Ionut Samu v Sibu Court, Romania [2025] EWHC 1212 (Admin)

[2025] EWHC 1212 (Admin)
IN THE HIGH COURT OF JUSTICE
KING’S BENCH DIVISION
ADMINISTRATIVE COURT
Venue The Royal Courts of JusticeDate Monday, 24 February 2025
Strand
London WC2A 2LL
(Heard remotely via CVP)
Before
MRS JUSTICE FARBEY
Between
IONUT SAMUAppellantSIBIU COURT, ROMANIARespondentMR M CLEJ (instructed by AM International) appeared for AppellantMR A SQUIBBS (instructed by Crown Prosecution Service Extradition Unit) appeared for Respondent
JUDGMENT
Digital Transcription by Epiq Europe Ltd,Lower Ground, 46 Chancery Lane, London WC2A 1JEWeb: www.epiqglobal.com/en-gb/Email: civil@epiqglobal.co.uk(Official Shorthand Writers to the Court)This Transcript is Crown Copyright.  It may not be reproduced in whole or in part other than in accordance with relevant licence or with the express consent of the Authority.  All rights are reserved.WARNING: reporting restrictions may apply to the contents transcribed in this document, particularly if the case concerned a sexual offence or involved a child. Reporting restrictions prohibit the publication of the applicable information to the public or any section of the public, in writing, in a broadcast or by means of the internet, including social media. Anyone who receives a copy of this transcript is responsible in law for making sure that applicable restrictions are not breached. A person who breaches a reporting restriction is liable to a fine and/or imprisonment. For guidance on whether reporting restrictions apply, and to what information, ask at the court office or take legal advice.
[1]The appellant is a Romanian national born on 15 May 1991. He appeals under section 26 of the Extradition Act 2003 (“the Act”) against the decision of District Judge Zani, sitting at Westminster Magistrates' Court, to order his extradition to Romania. A “conviction” arrest warrant (“AW”) was issued on 10 July 2023 and certified by the National Crime Agency on 8 September 2023. The district judge's decision was made on 29 July 2024, following an extradition hearing on 10 July 2024.[2]Before the district judge, the appellant submitted, among other things, that his extradition would breach his right to respect for private and family life under article 8 of the European Convention on Human Rights (“the Convention”). The district judge found that the appellant's article 8 rights would not be breached and that there were no bars to his extradition.[3]Leave to appeal was granted by Mould J on 23 October 2024 on the basis that it was reasonably arguable that the district judge was wrong in his determination of the Celinski balance (see Polish Judicial Authority v Celinski [2015] EWHC 1274 (Admin), [2016] 1 WLR 551). In his skeleton argument on behalf of the appellant, Mr Matei Clej makes a number of new points about the Celinski balance that were not included in the perfected grounds of appeal upon which Mould J granted leave. He applies for permission to amend the grounds of appeal (to the extent that permission is necessary) and to argue the new points as part of this appeal. On behalf of the respondent, Mr Adam Squibbs is neutral to the application which I grant.[4]The appellant seeks to support his appeal by reference to fresh evidence, namely a witness statement made by his wife Dalia Samu on 6 February 2025, together with accompanying documents dealing with the birth of their daughter on 15 January 2025 and the daughter's medical problems. The application to admit fresh evidence is resisted by the respondent. I have considered the fresh evidence de bene esse, meaning that I have considered it for the purpose of ascertaining its admissibility and relevance. I shall return to it later in this judgment.

