Alexandru Maciuca v District Court of Bacau, Romania [2025] EWHC 766 (Admin)

[2025] EWHC 766 (Admin)

Case No AC-2023-LON-002081

IN THE HIGH COURT OF JUSTICE

KING'S BENCH DIVISION

ADMINISTRATIVE COURT

Venue Royal Courts of Justice

Date 8 th April 2025

Strand

London

WC2A 2LL

Before

MR JUSTICE EYRE

Between

ALEXANDRU MACIUCAAppellant

DISTRICT COURT OF BACAU, ROMANIARespondent

Gemma Lindfield (instructed by ITN Solicitors) for Appellant

Laura Herbert (instructed by Crown Prosecution Service (Extradition)) for Respondent

Hearing Hearing date: 16 th January 2025

Approved Judgment

This judgment was handed down remotely at 10.00am on 8 th April 2025 by circulation to the parties or their representatives by e-mail and by release to the National Archives.

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

[1]On 29th June 2023 District Judge Sternberg ordered the Appellant’s extradition to Romania pursuant to a conviction warrant issued by the Respondent on 27th December 2021 and certified on 3rd May 2022. The warrant was issued on the basis of the judgment of 5th February 2021 which became final on 9th March 2021 and by which the Appellant was to serve a sentence of 2 years and 4 months imprisonment (less one day). That sentence was imposed for offences of the theft of a motor vehicle and of driving without a licence.

[2]The Appellant appeals with permission granted by Kerr J on two grounds which give rise to three issues. The Appellant contends that the District Judge erred in respect of section 20 of the Extradition Act 2003 in two respects. First, it is said that the District Judge was wrong to find that the Appellant deliberately absented himself from his trial for the purposes of section 20(3). Next, the Appellant contends that the District Judge should have concluded that if extradited he would not be entitled to a retrial or to an appeal amounting to a retrial and so should have ordered the Appellant’s discharge by reason of section 20(5) and 20(7). Finally, the Appellant says that District Judge erred in his application of section 21 and that he was wrong to conclude that extradition of the Appellant was proportionate.

[3]Much of the background was uncontentious and to the extent that matters were disputed at the hearing below it is not now suggested that the Appellant can go behind the District Judge’s findings of fact.

[4]On 18th July 2016, the victim of the offending left his van, valued at €4,500, unsecured with the key in the ignition. The Appellant was arrested when he was found driving the van later that day. Those actions gave rise to the allegations of theft and of driving without a licence (the latter having been added to the prosecution in September 2016). The Appellant was recorded as having admitted his actions on his arrest.

[5]On 19th July 2016, in the presence of an attorney appointed on his behalf, the Appellant made a statement in which he acknowledged having taken the van and having driven without a licence. In his evidence to the District Judge, the Appellant appears to have said that he repeated that admission in a further statement or statements made in the period up to 20th October 2016. On 19th July 2016, the Romanian prosecutor took the steps which changed the Appellant’s status in relation to the theft offence from that of suspect to that of defendant. At the same time, measures of judicial control against the Appellant were put in place. These lasted for 60 days and included a requirement to attend at court hearings when requiredand to notify the authorities within three days of any change of address. In addition, the Appellant had to report daily at a police station for three months.

[6]The District Judge found that the Appellant was informed three times in July 2016 and twice in October 2016 of his obligation to inform the Romanian authorities of any change of address. The District Judge rejected the Appellant’s evidence that he was unaware of that obligation.

[7]On 13th October 2016, the Appellant was told again of his obligation to notify the authorities of any change of address. At the same time his status in relation to the offence of driving without a licence was changed from that of suspect to defendant.

[8]On 20th October 2016, the Appellant was given notice that the control measures had come to an end. The Appellant had attended for interview on 6th October 2016. As I will explain below, the District Judge rejected as a deliberate fabrication the Appellant’s evidence that he had been told that he was being given a suspended sentence and that, provided that he did not commit further offences, matters were at an end. There was some suggestion in the Appellant’s evidence that he had been told this in July, but the District Judge was clear that the Appellant had not been told this at any stage.

[9]The Appellant travelled to the United Kingdom in October 2016 shortly after he had been interviewed and had learnt that the control measures had come to an end. As the District Judge found he did so knowing that he had the status of defendant in respect of both charges and that the proceedings had moved from the stage of investigation to that of prosecution.

[10]In March 2017, the Appellant met Chloe Wells and they formed a relationship.

[11]The Polish indictment was issued on 10th July 2017 and from 2nd August 2017 the case was awaiting trial in the Bacau District Court.

[12]Also in August 2017, the Appellant was arrested in France. He was convicted of having facilitated unlawful immigration. He received a suspended sentence of 8 months imprisonment for that offence and was deported from France to Romania in September 2017.

[13]At the time of his arrest in July 2016, the Appellant had the Romanian identity document with which he had been issued in 2013. Such identity documents have to bear the residential address of the person to whom they are issued. In his evidence, the Appellant initially said that the 2013 identity document bore an address in Nanesti village. He said that although his aunt lived in that village he did not and that he had never lived at the address on his identity documents. The Appellant said that someone else had obtained those documents on his behalf and had given that address. However, in answer to questions from the District Judge, the Appellant said that the 2013 document had borne an address in Timisoara and that it was the identity document which he obtained in 2018 which bore an address in Nanesti. He said that to obtain that document he had attended a public office together with another person and had given that person’s address as the address to be entered on his identification. That was not an address at which the Appellant was living and in his evidence before the District Judge the Appellant said that he could not remember the name of the person who accompanied him and whose address he gave.

[14]The Appellant returned to the United Kingdom in 2018. Since then, he has committed offences of dishonesty in this country. There were offences of theft which took the form of shoplifting and which were committed in 2018. It is not entirely clear from the Appellant’s record whether there were two or three such offences. More recently the Appellant committed related offences of fraud by false representation and of handling stolen goods for which a community order was imposed at Woolwich Crown Court on 26th July 2022.

[15]The Romanian proceedings concluded in the Appellant being convicted in his absence on 5th February 2021 with the judgment becoming final on 9th March 2021.

[16]The warrant was issued on 19th December 2021 and certified by the National Crime Agency on 3rd May 2022. The following aspects of the warrant are of note: i) Box 2 recording that the Appellant did not attend in person at the trial was ticked. ii) Box 3.1a was ticked. However, the space for insertion of the date when the Appellant was summoned was left blank so that the test read as: “The person was summoned in person on … (day/month/year) and thereby informed of the scheduled date and placed of the trial which resulted in the decision and was informed that a decision may be handed down if he or she does not appear for the trial.” iii) Box 3.4 was also ticked.

[17]The Appellant was arrested on 10th June 2022.

[18]The District Judge handed his judgment down on 29th June 2023 following a hearing on 8th June 2023.

[19]The District Judge identified the four issues between the parties as being(a) whether extradition was barred by section 14 of the 2003 Act on the basis that the passage of time meant that extradition would be unjust or oppressive;

(b) whether section 20 of the 2003 Act barred extradition by reason of the Appellant having been convicted in his absence;

Article 3 Convention

rights; and

(d) whether extradition was compatible with the

Article 8 Convention

rights of the Appellant and his family.

