Bogdan Ovidiu Cristian Dimin v Alba Iulia Court of Law, Romania [2025] EWHC 768 (Admin)

[2025] EWHC 768 (Admin)Case No AC-2022-LON-002909
IN THE HIGH COURT OF JUSTICE
KING'S BENCH DIVISION
ADMINISTRATIVE COURT
Venue Royal Courts of Justice, Strand, London, WC2A 2LLDate 02 April 2025
Before
THE HONOURABLE MRS JUSTICE HEATHER WILLIAMS DBE
Between
BOGDAN OVIDIU CRISTIAN DIMINAppellantALBA IULIA COURT OF LAW, ROMANIARespondent
Matei Clej (instructed by AM International Solicitors) for AppellantLucia Brieskova (instructed by CPS Extradition Unit) for RespondentHearing Hearing Date: 12 March 2025
Approved JudgmentThis judgment was handed down remotely at 10.30am on 2 April 2025 by circulation to the parties or their representatives by e-mail and by release to the National Archives..............................

Introduction

[1]This is an appeal pursuant to section 26(4) of the Extradition Act 2003 (“EA 2003”) brought by the Appellant, Mr Dimin, against the judgment of District Judge Sternberg (“the DJ”), given on 17 October 2022, ordering his extradition to Romania.[2]His extradition was ordered in respect of a European Arrest Warrant (“EAW”) issued by the Alba Iulia Court of Law, Romania on 29 July 2019 and certified by the National Crime Agency (“NCA”) on 7 November 2021. As I detail below, the EAW is a conviction warrant relating to two offences of theft. A sentence of 16 months imprisonment was imposed, all of which remains to be served.[3]In the proceedings below, the only issues raised were Articles 3 and 8 of the European Convention on Human Rights (“ECHR”). The Appellant applied for permission to appeal on two grounds. Firstly, that had it been considered at the hearing below, the DJ could not have been satisfied that Mr Dimin had “deliberately absented” himself from his trial, within the meaning of section 20(3) EA 2023; and could not have been satisfied that he had a right to a retrial complying with section 20(5). No objection is taken to the section 20 issues being raised for the first time on appeal. The second ground is that the DJ erred in concluding that extradition did not amount to a disproportionate interference with rights guaranteed by Article 8 ECHR. Permission to appeal was granted by Andrew Baker J on 10 March 2023.[4]During the course of the appeal hearing, Mr Clej made an oral application to add a further ground of appeal, namely that it was not open to the DJ to make certain findings of fact, given that the Appellant had not been cross-examined on his account. I consider whether to grant permission to rely on this ground at paras 91 - 94 below.[5]As I will come on to explain, the Appellant has filed application notices seeking to rely on fresh evidence for the purposes of this appeal comprising his two proofs of evidence and also two witness statements from his partner, Juliana Codescu. Consideration of those applications was adjourned to the substantive appeal hearing. The Appellant has been given permission to rely upon fresh evidence from Associate Professor Norel Neagu, from whom I heard oral evidence. Procedural chronology of the extradition proceedings and the appeal[6]On 21 June 2022, the Appellant was arrested at the Romanian Consulate. He was produced for the initial hearing at Westminster Magistrates’ Court (“WMC”) on the same date. The Appellant declined to consent to extradition and the proceedings were formally opened and adjourned. The Appellant was granted conditional bail, with conditions including an electronically monitored curfew between the hours of midnight and 6:00am. Subsequently, the curfew period was reduced to end at 4:00am.[7]The extradition hearing took place on 17 October 2022. At that stage, the Appellant was unrepresented. He gave evidence and an email from his partner, Ms Codescu, was provided to the Court. The DJ gave judgment the same day and extradition was ordered pursuant to section 21(3) EA 2003.[8]The appeal was lodged with this Court on 20 October 2022 and Perfected Grounds of Appeal (“PGA”) were filed on 4 November 2022. An extension of time for doing so was granted by Andrew Baker J on 10 March 2023 when he granted permission to appeal. Andrew Baker J also ordered that any application to adduce fresh evidence in support of the Article 8 ground was to be filed and served by 31 March 2023. An application to adduce further evidence, namely a proof of evidence from the Appellant (simply dated “2022”) and a witness statement from Ms Codescu (also just dated “2022”) was made on that date. The Respondent filed a response, objecting to the new evidence. By order of 31 January 2024, Hill J directed that this this application be dealt with at the appeal hearing. Hill J also gave prior authority for expert evidence to be obtained from Professor Neagu; and she provided that the appeal should be listed on the first available date after 15 March 2024.[9]The expert report from Professor Neagu was filed on 7 March 2024. In response, the Respondent indicated that it wanted the Professor to give evidence at the appeal hearing, if his report was to be admitted. On 10 May 2024, the Appellant applied for Professor Neagu to give evidence via CVP at the hearing which had now been listed for 11 July 2024. The Appellant’s solicitors also submitted a form for Mutual Legal Assistance (“MLA”) (without an accompanying explanation), as, at that stage, the Appellant’s legal team believed that the consent of the Romanian authorities was required for the Professor to give evidence from Romania.[10]By order of 5 July 2024, I refused the application for Professor Neagu to give evidence via CVP. I did so because at that stage there was no proper basis for him to give evidence, remotely or otherwise, at the hearing. The Appellant’s skeleton argument for the appeal hearing indicated a substantial expansion of the grounds of appeal, in reliance upon the Professor’s report, but no application had been made to amend the PGA; and, in addition, no application had been made to rely upon Professor Neagu’s report by way of fresh evidence. I also noted in my order that insufficient information had been provided in relation to the MLA request.[11]The Appellant then applied to amend the grounds of appeal, to rely upon the Professor’s report and to rely upon a further 2024 proof of evidence and a 2024 witness statement from his partner. The Respondent applied to rely upon Further Information dated 2 July 2024. By order of 9 July 2024, I granted these various applications, save that I directed that the application to rely upon the 2024 addendum proof and the 2024 witness statement should be considered at the substantive hearing. I was also persuaded to adjourn the hearing listed for 11 July 2024, primarily to give the Appellant further time to establish whether Professor Neagu was permitted to give evidence from Romania or could attend the hearing in person.[12]The appeal hearing was re-listed for 12 December 2024 and the Appellant submitted a further MLA form and application for Professor Neagu to give evidence via CVP at this hearing. By order of 11 December 2024, Choudhury J reluctantly adjourned the hearing, given that the Appellant’s position at that stage remained that Professor Neagu was unable to give evidence from Romania until an authorisation had been granted by Romania and that had yet to be resolved. In his accompanying reasons, Choudhury J pointed out that the Appellant should have made clear to the Administrative Court Office what was to be done in respect of the MLA form. There was then some further communications between the Court and the Appellant regarding the MLA form, in terms of what was required. The MLA request was considered by Collins Rice J on 13 February 2025 and she identified further information that the Appellant should provide. The additional material was received by the Court on 18 February 2025. However, before it could be placed before a Judge, the Appellant’s solicitors emailed the Court on 4 March 2025, now indicating that the consent of the Romanian authorities was not in fact needed, given that their assistance was not required in relation to the taking of the Professor’s evidence. Supporting documentation from WMC was provided. In light of this, by order of 10 March 2025, I gave permission for Professor Neagu to give oral evidence via CVP at the 12 March 2025 appeal hearing.

The application for a stay

[13]The Article 8 ground of appeal raises a number of respects in which it is said that the DJ’s decision was wrong, including the prospect of early release if the Appellant is extradited to Romania. No application was made in advance of the hearing for the appeal to be stayed, pending the Supreme Court handing down judgment in the appeal from Swift J’s judgment in Andrysiewicz v Circuit Court in Lodz, Poland [2024] EWHC 1399 (Admin) (paras 85 – 86 below). I checked that this was the position during the course of Mr Clej’s oral submissions on the Article 8 ground. He confirmed that it was, indicating that he was content to proceed on the basis of Swift J’s analysis. However, at the end of his reply to Ms Brieskova’s submissions, Mr Clej indicated for the first time that he did wish to seek a stay until the Supreme Court had given judgment. After hearing submissions on this point and taking time to reflect, I refused the stay application in an oral judgment given later that day. My reasons for doing so appear in that judgment; in short, the issue was unlikely to prove decisive in this appeal and it was not in the interests of justice to grant the stay.