Facts

[5]The AW relates to convictions for two offences. The first offence may be summarised as the supply of psychoactive substances and it took place in the second part of 2019. I shall refer to it as “the drugs offence.” The second offence forms the subject of this appeal. It is a driving offence and is described in the following terms in the AW: “[The appellant] … on 29.11.2019, at least between 01.45 and 02.10 am, drove the BMW car with the registration number P9146KM on … National Road 1... being stopped in traffic when the flagrant offence was established and identified at the wheel of the car in question, while not possessing a driving licence for any category of vehicle, meets the essential characteristics of the offence of driving a vehicle without a driving licence provided for and punishable under article 335(1) of Criminal Code, article 396, paragraph 10 of Criminal Procedure Code”.[6]The AW states that the appellant was sentenced to a total sentence of one year four months' imprisonment for both offences. The sentence was suspended for four years on condition that the appellant would(i) appear on fixed dates before the Probation Department attached to the Sibiu court;(ii) receive visits from the Probation Officer appointed to supervise him;(iii) give prior notice of any change of address and any travel exceeding five days;(iv) give notice of any change of job; and(v) permit various work-related documents to be verified. He was also ordered to attend one or more programmes for his rehabilitation and not to leave Romania without the approval of the court. He was ordered to undertake 100 days’ unpaid work, either at a hospital or at the Town Hall.[7]The AW states that the appellant breached the terms of his suspended sentence order in four ways. First, he failed to submit information and medical documents required for the performance of unpaid work. Secondly, he failed to report on the dates set. Thirdly, he showed “an indifferent and defiant attitude towards the legal bodies responsible for his supervision.” Fourthly, he failed to fulfil his obligations under the suspended sentence order despite two warnings. It is not clear whether these variously expressed breaches are each discrete from each other or whether they represent different ways of expressing the same conduct. For present purposes, it does not matter.[8]Other documents before the district judge show that the appellant also had three convictions for driving without a licence in Germany. These convictions date from February 2018, November 2018 and March 2020 respectively

The district judge's judgment

[9]The district judge heard evidence from the appellant and considered the documents before him, which included a brief witness statement from the appellant's wife. In his written judgment, he found that the AW did not contain particulars of the conduct alleged to constitute the drugs offence, which is a requirement of a valid warrant under section 2(4)(c) of the Act, because the respondent had failed to provide the required information as to the nature of the psychoactive substances. In the absence of particulars, the district judge was not able to say whether the substances would be classified as controlled drugs in the United Kingdom in order to assess dual criminality. Having found that dual criminality was not proved, he discharged the appellant in relation to the drugs offence. He went on to consider whether extradition should be ordered in relation to the driving offence only.[10]The district judge found that the appellant was a fugitive from justice. That finding is rightly not challenged before me. It was not in dispute before the district judge and is not in dispute before me that, disaggregating the sentence for the drugs offence from the sentence for the driving offence, the appellant would be required to serve a sentence of one year's imprisonment upon extradition.[11]In relation to article 8 of the Convention, the district judge set out the relevant legal principles by reference to the leading cases. He applied the balance sheet approach in Celinski. He set out the factors in favour of the appellant’s extradition in the following terms: “(i) There is a strong and continuing important public interest in the UK abiding by its international extradition obligations. (ii) The seriousness of the criminal conduct in respect of which he has been convicted and sentenced. In respect of the driving matter, there remains a sentence of a year outstanding (less any period spent on remand). (iii) The assertion by the Judicial Authority and the finding by this court that the requested person is a fugitive from justice”.[12]On the other side of the scales, the district judge set out the factors in favour of refusing extradition as follows: “(i) In his proof of evidence, the [appellant] says that he arrived in the UK in May 2022 (whereas in live evidence this was changed to late 2020 or 2021) and that he wishes to remain here with his family, (ii) He adds that he is in employment earning circa £400 a month (albeit in live evidence, he said this was in fact between £500 and £555 per month). He says that he has fixed rented accommodation where he resides with his wife and their son … born 13 September 2018 (five years old), who was born with a hole in his heart. He adds that – as of the date of the full hearing – his wife was two and a half months pregnant. (iii) The [appellant] states that he has led a law-abiding life since settling in the UK, (iv) He submits that the criminal conduct (regarding the driving matter) for which return is sought is not so serious as would result in a prison sentence being imposed if committed in the UK”.[13]Weighing the competing factors on each side of the balance sheet, the district judge concluded that extradition would not be a disproportionate interference with the appellant's article 8 rights.

Developments since the district judge's judgment

[14]Since the district judge handed down his judgment, the appellant's wife has given birth to a daughter. A copy of the daughter's birth certificate shows that she was born on 15 January 2025. Hospital records show that she was admitted as an emergency case on 20 January 2025 on account of reported recurrent episodes of apnoea and “going floppy on and off, lasting a few minutes with associated colour change around the mouth”. After observations, she was discharged home. Her parents were advised to seek urgent care if there were further floppy episodes, apnoea or other parental concerns. An MRI scan was recommended within two to six months.[15]In her fresh witness statement, the appellant's wife describes the stress and fear that these medical issues have caused to the couple. The fresh witness statement says at paragraph 6:
“Our son … goes to school in the UK, he is in his first year at [name of school], having attended kindergarten in this country. The most important thing for us now is that our daughter … can continue to live here in the UK as we need to carry on with the medical research we have started to find a diagnosis for the seizures she had two weeks ago. She is medically monitored here, the doctors know what's happening to her and I believe that only here in the UK can she have a chance of living a healthy life and getting the right treatment if necessary. To get the best for our children, we must be given the chance to live in the UK. Our children deserve the chance to continue their lives where they are now”
.