[20]Having summarised the terms of the warrant and the history of the underlying offences as they appeared from the Further Information the District Judge then summarised the evidence of the Appellant and of Miss Wells together with that of Dr Mihai Mures. Dr Mures is a Romanian lawyer who had provided an expert report and who then gave oral evidence in which he dealt with prosecution procedures in Romania and with the Appellant’s prospects of obtaining a retrial in that country. The District Judge recorded Dr Mures’s explanation at the end of his cross-examination as being that although the Appellant could apply for a retrial, such an application might not be granted. That was because the fact that the Appellant had known of the investigation and of the criminal proceedings would mean that he might not be regarded as having been tried in absentia. The District Judge had also noted the conclusion of Dr Mures’s report which was that the chances of a request for a retrial being successful in the Appellant’s case were low. The District Judge explained that he accepted Dr Mures’s evidence as to the contents of the Romanian court’s case file but noted that it did not follow from that acceptance that he also accepted Dr Mures’s assessment of the Appellant’s prospects of being able to reopen his conviction.

[21]In setting out his findings of fact the District Judge identified a number of aspects of the Appellant’s evidence which he found unsatisfactory. He referred to instances where that evidence had been contradictory and where the Appellant had accepted that he had given false information to the Romanian authorities. In the course of that analysis, the District Judge referred to the Appellant’s assertion that he had been told that he would receive a suspended sentence. The District Judge found that this assertion “was an invention to seek to explain his reasons for leaving Romania retrospectively”.

[22]Having identified those matters the District

Judge said, at [23(iii)],:

“I accept that Mr. Maciuca was nervous when he gave his evidence and that giving evidence in a language other than his first language was no doubt stressful for him, although he had the assistance of an interpreter which he used from time to time during his evidence. Nonetheless, those matters come nowhere near explaining the inconsistent, contradictory and incredible account which he gave in his evidence. In short, I did not believe his evidence on the critical issues of his knowledge of proceedings in Romania, his reasons for leaving Romania and his beliefs about the state of proceedings against him when he left Romania in 2016 and 2018. Accordingly, I did not find Mr. Maciuca to be a credible witness.”

[23]The District

Judge then concluded [23(iv)] by saying:

“In light of the negative findings I have made regarding Mr. Maciuca’s credibility, I find that Mr. Maciuca presented his evidence in such a way as to place the best light on his actions rather than being a truthful account of his state of mind at the times that he left Romania and immediately before.”

[24]At [23(v)] the District

Judge recorded his conclusion that the Appellant was a fugitive from justice saying:

“I am satisfied so that I am sure that Mr. Maciuca is a fugitive from justice. He was arrested by the police on the day of the offence on 18 July 2016. He was interviewed the next day and admitted the offences. He was made subject to conditions described as judicial control which required him to report to the police for a period of 60 days. He was also made subject to a requirement to notify any change of address lasting longer than three days. After the expiry of the reporting requirement, he was interviewed regarding the offences on 6 October 2016 when his status changed to that of a suspect regarding the offence of driving without a license. He was again reminded 81 of the obligation to notify a change of address lasting longer than three days. On 13 October, he was given the status of defendant in the proceedings for driving without a license and was reminded of his obligation to notify any change of address for a third time. Shortly after that interview he left Romania. He knew when he left, he was subject to ongoing criminal proceedings in which he had the status of a defendant. He was never informed that he was not going to be prosecuted or that the proceedings against him had come to an end, although the reporting requirement did end. By leaving Romania he placed himself beyond the reach of the Romanian justice system. He returned to Romania briefly following his deportation there in 2017. At that time, he renewed his identity documents and provided an address in Nanesti village in Bacau County. He was not living at that address and was not contactable there. By his actions he displayed locational dynamism, in that he left the country, informational deficit, as the Romanian authorities did not know his whereabouts and consequential elusiveness, in that he could not be found, being a number of factors which Fordham J found of assistance in analysing whether a person is a fugitive in Makowska v Poland [2020] EWHC 2371 (Admin) at [28]. I am sure that he deliberately and knowingly placed himself beyond the reach of the Romanian justice system when he left Romania both in 2016 and again in 2018 applying De Zorzi v France [2019] EWHC 2062 (Admin) at [48].”

[25]The District Judge then noted the Appellant’s convictions in the United Kingdom and in France before summarising the evidence of his family life with Miss Wells and their two sons.

[26]The District Judge set out section 14 of the 2003 Act and the approach to be taken to the effect of the passage of time and then summarised the parties’ submissions. He concluded, at [29], that as a fugitive the Appellant could not rely on the passage of time. The District Judge went on to say that in any event section 14 would not preclude extradition. That was because to the extent that there had been delays the Appellant was the author of them and because the hardship which the Appellant’s extradition would cause to Miss Wells and their children was not such as to make the extradition oppressive.

[27]Turning to the consequences of the Appellant having been tried in his absence the District Judge set out the terms of section 20. He then quoted passages from the judgments of Burnett LJ in Cretu v Local Court of Suceava, Romania

[2016] EWHC 353 (Admin)

[2016] 1 WLR 3344

; Ouseley J in Dziel v Poland

[2019] EWHC 351 (Admin)

; and of Chamberlain J in Merticariu v Judecatoria Arad, Romania

[2022] EWHC 1507 (Admin)

[28]The District Judge summarised the parties’ submissions and then set out his “analysis and decision” at [37] and following. There were three parts to his reasoning.

[29]First, at [38], the District

Judge said:

“First, I am sure that the requested person was convicted in his deliberate absence. That flows from the findings of fact I have made at [23] above. He was well aware when he left Romania in 2016 that he had acquired the status of a defendant and that the proceedings against him were ongoing. He was never informed that they were at an end. The position was no different after he left Romania again in 2018 following his deportation there in 2017. Whilst the question of whether a person is deliberately absent from their trial is a separate one to whether they are a fugitive, Mr. Maciuca’s flight leads inexorably to the conclusion that he was deliberately absent, applying Ouseley J’s judgment in Dziel set out above.”

[30]Next, he explained that having concluded that the Appellant was deliberately absent when he was convicted, he did not need to consider whether he was entitled to a retrial and that this was sufficient to dispose of the assessment by Dr Mures that the Romanian courts might refuse an application by the Appellant for a retrial.

[31]At [40] the District Judge said, applying the approach articulated by Chamberlain J in Merticariu, that in any event the requirements of section 20(5) were met notwithstanding the risk that the Romanian courts would refuse an application by the Appellant for a retrial.

[32]The District Judge then addressed the Appellant’s arguments based on his Article 3 rights and there is no challenge to his conclusion in that regard.

[33]At [51] and following the District Judge considered the compatibility of extradition with the Article 8 rights of the Appellant and his family.