The extradition request

[14]The two theft offences for which the Appellant’s extradition was ordered are:(i) on 23 July 2016, the Appellant stole clippers from a shop in Alba Iulia to the value of 179.9 Romanian Lei; and(ii) on the night of 8 – 9 August 2016, he stole 2,800 Lei from a car parked on a street in Alba Iulia. He was tried for these offences in his absence and was convicted on 23 May 2019 and sentenced to 16 months imprisonment. The judgment became final on 19 June 2019 as he did not appeal.[15]The EAW indicated at Section D that the Appellant was not present at the trial. As regards the alternatives then set out, the Romanian authorities did not tick the option at Box3.1 (that the “Requested person was personally summonsed in written for trial meeting date and consequently was informed about the date and place settled for his trial pronouncing his sentence, and was informed about the fact of pronouncing a sentence even in absence”); nor the option at Box3.2 (“Requested person was not summonsed personally, but effectively received an official information regard the date and place settled for trial pronouncing sentence, in a way that un-doubtfully…defendant had knowledge about his trial…”). Box 3.4, which was ticked, stated:
“surrender person did not receive sentence personally, but: • this sentence shall be immediately hand over personally after surrender; and • in the moment of sentence handing over, he surrender person shall be properly informed about the right of requesting re-judging, or any other attacking way, a procedure done in his presence, which allow to re-examine the facts, including showing new evidences, a procedure intended for crashing the initial court decision; and • surrender person shall be informed about the time of requesting a re-judging the trial, or promoting a remedial action, which is 1 month.”
[16]The first Request for Further Information (“RFFI”) asked five questions:
“1. Is it correct that Mr Dimin will have a full right of retrial upon surrender? 2. How was Mr Dimin made aware of the trial, and its date and location? 3. Was Mr Dimin under any restriction not to leave Romania? 4. Was Mr Dimin under any obligation to notify the authorities of his whereabouts or change of address? 5. What efforts were made to locate Mr Dimin after the trial?”
[17]The answers were provided in a letter dated 2 August 2022, as follows:
“1. When the decision is handed down, the person will be expressly informed about the right to request a retrial of the case, or to file an appeal, at which trial he has the right to attend. The two rights allow the proposal of new evidence, and assume that the factual situation of the case will be re-examined, with the possibility of annulment of the initial decision. 2. During the trial of the criminal case…the convicted Dimin Bogdan Ovidiu Cristian was summonsed for each trial session, to his home address located in the city of Mugir [and the address was then given]. 3. In the case of the convicted Dimin Bogdan Ovidiu Cristian, the obligation not to leave the territory of Romania was not imposed. 4. On the occasion of the hearing of the convicted Dimin Bogdan Ovidiu Cristian, during the criminal prosecution, respectively on 19.08.2016, it was pointed out to him that he has the obligation to appear at all the courts of the judicial bodies calling, but also the obligation to communicate, in writing, within 3 days, any change of address, drawing attention to the fact that, in case of non-fulfilment of this obligation, the subpoenas and any other documents communicated to the first address shall remain valid accordingly. 5. On the date of the final judgment, namely the date of 06/09/2019, was issued the warrant for serving the prison sentence…and the order prohibiting leaving the country. On 24.06.2019 at the level of General Inspectorate of the Border Police, regarding the convicted person, Dimin Bogdan Ovidiu Cristian, was entered into the Border Police information system, a signal for the non-permitting of the exit valid for 3 years. Also, on 29.07.2019 the request for search at large was issued.”
[18]The second RFFI asked two questions:
“1. Regarding paragraph 4 of your letter of 22 August 2022, was Bogdan Ovidiu Cristian DIMIN warned that he could be convicted and sentenced in his absence? 2. Is Bogdan Ovidiu Cristian DIMIN’s entitlement to a retrial contingent on the court making a factual finding that he was not deliberately absent from his trial?”
[19]The answers, provided on 2 July 2024, stated:
“1. Yes, he was made aware of the consequences of his failure to appear before the judicial bodies upon their summons, namely his trial in absentia. 2. The retrial of the case can be ordered under the conditions of art. 466 Criminal Procedure Code if the court finds the trial of the case took place in the absence of the defendant, who was justifiably absent from the trial or was not legally summonsed to the trial.”
[20]The document then set out a translated version of the material parts of article 466 of the Criminal Procedure Code. I return to these provisions at para 39 below. The DJ’s judgment[21]The DJ dealt with the Article 3 issue briefly, since no positive case had been pursued in relation to this at the hearing. He was satisfied by the prison assurances provided by the Romanian authorities.[22]The DJ then turned to what was now the “sole issue” in dispute before him, namely whether extradition was compatible with the Article 8 rights of the Appellant and his family.[23]The DJ summarised the Appellant’s oral evidence at paras 12 – 13. The Appellant confirmed an earlier email he had sent to the Court, indicating that he had come to the United Kingdom for a better life and he no longer had any family in Romania. He went on to say in his oral evidence that he had obtained employment here and had worked steadily in a number of jobs, he had learnt the language and had made a fresh start. He said he had come to the UK in 2016 or 2017, but could not recall precisely, “I knew I had done what I had done, the police told me that the worst case scenario was that I would get a fine”. The Appellant said that he never went to court in Romania. He was interviewed by police and had signed a document. He denied knowing of the obligation to notify any change of address. He said that no-one had told him that the case was over. He had left Romania and had never gone back. No-one lives at the address he had given to the Romanian authorities, so he did not know if documents had been sent there. He said, “I knew I had been arrested and questioned. The case had not finished”. He said that he had been with his partner for seven years. They were both in good health and did not have children. His partner had pre-settled status and he had an outstanding application for pre-settled status. He did not know if his partner would stay here if he had to go back to Romania, it would be difficult for her, as she did agency work and might have to change her work or where she lived if he was surrendered.[24]The Appellant was not cross-examined by Mr Cockroft, who was representing the Respondent at that stage.[25]At para 15, the DJ referred to an account from the Appellant’s partner that had been provided in an email. Ms Codescu explained that it would be difficult for her to continue to pay for the house in which she and the Appellant lived if Mr Dimin was no longer contributing to the rent from his earnings. Currently, she also provided financial assistance to her mother in Romania. The DJ said he could only give limited weight to this account as it was not in a witness statement and Ms Codescu had not given live evidence.[26]The DJ set out his findings of fact at para 16 of his decision, which included the following:
“ii. Mr Dimin was informed by the police that he was subject to an obligation to notify any change of his address lasting longer than three days on 19 August 2016 he was also informed that if he felt complied with this obligation summonses and subpoenas sent to him would be considered served. He was not present at the hearing when judgment [w]as given in his case on 6 September 2019 and the Romanian Court issued a warrant for his arrest that day. iii. I am sure that Mr Dimin is a fugitive from Romanian justice. He knew of the proceedings against him. He left Romania following his police interview in August 2016 and failed to comply with the obligation on him to provide details of his change of address within three days. Whilst he was not subject to any restriction prohibiting him for leaving Romania, he took no steps to inform the main authorities of his whereabouts in the UK after he left. He may have believed that the case against him would not result in a sentence more serious than a fine, but he was never informed that proceedings against him were at an end and he left Romania in the knowledge that the proceedings had not concluded. iv. To the extent that there is a difference between the Romanian authority’s and Mr Dimin’s accounts regarding his knowledge of proceedings and conditions and restrictions imposed on him prior to his departure from Romania, I prefer the evidence of the Romanian authorities. That material is based on documentary records available to the Romanian Courts. By contrast, Mr Dimin’s account is based on his recollections, unsupported by any documentary evidence and, inevitably motivated by his desire to avoid his extradition. v. It does not appear that the Romanian authorities had any information regarding Mr Dimin’s whereabouts. They issued the warrant seeking his return a month after the sentence became final. vi. Mr Dimin has no convictions or cautions against him in this jurisdiction. However, he is not a man of good character elsewhere. On 19 September 2012, he was convicted in Spain of theft and was sentenced to four months imprisonment which was suspended for two years. On 27 November 2012, he was convicted in Spain of driving without a licence and was sentence[d] to 40 days community service. On 16 January 2013, he was convicted again of driving without a licence in Spain and was sentenced to a fine. vii. Mr Dimin has lived and worked openly in the UK since he relocated here in 2018. He has held a variety of different jobs including in recycling, working in a chocolate factory and he now works in civil engineering. viii. Mr Dimin has formed a close relationship with Ms Codescu. They do not have any children. They are both in good health…”
[27]It seems likely that “felt complied” in para 16 (ii) is a typographical or transcription error for “failed to comply”.[28]Turning to the Article 8 issue, the DJ referred briefly to the leading authorities (paras 78 - 80 below) and then undertook the conventional balancing exercise. He identified the following factors as weighing in favour of extradition:• The constant and weighty public interest in the United Kingdom honouring its international obligations and in ensuring that extradition arrangements are honoured;• As the Appellant was a fugitive, very strong counter-balancing factors were required before extradition could be disproportionate; and it was likely that the public interest in extradition would outweigh the Article 8 rights of the family unless the consequences of the interference with family life would be exceptionally severe;• The offences for which the Appellant was sought were not trivial. They comprised two offences of theft committed within weeks of each other. The value of the cash stolen on the second occasion exceeded £2,000;• The 16 months sentence imposed in Romania was not insubstantial;• To the extent that there had been delay in pursuing the matter in Romania, the Appellant was the author of the delay following his flight from Romania;• Both the Appellant and his partner were in good health and they did not have any children together.[29]The DJ then identified the following factors as weighing against extradition:• The Appellant was sought for offences which, although not trivial, were not of the utmost seriousness;• Extradition would undoubtedly have an impact on the Appellant’s partner. She would lose his financial and emotional support and may have to change her job or accommodation in that event;• The Appellant had led an open and honest life in the United Kingdom since relocating here;• There had been a delay in efforts to locate him and arrest him on the warrant and there was no explanation for the delay in certifying the warrant from the NCA;• The Appellant might face obstacles in returning to the United Kingdom because of his immigration status.[30]In the analysis that followed, the DJ said that he accorded substantial weight to the public interest in the enforcement of sentences imposed in friendly jurisdictions and in the United Kingdom’s fulfilment of its international obligations and that it should not become a safe haven for fugitives. He said that whilst the circumstances did not constitute the very strong counterbalancing-factors that are required in the case of a fugitive, he would have reached the same conclusion even if he had not been sure that the Appellant was a fugitive. He also noted that the offending was “of some degree of seriousness”, as reflected by the 16 months sentence. As regards hardship and the delay that had occurred, the DJ said:
“23.…it is correct that Mr Dimin’s extradition will cause hardship and distress, in particular to his partner. As I have found above, she will lose his financial and emotional support. However, she is in good health and is working and provides financial support to her mother. I do not underestimate the impact on her and on the requested person in being separate from her, but in my judgment that does not render the interference in his and his partner’s article 8 ECHR rights disproportionate in this case. Although there will be hardship caused to the requested person and his partner, I do not find that the consequences of extradition will be particularly severe. 24. …whilst it is correct that there has been delay in this case. I have not found the delay on the part of the Romanian authorities to be culpable. During the delay in question, Mr Dimin has relocated to the UK and lived and worked and has enjoyed a relationship with Ms Codescu. However, as I have found, he is a fugitive from Romanian justice and the private and family life he has established in this jurisdiction was built on a false sense of security. I do not find his family and private life in the UK, established on shaky foundations, is sufficient to outweigh the other powerful factors weighing in favour of his extradition to Romania. There was delay by the NCA in certifying the warrant, but I accept that the NCA were not required to consider the ‘byways and alleyways of British officialdom’ in searching for Mr Dimin as confirmed by the Divisional Court in RT v Poland [2019] EWHC 1978 (Admin) Burnett LJ at [62].”
[31]Finally, the DJ considered the Brexit uncertainty aspect, accepting that there would be additional uncertainty caused to the Appellant as to whether he would be able to return to the United Kingdom after serving his sentence. However, although giving weight to this factor, he did not find that it was dispositive in outweighing the factors in favour of extradition, either on its own, or in combination with the other relevant factors that he had discussed.

