Iulian Beraru v Bucharest Court - First Criminal Division Romania [2025] EWHC 2770 (Admin)

[2025] EWHC 2770 (Admin)Case No AC-2023-LON-001835
IN THE HIGH COURT OF JUSTICE
KING’S BENCH DIVISION
ADMINISTRATIVE COURT
Venue Royal Courts of Justice, Strand, London, WC2A 2LLDate 29/10/2025
Before
MR JUSTICE FOXTON
Between
IULIAN BERARUAppellantBUCHAREST COURT – FIRST CRIMINAL DIVISION ROMANIARespondent
Georgia Beatty (instructed by Sperrin Law) for AppellantHannah Burton (instructed by CPS) for RespondentHearing Hearing dates: 22 October 2025Draft to parties: 23 October 2025
Approved JudgmentThis judgment was handed down remotely at 10.00am on Wednesday 29 October 2025 by circulation to the parties or their representatives by e-mail and by release to the National Archives..............................
[1]This is the hearing of Mr Beraru’s appeal against the decision of District Judge Clews of 8 June 2023 to order his extradition in connection with an arrest warrant (“the Warrant”). The Warrant was issued pursuant to the EU-UK Trade and Co-operation Agreement by the Respondent, the Bucharest Court – First Criminal Division, on 28 July 2022.[2]Mr Beraru has been granted permission to appeal against the extradition order on one ground – that the District Judge erred in finding that the alleged offences satisfy the requirements of sections 10 and 64 of the Extradition Act 2023 (“the Act”). He seeks permission at this hearing to add two further grounds: i) Proposed Ground 2: that the extradition to Romania would be disproportionate within the meaning of s.21A(1)(b) of the Act, as the criminal proceedings in Romania are able to progress with the Appellant’s remote attendance via video link from the UK. ii) Proposed Ground 3: that the pursuit of the extradition request is an abuse of the Court’s process, given that the extradition is unnecessary for the progress of the proceedings.

The Warrant

[3]The Warrant is a so-called accusation warrant, seeking the Appellant’s extradition to prosecute him for three offences: i) Supporting an organised crime group contrary to Article 367 of the Romanian Criminal Code (which attracts a sentence of between 3 and 10 years imprisonment upon conviction). ii) Trafficking in human beings contrary to Article 210 of the Criminal Code (which attracts a sentence of between 3 and 10 years imprisonment upon conviction). iii) Pandering contrary to Article 213 of the Criminal Code (which attracts a sentence of between 2 and 7 years imprisonment upon conviction). The offence of pandering involves “determining or facilitating the practice of prostitution or obtaining financial benefits from the practice of prostitution by one or more individuals.”[4]The conduct alleged to give rise to these offences is described as follows in Box E of the Warrant:
“As matters of fact, the Court held that the defendant BERARU IULIAN, between 2012 and 2022, supported the criminal group established by Balaban Dumitru, Ivan Puiu Eduard, Balaban Violeta, for the purpose of committing human trafficking offences, as well as other offences related to the protection of the activities of the organised criminal group. In 2020, he recruited and provided accommodation for Man Adela Georgiana in his flat at 26 Redan Place, Flat J, London, for the purpose of sexually exploiting her by forcing her to engage in prostitution, and by misleading her, using manipulative techniques, he offered her the sum of GBP 300, thereby facilitating her prostitution and obtaining financial gain from her prostitution. As matters of law, these acts meet the constituent elements of the offences of setting up an organised crime group, referred to in Article 367 paras. (1), (2) and (3) of the Criminal Code, trafficking in human beings, referred to in Article 210 para. (1) (a) of the Criminal Code, in the light of Article 182 (c) of the Criminal Code, and pandering, referred to in Article 213 para. (1) of the Criminal Code, all with the application of Article 38 para. (1) of the Criminal Code.”
[5]The Warrant is based upon a pre-trial arrest warrant issued by the Bucharest Court, First Criminal Division dated 28 June 2022, and made final by decision of the Bucharest Court of Appeal on 7 July 2022. The Appellant was not present in Romania when this pre-trial arrest warrant was issued.[6]The Respondent produced Further information dated 16 September 2022 in response to questions from the CPS (“the Further Information”). This provides: i) The Appellant had been officially summoned to attend court in Romania via police in London. The Appellant failed to cooperate. ii) The purpose of the organised criminal group (“OCG”) was mainly to derive material benefits from acting as ‘pimps’ for prostitutes in the United Kingdom. Some of the women were taken from Romania and brought to the United Kingdom. The women practising prostitution in Great Britain for the financial gain of the OCG were mainly recruited from Romania, but also in Great Britain. One woman, Man Adela Georgiana, was recruited in Great Britain by the Appellant. Certain defendants, including the Appellant, obtained material benefits through the sexual exploitation of the women. iii) The OCG carried out their criminal activities in both Romania and Great Britain. There were 8 members of the OCG, all of whom will be tried together. iv) The money derived from prostitution was transferred to the members of the OCG, credited into their Romanian and UK bank accounts. It was later laundered through the acquisition of goods, mainly in Romania. v) The Appellant’s criminal activities occurred in the United Kingdom. He was in Ivan Puiu Eduard’s entourage. Mr Eduard was one of the OCG’s leaders. The Appellant operated a restaurant in London, owned by Mr Eduard. The Appellant was a trusted person of Mr Eduard and carried out criminal activities specific to ‘pimping’, consisting of recruiting young women from Romania who he then forced into practicing prostitution for his own gain, as well as the gain of Mr Eduard. vi) On 28 July 2021, Man Adela Georgiana filed a formal complaint against the Appellant with the police in the United Kingdom. She alleged that he had physically assaulted her and forced her to practice prostitution. Ms Georgiana alleged that she was working as an escort in London and the Appellant was a former client. He suggested she stay with his girlfriend, who was a prostitute, to share accommodation costs. Ms Georgiana accepted this offer, but once she arrived at the address she was given, the Appellant forced her into prostitution. She made an emergency call to police from a hotel in Bayswater, London, to report that she was being forced into prostitution. vii) In light of the indication that a brothel was being run at the Appellant’s address, police executed a search warrant at the address on 4 August 2021. Another ‘pimp’ and a prostitute, as well as the Appellant, were located at the address. Details of the evidence discovered are provided in the further information, all of which support the allegation that the Appellant was involved in organised criminality, namely controlling prostitution. The evidence gathered has been provided to the Romanian authorities. viii) It was intended that Ms Georgiana would provide further evidence against the Appellant, but this was not possible as she was found dead in a London hotel room on 16 August 2021, having overdosed on drugs. ix) The case file in Romania consists of 19 volumes and 12,000 pages.[7]Romania has been designated a category 1 territory for the purposes of Part 1 of the Act by the Extradition Act 2003 (Designation of Part 1 Territories) Order 2003 (SI 3333 of 2003).