[34]Having summarised the parties’ submissions, the District

Judge set out the factors weighing for and against extradition at [55] and [56] saying:

“55. So far as the article 8 balancing exercise is concerned, I find that the following factors weigh in favour of extradition: i. The constant and weighty public interest in extradition that those accused of crimes should be brought to trial and that the UK should honour its international obligations. The public interest in ensuring that extradition arrangements are honoured is very high. ii. Where, as here, the extradition of a fugitive is sought, there is a need for very strong counter balancing factors for extradition to be disproportionate, as elucidated in Celinski at [39] iii. Whilst the offences for which Mr. Maciuca is sought are not of the utmost seriousness, applying Celinski at [13], this Court must have respect for the sentencing policies of EU member states. In this case the Romanian Court decided that the appropriate sentence was one of 2 years and four months imprisonment. iv. The requested person is not a man of good character either in the UK or elsewhere, he was convicted in 2017 for an offence of facilitating unlawful immigration in France and his convictions did not end with the birth of his older son. v. Although there has been some delay in pursuing the matters contained in the warrant in Romania, an explanation for the delay is provided by the further information provided by the Romanian authorities and in the analysis of proceedings in Romania provided by Mr. Mures. 56. The key factors against extradition are as follows: i. Extradition will undoubtedly have an impact on Mr. Maciuca’s partner Ms. Wells. She will lose his financial support. They will be unable to continue their family life whilst he is serving the sentence. ii. Extradition will also have a real and negative impact on the requested person’s two young sons. It is inevitable that they will suffer as a result of the separation caused by the requested person’s return to Romania. iii. There has been some delay in the prosecution of his case and in any efforts to locate and arrest him on the warrant. iv. The requested person may lose his pre-settled status by serving the sentence imposed and may not be able to return to the UK without applying for leave to enter following serving the sentence.” i. The constant and weighty public interest in extradition that those accused of crimes should be brought to trial and that the UK should honour its international obligations. The public interest in ensuring that extradition arrangements are honoured is very high. ii. Where, as here, the extradition of a fugitive is sought, there is a need for very strong counter balancing factors for extradition to be disproportionate, as elucidated in Celinski at [39] iii. Whilst the offences for which Mr. Maciuca is sought are not of the utmost seriousness, applying Celinski at [13], this Court must have respect for the sentencing policies of EU member states. In this case the Romanian Court decided that the appropriate sentence was one of 2 years and four months imprisonment. iv. The requested person is not a man of good character either in the UK or elsewhere, he was convicted in 2017 for an offence of facilitating unlawful immigration in France and his convictions did not end with the birth of his older son. v. Although there has been some delay in pursuing the matters contained in the warrant in Romania, an explanation for the delay is provided by the further information provided by the Romanian authorities and in the analysis of proceedings in Romania provided by Mr. Mures. i. Extradition will undoubtedly have an impact on Mr. Maciuca’s partner Ms. Wells. She will lose his financial support. They will be unable to continue their family life whilst he is serving the sentence. ii. Extradition will also have a real and negative impact on the requested person’s two young sons. It is inevitable that they will suffer as a result of the separation caused by the requested person’s return to Romania. iii. There has been some delay in the prosecution of his case and in any efforts to locate and arrest him on the warrant. iv. The requested person may lose his pre-settled status by serving the sentence imposed and may not be able to return to the UK without applying for leave to enter following serving the sentence.”

[35]Then, at [57] – [61] the District Judge set out the factors which he regarded as being “of particular importance” namely: a) The substantial weight to be given to the public interest in those accused of crimes being brought to trial and to the fulfilment of the United Kingdom’s international obligations. b) The fact that the offences for which extradition was sought were not trivial. In that regard the District Judge accepted that in the United Kingdom an immediate custodial term might not be imposed for these offences on conviction. He added, however, that he was not able to conclude that the interests of the Appellant’s children “could reduce the sentence to a non-custodial or suspended sentence taking into account the interests of a child.” c) His assessment that, although he did not underestimate the impact on Miss Wells and on the Appellant’s children of the loss of his “financial, practical and emotional support”, the interference with the Article 8 rights of the Appellant and of his family was not disproportionate. d) Addressing delay, the District Judge said, at [61]:

“Fourth, whilst it is correct that there has been some delay in this case, I have not found the delay on the part of the Romanian authorities to be culpable. I have found that the requested person was the author of that delay. During the delay in question Mr. Maciuca has relocated to the UK and has enjoyed a relationship with Ms. Wells and has started a family with her. He has also continued his offending behaviour both in this jurisdiction and abroad, most recently resulting in his conviction in the Crown Court as recently as October 2022. Whilst his family life is a relevant and important factor in his favour in the balancing exercise, I do not find that it is sufficient to outweigh the other powerful factors weighing in favour of his extradition to Romania.” e) Finally, the District Judge said that he did not regard the fact that the Appellant would have to apply for leave to re-enter the United Kingdom as “a decisive factor in his favour”

. The District Judge said that if an application for such leave were to be refused that would be the consequence of the operation of the Immigration Rules. He added that although the need to apply for such leave would add to the anxiety caused to the Appellant and Miss Wells as a consequence of his extradition it did not render the interference with their Article 8 rights disproportionate.

[36]The conclusion of that balancing exercise was that the extradition of the Appellant was a proportionate interference in his Article 8 rights and those of his family.

[37]The Appellant advanced a further statement dated 22nd November 2024 from Miss Wells in support of his appeal. The statement principally addressed events since the District Judge’s decision. The Respondent did not object to the statement being before me by way of an update. There was, however, disagreement as to the extent to which its contents were relevant to the issues I have to decide, and I will consider that disagreement further below.

[38]After his arrest the Appellant had been on bail subject to conditions of residence at his home in London and of an electronically monitored curfew. The Appellant was arrested November 2024 for breach of those conditions and has remained in custody since then. The Appellant had breached those conditions by moving with his family to live in Swansea. The Appellant had moved to Swansea in July 2024 without informing the court. He had not sought a variation of the bail conditions either before moving or in the period between the move and his arrest in November 2024.

[39]The move to Swansea had been motivated by difficulties between the Appellant’s family and a neighbour. Miss Wells asserted that the neighbour had engaged in racially motivated harassment of the Appellant and his family. I make it clear that the neighbour in question has not been a party to these proceedings and has had no opportunity to respond to Miss Wells’s allegations. It follows that I am not to be understood to be making any finding as to the truth or otherwise of those allegations. However, I do note that Miss Wells was able to reference her allegations by a number of crime report numbers and it follows that the difficulties had at least been such as to cause Miss Wells to make reports to the police.

[40]It is of note that most but not all of the reports to the police were made before the hearing in June 2023. The difficulties with the neighbour were not mentioned at that hearing. However, these matters are relied on not for the fact of the harassment but because it caused the family to move to Wales. The Appellant’s elder son, now aged six, reacted badly to the move to Wales and the difficulties flowing from this have been compounded by the Appellant’s loss of bail. There have been consequent difficulties in the son’s schooling and well-being. The Appellant contends that the effect on his family of these matters is relevant to the assessment of the proportionality of the interference with his and his family’s Article 8 rights and demonstrates (or he would say further demonstrates) that extradition would be a disproportionate interference with those rights.

[41]The effect of subsections 20(3) and (4) of the 2003 Act is that if a person who was convicted in his absence “deliberately absented himself from his trial” then the court is to turn to consider the issue identified in section 21, namely the compatibility of extradition with the requested person’s Convention rights. If the judge concludes that the requested person did not deliberately absent himself from his trial, then subsection 20(5) requires the judge consider whether the person would be entitled to a retrial or to a review amounting to a retrial. The effect of subsections 20 (6) and (7) is that if the person is so entitled the judge is to turn to the section 21 compatibility exercise but that if the person is not so entitled then discharge must be ordered.