Further evidence from the Appellant and his partner

[32]Much of the Appellant’s 2022 proof comprises material that was before the DJ. In addition, he says that he was born on 30 September 1993 and grew up in Romania. He was very young when he committed the two offences and he had to leave Romania because he had no job and no prospect of finding work there. He said that when he was interviewed by police he gave them his phone number, but he was never contacted. Further that his aunt lived for a while in his address in Romania and she had told him that no court summons came for him in his name during that period. The Appellant says that he travelled to Spain in February 2017, where he was detained for an offence and required to serve a three month prison sentence. He says that he remained in Spain between 2017 and March 2019. The Appellant said that he had one problem with the law in the United Kingdom, when he was stopped for driving without a licence in 2019, for which he received a fine and his car was confiscated.[33]Ms Codescu’s 2022 statement also contains material that was before the DJ. In addition, she describes growing up in Romania as part of a large family. She also describes how she met the Appellant in 2016 and the strength of their relationship. In 2019, she went back to Romania for about three months because her father was very ill with cancer. Since returning to the United Kingdom in July 2019, she had worked in a flower factory, in the kitchen at Amazon and now at Hotel Chocolat sending orders to customers. She says that she would be lost if the Appellant was extradited to Romania. In addition to losing his emotional support, it would be very hard to support herself financially in the United Kingdom and, if he was extradited, she thought that she would also have to return to Romania.[34]In the Appellant’s July 2024 proof, he says that his partner gave birth to their son on 15 September 2023 and that he is now the sole breadwinner as his partner has to take care of the baby. He currently works as a construction labourer, as his bail conditions meant that he could not retain his previous employment. He explains that the curfew and electronic tag prevented him from being present at his son’s birth, restrict his employment options and prevent him from going on vacation. He emphasises that he has complied with his bail conditions at all times.[35]In her July 2024 statement, Ms Codescu confirms the birth of her son. She describes how sad she was that the Appellant could not be with her at the hospital when she nearly miscarried at 27 weeks, nor present for the birth itself. She was very upset that he cannot be registered as the father on the birth certificate. She says that she is more terrified than ever of her partner being extradited to Romania; she has no-one to assist her and she does not know how she would be able to cope.

Professor Neagu’s evidence

[36]I will describe Professor Neagu’s qualifications and experience relatively briefly, as the Respondent accepts that he is an appropriate expert on the topics that he addresses. He has been a lecturer in criminal law for many years and he was awarded a PhD for his thesis “Protecting the Financial Interests of the European Union through Criminal Law”. Since 2016, he has worked as an Associate Professor within the Criminal Law Department of the Romanian-American University of Bucharest. He has also worked as lawyer for a Romanian law firm since 2011 and has rights to appear before all of the courts in Romania, including the Constitutional Court and the High Court of Cassation and Justice. His report is dated 22 February 2024.

Retrial rights

[37]Professor Neagu was asked to address five questions in relation to retrial rights, namely: i) If the Appellant is extradited, is his right to a retrial described in Box 3.4 of the EAW automatic or does the Court retain a discretion to refuse to grant the right? ii) If the court retains a discretion to refuse to grant the right to a retrial, which criteria are to be taken into account? iii) Will the grant of a retrial be contingent on a finding that the Appellant was not deliberately absent from trial? iv) Based on the information provided, what is the likelihood of the Appellant being granted a right to a retrial? v) In any consequential retrial so granted, will the Appellant be entitled to free legal assistance from a lawyer? Is the entitlement compliant with Directive (EU) 2016/1919?[38]In his report, Professor Neagu opined that the right to a retrial described at Box 3.4 of the EAW was not an automatic right, rather it depended upon the Court’s assessment. He explained that there were two potential routes to securing a retrial, which he termed an “ordinary appeal” pursuant to Articles 410 and 411 of the Criminal Procedure Code and the “extraordinary remedy” pursuant to Articles 466 and 469 of the Code. I will focus on the latter, firstly because this is the route relied upon by the Romanian authorities in answering the second RFFI (para 19 above); and secondly because the evidence from Professor Neagu clearly indicates that the ordinary appeal route does not involve a section 20(5) compliant right to a retrial, as (amongst other criteria) the Court has to be satisfied that the appeal was not brought within the primary time limit because “the delay was determined by a well-grounded cause of hindrance”, a concept that plainly entails an evaluative assessment.[39]Slightly different translations of the material parts of Article 466 appear in the second Further Information and in Professor Neagu’s report. However, for present purposes, I cannot see any material difference between them. I will set out the relevant parts of the version of Article 466 that is included in the Professor’s report - along with Article 469 - as this is the text that his evidence was directed to. “Art. 466 CRIMINAL PROCEDURE CODE Reopening criminal proceedings in case of an in absentia trial of the convicted person(1) The person with a final conviction, who was tried in absentia, may apply for the criminal proceedings to be reopened no later than one month since the day when informed, through any official notification, that criminal proceedings took place in court against them.(2) The following shall be deemed as tried in absentia: the convicted person who was not summoned to appear in court and had not been informed thereof in any other official manner respectively, the person who even though aware of criminal proceedings in court, was lawfully absent from the trial of the case and unable to inform the court thereupon. The convicted person who has appointed a retained counsel or a representative shall not be deemed tried in absentia if the latter appeared at any time during the criminal proceedings in court and neither shall the person who, following the notification of the conviction verdict, according to the law, did not file an appeal, waived filing an appeal or withdrew their appeal.(3) In the case of the person with a final conviction, tried in absentia, related to whom a foreign state ordered extradition or surrender based on the European arrest warrant, the time frame provided under par. (1) shall begin from the date when, following their bringing into the county, they receive the conviction verdict. ….. Art. 469 CRIMINAL PROCEDURE CODE Judgment of the request to reopen the trial (1) The court, hearing the conclusions of the prosecutor, the parties and the main procedural subjects, examines whether: (a) the request was made within the term and by a person from those provided for in art. 466; (b) legal grounds were invoked for reopening the criminal process; (c) the reasons on the basis of which the request is made were not presented in a previous request for the reopening of the criminal process, which was judged definitively. (2) The request is examined urgently, and if the conceited person is serving the prison sentence imposed in the case of which a retrial is requested, the court can suspend, with reasons, in whole or in part, the execution of the decision and can order the convict to comply with one of the obligations provided for in art. 215 para (1) and (2). If the execution of the prison sentence has not started, the court may order the convict to comply with one of the obligations provided for in art. 215 para (1) and (2). (3) If the court finds that the conditions provided for in para. (1) are fulfilled, orders by conclusion the admission of the request to reopen the criminal process.(4) If the court finds that the conditions stipulated in art. 466 are not met, orders the rejection of the request to reopen the criminal trial.(5) The conclusion by which the request to reopen the criminal process is admitted can be challenged together with the merits.(6) The decision by which the request to reopen the criminal trial is rejected is subjected to the same appeal as the decision pronounced in the absence of the convicted person.(7) The acceptance of the request to reopen the criminal process entails the legal annulment of the judgment or, as the case may be, of the judgments pronounced in the absence of the convicted person. The judgment resumes from the procedural phrase carried out in the absence of the convicted person…” (Emphasis in Professor Neagu’s text.) Reopening criminal proceedings in case of an in absentia trial of the convicted person Art. 469 CRIMINAL PROCEDURE CODE Judgment of the request to reopen the trial (a) the request was made within the term and by a person from those provided for in art. 466; (b) legal grounds were invoked for reopening the criminal process; (c) the reasons on the basis of which the request is made were not presented in a previous request for the reopening of the criminal process, which was judged definitively.