The procedural history

[8]The Warrant was issued on 7 July 2022 and certified by the NCA on 29 July 2022. Mr Beraru was arrested in connection with the Warrant on 9 August 2022, and thereafter was remanded on conditional bail.[9]The extradition hearing took place before District Judge Clews on 23 April 2023 at which Mr Beraru raised a number of points: i) A challenge under s.2 of the Act (the adequacy of particulars). ii) A challenge under s.10 (the “dual criminality” requirement for which Mr Beraru has leave). iii) A challenge under ss.11 and 19B (by reason of forum). iv) A challenge under Article 8 of the ECHR[10]Mr Beraru’s extradition was ordered by District Judge Clews on 9 June 2023. He heard and rejected the four challenges to the Warrant.[11]The appeal against that decision was received in the Administrative Court Office on 14 June 2023. Permission was refused on papers by Sir Duncan Ouseley on 31 October 2023, but granted in respect of one ground at a renewal hearing by Mrs Justice Hill on 24 May 2024.[12]On 28 November 2024, the appeal was stayed pending the decision of the Supreme Court in El-Khouri v United States of America (in which judgment was delivered on 12 February 2025: [2025] UKSC 3). That stay was lifted on 21 March 2025.[13]On 1 April 2025, Mr Beraru applied to join his case to the case reference AC-2024-LON-003052 (Zilinskas v Siauliai Regional Court, Lithuania) which was listed for a Rolled-up hearing on 10 April 2025. That application, and an associated application that the case be heard by a Divisional Court, was refused by Mr Justice Martin Spencer on 4 April 2025.[14]On 5 March 2025, Mr Beraru applied to add the two additional grounds to his appeal.[15]On 20 October 2025, Mr Beraru made an application for an extension of time to serve the hearing bundle and skeleton. While the reasons for the request (the weight of professional commitments of Mr Beraru’s legal team) are not altogether satisfactory, I am satisfied that it is appropriate to grant the extension sought.

The Correct Test on an Appeal

[16]The appeal is brought under s.26 of the Act and the Court’s powers are set out in s.27:
“(1) On an appeal under section 26 the High Court may— (a) allow the appeal; (b) dismiss the appeal. (2) The court may allow the appeal only if the conditions in subsection (3) or the conditions in subsection (4) are satisfied. (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. (5) If the court allows the appeal it must— (a) order the person's discharge; (b) quash the order for his extradition.” (a) allow the appeal; (b) dismiss the appeal. (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. (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. (a) order the person's discharge; (b) quash the order for his extradition.”
[17]I was referred to Lord Burnett LCJ’s judgment in Love v USA [2018] EWHC 172 (Admin), [2018] 1 W.L.R. 2889 at [25] as to the test to be applied:
“The statutory appeal power in section 104(3) permits an appeal to be allowed only if the district judge ought to have decided a question before him differently and if, had he decided it as he ought to have done, he would have had to discharge the appellant. The words “ought to have decided a question before him… differently”
(emphasis added) give a clear indication of the degree of error which has to be shown. The appeal must focus on error: what the judge ought to have decided differently, so as to mean that the appeal should be allowed. Extradition appeals are not re-hearings of evidence or mere repeats of submissions as to how factors should be weighed; courts normally have to respect the findings of fact made by the district judge, especially if he has heard oral evidence. The true focus is not on establishing a judicial review type of error, as a key to opening up a decision so that the appellate court can undertake the whole evaluation afresh. This can lead to a misplaced focus on omissions from judgments or on points not expressly dealt with in order to invite the court to start afresh, an approach which risks detracting from the proper appellate function. That is not what Shaw's case or Belbin's case was aiming at. Both cases intended to place firm limits on the scope for re-argument at the appellate hearing, while recognising that the appellate court is not obliged to find a judicial review type error before it can say that the judge s decision was wrong, and the appeal should be allowed. The true approach is more simply expressed by requiring the appellate court to decide whether the decision of the district judge was wrong. What was said in Celinski and Re B (A Child) are apposite, even if decided in the context of article 8. In effect, the test is the same here. 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.”[18]I was also referred to the judgment of Aikens LJ in Belbin v Regional Court of Lille, France [2015] EWHC 149 (Admin), [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.”
Ground 1: the dual criminality ground of appeal The legal principles