[42]The District Judge handed down his judgment on 29th June 2023. On 6th March 2024, the Supreme Court handed down judgment in Bertino v Public Prosecutor’s Office, Italy

[2024] UKSC 9

[2024] 1 WLR 1483

and in Merticariu v Judecatoria Arad, Romania

[2024] UKSC 10

[2024] 1 WLR 1506

. In each case the other members of the court agreed with the judgment of Lords Stephens and Burnett. Ms Lindfield contended that the decision in Bertino had effected a sea-change in the approach to be taken to the question of whether a person had deliberately absented himself from his trial and that the District Judge’s decision on the application of section 20 could not stand in light of the approach laid down there.

[43]The District Judge is not to be criticised for the fact that he did not articulate his approach in the terms subsequently set out in Bertino. The issue is whether his conclusion that the Appellant deliberately absented himself from his trial for the purposes of section 20(3) was wrong in light of the law as explained in Bertino.

[44]The appellant in Bertino had been convicted in his absence as the consequence of a prosecution commenced in June 2017. He had been neither investigated nor formally questioned in any way before he left Italy and came to the United Kingdom although he had attended at police stations at least twice. On the last of those visits in July 2015, he had signed a document recording that he was under investigation and had given an address in Italy. On leaving Italy in November 2015, the appellant had not informed the police of that move and, accordingly, had not provided an address at which he could be contacted. The prosecution had begun in June 2017 and the appellant had not received the summons requiring him to attend at court. As Lords Stephens and Burnett said, at [8]:

“...There was no personal service of the summons, nor could it be shown that the appellant was unequivocally aware of the place and date of his trial. On the contrary, the information provided by the requesting judicial authority, to which we have referred, confirms that he was unaware of the date and place of trial and, indeed, that he was unaware that a decision had been taken to prosecute him...”

[45]District Judge Ikram at first instance, and Swift J on appeal, had held that the appellant had deliberately absented himself from his trial. The appellant’s argument before Swift J had been that for a person to be found to have deliberately absented himself from his trial it had to be shown that the person had been warned that he could be tried in his absence. Swift J’s rejection of that argument at [24] and [25] of his judgment was set out by Lords Stephens and Burnett at [13] thus:

“24. I do not accept that submission. I do not agree there is any reason in principle to distinguish between a requested person’s knowledge of the date and place of trial and his knowledge that if he does not attend trial, he could be tried in absentia to establish a requirement under article 6 [of the Convention] for actual knowledge of the latter. The material part of article 6 [of the Convention] is the requested person’s right to be present at trial. It is well established this right may well be waived. Waiver may be either express or inferred. For present purposes express waiver can be put to one side. Absent express waiver, in each case the issue will be whether it is appropriate on the facts to infer that the requested person has waived his right to be present at trial. Whether a requested person’s conduct will be taken to amount to a waiver of his right to be present at trial will include consideration of what he could reasonably have foreseen to be the consequences of his conduct. When a requested person such as Mr Bertino, acts to avoid being contacted by the authorities, to prevent them informing him of the date and place of trial, the question is whether it is appropriate to infer from that that he has waived his right to be present at trial. 25. Seen in this way, there is no relevant distinction between knowledge of the date and place set for trial and knowledge that the trial may take place even if the requested person does not attend. If it can be shown that the requested person did know that if he failed to attend, he could be tried in absentia that would go to support a conclusion that he had waived his right to be present at trial. But want of such evidence will not, of itself, prevent an inference of waiver. The question will remain what the requested person ought to have reasonably foreseen to be the consequence of his conduct.”

[46]At [26] Lords Stephens and Burnett endorsed the conclusions which Burnett LJ (as he then was) had articulated thus in Cretu at [34]:

“In my judgment, when read in the light of article 4a section 20 of the 2003 Act, by applying a Pupino conforming interpretation, should be interpreted as follows: (i) “Trial” in section 20(3) of the 2003 Act must be read as meaning “trial which resulted in the decision” in conformity with article 4a(1)(a)(i). That suggests an event with a “scheduled date and place” and is not referring to a general prosecution process, Mitting J was right to foreshadow this in Bicioc’s case. (ii) An accused must be taken to be deliberately absent from his trial if he has been summoned as envisaged by article 4a(1)(a)(i) in a manner which, even though he may have been unaware of the scheduled date and place, does not violate article 6 of the Convention. (iii) An accused who has instructed (“mandated”) a lawyer to represent him in the trial is not, for the purposes of section 20, absent from his trial, however he may have become aware of it. (iv) The question whether an accused is entitled to a retrial or a review amounting to a retrial for the purposes of section 20(5), is to be determined by reference to article 4a(1)(d). (v) Whilst, by virtue of section 206 of the 2003 Act, it remains for the requesting state to satisfy the court conducting the extradition hearing in the United Kingdom to the criminal standard that one (or more) of the four exceptions found in article 4a applies, the burden of proof will be discharged to the requisite standard if the information required by article 4a is set out in the EAW.” (i) “Trial” in section 20(3) of the 2003 Act must be read as meaning “trial which resulted in the decision” in conformity with article 4a(1)(a)(i). That suggests an event with a “scheduled date and place” and is not referring to a general prosecution process, Mitting J was right to foreshadow this in Bicioc’s case. (ii) An accused must be taken to be deliberately absent from his trial if he has been summoned as envisaged by article 4a(1)(a)(i) in a manner which, even though he may have been unaware of the scheduled date and place, does not violate article 6 of the Convention. (iii) An accused who has instructed (“mandated”) a lawyer to represent him in the trial is not, for the purposes of section 20, absent from his trial, however he may have become aware of it. (iv) The question whether an accused is entitled to a retrial or a review amounting to a retrial for the purposes of section 20(5), is to be determined by reference to article 4a(1)(d). (v) Whilst, by virtue of section 206 of the 2003 Act, it remains for the requesting state to satisfy the court conducting the extradition hearing in the United Kingdom to the criminal standard that one (or more) of the four exceptions found in article 4a applies, the burden of proof will be discharged to the requisite standard if the information required by article 4a is set out in the EAW.”

[47]At [45] their lordships explained that the concept of a person deliberately absenting himself from his trial was to be seen as synonymous with that of a waiver of a person’s right to be present at trial pursuant to his Article 6 rights saying: "...The phrase “deliberately absented himself from his trial” should be understood as being synonymous with the concept in Strasbourg jurisprudence that an accused has unequivocally waived his right to be present at the trial. If the circumstances suggest a violation of article 6, the answer to the question in section 20(3) would be “no” and the judge would be required to go on to consider the question in section 20(5) on retrial or appeal in accordance with section 20(8). By contrast, if the circumstances suggest that the trial of the accused in his or her absence did not give rise to a violation of

article 6 of the Convention

, then the person is taken to have absented himself deliberately from the trial. The answer to the question in section 20(3) would be “yes” with the consequence that the judge must proceed pursuant to section 20(4) to consider wider compatibility with the Convention under section 21.”