Legal background

[16]In Norris v Government of United States of America (No. 2) [2010] UKSC 9, [2010] 2 AC 487, the court considered the approach to be taken to the assessment of proportionality under article 8 of the Convention in extradition cases. The court held that the consequences of interference with article 8 rights must be exceptionally serious before this could outweigh the importance of extradition. Lord Phillips of Worth Matravers PSC, with whom all the members of the court agreed, held at paragraph 63:
“I do not accept ... that the gravity of the offence can never be of relevance where an issue of proportionality arises in the human rights context. The importance of giving effect to extradition arrangements will always be a significant factor, regardless of the details of the particular offence. Usually the nature of the offence will have no bearing on the extradition decision. If, however, the particular offence is at the bottom of the scale of gravity, this is capable of being one of a combination of features that may render extraditiona disproportionate interference with human rights. Rejecting an extradition request may mean that a criminal never stands trial for his crime. The significance of this will depend upon the gravity of the offence”
(emphasis added).[17]In HH v Deputy Prosecutor of the Italian Republic [2012] UKSC 25, [2013] 1 AC 338, the Supreme Court considered the correct approach to article 8 of the Convention in the context of extradition where the interests of children were affected. Baroness Hale of Richmond JSC summarised the principles that can be extracted from Norris at paragraph 8 of the judgment, as follows: “(1) There may be a closer analogy between extradition and the domestic criminal process than between extradition and deportation or expulsion, but the court has still to examine carefully the way in which it will interfere with family life. (2) There is no test of exceptionality in either context. (3) The question is always whether the interference with the private and family lives of the extraditee and other members of his family is outweighed by the public interest in extradition. (4) There is a constant and weighty public interest in extradition: that people accused of crimes should be brought to trial; that people convicted of crimes should serve their sentences; that the United Kingdom should honour its treaty obligations to other countries; and that there should be no “safe havens” to which either can flee in the belief that they will not be sent back. (5) That public interest will always carry great weight, but the weight to be attached to it in the particular case does vary according to the nature and seriousness of the crime or crimes involved. (6) The delay since the crimes were committed may both diminish the weight to be attached to the public interest and increase the impact upon private and family life. (7) Hence it is likely that the public interest in extradition will outweigh the article 8 rights of the family unless the consequences of the interference with family life will be exceptionally severe”.[18]In Celinski at paragraph 13, Lord Thomas of Cwmgiedd CJ said the following about conviction appeals: “i) 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. ii) 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… 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. iii) 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". 19. Lord Thomas at paragraph 13 of Celinski went on to cite paragraph 132 of HH in which Lord Judge CJ had said: “When resistance to extradition is advanced, as in effect it is in each of these appeals, on the basis of the article 8 entitlements of dependent children and the interests of society in their welfare, it should only be in very rare cases that extradition may properly be avoided if, given the same broadly similar facts, and after making proportionate allowance as we do for the interests of dependent children, the sentencing courts here would nevertheless be likely to impose an immediate custodial sentence: any other approach would be inconsistent with the principles of international comity. At the same time, we must exercise caution not to impose our views about the seriousness of the offence or offences under consideration or the level of sentences or the arrangements for prisoner release which we are informed are likely to operate in the country seeking extradition. It certainly does not follow that extradition should be refused just because the sentencing court in this country would not order an immediate custodial sentence: however it would become relevant to the decision if the interests of a child or children might tip the sentencing scale here so as to reduce what would otherwise be an immediate custodial sentence in favour of a non-custodial sentence (including a suspended sentence)”.[20]The court in Celinski considered the grounds on which this court may interfere with the conclusions of a district judge who has determined the proportionality of extradition under article 8. Lord Thomas held at paragraph 24:
“The single question …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 … that the appeal can be allowed…. In answering the question whether the district judge …was wrong to decide that extradition was or was not proportionate, the focus must be on the outcome, that is on the decision itself”
.