Ground 1: the dual criminality ground of appeal

[19]Section 10 of the Act requires the appropriate judge to be satisfied that the offences giving rise to the warrant are extradition offences. Section 64 of the Act establishes what constitutes an ‘extradition offence’ in respect of an accusation warrant. Under s.206 of the Act, the Respondent bears the burden of proving compliance with s.10 to the criminal standard.[20]The requirements of s.64(4) in respect of establishing dual criminality are that “in corresponding circumstances equivalent conduct would constitute an extra-territorial offence under the law of the relevant part of the United Kingdom” (s.64(4)(b)).[21]Section 64 provides:
“(2) The conduct constitutes an extradition offence in relation to the category 1 territory if the conditions in subsection (3) or (4)] are satisfied. (3) The conditions in this subsection are that— (a) the conduct occurs in the category 1 territory; (b) the conduct would constitute an offence under the law of the relevant part of the United Kingdom if it occurred in that part of the United Kingdom; (c) the conduct is punishable under the law of the category 1 territory with imprisonment or another form of detention for a term of 12 months or a greater punishment. (4) The conditions in this subsection are that— (a) the conduct occurs outside the category 1 territory; (b) in corresponding circumstances equivalent conduct would constitute an extra-territorial offence under the law of the relevant part of the United Kingdom; (c) the conduct is punishable under the law of the category 1 territory with imprisonment or another form of detention for a term of 12 months or a greater punishment.” (a) the conduct occurs in the category 1 territory; (b) the conduct would constitute an offence under the law of the relevant part of the United Kingdom if it occurred in that part of the United Kingdom; (c) the conduct is punishable under the law of the category 1 territory with imprisonment or another form of detention for a term of 12 months or a greater punishment. (a) the conduct occurs outside the category 1 territory; (b) in corresponding circumstances equivalent conduct would constitute an extra-territorial offence under the law of the relevant part of the United Kingdom; (c) the conduct is punishable under the law of the category 1 territory with imprisonment or another form of detention for a term of 12 months or a greater punishment.”
[22]This provision ensures that a person is not extradited for conduct that would not be recognised as criminal in this jurisdiction. In Norris v USA [2008] 1 AC 920, to which I was also referred, the House of Lords reviewed the history of the requirement for dual criminality in English extradition law. At [88], the Court identified as “the underlying rationale of the double criminality rule” “that a person's liberty is not to be restricted as a consequence of offences not recognised as criminal by the requested state.”[23]In Assange v Swedish Prosecution Authority [2011] EWHC 2849 (Admin), a Divisional Court (the President, Sir John Thomas, and Ouseley J) held at [57] “It was accepted by Mr Assange that it was not necessary to identify in the description of the conduct the mental element or mens rea required under the law of England and Wales for the offence; it was sufficient if it could be inferred from the description of the conduct set out in the EAW. However, the facts set out in the EAW must not merely enable the inference to be drawn that the Defendant did the acts alleged with the necessary mens rea. They must be such as to impel the inference that he did so; it must be the only reasonable inference to be drawn from the facts alleged. Otherwise, a Defendant could be convicted on a basis which did not constitute an offence under the law of England and Wales, and thus did not satisfy the dual criminality requirement. For example, an allegation that force or coercion was used carries with it not only the implicit allegation that there was no consent, but that the Defendant had no reasonable belief in it. If the acts of force or coercion are proved, the inference that the Defendant had no reasonable belief in consent is plain.”[24]Ms Beatty for Mr Beraru placed significant weight on the reference in Assange on the need for the description of the conduct to “impel” the inference and it is therefore appropriate to explore this issue at a little more length: i) Assange was concerned with whether the necessary mens rea for a criminal offence under English law was apparent. ii) In Zak v Poland [2008] EWHC 470 (Admin), another Divisional Court (Richards LJ and Swift J) identified the relevant test as to whether “the conduct described in the warrant and supplement further information would constitute an offence under the law of England and Wales” ([5]). The Court held that it was sufficient if the relevant mens rea “can properly be inferred” and at [16] that it was sufficient that the mens rea “can be inferred by the court from the conduct that is spelled out in the warrant and further information” even if not “identified or specified in terms”. iii) Holgate J reviewed these cases in Cleveland v United States of America [2019] EWHC 619 (Admin) (a case heard by a Divisional Court comprising Leggatt LJ and Holgate J). At [21], Holgate J stated:
“A number of relevant legal principles are well established. In Norris v Government of the United States of America [2008] AC 920 the House of Lords decided that a court should not consider whether the elements of the offence in an extradition request correspond with the elements of an English offence. Instead the court should consider whether the alleged conduct, if it had occurred in the United Kingdom, would amount to an offence under English law. Where, as in the present case, the request alleges multiple offences, each one needs to be considered separately, but need not be assigned to a reciprocal offence under English law. Where the alleged conduct relevant to a number of offences is closely interconnected, it does not matter whether that conduct would be charged in this jurisdiction in the same manner as in the requesting state: Tappin v Government of the United States of America [2012] EWHC 22 (Admin) at [44].” iv) At [55]-[74], he carefully reviewed the authorities dealing with the circumstances in which inferences could be drawn from the facts in the warrant and Further Information. At [83] he stated: “To summarise, the “inevitable inference” test set out in para 57 of Assange's case is solely aimed at preventing a person being extradited and then convicted in the requesting state on a basis which would not constitute an offence under English law. Where an essential ingredient under our criminal law is missing from the offence for which extradition is sought, a requirement for dual criminality is none the less satisfied if the court concludes that that ingredient would be the inevitable corollary of proving the matters alleged to constitute the foreign offence. But, there is no legal justification for applying that “inevitable inference” test more widely. To do so would involve breaching the general principle that a court dealing with a request for extradition is not concerned to assess the strength of the evidence that would be presented in any trial in the foreign court. Accordingly, in other circumstances, the test set out in paras 16–17 of Zakis case , namely whether an inference is capable of being drawn, continues to be applicable.”
[25]I gratefully adopt that analysis, although I have not found the distinction drawn altogether easy to apply. Its application in the present context is particularly challenging because an important issue which arises is whether the Warrant and the Further Information sufficiently disclose the elements which are required for an extra-territorial offence to be committed under English law (rather than conduct which would be criminal at all). I incline to the view that the territorial requirements for an English criminal offence to be committed are no different to the mens rea or actus reus requirements in this respect in that they are a necessary ingredient for criminal lability before the English courts. For that reason, and because I am not ultimately persuaded that the different tests make any difference to the outcome in this particular case, I have applied the Assange test to that question. By contrast, where the issue is whether the facts alleged sufficiently disclose, for example, allegations of conspiracy or assistance, I have applied the Zak test.[26]Finally, the Supreme Court in El-Khouri v USA [2025] UKSC 3 considered the issue of whether an offence is an extradition offence where the conduct underpinning the extradition request occurred outside of the territory requesting extradition. That case was concerned with Part 2 (as opposed to the present case which is concerned with Part 1) with the result that the Court had to consider the terms of s.137 rather than s.64, but for present purposes the sections are in materially identical terms and I have used the s.64 references in the summary which follows.[27]The Supreme Court found as follows: i) The test in s.64(3) of the Act is whether the conduct specified in the extradition request would constitute an offence under UK law if it occurred in the United Kingdom ([37]) which, in a paradigm case where all the acts specified in the request were done in the territory of the requesting state, requires the court to consider a hypothetical situation in which those acts were done in the relevant part of the United Kingdom and ask whether, in that situation, the acts would constitute an offence under the law of that part of the United Kingdom. ii) Where the acts in question did occur in the United Kingdom, no such hypothetical is required, the sole hypothesis required by the subsection remains that conduct which in fact occurred in the foreign territory occurred “in” (the relevant part of) the United Kingdom. The court is not required to transpose any conduct in the opposite direction and to treat conduct which in fact occurred within the United Kingdom as having occurred outside it ([40]). iii) However, s.64(4) does require this. Under that subsection the test is whether in corresponding circumstances equivalent conduct would have constituted an extra-territorial offence under UK law. For this purpose, it is necessary to construct a mirror image of what actually occurred, namely a hypothetical in which the conduct of the requested person (or any other relevant event) alleged to have occurred outside the territory of the requesting state is assumed to have occurred outside the (relevant part of the) United Kingdom, and vice-versa ([41]). iv) Where the conduct specified in the extradition request occurs outside the territory of the requesting state, the analysis is not affected by the fact that the conduct is undertaken with the intention of causing harm within the territory of the requesting state ([50]). The word “conduct” in s.64 is “concerned solely with where the physical acts alleged were done and not with where any effects of those acts (intentionally or otherwise) were felt” ([56]). v) The underlying scheme is a simple territorial approach to criminal jurisdiction which takes for granted that courts have jurisdiction over acts occurring within the state's own territory but recognises that they may also in a variety of circumstances exercise jurisdiction in respect of acts occurring outside its territory. The function of subsections (3)(a) and (4)(a) is merely to divide cases into these two categories ([59]).[28]At [83] the Supreme Court summarised the applicable principles as follows:
“(1) Subsections [64(3)] and (4) are mutually exclusive. In applying [section 64], it is therefore necessary to decide at the outset whether the conduct of the person whose extradition is sought occurred “in” or “outside” the territory of the requesting state. (2) For this purpose the court is concerned, and concerned only, with where the person's acts specified in the extradition request were physically done, ignoring in the case of both provisions mere narrative background and focusing on the substance of the alleged criminality. The court is not concerned with where any consequences of those acts occurred or were felt. (3) It is not a requirement of subsection (3) or (4) that the relevant conduct occurred exclusively in, or outside, the territory of the requesting state (as the case may be). (4) In this case, however, all the relevant conduct … occurred outside the United States. The conditions which must be satisfied for the conduct to constitute an extradition offence are therefore those in subsection (4) and not those in subsection (3). (5) The test of double criminality in subsection (4)(b) requires the court to consider whether an offence would be committed under UK law if the alleged conduct of the requested person (and any other relevant event) occurring outside the territory of the requesting state had occurred outside (the relevant part of) the United Kingdom (and vice-versa).”