Judgment of the request to reopen the trial

[40]As is apparent from the text that I have set out from Article 469, the Court has two options when a request to reopen the trial is made; either to grant the application if the conditions set out in para (1) are met or to reject the application if they are not. In his evidence, Professor Neagu confirmed that if the prescribed conditions are met, the Court must accede to the request; it has no discretion to refuse it and the effect of acceding to the request is that the conviction is annulled. Professor Neagu also clarified that the reference in Article 469 para (1)(b) to “legal grounds” is a reference to the criteria set out in Article 466(2).[41]During his oral evidence, Professor Neagu confirmed that the Appellant could not come within the second Article 466(2) limb (which applies where the defendant, although aware of the proceedings, was lawfully absent and unable to inform the Court of this); and that the real question was whether he came within the first limb, namely that he was not summonsed to appear in court and had not been informed thereof in any other official manner. Professor Neagu also clarified that the exceptions that Article 466(2) identifies (from “The convicted person who had appointed a retained counsel” to the end of para (2)) could not apply in the present case.[42]As to whether the Appellant’s circumstances came within the first limb of Article 466(2), Professor Neagu said this in his report:
“In respect to the extraordinary remedy…according to Article 466 par 2 of the Criminal Procedure Code, the judge needs to find that Mr Dimin was not summoned to appear in court and had not been informed thereof in any other official manner of the criminal proceedings in court. If Mr Dimin did not personally receive the summons and was not otherwise informed about the date and place to appear in court, the request for reopening the case should be granted.” (Emphasis in Professor Neagu’s text.)
[43]The Professor went on to observe that whether the conditions were met involved a judgment on the merits, analysing the facts of the case.[44]In a similar vein to the passage I have just quoted, when Ms Brieskova asked Professor Neagu whether the Appellant would satisfy the Article 469(1) conditions, he said: “Yes. He would be considered tried in absentia as he was not summonsed to appear in Court. That was not the case here”.[45]However, Professor Neagu also qualified that analysis by explaining in both his report and his oral evidence that the Romanian Courts had adopted a conflicting approach to whether the pre-trial phase should be taken into account for the purposes of determining entitlement to a retrial. Having reviewed the authorities, Professor Neagu summarised the position as follows at page 11 of his report:
“To conclude, some courts consider that if the defendant is absent from trial but was aware of the proceedings against him in the pre-trial phase, the reopening of the case is denied irrespective if the defendant was a fugitive or not. Other courts automatically consider that if the defendant is absent from trial, when made aware of the proceedings against him in the pre-trial phase, his status is that of a fugitive person. On the contrary, other courts analyse only the trial before the judge and consider that if the defendant was not personally summoned and had not been informed in other manner about the date and place of the trial, he is not aware of the trial and also not a fugitive (unless there is compelling evidence to the contrary). The strict interpretation of Romanian law is in favour of the last opinion. However, the interpretation by extension of the law, in order to include the pre-trial phase in the ‘trial before a judge’ notion is at the moment adopted in the vast majority of the solutions analysed.”
[46]Accordingly, as I understood Professor Neagu’s evidence, his view was that the pre-trial phase was not relevant for these purposes and that the question of whether the requirements of the first limb of Article 466(2) were met should be answered by reference to the trial phase only, and, on that basis, the Appellant would meet the “legal grounds” for a re-trial. However, he also considered that the contrary view taken in a number of the Romanian authorities had introduced significant uncertainty into this area. Thus, when he was asked by Mr Clej in re-examination how the Romanian judges would apply Article 466(2) to circumstances such as the present case, he referred to the conflicting streams of caselaw identified in his report, indicating that either interpretation could be applied.[47]Professor Neagu also commented on an apparent disparity between the way that Boxes 3.1 – 3.4 of the EAW were completed, as against the answers given to the first RFFI. Noting that the EAW and the response to the RFFI had been drafted by different judges, he considered that the drafter of the EAW was a judge who does not consider that the pre-trial process was a part of the trial for these purposes (as Box 3.1(a) or (b) would have been ticked if that were the case), whereas the judge who had prepared the RFFI response did appear to consider that summonsing Mr Dimin in respect of the pre-trial process was to be regarded as part of the trial for these purposes.[48]I also note for completeness, that in his report Professor Neagu did not comment directly on the likelihood of the Appellant being granted a right to a retrial. He answered the fourth question by referring again to the two contrary judicial approaches that he had identified earlier. He then referred to an overall statistical picture from the cases involving retrial requests that he had analysed, indicating that for the relevant area (Alba Iulia) 155 retrial applications had been rejected and 55 had been granted.[49]As regards the availability of free legal assistance if a retrial was granted, Professor Neagu referred to Article 90 of the Criminal Procedure Code. In summary, he said that the Appellant would be entitled to a lawyer for the proceedings seeking the reopening of the case. However, if that request was granted, the Court would then determine whether to remand the Appellant in custody, place him under house arrest, take a judicial control measure or impose no preventive or restrictive measure. As the offences in question had a maximum penalty of five years imprisonment, the Appellant would only be entitled to mandatory legal assistance if he was remanded in custody or under house arrest, which given the nature and gravity of the crimes was less likely to happen. There was also scope for Mr Dimin to request free legal assistance, but that request could be granted or denied, depending upon whether the judge considered that he could defend himself or not.[50]Professor Neagu went on to opine that if the request for a retrial was granted “the most probable outcome will be the dismissal of the case due to the lapse of the limitation period for criminal liability”. Reopening the case would mean that no final decision had been made, the five-year limitation period would apply and the “legal solution would be to dismiss the case” in the event of a retrial. He was not cross-examined on this point.[51]Professor Neagu also considered it unlikely that a prison sentence would be imposed if the Appellant was convicted at a retrial.