The parties' submissions

[21]Mr Clej submitted that the district judge had ascribed undue weight to the seriousness of the extradition offending. He contended that, having discharged the appellant in relation to the drugs offence, the overall seriousness of the offending for which the appellant could be extradited was very significantly reduced for two reasons. First, the sentence of imprisonment for driving without a licence was excessively harsh. By comparison, the same offence is non-imprisonable in England which was a strong factor against extradition. At the least, the interests of the appellant's two young children meant that this was one of those cases where the imposition of a custodial sentence in Romania was outweighed by other factors. Secondly, the disaggregated sentence was significantly lower than the overall sentence in the arrest warrant, which was a further strong indicator that the district judge should not have treated the remaining extradition offence as serious.[22]Mr Clej submitted that the time spent by the appellant in the United Kingdom on an electronically monitored curfew reduced the public interest in extradition and should have been given greater weight by the district judge. The curfew from 12 am to 6 am, imposed as a bail condition by Westminster Magistrates' Court on 16 January 2024, would not count towards the sentence in Romania. Yet, it had constituted a significant restriction on the appellant's liberty in the United Kingdom.[23]Mr Clej emphasised that Romanian law permits early release after two thirds of the sentence has been served: Brindusa v Law Court of Targoviste, Romania [2023] EWHC 3372 (Admin), para 23; R (Neagu) v Court of Law Craiova, Romania [2015] EWHC 2074 (Admin), para 4. He submitted there was nothing to suggest that the appellant would not be granted early release at the eight-month point of his sentence, if he were to apply for it, which reduced the public interest in extradition. In addition, the period of 29 November 2019 to 11 March 2020 would count towards time served under the sentence because the appellant was, for this period, subject to remand in custody. Deducting the time served in custody from the eight-month point of his sentence would potentially leave the appellant to serve less than five months in Romania.[24]Mr Clej submitted that the fresh evidence is admissible under both parts of the test in Hungary v Fenyvesi [2009] EWHC 231 (Admin), [2009] 4 All ER 324 as being both unavailable at the extradition hearing and decisive. The fresh evidence altered the article 8 balance by confirming the birth of the appellant's second child, who had experienced complications after birth and required follow-up treatment. The new child's health difficulties added to the need for the family to remain in the United Kingdom. Mr Clej stressed that the appellant's older son has a congenital birth defect. He submitted that, weighing all relevant factors in the round, including the short sentence, delay by the respondent in concluding proceedings in Romania, and family circumstances as they have now developed, there were strong countervailing circumstances which outweighed the public interest in the extradition of fugitives.[25]Mr Squibbs, who did not appear below, submitted that the district judge had properly reflected the seriousness of the driving offence in his judgment. The district judge had cited paragraph 13 of Celinski and properly recognised that the assessment of the seriousness of an offence and the question whether it warranted a sentence of imprisonment were matters for the requesting state. This court should assume that the sentence of one year's imprisonment for driving without a licence reflected the seriousness of the offence in Romania. He submitted that the sentence of imprisonment was warranted where there had been a flagrant breach of the suspended sentence order and where the seriousness of the appellant's conduct was aggravated by his three similar convictions in Germany.[26]Mr Squibbs submitted that the prospect of early release should carry no real weight in the proportionality exercise. There was no evidence before the court regarding the criteria for early release in Romania and no reason to believe that the appellant's early release would be likely. He referred to my judgment in Dablewski v Poland [2024] EWHC 957 (Admin) where I held, albeit obiter, that the proper approach to early release was to be found in Sobczyk v Circuit Court in Katowice, Poland [2017] EWHC 3353 (Admin). The court in Sobczyk made no assessment of the prospect of early release, reflecting the principle that the domestic courts should be slow to usurp the judicial and sentencing processes of a requesting state.[27]Mr Squibbs acknowledged that the question of how the provisions for early release in the law of a requesting state should be weighed in the proportionality balance under article 8 was not free from complexity. Other judges have reached other views (Dobrowolski v Poland [2023] EWHC 764 (Admin) per Fordham J, and Andrysiewicz v Poland [2024] EWHC 1399 (Admin) per Swift J). The Supreme Court is due to hear an appeal in Andrysiewicz soon. Mr Squibbs submitted, however, that even taking the appellant's submissions at their highest, the appellant would still serve a sentence of some months. As Supperstone J observed in Malar v Slovakia [2018] EWHC 2589 (Admin), there is nothing inherently disproportionate in the surrender of an individual to serve a sentence of weeks rather than months. Mr Squibbs submitted that a sentence of around five months was substantial.[28]Mr Squibbs accepted that the impact of a curfew may be taken into account in the article 8 balance but submitted that a curfew is only capable of tipping the balance in marginal cases (Dedza v Regional Court in Olsztyn (Poland) [2022] EWHC 838 (Admin) para 26, per Holman J). He submitted that this is not a marginal case. The appellant’s curfew was between 12 am and 6 am. These limited hours were at a time when most people might reasonably be expected to be at home so that the restriction on the appellant's liberty had been limited.[29]Mr Squibbs submitted that the fresh evidence of the impact of extradition on the appellant and his family did not demonstrate the very strong countervailing factors that were required before the extradition of a fugitive could be disproportionate (Celinski, para 39). The fresh evidence was incapable of being decisive and so it was not in the interests of justice to admit it.