The application of those principles in this case

[29]In this case, the conduct alleged against Mr Beraru in the warrant is all alleged to have taken place in the United Kingdom. Accordingly, it is common ground that the issue for the court is whether, applying s.64(4), “in corresponding circumstances equivalent conduct would constitute an extra-territorial offence under the law of the relevant part of the United Kingdom”.[30]The Respondent has put forward alternative arguments as to why the requirements of s.64(4) are satisfied in this case which are best considered in turn. However, it is necessary to stand back and keep in mind the nature of the facts alleged against Mr Beraru overall. He is accused of being a long-time supporter of an OCG established for the purpose of human trafficking. The OCG carried out activities in both Romania and the UK through the organised prostitution of women in the UK mainly (but not exclusively) recruited from Romania. The proceeds from the organised prostitution were paid into bank accounts in Romania and the UK, and laundered in Romania.

Conspiracy to obtain financial gain by controlling prostitution

[31]First, the Respondent alleges that the facts alleged in the Warrant would constitute the extra-territorial offence of conspiracy to obtain financial gain by controlling prostitution (s.53 of the Sexual Offences Act 2003).[32]Section 53(1) of the Sexual Offences Act 2003 provides:
“Trafficking out of the UK for sexual exploitation A person commits an offence if— (a) he intentionally controls any of the activities of another person relating to that person’s prostitution in any part of the world, and (b) he does so for or in the expectation of gain for himself or a third person.”

A person commits an offence if—

[33]The Respondent accepts that s.53 itself does not create a free-standing extra-territorial offence.[34]So far as the law of criminal conspiracy is concerned, s.1A of the Criminal Law Act 1977 provides:
“(1) Where each of the following conditions is satisfied in the case of an agreement, this Part of this Act has effect in relation to the agreement as it has effect in relation to an agreement falling within section 1(1) above. (2) The first condition is that the pursuit of the agreed course of conduct would at some stage involve— (a) an act by one or more of the parties, or (b) the happening of some other event, intended to take place in a country or territory outside England and Wales. (3) The second condition is that that act or other event constitutes an offence under the law in force in that country or territory. (4) The third condition is that the agreement would fall within section 1(1) above as an agreement relating to the commission of an offence but for the fact that the offence would not be an offence triable in England and Wales if committed in accordance with the parties' intentions. (5) The fourth condition is that— (a) a party to the agreement, or a party's agent, did anything in England and Wales in relation to the agreement before its formation, or (b) a party to the agreement became a party in England and Wales (by joining it either in person or through an agent), or (c) a party to the agreement, or a party's agent, did or omitted anything in England and Wales in pursuance of the agreement.” (a) an act by one or more of the parties, or (b) the happening of some other event, intended to take place in a country or territory outside England and Wales. (a) a party to the agreement, or a party's agent, did anything in England and Wales in relation to the agreement before its formation, or (b) a party to the agreement became a party in England and Wales (by joining it either in person or through an agent), or (c) a party to the agreement, or a party's agent, did or omitted anything in England and Wales in pursuance of the agreement.”
[35]Mr Beraru challenges the presence of two of the required four elements (making the necessary transposition): i) The requirement of an agreed course of conduct which would at some stage involve an act by one or more of the parties or the happening of an event intended to take place in a country outside [Romania] (s.1A(2(a)). ii) The requirement that a party to the agreement either did something in [Romania] in relation to the agreement before its formation; or a party to the agreement became a party to the agreement in [Romania]; or a party to the agreement did or omitted anything in [Romania] pursuant to the agreement (s.1(2)(d)).[36]As to the first, I am satisfied that the Warrant fairly read does allege an agreed course of conduct which would at some stage involve an act by one or more of the parties or the happening of an event intended to take place in a country outside Romania (s.1A(2(a)), and that this is not merely an inference which is capable of being drawn but is the inference which should be drawn. Section E and the Further Information allege the following facts: i) Mr Beraru supported OCG for the purpose of committing human trafficking and other offences. ii) Mr Beraru recruited Man Adela Georgiana for the purpose of sexually exploiting her by forcing her to engage in prostitution. iii) Women practised prostitution in the UK for the benefit of the OCG (including Man Adela Georgiana). iv) The proceeds of their activities were transferred to OCG members’ Romanian and UK bank accounts. v) Crucially, that the purpose of the OCG which Mr Beraru is accused of supporting was to derive material benefits from acting as pimps for women who practiced prostitution in the UK.[37]As to the requirement that a party to the agreement either did something in Romania in relation to the agreement before its formation; or a party to the agreement became a party to the agreement in Romania; or a party to the agreement did or omitted anything in Romania pursuant to the agreement (s.1(2)(d)): i) I agree that nothing in Section E of the Warrant or the Further Information necessarily involves that a party in Romania did or did not do something in relation to the formation of the agreement or became a party there (being entirely silent on how the course of conduct was agreed or the location of those with whom it was agreed). ii) However, I am satisfied that the Further Information fairly alleges that a party to the agreed course of conduct did carry out actions in Romania pursuant to it and that this is not merely an inference which is capable of being drawn but is the inference which should be drawn. The Further Information pleads that the OCG carried out activities in Romania, that the women forced to act as prostitutes in the UK were mainly recruited in Romania and that the proceeds of the prostitution were paid into OCG members’ bank accounts in Romania (as well as the UK) and laundered in Romania. iii) On any fair reading of the Warrant and Further Information, the allegations concerning Man Adela Georgiana are alleged to form part of the purpose of the OCG of deriving material benefits from acting as pimps for women who practiced prostitution in the UK. This is clear from paragraphs (b), (d) and (most significantly) (h) (“As regards the victim Man Adela Georgina, the defendant Beraru Iulian acted under the conditions of the 8-member crime group he was part of”). iv) In circumstances in which the allegations concerning Man Adela Georgiana are alleged to form part of the wider purpose of the OCG which purpose necessarily involved conduct by OCG members in Romania, it is not appropriate (as Mr Beraru seeks to do) to treat the allegations concerning Man Adela Georgiana as though they were alleged on an entirely standalone basis. That would be to mischaracterise the criminal conduct alleged.[38]In relation to that last point, the importance in a case based on an agreed course of conduct such as arises from the membership of a criminal gang with focussing on the criminal purpose to which the object of the extradition request is alleged to have subscribed, rather than focussing solely on the specific acts they are alleged to have taken personally to implement the objects of the criminal gang, was emphasised in Andreas Kodos v Prosecutor General’s Office of the Republic of Lithuania [2010] EWHC 897 (Admin), [19], where a Divisional Court comprising Richards LJ and Cranston J stated of a similar argument to that advanced by Mr Beraru in this case:
“In my judgment, Miss Barnes's argument proceeded on a mistaken premise in singling out things done by the appellant himself in England and failing thereby to give full effect to the description of the conduct in the warrant. That description makes clear that the appellant is alleged to have been a party to a joint enterprise encompassing all the conduct in question. For example, in relation to the first woman, Rasa Gudomskiene, it starts by referring to the appellant ‘acting in an organized group’ with named individuals, ‘under pre-agreement to recruit, buy and sell women for prostitution in the United Kingdom’. The various steps taken in Lithuania to secure the woman's transfer to the United Kingdom for the purposes of prostitution are included not just by way of narrative background but as an integral part of the conduct which is alleged to constitute the offence committed by the appellant. The conduct relied on in relation to him is not limited to the ‘buying’ of the woman by sending money from England to Lithuania. The position is the same in relation to the offences concerning each of the other women, where the description of the conduct contains similar language as to pre-agreement and participation in an organised group. In their case the conduct encompassed within the joint enterprise extends to the acts of engaging the women in prostitution and gaining income from their prostitution. This brings in additional offences, but not by way of separate matters relevant to the appellant alone: those acts, too, are integral parts of the overall arrangement to which he is a party and which involved things done in Lithuania as well as in England.”