[48]Lords Stephens and Burnett had preceded that explanation by an analysis of the approach of the European Court of Human Rights and in particular of the cases of Sejdovic and IR. At [33] they had explained that in Sejdovic the applicant “was never arrested or questioned in connection with the offence and was unaware of the criminal proceedings”. Then, at [37] – [39] they summarised those decisions thus:

“37. In Sejdovic the Italian Government relied upon Medenica v Switzerland (Application No 20491/92 ECHR 2001-VI) in support of the proposition that the applicant had lost his entitlement to a new trial because he sought to evade justice and he had known or suspected that he was wanted by the police but had absconded. The court identified the difference between Medenica and Sejdovic: Medenica had been informed in good time of the proceedings and of the date of his trial. Sejdovic had not. The question was whether Sejdovic could be regarded as having sufficient awareness of the prosecution and trial to be able to decide to waive his right to appear at trial, or to evade justice: see paras 97 and 98. 38. The court then referred in general terms to previous cases which had established that “to inform someone of a prosecution brought against him is a legal act of such importance that it must be carried out in accordance with procedural and substantive requirements capable of guaranteeing the effective exercise of the accused’s rights; vague and informal knowledge cannot suffice.”

It continued, at para 99:

“The Court cannot, however, rule out the possibility that certain established facts might provide an unequivocal indication that the accused is aware of the existence of the criminal proceedings against him and of the nature and the cause of the accusation and does not intend to take part in the trial or wishes to escape prosecution. This may be the case, for example, where the accused states publicly or in writing that he does not intend to respond to summonses of which he has become aware through sources other than the authorities, or succeeds in evading an attempted arrest … or when materials are brought to the attention of the authorities which unequivocally show that he is aware of the proceedings pending against him and of the charges he faces.”

This paragraph of its judgment sees the Strasbourg Court, in language that is familiar, carefully avoiding drawing hard lines. Cases are fact specific. It leaves open the possibility of a finding of unequivocal waiver if the facts are strong enough without, for example, the accused having been explicitly being told that the trial could proceed in absence. In Sejdovic, given that the argument for unequivocal waiver was based on no more than the applicant’s absence from his usual address, coupled with an assumption that the evidence against him was strong, the court considered that the applicant did not have sufficient knowledge of the prosecution and charges against him. He did not unequivocally waive his right to appear in court: see paras 100 and 101. 39. The Luxembourg Court too has on occasion had cause to examine the article 6 implications of trials in absence. In IR (2022) C-569/20 (judgment 19 May 2022) it dealt with a reference under articles 8 and 9 of Directive 2016/343 (“the Directive”) which concern the right to be present at trial. The material parts of the Directive and article 4a of the Amended Framework Decision are the same. Para 1 of the judgment confirms that the interpretation applies to the Amended Framework Decision as it does to the Directive in question. The case concerned an accused tried in his absence for tax evasion in Bulgaria. At para 48 the court explained:

“It is only where it is apparent from precise and objective indicia that the person concerned, while having been officially informed that he or she is accused of having committed a criminal offence, and therefore aware that he or she is going to be brought to trial, takes deliberate steps to avoid receiving officially the information regarding the date and place of the trial that the person may, … , be deemed to have been informed of the trial and to have voluntarily and unequivocally foregone exercise of the right to be present at it. The situation of such a person who received sufficient information to know that he or she was going to be brought to trial and, by deliberate acts and with the intention of evading justice, prevented the authorities from informing him or her officially of that trial in due time by means of the document referred to in paragraph 41 of the present judgement is thus covered by Article 8(2) of the directive.”

The document referred to at para 41 is one that refers unequivocally to the date and place fixed for trial and, in the absence of a mandated lawyer, to the consequences of non-appearance. Article 8(2) of the Directive is the analogue of article 4a(1)(a) and (b) of the Amended Framework Decision.” “The Court cannot, however, rule out the possibility that certain established facts might provide an unequivocal indication that the accused is aware of the existence of the criminal proceedings against him and of the nature and the cause of the accusation and does not intend to take part in the trial or wishes to escape prosecution. This may be the case, for example, where the accused states publicly or in writing that he does not intend to respond to summonses of which he has become aware through sources other than the authorities, or succeeds in evading an attempted arrest … or when materials are brought to the attention of the authorities which unequivocally show that he is aware of the proceedings pending against him and of the charges he faces.” “It is only where it is apparent from precise and objective indicia that the person concerned, while having been officially informed that he or she is accused of having committed a criminal offence, and therefore aware that he or she is going to be brought to trial, takes deliberate steps to avoid receiving officially the information regarding the date and place of the trial that the person may, … , be deemed to have been informed of the trial and to have voluntarily and unequivocally foregone exercise of the right to be present at it. The situation of such a person who received sufficient information to know that he or she was going to be brought to trial and, by deliberate acts and with the intention of evading justice, prevented the authorities from informing him or her officially of that trial in due time by means of the document referred to in paragraph 41 of the present judgement is thus covered by Article 8(2) of the directive.”

[49]In the light of that analysis, their lordships found that District Judge Ikram and Swift J had erred in concluding that the appellant had deliberately absented himself from his trial. The factual basis for that finding was set out in these terms at [49] – [51]:

“49. In this case, the appellant was under investigation. He had not been charged and, in fact, had never been arrested or questioned in connection with the alleged offending (with the attendant right to legal assistance) when he provided his details to the judicial police in July 2015. The decision to initiate criminal proceedings was made in June 2017. As the district judge himself recognised in his ruling, in July 2015 a prosecution was no more than a possibility. The appellant was never officially informed that he was being prosecuted nor was he notified of the time and place of his trial. 50. The appellant’s dealings with the police both in Venice and Sicily fell a long way short of being provided by the authorities with an official “accusation”

. He knew that he was suspected of a crime and that it was being investigated. There was no certainty that a prosecution would follow. When the appellant left Italy without giving the judicial police a new address there were no criminal proceedings of which he could have been aware, still less was there a trial from which he was in a position deliberately to absent himself. In those circumstances we conclude that the District Judge and Swift J erred in reaching the conclusion that he had deliberately absented himself from his trial. 51. His conduct was far removed from the sort envisaged by the Strasbourg Court in Sejdovic at para 99 or the Luxembourg Cout in IR at para 48 (see paras 38 and 39 above) which might justify a contrary conclusion. That is sufficient to dispose of this appeal.”

[50]Having commented further on the Strasbourg jurisprudence Lords Stephens and Burnett said, at [54]:

“54. It is apparent from these cases that the standard imposed by the Strasbourg Court is that for a waiver to be unequivocal and effective, knowing and intelligent, ordinarily the accused must be shown to have appreciated the consequences of his or her behaviour. That will usually require the defendant to be warned in one way or another...”

[51]At [55] their lordships explained that a “general manifest lack of diligence which results in ignorance of criminal proceedings” is not of itself sufficient to support a conclusion that a person deliberately absented himself from his trial.

[52]At [56] they said: "56. It follows that the Divisional Court in Zagrean v Romania

[2016] EWHC 2786 (Admin)

put the point too widely at para 81 in saying “a requested person will be taken to have deliberately absented himself from his trial where the fault was his own conduct in leading him to be unaware of the date and time of trial.”