Analysis and conclusions

[30]The district judge gave detailed reasons for concluding that it was proportionate to extradite the appellant. He acknowledged that the driving offence was “not the most serious to come before [the court]” but took into consideration that it had attracted a suspended sentence of imprisonment, the terms of which had been breached. He set out and applied the observations in Celinski, quoted above, to the effect that it is not the function of the English courts to substitute their own view of the significance of, or the appropriate sentence for, an extradition offence, which are matters for the requesting state to decide. The district judge cannot in my judgment be criticised for treating the seriousness of the offence as weighing in the scales as a factor in favour of extradition.[31]The appellant has provided no evidence about the operation of early release provisions in Romania and Mr Clej is forced to rely on speculation that the appellant would be eligible. For present purposes, I set aside any potential barriers to his arguments in the case law. I shall assume that the prospect of early release is a factor to be weighed in the appellant's favour and that the appellant would be granted early release and that he would spend less than five months in prison after time served on remand is deducted. Assuming all these things in the appellant's favour, the period of custody would be comparatively short. The appellant is, however, a fugitive. The district judge was correct to conclude that there is a strong public interest in extraditing those who evade justice. The district judge was entitled to conclude that the appellant's fugitive status was a very strong factor in favour of extradition even if the period to be served in custody was comparatively short. He was entitled to conclude that there were no strong countervailing factors that weigh against the public interest in the extradition of fugitives.[32]Mr Clej asserted that the six-hour curfew was a significant restriction on the appellant's liberty without referring me to any evidence. He told me of one isolated example of the appellant missing his son's christening without directing me to any evidence of why the curfew hours prevented his attendance. I have been provided with no reason to suppose that a nighttime curfew for six hours should be afforded much weight in the balance and it cannot possibly outweigh other factors.[33]The district judge took into consideration the difficulties that the appellant may face in rejoining his family in the United Kingdom after serving his sentence and the delay since the appellant's conviction. He was sceptical about some of the appellant's evidence and noted discrepancies in the evidence about how long he has lived in the United Kingdom. The appellant's wife was born in Romania and lived there until 2017 when she was about 18 years old. She has lived abroad since then. She said in her original witness statement that she came to the United Kingdom with the appellant in 2022. By that account, which is supported by the appellant, at least in his proof of evidence, the family ties to the United Kingdom do not run deep.[34]As regards the situation of the children, the appellant's wife's fresh witness statement describes the fear and stress that she and the appellant suffered as a result of the daughter's problems. There is, however, no proper medical evidence about the daughter's prognosis or the treatment, if any, that she will in future require. I have been provided with no medical evidence relating to the appellant's son. There is no reason to suppose that he cannot be treated in Romania. There is, upon analysis, no evidence to suggest that the family cannot relocate to Romania.[35]The fresh evidence, whether taken on its own or cumulatively with the evidence before the district judge, fails to show that the consequences of the interference with family life will be exceptionally severe. It does not advance the appellant's appeal. It is not decisive and so it is not in the interests of justice to admit it. The application to admit the fresh evidence is refused.[36]Taking into consideration all the relevant factors, there is no basis to conclude that the district judge ought to have decided the proportionality question differently or that he was required to order the appellant's discharge. This appeal is dismissed. _________ Epiq Europe Ltd hereby certify that the above is an accurate and complete record of the proceedings or part thereof. Lower Ground, 46 Chancery Lane, London WC2A 1JE Email: civil@epiqglobal.co.uk