Time spent on curfew and early release

[52]Professor Neagu stated in his report that the Appellant would not be entitled to a reduction in his sentence on account of the restriction on his liberty imposed by his current bail conditions. He was not cross-examined on this aspect of his report.[53]Professor Neagu was also asked whether the Appellant would be entitled to early release.[54]In response, he set out Article 100 of the Criminal Code, which provides that in the case of sentences of imprisonment not exceeding 10 years, conditional release may be ordered if the convicted person has served at least two-thirds of their sentence, or at least a half of their sentence if work performed in prison is taken into account, and the following further conditions are met: i) The convicted person is serving the sentence in a semi-open or open regime; ii) The convicted person has fully fulfilled the civil obligations established by the sentencing decision, expect where he proves that he has no possibility of fulfilling them; iii) The Court is convinced that the convicted person has reformed and can reintegrate into society.[55]Professor Neagu explained in his report that in terms of reform, the focus is upon the convicted person’s behaviour in prison, rather than their behaviour prior to arrest. He said that the facultative advice of the prison board would usually be provided. He considered that the Appellant would be entitled to early release under these provisions. Asked to comment on the likelihood of this, he said:
“Even if Mr Dimin were to be considered a fugitive by the Romanian authorities, there is no legal impediment for granting his early release. Therefore after 7 months (with 2 months and 10 days benefit from work performed), or after 9 months and 10 days of prison served (without the benefit of work), if Mr Dimin fulfils the other conditions previously mentioned, he is entitled to ask for early release. In reality, if he is deemed a fugitive, his early release may be postponed, the judge considering that the lapsed imprisonment is insufficient for his reintegration to society. However, for offenders with no previous offences on Romanian soil and with a low sentence of 1 year and 4 months, such situations of postponement are rarely met in practice.”
[56]In his oral evidence, Professor Neagu explained that the Appellant was very likely to be held in a semi-open or open regime; and that fulfilling the civil obligations established by the sentencing decision involved him paying back the value of what he stole. He elaborated on the potential relevance of fugitive status, saying that this might impede his prospects of conditional release, but it was always up to the particular judge. He agreed with Ms Brieskova, that whether to grant early release was a discretionary decision. The legal framework[57]Romania is a designated Category 1 territory pursuant to section 1 of the EA 2003. Accordingly, Part I of the Act is applicable to these proceedings.[58]The appeal is brought pursuant to section 26(1) of the EA 2003, which provides that a person may appeal to the High Court against an order for his extradition made by an appropriate judge. Such an appeal may be brought on a question of law or fact with the leave of the High Court (section 26(3)).[59]The powers of the High Court on an appeal brought under section 26 are set out in section 27, which provides as follows: 27 Court’s powers on appeal under section 26(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.

Fresh evidence

[60]Fresh evidence, that is evidence which was not raised or available at the extradition hearing, may be considered by the court on appeal pursuant to section 27(4)(a) of the 2003 Act.[61]The receipt of fresh evidence was addressed in Szombathely City Court, Hungary v Fenyvesi [2009] EWHC 231 (Admin) (‘Fenyvesi’) at [28]-[35] from which the following principles emerge: i) Evidence that “was not available at the extradition hearing” means evidence which either did not exist at the time of the extradition hearing, or which was not at the disposal of the party wishing to adduce it and which he could not with reasonable diligence have obtained (para 33); ii) The fresh evidence must have been decisive, that is, had the evidence been adduced, the result would have been different resulting in the person’s discharge (para 36).[62]Fenyvesi was considered by the Supreme Court in Zabolotnyi v Mateszalka District Court, Hungary [2021] UKSC 14. Lord Lloyd-Jones said at paras 57-58:
“57. In my view these conditions in subsection 27(4) are, strictly, not concerned with the admissibility of evidence. I agree with the observation of Laws LJ in District Court of Slupsk v Piotrowski [2007] EWHC 933 (Admin), with regard to the parallel provision in section 29(4)…that it does not establish conditions for admitting the evidence but establishes conditions for allowing the appeal. In my view this applies equally to section 27(4) which is not a rule of admissibility but a rule of decision. The power to admit fresh evidence on appeal will be exercised as part of the inherent jurisdiction of the High Court to control its own procedure. The underlying policy will be whether it is in the interests of justice to do so….In this context, however, an important consideration will be the policy underpinning sections 26-29 of the 2003 Act that extradition cases should be dealt with speedily and not delayed by attempts to introduce on appeal evidence which could and should have been relied upon below…. 58. Parliament in enacting sections 26-29 of the 2003 Act clearly intended that the scope of any appeal should be narrowly confined. The condition in section 27(4)(b) that the fresh evidence would have resulted in the judge deciding the relevant question differently is particularly restrictive. This is reflected in the judgment of the Divisional Court in Fenyvesi …”