Conspiracy to traffic human being for the purposes of sexual exploitation

[39]The second way in which the Respondent advances its case on extra-territoriality is that the facts put forward in the Warrant and the Further Information would amount to the extra-territorial criminal offence under the law of England and Wales of conspiracy to traffic human beings for the purpose of sexual exploitation: i) contrary to s.2 of the Modern Slavery Act 2015 for the period after that Act came into effect and ii) before then, contrary to 59 of the Sexual Offences Act 2003.[40]Section 2 of the Modern Slavery Act 2015 provides as follows:
“Human trafficking (1) A person commits an offence if the person arranges or facilitates the travel of another person (“V”) with a view to V being exploited. (2) It is irrelevant whether V consents to the travel (whether V is an adult or a child). (3) A person may in particular arrange or facilitate V's travel by recruiting V, transporting or transferring V, harbouring or receiving V, or transferring or exchanging control over V. (4) A person arranges or facilitates V's travel with a view to V being exploited only if— (a) the person intends to exploit V (in any part of the world) during or after the travel, or (b) the person knows or ought to know that another person is likely to exploit V (in any part of the world) during or after the travel. (5) “Travel” means— (a) arriving in, or entering, any country, (b) departing from any country, (c) travelling within any country. (6) A person who is a UK national commits an offence under this section regardless of— (a) where the arranging or facilitating takes place, or (b) where the travel takes place. (7) A person who is not a UK national commits an offence under this section if— (a) any part of the arranging or facilitating takes place in the United Kingdom, or (b) the travel consists of arrival in or entry into, departure from, or travel within, the United Kingdom.” (a) the person intends to exploit V (in any part of the world) during or after the travel, or (b) the person knows or ought to know that another person is likely to exploit V (in any part of the world) during or after the travel. (a) arriving in, or entering, any country, (b) departing from any country, (c) travelling within any country. (a) where the arranging or facilitating takes place, or (b) where the travel takes place. (a) any part of the arranging or facilitating takes place in the United Kingdom, or (b) the travel consists of arrival in or entry into, departure from, or travel within, the United Kingdom.”
[41]Before the Modern Slavery Act 2015 was brought in to force, s.59 of the Sexual Offences Act 2003 provided:
“(1) A person commits an offence if he intentionally arranges or facilitates the departure from the United Kingdom of another person (B) and either— (a) he intends to do anything to or in respect of B, after B’s departure but in any part of the world, which if done will involve the commission of a relevant offence, or (b) he believes that another person is likely to do something to or in respect of B, after B’s departure but in any part of the world, which if done will involve the commission of a relevant offence.” (a) he intends to do anything to or in respect of B, after B’s departure but in any part of the world, which if done will involve the commission of a relevant offence, or (b) he believes that another person is likely to do something to or in respect of B, after B’s departure but in any part of the world, which if done will involve the commission of a relevant offence.”
[42]Mr Beraru submits that no allegation is made that he facilitated the travel of any person with a view to the exploitation of that person. However, the relevant issue is whether he was party to a conspiracy to carry out this conduct. As to this: i) The Warrant pleads Mr Beraru supported an OCG established “for the purpose of committing human trafficking offences”. ii) The Further Information alleges that women practising prostitution in the UK “were recruited mainly from Romania”, and that “some of the women” from whom the OCG derived material benefits by acting as pimps “were taken from Romania and brought to the UK”. Having described the purpose of the OCG in this way, it was noted that “certain Defendants” had obtained material benefits through the exploitation of women including Mr Beraru. iii) When specifically asked by the CPS “did Mr Beraru’s actions as a member of the [OCG] take place all in the UK?”, the Further Information provides “there are informative data in the UK according to which Mr Beraru was a trusted person of the leader and that he carried out criminal activities specific to pimping consisting in recruiting young women from Romania whom he forced into practising prostitution for his own material benefit and that of the crime group leader”. I do not accept that this was mere narrative. In the context of the earlier statements about the OCG’s purposes, and as a response to a question about where Mr Beraru’s actions as a member of the OCG took place, I am satisfied that this provides details of the criminal conduct which forms the basis of the Warrant. iv) I accept that if the sole issue was whether Mr Beraru had himself facilitated the trafficking of women from Romania to the UK for the purposes of sexual exploitation, the Warrant and Further Information neither state nor necessarily imply such facts. The reference to “recruiting young women from Romania” is capable of meaning recruiting Romanian women already in the UK, and the Respondent was specifically asked if it was being alleged that Mr Beraru was involved in smuggling people from Romania for the purposes of sexual exploitation, and no answer was given. v) However, the Further Information does allege Mr Beraru’s participation in an OCG which recruited women, inter alia, in Romania for the purpose of sexual exploitation in the UK and in an OCG formed for the purpose of human trafficking.[43]If the extra-territorial requirements of s1A of the Criminal Law Act 1977 sufficiently appear from the Warrant and the Further Information, it is not necessary to consider when s.2 itself has extra-territorial application. As to the latter question: i) An interesting point was raised as to whether the “mirroring” requirement of ss.64(4) and 137(4) of the Act, as discussed in El-Khouri, extends to the references to the defendant’s nationality in ss.2(6) (“a person who is a UK national”) and (7) (“a person who is not a UK national”). The question of whether the “transposition requirement” extends to elements of a crime defined by reference to the alleged perpetrator’s nationality, rather than the geographic location of the conduct, is an interesting one. I note that in Taylor v Public Prosecutors’ Office, Berlin, Germany [2012] EWHC 475 (Admin), it was held that the transposition exercise extended to the nationality element in s.7 of the Sexual Offences Act 1997. ii) So far as s.2(7) is concerned, the geographic requirement, appropriately transposed, is that “any part of arranging or facilitating takes place” in [Romania] or “if the travel consists of arrival in or entry into, departure from or travel within” [Romania]. This requirement would have been satisfied by the Warrant and Further Information. The purpose of the OCG of which Mr Beraru is alleged to be a supporter involved human trafficking of women from Romania to England, including recruitment of women in Romania. While there is no sufficient allegation of Mr Beraru undertaking such actions in Romania, there is a clear allegation that he was a supporter of an OCG with such a purpose, and which did indeed recruit women in Romania for the purpose of sexually exploiting them in Britain, with some of those women being “taken” from Romania.[44]I have dealt with the requirements of s.1A of the Criminal Law Act 1977 above: i) Once again I am satisfied that the Warrant and Further Information fairly read do allege an agreed course of conduct which would at some stage involve an act by one or more of the parties or the happening of an event intended to take place in a country outside Romania (s.1A(2(a)), and that this is not merely an inference which is capable of being drawn but is the inference which should be drawn. The clear impact of the Warrant and Further Information is that Mr Beraru was a member and supporter of an OCG whose purpose was the human trafficking of women, including from Romania to the UK, for the purpose of their sexual exploitation in the UK (i.e. outside Romania). ii) The Warrant and Further Information allege that a party to the agreement did or omitted anything in Romania pursuant to the agreement, namely the recruitment of women there and taking them to the UK for the purpose of sexual exploitation.

