents), the sentence for offences described as "relatively minor" in a previous context, and the effect of the previous extradition requests.

[22]A key finding by the District Judge was that the Applicant was a fugitive. This finding is a relevant and significant factor in the Article 8 balance. The District Judge noted that, as a fugitive, the Applicant would have been required to return to Romania and that his current position would not have arisen had he remained there. While acknowledging "any culpable delay" by the JA, the District Judge did not consider it so significant as to add substantial weight to the factors against extradition.

[23]The District Judge directed himself correctly on the Article 8 test and carefully conducted the balancing exercise. He noted the limited family evidence, the Applicant's roots in Romania, and lack of dependents in the UK. The offences were properly characterised as "serious dishonesty offences". There was further offending in the UK of a similar type. I can identify no reasonably arguable basis to challenge the District Judge's conclusion on Article 8 proportionality. The District Judge was entitled to find the Applicant was a fugitive, which properly influenced the balancing exercise. While the Applicant has spent time in the UK, his connections, as found by the District Judge, do not appear to be so strong as to overwhelmingly outweigh the public interest in extradition, particularly considering his fugitive status and continued offending. The assessment of delay, especially in the context of fugitive status, was a matter for the District Judge, and his conclusion that it did not add significant weight against extradition is not arguably wrong. The District Judge’s careful balancing cannot be said to be outside the range of conclusions reasonably open to him.

Abuse of Process

[24]The Applicant contends that the proceedings should have been stayed as an abuse of process due to the history of previous, withdrawn extradition requests. It is argued that the District Judge's application of the 'broad merits-based test' was wrong.

[25]The court retains a limited residual jurisdiction to refuse extradition requests as an abuse of process, although this is generally restricted to cases involving bad faith or deliberate manipulation. Such a decision involves a "broad, merits-based judgment which takes account of the public and private interest involved and also takes account of all the facts of the case". Seeking extradition on a further warrant after a previous refusal can, in certain circumstances, be an abuse, particularly if it appears to be a collateral attack on an earlier judicial decision or an attempt to circumvent appeal restrictions. Abuse is more likely if the request is based on the same offence and evidence following a discharge. However, it is less likely to be abuse if the requesting authority has addressed concerns or if new evidence has emerged.

[26]The Applicant's argument relies on the fact that previous warrants (AW1 and AW2, preceded by earlier EAWs) were withdrawn. He suggests that to permit the current proceedings, which relate to offences that were partially included in predecessor requests, constitutes an abuse of process by allowing the JA to have a "second bite of the cherry".

[27]The District Judge considered the abuse of process argument. He applied the broad merits-based test but concluded that the proceedings were not an abuse. The District Judge distinguished the Applicant's case from Camaras v Baia Mare Local Court, Romania

[2016] 1 WLR 1174

[28]In Camaras, the requested person had been discharged by a judge on the merits as the result of a statutory bar. In contrast, the District Judge found that the Applicant here had been discharged on both previous occasions because the warrants were withdrawn by the JA, not because a judge had ordered discharge on the merits.

[29]The District Judge concluded that, in these circumstances, the Applicant could have had "no reasonable expectation that the requests would not again be pursued". The District Judge considered the behaviour of the Judicial Authorities as a factor against extradition but ultimately did not consider it sufficient to exercise the residual power to stay the proceedings as an abuse.

[30]Cavanagh J agreed with the District Judge's conclusion on abuse of process. Cavanagh J found this ground unarguable, stating that the previous AWs were withdrawn due to technical defects, not for substantive reasons or a judicial decision on the merits. He concluded that withdrawal of warrants in such circumstances "is not a bar to reissue" and that the District Judge applied the correct test.

[31]I agree with the reasoning of the District Judge and Cavanagh J on this ground. The distinction drawn by the District Judge between a discharge on the merits and a withdrawal of a warrant due to technical issues (such as lack of translation or being superseded) is critical. While repeated requests can potentially raise issues, the history in this case, where warrants were withdrawn before a substantive judicial determination on statutory bars, does not reach the threshold of abuse of process required by the authorities. The Applicant cannot claim unfair prejudice arising from a relitigation of issues that were never finally determined by a court. The District Judge properly applied the broad merits-based test and was entitled to conclude that the conduct of the JA, while perhaps "unfortunate" in causing delay, did not amount to an abuse justifying a stay.

Conclusion

[32]I have considered the Applicant's renewed application for permission to appeal on each of the grounds advanced. For the reasons I have set out, I am not satisfied that any of the grounds are reasonably arguable such that they demonstrate the District Judge ought to have decided the matter differently, leading to discharge. The District Judge correctly applied the relevant law, including the guidance from the Supreme Court in Bertino, and was entitled to reach the conclusions he did on deliberate absence, Article 8 proportionality, and abuse of process based on the evidence before him.

[33]Accordingly, the renewed application for permission to appeal is refused. END