Section 20 EA 2023

[63]Section 20 EA 2003 implemented Article 4a(1) of Council Framework Decision 2002/584/JHA, as amended by Council Framework Decision 2009/2999/JHA. Article 4a(1) provided that the requested state is entitled to refuse to execute an EAW issued for the purpose of executing a custodial sentence if the requested person did not appear at the “trial resulting in the decision”, unless the warrant states that one of the exceptions set out in sub-paragraphs (a) – (d) of Article 4a(1) applies. The Framework Decision provisions are now to be found in Article 60 of the Trade and Cooperation Agreement.[64]The structure of Box 3 in an EAW reflects the four exceptions. As Burnett LJ (as he then was) explained in Cretu v Local Court of Suceava, Romania [2016] EWHC 353 (Admin):
“Exception (a) enables the judicial authority to state in the EAW that the requested person was summoned in person and thereby informed of the date and place of the trial which resulted in the decision. Alternatively, it may state he received the information by some other means. In either case it must confirm that he was told that the court may proceed in his absence. The amended pro forma covers those two alternatives in points 3.1a and 3.1b. Exception (b) covers circumstances where the requested person instructed a lawyer to represent him in the trial; and exception (c) covers the situation where the requested person (whether represented or not) is informed of the judgment and the right to a re-trial, but does not avail himself of that option. Exception (d) is concerned with the right to a retrial.”
[65]Section 20 states:
“20 Case where person has been convicted (1) If the judge is required to proceed under this section…he must decide whether the person was convicted in his presence. (2) If the judge decides the question in subsection (1) in the affirmative he must proceed under section 21. (3) If the judge decides that question in the negative he must decide whether the person deliberately absent himself from his trial. (4) If the judge decides the question in subsection (3) in the affirmative he must proceed under section 21. (5) If the judge decides that question in the negative, he must decide whether the person would be entitled to a retrial or (on appeal) to a review amounting to a retrial. (6) If the judge decides the question in subsection (5) in the affirmative he must proceed under section 21. (7) If the judge decides the question in the negative he must order the person’s discharge. (8) The judge must not decide the question in subsection (5) in the affirmative unless, in any proceedings that it is alleged would constitute a retrial or a review amounting to a retrial, the person would have these rights – (a) The right to defend himself in person or through legal assistance of his own choosing or, if he has not sufficient means to pay for legal assistance, to be given it free when the interests of justice so required; (b) The right to examine or have examined witnesses against him and to obtain the attendance and examination of witnesses on his behalf under the same conditions as witnesses against him.” (a) The right to defend himself in person or through legal assistance of his own choosing or, if he has not sufficient means to pay for legal assistance, to be given it free when the interests of justice so required; (b) The right to examine or have examined witnesses against him and to obtain the attendance and examination of witnesses on his behalf under the same conditions as witnesses against him.”
[66]Accordingly, where, as here, the requested person was not convicted in his presence, the judge must consider whether he “deliberately absented himself from his trial” within the meaning of section 20(3) and, if he did not, the judge must go on to decide whether the person “would be entitled to a retrial or (on appeal) a review amounting to a retrial” within the meaning of section 20(5) (including meeting the requirements of section 20(8)); and if the judge is not so satisfied, then the requested person must be discharged. In relation to each of the section 20 questions, the requesting authority bears the burden of proving the relevant matter to the criminal standard: section 206 EA 2003 and Merticariu v Judecatoria Arad, Romania [2024] UKSC 10, [2024] 1 WLR 1506 at para 11.[67]The leading judgment of Lord Stephens and Lord Burnett in Merticariu addressed the significance that is to be attached to statements contained in the EAW and Further Information, for these purposes:
“24. …paragraph (1) of article 4a contemplates that the exceptions in article 4a(1)(a)-(d) will be established by statements in the EAW itself. Paragraph (1) does not envisage a general evidential inquiry into those matters, and it does not call for one Member State in any given case to explore the minutiae of what has occurred in the requesting Member State or to receive evidence about whether the statements in the EAW are accurate. The requesting judicial authority is expected to convey the relevant information in the EAW itself, including information relating to absence from trial and the possibility of retrial, which is necessary to determine whether the executing judicial authority has the power to refuse to execute the warrant under article 4a. If the information set out by the requesting judicial authority in the EAW meets the requirements of article 4a that will provide the evidence upon which the executing judicial authority will act. If a requested person is surrendered on what turns out to be a mistaken factual assertion contained in the EAW relating to article 4a, then they will have the protections afforded by domestic, EU and Convention law in that jurisdiction: Cretu at paras 4, 24, 32, 35, 36 and 42. ….. 26. …The issue at the extradition hearing will be whether the EAW contains the necessary statement: Cretu at paras 34(v) and 35. For the purpose of section 20(5) of the 2003 Act a conforming interpretation means that if the requesting judicial authority has ticked box 3.4 of point (d) on the EAW then the executing judicial authority will be obliged to conclude that the appellant would be entitled to a retrial: Cretu at para 41. 27. …it will not be appropriate for the requesting judicial authorities to be pressed for further information relating to the statements made in the EAW pursuant to article 4a save in cases of ambiguity, confusion or possibly in connection with an argument that the warrant is an abuse of process: Cretu at para 35. However, if the requesting judicial authority does provide further information there is no reason why that information should not be taken into account in seeking to understand what has been stated in the EAW: Cretu at para 37.”
[68]The leading authority on the meaning of when the requested person “deliberately absented himself from his trial” is now Bertino v Public Prosecutor’s Office, Italy [2024] UKSC 9, [2024] 1 WLR 1483, in which Lord Stephens and Lord Burnett gave the leading judgment. The Supreme Court held that this phrase in section 20(3) of the Act should be understood as synonymous with the European Court of Human Right’s (“ECtHR”) concept of an accused unequivocally waiving their right to be present at trial; and that, accordingly, if the circumstances suggested a violation of Article 6 ECHR, the answer to the section 20(3) question would be “no”, whereas if the circumstances suggested that the trial of the requested person in their absence did not give rise to a violation of Article 6, then they would be taken to have absented themselves deliberately from the trial (para 45).[69]Between paras 27 – 41, Lord Stephens and Lord Burnett reviewed domestic, EU and ECHR caselaw on trial in absence. Their review included their Lordships noting that in Sejdovic v Italy (App No 56581/00) the ECtHR said that a waiver cannot be inferred merely from a defendant’s status as a fugitive and that before concluding that a right to trial in person had been implicitly waived, “it must be shown that he could reasonably have foreseen what the consequences of his conduct would be” (para 33). The meaning of “reasonable foreseeability” in this context was addressed in Pischchalnikov v Russia (App No. 7025/04) where it was said that a waiver of the right must not only be voluntary, but must constitute “a knowing and intelligent relinquishment of a right” (para 34). Similarly, in Sibgatullin v Russia (App No. 1413/05) the ECtHR said there could be no question of a waiver from the mere fact that an individual could have avoided, by acting diligently, the situation that led to the impairment of his rights; waiver required a knowing, voluntary and intelligent act, done with sufficient awareness of the relevant circumstances (para 34).[70]At paras 40 – 41, Lord Stephens and Lord Burnett considered how the phrase a “manifest lack of diligence” had been used in Dworzecki (Case C – 108/16 PPU). The case was concerned with whether service upon a person in the defendant’s household, who said he would pass the summons on to the defendant, satisfied article 4a(1)(a)(i). The Court answered this in the negative, given the absence of evidence that the defendant had “actually received official information relating to the date and place of his trial”. The Court went on to recognise that the executing judicial authority could take account of circumstances other than those set out in article 4a(1) “that enable it to be assured that the surrender of the person concerned does not mean a breach of his rights of defence”. Lord Stephens and Lord Burnett observed that it was in this context that it was said that the executing judicial authority could have regard to the person’s conduct and whether there had been a “manifest lack of diligence” on their part, “notably where it transpires that he sought to avoid service of the information addressed to him”. Their Lordships pointed out that in this context, “information” was a reference to information about the date and place of trial.[71]Lord Stephens and Lord Burnett said it was apparent from their review of the cases that the standard imposed by the ECtHR 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 one way or another.” They went on to indicate that the district judge in that case was in error in so far as he may have regarded a general manifest lack of diligence, resulting in ignorance of the criminal proceedings, as itself sufficient to support a conclusion that the accused had deliberately absented themself from trial. Dworzecki was not authority for that proposition and Sibgatullin made clear that “there can be no question of waiver by the mere fact that an individual could have avoided, by acting diligently, the situation that led to the impairment of his rights” (para 55).[72]Lord Stephens and Lord Burnett provided guidance as to the application of the section 20(3) test at para 58 of their judgment. They observed that the certified question in the present case posed the issue in black and white terms (“…must the requesting authority prove that he had actual knowledge that he could be convicted and sentenced in absentia?”), whereas:
“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 indicated, in Sejdovic…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 his 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.”
[73]In summary, therefore, the Supreme Court determined that an unequivocal, knowing and intelligent waiver was required and that ordinarily the requesting authority would be expected to show actual knowledge on the part of the requested person that they could be convicted and sentenced in their absence, but that in certain circumstances, even where they did not have this actual knowledge, the facts might establish unequivocally that they were aware of the criminal proceedings but did not intend to take part in the trial or wished to escape prosecution. Some examples of where this may be established were then given, including where the requested person is shown to have been aware of the proceedings pending against them and of the charges they faced, but put themselves beyond the jurisdiction in a knowing and intelligent way.[74]The issue before the Supreme Court in Merticariu was whether satisfaction of the section 20(5) question required there to be an entitlement to a retrial in the requesting state which was not dependent on any contingency except for purely procedural matters such as making the application in the manner and at the time prescribed; or whether it was sufficient for there to be a right to apply for a retrial to a court in the requesting state (para 1).[75]Lord Stephens and Lord Burnett expressed their conclusion on this issue as follows:
“51. We consider that the nature and ordinary meaning of the words in section 20(5) are plain. The judge must decide whether the requested person is “entitled” to a retrial or (on appeal) to a review amounting to a retrial. Section 20(5) does not require the judge to decide a different question, namely, whether the requested person is entitled to apply for a retrial. Furthermore, the answer to the question in section 20(5) cannot be ‘perhaps’ or ‘in certain circumstances’ the appellant is entitled to a retrial or (on appeal) a review amounting to a retrial…Accordingly, an entitlement to a retrial cannot be contingent on the court in the requesting state making a factual finding that the requested person was not present at or was not deliberately absent from their trial… 52. We agreed that a requested person may have the right to a retrial even if the domestic law of the requesting state requires him to take procedural steps’ to invoke the right. But if the entitlement to a retrial is contingent on a finding that the requested person was not deliberately absent from his trial, the proceedings leading to that finding would not naturally be referred to as a ‘procedural step’. Rather, those proceedings in the requesting state should be regarded as involving a decision on a substantive issue. We consider that the Divisional Court in BP v Romania [[2015] EWHC 3417 (Admin)] at para 44, incorrectly characterised as a procedural steps an application for a retrial which was contingent on the court in the requesting state determining whether the requested person had or had not instructed a lawyer to represent her at her trial. ….. 63. We consider that the answer to part (a) of the certified question…is that the appropriate judge cannot answer section 20(5) of the 2003 Act in the affirmative if the law of the requesting state confers a right to retrial which depends on a finding by a judicial authority in the requesting state as to whether the requested person was deliberately absent from his trial.” (Emphasis in the original text.)
[76]At para 64, Lord Stephens and Lord Burnett indicated that part (b) of the certified question (whether the section 20(5) question could be answered in the affirmative if a finding by a judicial authority in the requesting state that the person was deliberately absent from their trial was “theoretical” or “so remote that it can be discounted”) did not arise for determination on the appeal. However, they stressed that it was for the requesting state and issuing judicial authority to provide information in the EAW in Box 3.4 or in response to a RFFI and “the executing judicial authority should not engage in a mini trial as to whether on the facts and law of the requesting state a finding is theoretical or so remote that it can be discounted”.