Conspiracy to facilitate the use of criminal property

[45]Section 328 of the Proceeds of Crime Act 2002 provides: “(1) A person commits an offence if he enters into or becomes concerned in an arrangement which he knows or suspects facilitates (by whatever means) the acquisition, retention, use or control of criminal property by or on behalf of another person.[…] (3) Nor does a person commit an offence under subsection (1) if—(a) he knows, or believes on reasonable grounds, that the relevant criminal conduct occurred in a particular country or territory outside the United Kingdom, and(b) the relevant criminal conduct— (i) was not, at the time it occurred, unlawful under the criminal law then applying in that country or territory, and (ii) is not of a description prescribed by an order made by the Secretary of State. (4) In subsection (3) “the relevant criminal conduct” is the criminal conduct by reference to which the property concerned is criminal property.” (a) he knows, or believes on reasonable grounds, that the relevant criminal conduct occurred in a particular country or territory outside the United Kingdom, and (b) the relevant criminal conduct— (i) was not, at the time it occurred, unlawful under the criminal law then applying in that country or territory, and (ii) is not of a description prescribed by an order made by the Secretary of State.[46]The Further Information contains information to the effect that the OCG of which Mr Beraru is said to have been a supporter transferred the proceeds of prostitution to bank accounts in the UK and Romania, and laundered those proceeds in Romania. I accept the submission that this discloses conduct which would amount to an offence under s.328 of the Proceeds of Crime Act 2002. The allegation of conspiracy is sufficient to meet the s.67(4) requirement that the equivalent offence is extra-territorial.

Intentionally encouraging or assisting the trafficking of human beings for the purposes of sexual exploitation

[47]The Serious Crime Act 2007 provides as follows: i) Section 44:
“Intentionally encouraging or assisting an offence (1) A person commits an offence if– (a) he does an act capable of encouraging or assisting the commission of an offence; and (b) he intends to encourage or assist its commission. (2) But he is not to be taken to have intended to encourage or assist the commission of an offence merely because such encouragement or assistance was a foreseeable consequence of his act.” (a) he does an act capable of encouraging or assisting the commission of an offence; and (b) he intends to encourage or assist its commission. ii) Section 45: “A person commits an offence if– (a) he does an act capable of encouraging or assisting the commission of an offence; and (b) he believes– (i) that the offence will be committed; and (ii) that his act will encourage or assist its commission.” (i) that the offence will be committed; and (ii) that his act will encourage or assist its commission.” iii) Section 52: “Jurisdiction (1) If a person (D) knows or believes that what he anticipates might take place wholly or partly in England or Wales, he may be guilty of an offence under section 44, 45 no matter where he was at any relevant time. (2) If it is not proved that D knows or believes that what he anticipates might take place wholly or partly in England or Wales, he is not guilty of an offence under section 44, 45 unless paragraphs 1, 2 or 3 of Schedule 4 applies. (3) A reference in this section (and in any of those paragraphs) to what D anticipates is to be read as follows– (a) in relation to an offence under section 44 or 45, it refers to the act which would amount to the commission of the anticipated offence.” (a) in relation to an offence under section 44 or 45, it refers to the act which would amount to the commission of the anticipated offence.”
[48]I did not understand Ms Beatty to suggest that any independent issue arose in relation to this way of putting the case apart from the application of s.52, on the basis that the information provided in the Warrant and Further Information did not indicate that Mr Beraru was accused of assisting conduct taking place partly in Romania. It will be apparent from the proceeding paragraphs that I do not accept this submission.

Intentionally encouraging of assisting the facilitation of the use of criminal property

[49]My finding at [46] above applies here.

The application to amend to advance proposed Grounds 2 and 3

[50]As I have indicated, Mr Beraru seeks to add two additional grounds, and to adduce further evidence in relation to them. That evidence is a statement from Mr Beraru’s Romanian lawyer to the following effect: i) The matter is still at the pre-trial phase, and the Romanian court is currently tasked with verifying the legality of the criminal investigation and the indictment. ii) This procedural stage has been ongoing since 16 June 2023 and is anticipated to last for another six months. iii) Factoring in the possibility for either party to appeal against the Romanian court’s decision on these procedural matters, the substantive trial (if required) is unlikely to commence for another 1 – 2 years. iv) Mr Beraru has participated in the last six hearings via video conference, and has been legally represented at all hearings. v) On 28 November 2024, Mr Beraru applied for the revocation of the national arrest warrant against him. This application was made on the basis that the warrant is no longer necessary, given that he is actively participating in the proceedings and that other defendants charged with more serious offences are not subject to preventative arrest warrants. This application was refused. Mr Beraru appealed against this decision on 10 January 2025, and this appeal was also refused. vi) The Romanian court has, however, lifted some restrictions pertaining to Mr Beraru’s assets.[51]The Respondent has indicated that it does not oppose the court considering that evidence without prejudice to its admissibility, but submits that the grounds are not arguable and the additional evidence is not decisive (applying Fenyvesi v Hungary [2009] EWHC 231 (Admin), [32]). It has not adduced reply evidence.