[53]Finally [58] is of note where their lordships said: “58. The certified question on this issue poses a choice in black and white terms: `For a requested person to have deliberately absented himself from trial for the purpose of section 20(3) of the Extradition Act 2003, must the requesting authority prove that he had actual knowledge that he could be convicted and sentenced in absentia?’ The Strasbourg Court has been careful not to present the issue in such stark terms although ordinarily it would be expected that the requesting authority must prove that the requested person had actual knowledge that he could be convicted and sentenced in absentia. As we have already indicted, in Sejdovic at para 99 (see para 38 above), on which Miss Malcolm KC relied, the court was careful to leave open the precise boundaries of behaviour that would support a conclusion that the right to be present at trial had been unequivocally waived. The cases we have cited provide many examples where the Strasbourg Court has decided that a particular indicator does not itself support that conclusion. But behaviour of an extreme enough form might support a finding of unequivocal waiver even if an accused cannot be shown to have had actual knowledge that the trial would proceed in absence. It may be that the key to the question is in the examples given in Sejdovic at para 99. The court recognised the possibility that the facts might provide an unequivocal indication that the accused is aware of the existence of the criminal proceedings against him and of the nature and the cause of the accusation and does not intend to take part in the trial or wishes to escape prosecution. Examples given were where the accused states publicly or in writing an intention not to respond to summonses of which he has become aware; or succeeds in evading an attempted arrest; or when materials are brought to the attention of the authorities which unequivocally show that he is aware of the proceedings pending against him and of the charges he faces. This points towards circumstances which demonstrate that when accused persons put themselves beyond the jurisdiction of the prosecuting and judicial authorities in a knowing and intelligent way with the result that for practical purposes a trial with them present would not be possible, they may be taken to appreciate that a trial in absence is the only option. But such considerations do not arise in this appeal, where the facts are far removed from unequivocal waiver in a knowing and intelligent way.” `For a requested person to have deliberately absented himself from trial for the purpose of section 20(3) of the Extradition Act 2003, must the requesting authority prove that he had actual knowledge that he could be convicted and sentenced in absentia?’

[54]I am satisfied that the effect of the decision in Bertino is that the court has to consider whether the requesting authority has proved to the criminal standard that the requested person deliberately absented himself from his trial. For that to be proved, the court must be satisfied to the same standard that the person had unequivocally waived his right to be present at the trial and had done so in a knowing and intelligent way. The court can be satisfied of that even if the person was not warned of the risk of a trial in his absence and even if the waiver was not express but considerable caution is needed before such a finding can be made.

[55]In approaching that exercise, the court has to be conscious of the fundamental nature of the right to be present at trial (see Bertino at [28]) and for the need for behaviour to be “extreme” (Bertino at [58]) before waiver can be inferred from it. In addition, the court has to be conscious of the distinction between a trial and the general prosecution process (see Cretu at [34(i)]). The question of whether a person’s behaviour is such as to give rise to a finding that there has been a waiver of the right to be present at the trial is necessarily fact-specific and the “precise boundaries” of such behaviour have not been determined (Bertino [58]). It is clear that the mere fact that a person’s conduct means that he was through his own fault or failings unaware of the date and time of a trial is not of itself sufficient to justify a finding of deliberate absence (Bertino [56]). It is, however, also clear that there can be extreme behaviour which does justify the inference of a waiver. In Sejdovic, such behaviour was said to be present when a person who was aware of the charges against him demonstrated that he wished to escape prosecution and “does not intend to take part in the trial”. In IR, it was said to be present when a person took deliberate steps to avoid receiving information about the date and time of a trial “with the intention of evading justice”. In Bertino at [58] these were described as “circumstances which demonstrate that when accused persons put themselves beyond the jurisdiction of the prosecuting and judicial authorities in a knowing and intelligent way with the result that for practical purposes a trial with them present would not be possible, they may be taken to appreciate that a trial in absence is the only option.” The reference there to “for practical purposes” is significant. At one level it could be said that a trial in the absence of a defendant is never the only option because it is always open to a court to decline to proceed in the absence of a defendant. It is clear from those words that a different approach is to be taken and that the court considering whether the defendant was deliberately absent from his trial is to have regard to the practical effect of the behaviour in question in the particular factual context.

[56]For the Appellant, Ms Lindfield emphasised the importance of showing that a person who was said to have deliberately absented himself was aware that there was a risk of the trial continuing in his absence. Ms Lindfield drew attention to the distinction between(a) a person being at risk of being subject to a warrant or summons with the purpose of detaining that person in order to facilitate his trial and

(b) a person being at risk of a trial in his absence. She said that knowledge of the former is different from knowledge of the latter with the latter being required to show deliberate absence. Conduct designed to avoid being remanded in custody is not, Ms Lindfield submitted, without more to be seen as conduct amounting to a waiver of the right to attend one’s trial. She submitted that in this case it had not been shown that the Appellant’s actions were the latter rather than the former.

[57]For the Respondent, Miss Herbert submitted that in Bertino the Supreme Court envisaged that there could be cases in which a person could properly be held to have waived his right to attend trial and so held to have been deliberately absent even though that person had not been warned of the risk that the trial would proceed in his absence. She said that on the facts here the District Judge had been right to conclude that this was such a case.

[58]I am satisfied that Ms Lindfield was right in her submissions that there is a distinction between deliberate absence with a view to evading custody and an unequivocal waiver of a person's right to attend his trial and that the former is not necessarily to be seen as an indication of the latter. However, the consequences of that distinction must not be overstated and a desire to evade custody will often be the motive for conduct which amounts to deliberate absence from a trial. All will depend on the particular conduct seen in the circumstances of the case in question. In the present case, there are a number of matters which combine to establish that the Appellant was deliberately absent from his trial.

[59]As he explained at [38] the District Judge was conscious of the distinction between a person being a fugitive and such a person being deliberately absent from his trial. However, the District Judge’s reliance on the approach set out in Dziel means that the weight which can be given to this point is greatly reduced.

[60]Markedly more significant are the stage which the prosecution had reached at the time when the Appellant left Romania in October 2016 and his awareness of the charges against him. The circumstances of this case are very different from those of Sejdovic and Bertino both in respect of the stage which matters had reached when the requested person last had contact with the prosecuting authorities and of the requested person’s knowledge of the proceedings. Here the proceedings had reached the stage of the Appellant having been formally designated as a defendant in respect of both charges having formerly had the status of suspect. Matters have moved beyond the investigation phase to that of prosecution. As the District Judge found the Appellant was aware that he was no longer just a suspect but the defendant and that the proceedings were continuing with a view to a trial.

[61]It is of note that the Appellant left Romania very shortly after the lifting of the requirement for daily reporting at a police station. The District Judge was entitled to conclude that the explanation which the Appellant gave for his departure was disingenuous. The timing of the Appellant’s departure is a strong indication that he left Romania when he believed that his departure would not be noticed or at least when his absence would not be noticed as promptly as it would have been if he had left while subject to the reporting obligations.

[62]The District Judge’s findings that the Appellant gave a false account of the state of his knowledge in 2016 and in particular that he falsely said that he believed that matters were at an end and that he was subject to a suspended sentence are significant. The giving of an account which was false in those regards (particularly as it included a false positive assertion) is a significant indication that the Appellant gave a false account because he knew that disclosure of his true state of mind at the time of his departure would undermine his resistance to extradition.