Article 8 ECHR

[77]If the executing judicial authority is required to proceed under section 21 EA 2003, it must decide whether the person’s extradition would be compatible with Convention rights, within the meaning of the Human Rights Act 1998.[78]The approach to be taken where Article 8 is engaged in extradition proceedings was considered by the House of Lords in Norris v United States of America [2010] UKSC 9, [2010] 2 AC 487. In HH v Deputy Prosecutor of the Italian Republic, Genoa [2012] UKSC 25, [2013] 1 AC 338 at para 8, Baroness Hale (giving the leading judgment) summarised the conclusions to be drawn from Norris, as follows:
“(1) There may be a closer analogy between extradition and the domestic criminal process than between extradition and deportation and expulsion, but the court has still to examine carefully the way in which it will interfere with family life. (2) There is no test of exceptionality in either context. (3) The question is always whether the interference with the private and family lives of the extraditee and other members of his family is outweighed by the public interest in extradition. (4) There is a constant and weighty public interest in extradition: that people accused of crimes should be brought to trial; that people convicted of crimes should serve their sentences; that the United Kingdom should honour its treaty obligations to other countries; and that there should be no ‘safe havens’ to which either can flee in the belief that they will not be sent back. (5) That public interest will always carry great weight, but the weight to be attached to it in the particular case does vary according to the nature and seriousness of the crimes involved. (6) The delay since the crimes were committed may both diminish the weight to be attached to the public interest and increase the impact upon private and family life. (7) Hence it is likely that the public interest in extradition will outweigh the Article 8 rights of the family unless the consequences of the interference with family life will be exceptionally severe.”
[79]Baroness Hale went on to highlight that the best interests of the child or children impacted by an extradition must be a primary consideration, albeit they could be outweighed by countervailing factors (para 15).[80]In Celinski (at paras 15 – 17), the Divisional Court commended the “balance sheet” approach to assessing whether the interference with the private life of the extraditee is outweighed by the public interest in extradition. The Divisional Court also emphasised “the very high public interest” in ensuring that extradition arrangements are honoured” and the public interest in discouraging persons seeing the UK as a state willing to accept fugitives from justice (para 9). Furthermore, where a Requested Person is a fugitive from justice, very strong counterbalancing factors would need to exist before extradition could be regarded as disproportionate (para 39).[81]Long unexplained delays can weigh heavy in the balance against extradition. I have already referred to Lady Hale’s judgment in HH. In the case of F-K, (one of the joined appeals before the Supreme Court), she indicated that their fugitive status did not preclude the Justices from relying on the overall length of the delay (para 46); and Lord Mance agreed at para 102. In Stryjecki v Poland [2016] EWHC 3309 (Admin) at para 70 (vi) Hickinbottom J (as he then was) referred to a number of earlier cases that had considered delay, including Oreszczynski v Krakow District Court, Poland [2014] EWHC 4346 (Admin) where Blake J emphasised that “even where the concerned person is a fugitive, the authorities cannot simply do nothing: they must make some reasonable enquiries as to the person’s whereabouts”.[82]“Fugitive” is a concept developed by the caselaw rather than a statutory term. It must be established to the criminal standard of proof. In Wisniewski v Reginal Court of Wroclaw, Poland [2016] EWHC 386 (Admin) at para 59 Lloyd-Jones LJ (as he then was) summarised the concept in the following way:
“Where a person knowingly places himself beyond the reach of a legal process he cannot invoke the passage of time resulting from such conduct on his part to support the existence of a statutory bar to extradition.”
[83]In undertaking the Article 8 balancing exercise, Courts may take into account periods when the requested person has been subject to an electronically monitored curfew: for example, Prusianu v Braila Court of Law, Romania [2022] EWHC 1929 (Admin) at para 49.[84]In a conviction case, the criminal process of the requesting state has reflected the seriousness of the criminal conduct in the length of the sentence of imprisonment that was passed; and this must be accorded a proper degree of confidence and respect: Prusianu at para 34. In the same paragraph, Fordham J went on to observe that a requesting state was entitled to set its own sentencing regime and levels of sentence, provided they are ECHR compatible and it is not for the extradition court to “second-guess” Romanian sentencing law or policy or to substitute its view of what the appropriate sentence should have been. He also noted that currency conversions “may tell little of the real monetary value in cases of theft or dishonesty”.[85]In considering the weight to be attached to the prospect of early release (when undertaking the Article 8 balancing exercise), three options were identified by Swift J at paras 30 – 33 of Andrysiewicz. The point arose in the context of submissions based on Article 77 of the Polish Penal Code. The first option was that the application of Article 77 was solely a matter for the Polish Court and no weight should be attached to the possibility of early release on licence. The second option was to recognise the existence of Article 77 and the bare possibility of early release, but proceed on the basis that this would add little weight to the Article 8 factors tending against extradition. The third option was to require the Court to form a view on the likely merits of the requested person’s application under Article 77, which might, depending upon the outcome of that assessment, add significant weight in support of the conclusion that extradition would be a disproportionate interference with Article 8 rights. Swift J held that the second option should prevail:
“34.…I do not consider the court should go further than the second option I have described above. There is practical sense that favours recognising the existence of the power of the Polish court under article 77 of the Polish Penal Code to release prisoners on licence. But I can see no good reason for going further. In principle it ought to be a rare case in which it will be appropriate for this court to take an approach that anticipates the Polish court’s application of article 77. In practice, even if a court decided it was appropriate to embark on such a task, it ought to do so only on provision of appropriate evidence.”
[86]The Supreme Court heard the appeal in Andrysiewicz in March 2025 and judgment is awaited.[87]The question for this Court on the appeal is whether the District Judge’s ultimate decision was wrong: that is a question which considers the overall outcome of the determination arrived at via the balancing exercise, rather than the identification of any individual errors or omissions. In Love v United States of America [2018] EWHC 712 (Admin), the Divisional Court summarized the position at para 26:
“The appellant court is entitled to stand back and say that a question ought to have been decided differently because the overall evaluation was wrong: that crucial factors should have been weighed so different significantly differently as to make the decision wrong, such that the appeal in consequence should be allowed.”
[88]However, where the Appellant is permitted to rely on fresh evidence, the approach on appeal is modified. The appellate court must make its own assessment de novo based on the material as it now stands, in order to determine whether extradition would be a disproportionate interference with Article 8 rights: Jozsa v Tribunal of Szekesfehervar, Hungary [2023] EWHC 2404 (Admin) at para 18. Applications to admit fresh evidence[89]I refuse the application to admit the Appellant’s 2022 proof of evidence and Ms Codescu’s 2022 witness statement. The material in these documents was available at the time of the extradition hearing. I appreciate that the Appellant was not legally represented at that stage, but nonetheless he was able to give his account in evidence and Ms Codescu was able to provide an emailed account to the WMC. Some of the contents of these document were in fact covered in the material that was before the DJ, but, in so far as some of the contents are additional to the evidence that was before the Court below, these matters either comprise events that pre-dated the extradition hearing or matters that were current at that time. As such, they could have been adduced at that stage. Accordingly, it is not in the interests of justice for this material to be admitted for the first time on appeal. I also note for completeness that the impact of the new material is limited and, in some respects, positively unhelpful to the Appellant; his 2022 proof of evidence indicates that he was based in the United Kingdom from 2019 (rather than 2018, as the DJ found) and it contains references to offending in Spain and in the United Kingdom that was not part of the DJ’s findings.[90]I grant the application to admit the Appellant’s 2024 addendum proof of evidence and the 2024 witness statement of Ms Codescu. As set out at paras 34 – 35 above, these documents are primarily concerned with events since the extradition hearing, most notably the birth of the couple’s child. As such, this evidence could not have been adduced at the hearing before the DJ. In the circumstances, it is in the interests of justice for me to admit it. However, I stress that at this stage I am simply applying the admissibility test (para 62 above), I will assess the impact of this material when I come to consider the Article 8 ground of appeal.

The application to amend the grounds of appeal

[91]As I indicated at para 4 above, Mr Clej seeks to add an argument that it was not open to the DJ to disbelieve the Appellant in relation to the findings that he made at para 16(ii) and (iii) of his decision.[92]Parts of the DJ’s findings at para 16(ii) and (iii) are uncontroversial, including: that the Appellant was not present at the hearing on 6 September 2019, that he was not subject to any restriction preventing him from leaving Romania, that he did not inform the Romanian authorities of his whereabouts in the United Kingdom and that he was never told that the proceedings against him were at an end. As I understand it, the target of Mr Clej’s challenge is the DJ’s findings that on 19 August 2016 the Appellant was informed by police that he was obliged to notify any change of address lasting longer than 3 days and that he was informed that if he failed to comply with this, summonses and subpoenas sent to the address he had provided would be considered validly served.[93]The application to amend was made at a very late stage (during the course of Mr Clej’s oral submissions) and made informally without any properly formulated amendment being provided. Whilst I regard this situation as unsatisfactory, I do not refuse permission to amend on that basis. However, I refuse permission to amend because the proposed amendment is unarguable.[94]Para 4 of the response to the first RFFI contains a clear and unambiguous statement that on 19 August 2016 the Appellant was informed of these matters (para 19 above). The DJ was fully entitled to proceed on the basis of this clear indication from the requesting judicial authority. The Appellant gave his evidence in response to questions asked of him by the DJ and the DJ, who had the benefit of seeing and hearing his evidence, was well-positioned to assess the same. Insofar as Mr Clej suggested that the DJ did not give adequate reasons for rejecting the Appellant’s evidence in this respect, he plainly did so at his para 16(iv) (para 26 above). The fact that the Appellant was not cross-examined on this point did not preclude the DJ from preferring the contents of the Further Information, in circumstances where the authorities recognise that the Court should accept the contents of the EAW and any Further Information unless it is ambiguous, confused, undermined by other credible evidence or an abuse of process (and Mr Clej did not provide any authority suggesting the contrary). The section 20 ground of appeal The submissions