Ground 2: extradition would be disproportionate

[52]Section 21A of the Extradition Act 2003 provides:
“(2) In deciding whether the extradition would be disproportionate, the judge must take into account the specified matters relating to proportionality (so far as the judge thinks it appropriate to do so); but the judge must not take any other matters into account. (3) These are the specified matters relating to proportionality— (a) the seriousness of the conduct alleged to constitute the extradition offence; (b) the likely penalty that would be imposed if D was found guilty of the extradition offence; (c) the possibility of the relevant foreign authorities taking measures that would be less coercive than the extradition of D.” (a) the seriousness of the conduct alleged to constitute the extradition offence; (b) the likely penalty that would be imposed if D was found guilty of the extradition offence; (c) the possibility of the relevant foreign authorities taking measures that would be less coercive than the extradition of D.”
[53]Mr Beraru accepts that that the offending alleged is serious and that a substantial sentence of imprisonment is likely if he is convicted. The focus of this proposed ground of appeal is whether the availability of less coercive measures render extradition disproportionate. The “less coercive” measure relied upon is allowing Mr Beraru voluntarily to participate remotely.[54]In Mirazewski v Poland [2015] 1 W.L.R. 3929, a Divisional Court (Pitchford LJ and Collins J) considered the approach to be taken to proportionality issues of this kind. At [32], the Court did not accept that “the draftsman created a predetermined rank of importance” but did “accept that in most cases the seriousness of the offence will be determinative of the likely sentence and, for that reason, of proportionality.”[55]As to s.21A(3)(c): i) At [39], the Court noted that “the case of a fugitive with a history of disobeying court orders may require increased weight to be afforded to subsection (3)(c): it would be less likely that the requesting state would take alternative measures to secure the requested person's attendance.” ii) At [40], the Court stated that s.21A(3)(c):
“is concerned with an examination whether less coercive measures of securing the requested person's attendance in the court of the requesting state may be available and appropriate. His attendance may be needed in pre-trial proceedings that could be conducted through a video link, the telephone or mutual legal assistance. The requested person may undertake to attend on issue of a summons or on bail under the Euro Bail scheme (if and when the scheme is in force) or the judge may be satisfied that the requested person will attend voluntarily and that extradition is not required.” iii) At [41], the Court stated that “it would be a reasonable assumption in most cases that the requesting state has, pursuant to its obligation under Article 5 (3) ECHR, already considered the taking of less coercive measures” such that “there is an evidential burden on the requested person to identify less coercive measures that would be appropriate in the circumstances.”
[56]In Vascenkovs v Latvian Judicial Authority [2023] EWHC 2830 (Admin), [10], Swift J held:
“The same principle of mutual recognition requires, so far as this proportionality analysis rests on consideration of domestic practice, 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). A conclusion that extradition would be disproportionate would not necessarily be at odds with the notion of mutual recognition. For example, it might rest on information not available to the requesting authority when it made its decision to issue the warrant. However, the principle of mutual recognition means that a conclusion that extradition is disproportionate in this sense will be an occurrence more rare than common, likely to arise only in unusual circumstances.”
[57]Applying these factors, I am not persuaded that ordering Mr Beraru’s extradition would contravene the s.21A proportionality requirement: i) In this case, Mr Beraru was summoned to attend proceedings in Romania via the police in London, but he failed to cooperate. Consequently, the Respondent had taken steps to secure his attendance, and therefore deal with matters via less coercive measures, without success. That makes it less likely the Respondent would now take less coercive measures to secure Mr Beraru’s attendance. ii) The Respondent then issued the Warrant. It is reasonable to assume that in doing so, the Respondent has already considered and decided against the taking of less coercive measures. That decision is entitled to a margin of appreciation. iii) The Romanian courts have specifically considered whether Mr Beraru’s remote participation in the pre-trial procedures justifies revoking the Warrant and rejected that contention. That decision has been upheld on appeal. In those circumstances, there can be no realistic possibility of the Respondent adopting less coercive measures, and the judicial decisions that maintaining the Warrant is required are entitled to considerable weight. iv) The alleged offending is serious and a substantial sentence of imprisonment is likely on conviction, which are factors which support the proportionality of extradition. I do not accept that those (statutory) factors are effectively to be ignored because the case is in its pre-trial phase and will be for some time.[58]In those circumstances, I propose to give permission to advance Ground 2 and to adduce the additional evidence relied upon in support of it, but to dismiss the Ground 2 appeal.[59]In these circumstances, it is not necessary to decide a further issue relied upon by the Respondent, by reference to the Second Additional Protocol to the European Convention on Mutual Assistance in Criminal Matters (ETS No. 182) (“the Second Additional Protocol”). However, as I heard argument on this point I will address it briefly.[60]Article 9(1) of the Second Additional Protocol permits the judicial authorities of a state (“the requested party”) to request that a witness or expert in the territory of another signatory state (“the requested party”) give evidence in criminal proceedings being conducted in the requesting party by video conference. Article 9(8) allows states “at their discretion” to apply Article 9(1) to “hearings involving video conference involving the accused person or the suspect”. However, Article 9(9) allows contracting states to declare that they will not avail themselves of “the possibility … of applying the provisions of this article to hearings by video conference involving the accused person or the suspect”.[61]Where applicable (i.e. to witnesses or experts, or the accused or a suspect where there is no Article 9(9) derogation), Article 9 provides for various safeguards: i) Article 9(2) allows the requested party to refuse to accede to the request where the video conference would be contrary to fundamental principles of its law. ii) Article 9(3) requires the requesting party to include certain information in its request. iii) Article 9(4) provides for the judicial authority of the requested party to “summon the person concerned to appear in accordance with the forms laid down by law” (i.e. procure attendance by compulsion). iv) Article 9(5) requires a judicial authority of the requested party to be present during the hearing, and be responsible for the identification of the person to give evidence and compliance with any fundamental laws of the requested party. Measures of protection are to be agreed between the competent authorities of the requested and requesting parties. The requested party is obliged to provide an interpreter where necessary and at the request of the requesting party or the person. v) Article 9(6) provides for the judicial authority of the requested party to draw up a formal record.[62]On 2 July 2024, the Foreign Secretary made a declaration in respect of Article 9(8) of the Second Additional Protocol as follows:
“In accordance with Article 9, paragraph 9, of the Second Additional Protocol, the Government of the United Kingdom declares that it will not apply the provisions of this article to hearings by video conference involving the accused person or the suspect, where the hearings are, or form part of, the trial of that person. This position applies irrespective of whether or not the hearings involve oral or written evidence from the accused person or the suspect.”
(emphasis added).[63]This argument raised three issues: i) Whether the UK’s Article 9(9) declaration would prevent the Romanian authorities from seeking an Article 9(8) order for Mr Beraru’s remote participation in pre-trial procedures. ii) Whether the Second Additional Protocol was engaged at all where the Romanian courts had allowed Mr Beraru to participate remotely without seeking Mutual Legal Assistance from the UK courts. iii) Whether the UK’s Article 9(9) stance is otherwise relevant.[64]Mr Beraru’s contention that Article 9(9) is not engaged by pre-trial procedures has considerable force when considering the terms of the UK’s declaration, albeit it might be necessary to know rather more about the nature of the criminal process in Romania before reaching a final view as to whether the hearings “form part of” Mr Beraru’s trial. However, I shall assume in Mr Beraru’s favour that the Article 9(9) declaration would not be engaged by an Article 9(8) request so far as it concerns the pre-trial proceedings.[65]The second and third issues present more obvious difficulties. I was referred to the decision in Zilinskas v ŠIauliai Regional Court [2025] EWHC 1068 (Admin), a case concerned with a conviction arrest warrant in which a criminal trial had taken place in Lithuania, with the defendant participating remotely from the UK, and without any request for Mutual Legal Assistance having been made of the UK (i.e. an informal procedure of the kind Mr Beraru suggests is appropriate in this case).[66]It was common ground that the conduct of the trial on a remote basis was inconsistent with the UK’s Article 9(9) declaration, a concession which Ms Beatty says should not have been made. In that case, the sole ground on which extradition was resisted was that it was said to be an abuse of process given the assumed contravention of Article 9(9). That argument failed.[67]I have very real difficulty with the suggestion that an extradition court should treat an informal arrangement of this kind which involved the accused participating in a criminal trial in another jurisdiction from the UK on a remote basis and without the sanction of the UK authorities as a less coercive measure for s.21A purposes.[68]In Secretary of State for the Home Department v Agbabiaka [2021] UKUT 286 (IAC), the Upper Tribunal observed at [12]:
“There has long been an understanding among Nation States that one State should not seek to exercise the powers of its courts within the territory of another, without having the permission of that other State to do so. Any breach of that understanding by a court or tribunal in the United Kingdom risks damaging this country’s diplomatic relations with other States and is, thus, contrary to the public interest. The potential damage includes harm to the interests of justice since, if a court or tribunal acts in such a way as to damage international relations with another State, this risks permission being refused in subsequent cases, where evidence needs to be taken from within that State.”
[69]To similar effect, in Kadir v R [2013] [2022] EWCA Crim 1784, the Court of Appeal held at [33]:
“In relation to an application for a live link for a witness who is in another country, it is necessary also to bear in mind the principle that one state should not seek to exercise the powers of its courts within the territory of another state without the permission (on an individual or a general basis) of that other state. It cannot be presumed that all foreign governments are willing to allow their nationals, or others within their jurisdiction, to give evidence before a court in England and Wales via a live link.”
[70]Reflecting these sovereignty concerns, states will often agree by treaties to reciprocal provisions on the taking of evidence in one country for use in the court proceedings of another. The (Hague) Convention on the Taking of Evidence Abroad in Civil or Commercial Matters signed on 18 March 1970 is one such treaty, and the Second Additional Protocol is another. While Ms Beatty sought to cast Article 9 of the Second Additional Protocol as involving a series of obligations of the requested Party, to which it committed itself when Article 9 applies, it also contains a number of recognitions of a state’s sovereign interest in the conduct by another state of judicial proceedings on its territory and a state’s desire to protect the interests of those within its borders.[71]Thus Article 9(2) permits a requested party to refuse a request where giving evidenced by video conference is “contrary to fundamental principles of its law.” Article 9(5)(a) and (c) and (7) also reflect the requested Party’s sovereign interests, as does Article 9(9). Article 9, where it applies, contains package of obligations and entitlements, including provisions recognising the sovereign interests of its own state and preserving certain protections for the requested person (Article 9(5)(b), (d) and (e)).[72]For a signatory state to the Second Additional Protocol to seek hear evidence from a witness or expert, or conduct the criminal trial of an accused or suspect, in the territory of another signatory state without complying with the requirements of Article 9 (or engaging its protections) is not consistent with the package of obligations and rights which Article 9 creates. That was the position of the Secretary of State in Zilinskas at set out at [29] of that judgment, which said that the conduct of the trial in that case was “inconsistent with the relevant international treaty obligations” and expressed the view that “the appellant should not have been invited to participate in his trial by video link without the United Kingdom’s central authority”.[73]In those circumstances, I do not believe that an extradition judge could properly hold that the requirements of proportionality under s.21A of the Act were not satisfied because the state seeking extradition could conduct the proceedings on a remote basis in this jurisdiction, even though the UK would never have consented to such a process if asked. The “less coercive” alternative referred to in s.21A must be one which is compatible with UK sovereignty and policy.[74]There is a further difficulty with Mr Beraru’s argument which arises in relation to pre-trial trial processes as well. In this case, there has been no request for Mutual Legal Assistance. Against the background of a Warrant, which the Romanian courts have refused to set aside, and pending Mr Beraru’s appeal here, there has been voluntary and informal participation by Mr Beraru in the proceedings but this has not involved any coercive measure at all. The Article 9(4) means of procuring attendance through the judicial authorities of the requested Party are not available.[75]I am not willing to assume that the Respondent would regard an informal and essentially voluntary process of this kind as a satisfactory and “less coercive” means of ensuring Mr Beraru’s participation in the pre-trial and trial process, nor that it should.