[63]It is necessary not to place undue weight on the Appellant’s admission of his guilt in Romania. It is nonetheless relevant to the assessment of his conduct and the nature of his actions. Where a person is unaware of the case against him or where an allegation is vigorously contested the court will be more reluctant to interpret a person’s actions as a waiver of his right to be present at trial. The situation is, however, different where the offending behaviour is admitted. In such circumstances the issue at the trial will in reality be not the person’s guilt or innocence but the appropriate punishment for the uncontested behaviour. In such a case absence can more readily be seen as a deliberate attempt to escape the consequences of the requested person’s actions and, accordingly, as a waiver to his right to attend the trial. Here it is of note that the Appellant’s false explanation of his understanding in October 2016 was that he was subject to a suspended sentence. False though that explanation was, underlying it is an acceptance that the Appellant had committed the offences with which he was charged and that punishment was to be expected.

[64]By itself the Appellant’s return to the United Kingdom in 2018 has only limited weight. It takes on more significance when combined with the fact that the identity document which the Appellant obtained earlier in that year bore an address which was not his and at which he could not be contacted. The District Judge found that the Appellant was aware of his obligation to keep the Romanian authorities informed of his address and that he had been repeatedly reminded of that obligation in the context of the proceedings against him. When those matters are combined, they are a potent indication that the Appellant was deliberately acting with a view to putting himself out of the reach of the Romanian authorities and to evading apprehension while he was in Romania. In that regard it is also of note that the Appellant’s 2013 identity document bore an address at which the Appellant did not live. There is no suggestion that the Appellant informed the Romanian authorities in 2016 that the address on his identity document was false and this provides some limited support for the view that he was deliberately seeking to avoid apprehension.

[65]It is significant that the District Judge heard the Appellant give oral evidence and answer questions in cross-examination. The findings which the District Judge made, and in particular those at [23 (iv) and (v)] and [38], were made with the benefit of having seen and heard the Appellant’s evidence. The behaviour in which the District Judge found that the Appellant had engaged and the intention with which he acted amount to behaviour of the kind characterised in IR as being a waiver of a person’s Article 6 rights and as being action to put himself beyond the reach of Romanian authorities. The Appellant had engaged in that conduct in a knowing and intelligent way with a view to preventing a trial in his presence and with an appreciation that a trial in his absence would follow.

[66]In light of those matters, it cannot be said that the District Judge was wrong to conclude that the Respondent had established to the criminal standard that the Appellant had been deliberately absent from his trial. It follows that the appeal on ground 1(a) is dismissed.

[67]In light of my conclusion that the District Judge was right to find that the Appellant had deliberately waived his right to be present at the trial, this issue does not arise. However, the point has been fully argued before me and I will explain briefly why I have concluded that the District Judge’s alternative finding that the Appellant would (if he had not been deliberately absent) have had a right to a retrial for the purposes of section 20(5) was wrong.

[68]The District Judge had based his approach on the decision of Chamberlain J at first instance in Merticariu. However, the correct approach has now been explained in the Supreme Court decision in that case. As explained there, at [50] – [52], a requested person does not have a right to a retrial if such an entitlement is contingent on the court in the requesting state accepting in due course that the requested person was not deliberately absent from the hearing.

[69]The ticking of box 3.4 in the warrant is normally conclusive. It will only be appropriate to hear evidence and argument as to whether there is in fact a right to a retrial in the requesting state where that box has not been ticked or where there is ambiguity or confusion: see Cretu at [33] – [35]; Bertino at [44]; and Merticariu at [50].

[70]In the circumstances of this case, the ticking of both box 3.1a and box 3.4 and the fact that no date had been inserted in box 3.1a was just sufficient to create ambiguity such as to warrant consideration of whether the Appellant had a right to a retrial. As Ms Lindfield said there was a clear error in relation to box 3.1a which cast doubt on the reliability of that section of the warrant. On such consideration, the evidence of Dr Mures should have led to the conclusion that there was no right to a retrial when the correct test as articulated by the Supreme Court was applied. It follows that if the District Judge had found that the Appellant had not deliberately absented himself from the trial then he should have gone on to find that the requirements of section 20(5) were not met, and that the Appellant was to be discharged pursuant to section 20(7). However, in light of my conclusion that the District Judge was right to find that the Appellant had deliberately absented himself, the point does not arise.

[71]The first question is whether the District Judge’s decision was wrong in light of the material which was before him. I have to address that question by reference to the approach laid down in Polish Judicial Authority v Celinski

[2015] EWHC 1274 (Admin)

[2016] 1 WLR 551

at [18] and following. In short, I have to stand back and consider whether the overall outcome of the decision was wrong.

[72]Ms Lindfield made a number of criticisms of the District Judge’s approach, none of which are persuasive.

[73]The Appellant took issue with the District Judge’s approach to the gravity of the offence. It was said that the District Judge should have approached the matter on the footing that if the offending had occurred in England and Wales, it would have been charged as the offence of taking a vehicle without the owner’s consent and would not have resulted in a custodial sentence. I do not agree that there was any error in the approach which the District Judge took. It is not necessarily the case that if the offence had occurred in this country, it would have been treated as an offence of taking without consent rather than theft. In addition, the District Judge cannot be criticised for saying that although the offending was not of the utmost seriousness it was not trivial: indeed, that characterisation was entirely right. Similarly, the District Judge was right to say that respect had to be accorded to the sentencing policies of the Romanian courts.

[74]In this context it is relevant to note that the District Judge was right to take account of the Appellant’s other offending. The offending in this country and in France was after the offending in Romania and so would not have been relevant to consideration of the sentence which would have been passed on the Romanian offending if it had occurred here (to the very limited extent that such consideration was relevant). It was, nonetheless, highly relevant to the question of the proportionality of the interference with the Article 8 rights of the Appellant and of his family. This was not a case where the Appellant had committed a single offence in July 2016 and had thereafter lived a blameless life. Instead, the Appellant had committed repeated offences of dishonesty in the United Kingdom. Those offences were not of the greatest gravity, but their repetition shows a persistent disregard for the law. It is also of note that the Appellant’s convictions in this country were for offences of dishonesty and that his offending in Romania had also included dishonesty. Moreover, the offending here occurred after the Appellant had received a suspended sentence in France and had returned here following his deportation from France to Romania. The District Judge was fully justified in treating this offending as relevant and would have been entitled to give it more weight than he appears to have done.

[75]Ms Lindfield also criticised the District Judge for not attaching greater weight to the risk that the Appellant might not be allowed back into the United Kingdom to rejoin his family once he had served his sentence in Romania. This is because the Appellant will lose his pre-settled status and will have to apply for leave to re-enter. The District Judge did take account of that risk. He noted the effect which this would have of increasing the concerns of the Appellant and of Miss Wells. He added that the weight of this factor was reduced by the fact that Article 8 considerations could be taken into account when any application for leave to re-enter was being determined. The District Judge said that in those circumstances the need to apply for leave to re-enter could not be a decisive factor against extradition and that it did not render the interference with the Article 8 rights of the Appellant and his family disproportionate. That was an entirely proper approach, and it cannot be said that the District Judge should have given this factor any greater weight than he did and still less that his failure to do so rendered his decision wrong.

[76]Ms Lindfield’s principal argument was that the District Judge’s conclusion on the material before him was wrong. She submitted that as a consequence of that the matter should now be considered afresh taking account of the evidence as a whole including the new material by analogy to the approach taken by Fordham J in Lipski v Poland

[2020] EWHC 1257 (Admin)

[2020] 4 WLR 87

. I do not accept the first limb of that submission. The District Judge conducted the necessary balancing exercise with care. It cannot be said that he overlooked any factor weighing materially against extradition nor that he should have given greater weight to those factors which he did consider. It follows that standing back and looking at the case in the round it cannot be said that he was wrong in light of the circumstances as they were at the time of his decision or in light of the material which had been put before him. What account is to be taken of the further material in the circumstances of this case and in light of that conclusion?