Ground 3: is the continued pursuit of the Warrant an abuse of process?

[76]The Administrative Court (Aitkens LJ and Edis J) in Belbin v France [2015] EWHC 149 (Admin) at [43]-[59] considered the role of abuse of process in extradition proceedings. The following passages from Aikens LJ’s judgment at [44] and [59] are of assistance:
“Whether it is the prosecuting authority’s behaviour or that of another entity that constitutes the Judicial Authority of the requesting state that is being criticised, it will only amount to an abuse of the extradition process if the statutory regime in the EA is being “usurped” (see [97] of Bermingham). It would, for example, be “usurped” by bad faith on the part of the Judicial Authority in the extradition proceedings or a deliberate manipulation of the extradition process. But any issues relating to the internal procedure of the requesting state are outside the implied abuse of process jurisdiction concerning extradition proceedings: see [36] of Symeou. Moreover, as is clear from the decision of this court in Federal Public Prosecutor, Brussels, Belgium v Bartlett [2012] EWHC 2480 (Admin), this “usurpation” of the statutory extradition regime has to result in the extradition being “unfair” and “unjust” to the requested person. In this regard it has also to be shown that, as a result of the “usurpation” of the statutory regime, the requested person will be unfairly prejudiced in his subsequent challenge to extradition in this country or unfairly prejudiced in the proceedings in the requesting country if surrendered there. […] We wish to emphasise that the circumstances in which the court will consider exercising its implied “abuse of process” jurisdiction in extradition cases are very limited. It will not do so if, first, other bars to extradition are available, because it is a residual, implied jurisdiction. Secondly, the court will only exercise the jurisdiction if it is satisfied, on cogent evidence, that the Judicial Authority concerned has acted in such a way as to “usurp” the statutory regime of the EA or its integrity has been impugned. We say “cogent evidence” because, in the context of the European Arrest Warrant, the UK courts will start from the premise, as set out in the Framework Decision of 2002, that there must be mutual trust between Judicial Authorities, although we accept that when the emanation of the Judicial Authority concerned is a prosecuting authority, the UK court is entitled to examine its actions with “rigorous scrutiny”
. Thirdly, the court has to be satisfied that the abuse of process will cause prejudice to the requested person, either in the extradition process in this country or in the requesting state if he is surrendered.”[77]In R (on the application of the Government of the United States of America) v Bow Street Magistrates Court [2006] EWHC 2256 (Admin), [84], guidance was provided by Lord Phillips, CJ on the procedure to be followed when an abuse of process argument is raised:
“The judge should be alert to the possibility of allegations of abuse of process being made by way of delaying tactics. No steps should be taken to investigate an alleged abuse of process unless the judge is satisfied that there is reason to believe that an abuse may have taken place. Where an allegation of abuse of process is made, the first step must be to insist on the conduct alleged to constitute the abuse being identified with particularity. The judge must then consider whether the conduct, if established, is capable of amounting to an abuse of process. If it is, he must next consider whether there are reasonable grounds for believing that such conduct may have occurred. If there are, then the judge should not accede to the request for extradition unless he has satisfied himself that such abuse has not occurred. The common issue in the two sets of appeals before the court relates to how he should do this.”
[78]In this case, I am satisfied that the abuse of process ground is hopeless, and I refuse permission to advance Ground 3. The abuse is said to consist of pursuing the Warrant while allowing Mr Beraru to attend the pre-trial proceedings remotely, which is said to amount to inconsistent behaviour. There is no inconsistency here. The Respondent has throughout actively pursued Mr Beraru’s extradition, but that process has been delayed by Mr Beraru’s appeal. It is certainly not abusive for the Respondent to have sought to make some progress in the case in which other defendants are involved, and afford some means of participation for Mr Beraru, in the meantime. The adoption of this expedient for a period does not render the Warrant unnecessary, as the Romanian courts have already determined.[79]Mr Beraru’s proportionality argument having failed, it is not possible to repackage the argument that Mr Beraru can participate in the trial remotely under an “abuse of process” head.

Conclusions

[80]For these reasons, Mr Beraru’s appeal is dismissed.

Cited in 1 later judgment