[77]The starting point is for the court to consider the matter without regard to the further material and to consider whether the District Judge was wrong by reference to the material before that judge and to see whether the appeal should be allowed by reference to that material. This was the approach adopted by Dove J in Bicioc v Romania

[2017] EWHC 3391 (Admin)

. As Dove J explained there (see at [24] and [30]) if the court concludes that the lower court was wrong on the basis of the material before it the appeal is to be allowed and the further material “is of no consequence”. That, however, is not the position here given my conclusion that the District Judge’s decision was right on the material before him.

[78]There will be cases where the inadequacy of the material before the lower court means that it is appropriate for the issue of proportionality to be considered afresh on appeal and for such consideration to be based on the material available at the time of the appeal. Thus, in C v Latvia

[2016] EWHC 2211 (Admin)

, it was common ground that the lower court had had so little information about the appellant’s circumstances that the court hearing the appeal needed to make its own assessment afresh (see at [26]). This is not such a case. Here the District Judge heard the oral evidence of the Appellant and of Miss Wells.

[79]Account can be taken of updating evidence where section 25 is invoked and where it is said that the requested person’s physical or mental condition renders extradition unjust or oppressive. As Julian Knowles J explained in Versluis v The Netherlands

[2019] EWHC 764 (Admin)

at [79], it will be appropriate for leave to be given for further evidence in such a case and for the appellate court to decide the section 25 issue in the light of matters as they are at the time of the appeal. Section 25 has not been invoked here and so that approach does not assist the Appellant.

[80]In my judgment the evidence about events since the District Judge’s decision is not properly to be seen as fresh evidence such as to bring section 27(4) into play. In one sense, the further material is fresh evidence because it was not available at the time of the extradition hearing. It was not available because it is evidence about events which had not taken place by the time of that hearing. However, it is to be remembered that my jurisdiction is an appellate one (as emphasised in Celinski at [18] and following). As a matter of general principle post-decision events cannot normally be relevant to the question of whether a decision was wrong. Whether a decision was right or wrong is to be determined in light of the circumstances as they were at the time of the decision not in light of subsequent events.

[81]It is right to note that in Lipski the further evidence was in part about developments since the hearing below. However, the core of the further evidence there was medical evidence about the appellant’s child and that child’s mental health. The evidence about post-hearing events was principally part of the medical evidence and was an aspect of the material on which the medical experts had relied in coming to their conclusion as to the child’s condition. It would have been wholly artificial for those experts to have been expected to prepare a report which had reference only events pre-dating the original decision and to have expressed an opinion on the child’s condition without reference to the full history. The child’s condition had existed at the time of the original hearing and was not a new event even though it may have been aggravated by post-hearing events and even though post-hearing events may have thrown light on its nature. That is very different from the circumstances of this case.

[82]Ms Lindfield relied on the decision of Ouseley J in R (Einikis) v Lithuania

[2014] EWHC 2325 (Admin)

as an illustration of the court taking account of events after the original hearing and relying on those to conclude that extradition would be disproportionate. In that case Ouseley J said, at [15], that if he had regard only to the circumstances as they had been at the date of the hearing before the District Judge he would have agreed that extradition was not a disproportionate interference with the appellant’s Article 8 rights. He went on, however, to take account of the further delay and of the facts that during the period of the delay the appellant had been on an electronically curfew; had obtained work; and had become a father. Having taken account of those matters, he concluded that the balance had changed. However, it is significant that a principal reason for the delay had been the need to await the outcome of other cases addressing the status of the Lithuanian authorities and the prison conditions in that country (see at [10]). That was a particular and exceptional circumstance. It was one over which the appellant had no control and for which he had no responsibility. Ouseley J was not purporting to articulate a general rule that post-hearing events should be taken into account as a matter of course. Two further matters appearing from [15] – 17] are of particular note. The first is that Ouseley J expressed his conclusion in tentative terms emphasising that even when account was taken of the further matters, the case remained finely balanced and that his conclusion could be seen as generous to the appellant. The second was that the judge emphasised that extradition cases turn on their particular facts and that decisions in other cases on the facts are unlikely to be of assistance in determining the outcome in a particular case. In light of those matters, I do not find the decision in Einikis to be of assistance here.

[83]The position, in summary, is that in order to bring section 27(4)(a) into play fresh evidence must normally relate to the circumstances as they were at the date of the first instance hearing. In the absence of some particular and unusual circumstance or the invocation of section 25 evidence of post-hearing events will not assist. Such evidence cannot be used to overturn a decision which was correct at the time it was made, and it cannot be said that such a decision has become wrong as a result of subsequent events. The subsequent events on which the Appellant seeks to rely here are not exceptional and do not assist on this appeal.

[84]I am, moreover, satisfied that even if the further events were to be taken into account and the issue of proportionality were to be reconsidered in the light of them the outcome would be the same. Even on such reconsideration, extradition is not a disproportionate interference with the Appellant’s rights. As Miss Herbert said in her skeleton submissions at [27] the position is not materially altered from that considered by the District Judge:

“the family now live together in Swansea and as a result of the Appellant’s own actions he is now remanded in custody”

. For completeness, I will deal shortly with the further material explaining why it does not change the balance.

[85]The period which the Appellant spent on curfew after the decision of the District Judge cannot alter the position. That period was a consequence of the appeal. A requested person who has delayed the implementation of a decision by his own actions in appealing cannot then pray in aid the consequences of those actions so as to reverse an otherwise correct decision.

[86]The time which the Appellant has spent in custody since November 2024 is wholly the consequence of his own actions in breaching his bail conditions. The Appellant chose to breach those conditions by moving to Swansea. Even accepting that the motivation for the move was the harassment being suffered in London, the position remains that this was a deliberate decision not to comply with the conditions. It is highly significant that not only did the Appellant not seek to vary the conditions before he moved to Swansea but that he made no attempt to seek a variation in the period between July and November 2024.

[87]I note that the separation of the Appellant from his family by reason of his time in custody has heightened the difficulties which Miss Wells has in coping with their children and has also heightened their son’s reaction to the move to Swansea. Those matters are the unfortunate working out of the consequences of the Appellant’s offending and his consequent extradition. Those consequences can now be seen but they are consequences which the District Judge anticipated and which he took into account in general terms when undertaking the balancing exercise. It cannot be said that the consequences now being suffered are materially different from those to which the District Judge had regard or are of such a degree that the District Judge’s conclusion can be regarded as having been wrong.

[88]In relation to the harassment suffered by the Appellant’s family, I have considerable reservation as to whether the consequences of an unlawful act by a third party can properly be regarded as relevant to the proportionality or otherwise of extradition. However, even if the resulting distress and the need for a change of home are to be taken into account, that can only be as matters compounding the effect on the Appellant’s family of his absence as a result of the extradition. Seen in that light they are not matters of sufficient force to alter the balance or to make extradition disproportionate.

[89]It follows that both grounds of appeal fail, and the appeal is dismissed.