The section 20 ground of appeal

[95]In the PGA and in his skeleton argument for the appeal hearing, Mr Clej contended that the DJ could not have found that the Appellant deliberately absented himself from the trial (had he considered the issue), given his uncontested account that an agent of the judicial authority led him to believe that he would receive a fine and given that there was no restriction on him leaving the jurisdiction.[96]At the appeal hearing, after I drew his attention to the approach to “deliberate absence” identified by the Supreme Court in Bertino, Mr Clej submitted that the answer to the second RFFI (that Mr Dimin had been made aware of the consequences of his failure to appear before the judicial bodies upon their summons, namely his trial in absentia) was vague and non-specific and the absence of any date meant that it could not be placed at any particular point within the known timescale. In turn, this meant that it could not be said that the Appellant had unequivocally waived his attendance at trial in a knowing and intelligent way.[97]As regards section 20(5), Mr Clej submitted that the EAW only referred to a right to request a re-trial and that the answer at para 1 in response to the first RFFI repeated this qualified formulation, even though the question asked was whether Mr Dimin “will have a full right of retrial upon surrender” (para 17 above). Furthermore, the reference to the conditions of Article 466 in the response to the second RFFI indicated that the grant of a retrial, if sought, was a matter for the Court’s assessment, rather than a right. He also relied upon the evidence of Professor Neagu (paras 40 – 46 above), as supporting the proposition that the Appellant would not have an automatic right to a retrial, as required by the Supreme Court’s decision in Merticariu. Further or alternatively, he submitted that section 20(8)(a) was not satisfied, as on the basis of Professor Neagu’s unchallenged evidence, the Appellant would not have a right to funded legal assistance at the retrial, save in the relatively unlikely event that he was remanded in custody or under house arrest.[98]As regards “deliberate absence”, the Respondent’s skeleton argument relied (amongst other features) upon a “manifest lack of diligence” on the part of the Appellant. However, when I put the point to Ms Brieskova (who had only just been instructed for the hearing and had not prepared the skeleton or earlier documentation), she readily accepted that this was not the approach that I should be taking in light of Bertino (paras 71 – 73 above). However, she maintained that if the DJ had been required to consider section 20, then applying the Bertino test, his factual findings would have led to the conclusion that the Appellant was deliberately absent from his trial. The responses to the two RFFIs (which the DJ accepted) indicated that the Appellant was informed on 19 August 2016 that he was obliged to appear before the judicial bodies at all of the hearings and he was made aware that the consequences of failing to appear, when he had been summoned to do so, was trial in his absence. He was also informed on that occasion that he was obliged to communicate any change of address and that if he did not do so, summons and subpoenas communicated to the address he had provided would remain valid. Further, the Appellant himself accepted in his evidence below that he knew the proceedings had not concluded when he left Romania.[99]If the section 20(5) question arose, Ms Brieskova relied upon Professor Neagu’s answer to her in cross-examination, which I have set out at para 44 above; although she fairly admitted that this did not entirely fit with what he had said about the two streams of Romanian caselaw. As regards free legal assistance, she said that Professor Neagu’s evidence showed that the Appellant would have the opportunity to apply for this (if he did not in any event qualify for it by virtue of being in custody or under house arrest), so that the “interests of justice” test in section 20(8)(a) was met.

Deliberate absence from trial

[100]As I have explained earlier, the DJ did not address section 20 EA 2003, as it was not raised before him as an issue. Accordingly, I have to make my own assessment of whether the Appellant “deliberately absented himself from his trial”, by reference to the contents of the EAW, the two responses to the RFFIs and the DJ’s findings of fact. I have already explained that there is no basis for Mr Clej to challenge the DJ’s findings of fact and his rejection of aspects of Mr Dimin’s evidence. I make this assessment reminding myself that it is incumbent on the requesting authority to prove this issue to the criminal standard of proof and by reference to the Supreme Court’s guidance in Bertino, which I have set out in detail at paras 68 - 73 above. Plainly, the application of this guidance involves a fact-sensitive analysis in each case.[101]In addressing the Article 8 ground of appeal below I explain why I reject the challenge to the DJ’s conclusion that Mr Dimin is a fugitive from justice. However, this is not determination of the section 20(3) issue; as explained by Lord Stephens and Lord Burnett in Bertino, an unequivocal waiver cannot be inferred merely from the requested person’s status as a fugitive (para 69 above).[102]In considering this issue, for the reasons explained by Lord Stephens and Lord Burnett, the Court’s focus will usually be on the statements in the EAW itself, supplemented by the contents of any Further Information (para 67 above). As Mr Clej highlighted, there is a potential ambiguity in this instance, in light of the fact that the requesting judicial authority did not tick the options at either Box3.1 or3.2 of the EAW, but then gave the answers that appear at paras 2 and 4 of the response to the first RFFI (para 17 above). However, Professor Neagu explained this potential inconsistency in his oral evidence in a way that I accept, namely, that the judge who completed the EAW did not treat the pre-trial process as part of the trial for these purposes, whereas the judge who responded to the RFFI did so and that, in turn, this divergence of approach is reflected in the two streams of decisions in the Romania cases regarding applications for a re-trial (paras 45 - 47 above). Accordingly, this is illustrative of a difference in legal analysis, rather than it being something that should cause me to doubt the factual material that appears in the Further Information.[103]Approaching matters on this basis, I consider that no reason has been identified for the Court to do other than proceed on the footing of the factual material set out in the two RFFI responses. I also note that the DJ preferred the judicial authority’s account, as he explained at para 16 (iv) (para 26 above). Accordingly, I am satisfied that it is established to the criminal standard that on 19 August 2016, during the criminal prosecution, Mr Dimin was told that he had an obligation to appear at all of the court hearings and that on this occasion he was made aware of the consequences of failing to appear before the judicial bodies on their summons, namely trial in his absence. He was also told that he was obliged to inform the authorities in writing, within 3 days of any change of address and attention was drawn to the fact that, if he did not fulfil this obligation, documentation sent to the address he had given would remain valid. Further, I am satisfied that during the trial process he was summonsed to attend each trial session.[104]Whilst Mr Clej submitted that the answer at para 1 of the response to the second RFFI was vague and non-specific as to the timing, Ms Brieskova rightly pointed out that the answer had to read in light of the request that was made, which focused specifically on the information given in para 4 of the earlier response (what the Appellant was told on 19 August 2016), in asking whether Mr Dimin was warned that he could be convicted and sentenced in his absence (para 18 above).[105]Accordingly, the Further Information contains a clear and unequivocal statement that on 19 August 2016, during the prosecution, the Appellant was warned that he could be convicted and sentenced in his absence. It also follows from the DJ’s findings that, aware of this position, Mr Dimin chose to leave Romania and not return, knowing that the prosecution had yet to conclude.[106]In light of these circumstances and applying the Bertino approach, I am satisfied to the criminal standard that the Appellant appreciated the consequences of his conduct and knowingly and intelligently relinquished his right to be present at his trial. The examples that Lord Stephens and Lord Burnett gave at para 58 of their judgment related to circumstances where the requested person could not be shown to have actual knowledge that the trial would proceed in their absence. In this instance, the Further Information establishes that Mr Dimin did in fact have that knowledge, in light of the warning that he was given coupled with his appreciation that the prosecution was ongoing when he left Romania. Furthermore, his established conduct shows that he intentionally put himself beyond the jurisdiction of the Romanian authorities in a knowing and intelligent way and with the practical result that a trial with him present was not possible.[107]I do not consider that there is any force in the other points made by Mr Clej. Even if Mr Dimin did believe that his sentence would only be a fine, the fact that he believed the Court would deal with him in a particular way, has no direct bearing upon his awareness that he could be tried in his absence if he left the jurisdiction having failed to provide his new address. Equally, the fact that there was no restriction on him leaving the jurisdiction does not undermine the conclusion that he absented himself from his trial, in a knowing and intelligent way, appreciating the consequences of doing so.[108]Whilst every case is fact-sensitive, I mention for completeness that the circumstances in the present case are markedly different from those in Bertino where the requested person left the country when he was under investigation, where no criminal proceedings had yet been initiated and where it was not said that he had been warned that he could be tried in his absence.[109]Accordingly, I reject the contention that if the DJ had considered section 20, he could not have been satisfied that the Appellant had “deliberately absented” himself from his trial within the meaning of section 20(3) EA 2003.

Right to a retrial

[110]Whilst my conclusion on section 20(3) is sufficient to dispose of the first ground of appeal, I will address section 20(5) for completeness, as I heard evidence and submissions on that issue. However, I will do so more briefly, given the conclusion I have already arrived at and given that the section 20(5) question involves a scenario that I have just rejected, namely one where the Appellant did not deliberately absent himself from his trial.[111]If this remained a live issue, I would not have found that Mr Dimin was entitled to a retrial.[112]Box 3.4 of the EAW referred to “the right of requesting re-judging” (emphasis added). The first RFFI asked directly whether the Appellant “will have a full right of retrial”, but this question was not answered in the affirmative. Instead, the answer that was given again referred to the “right to request a retrial” (emphasis added). As Lord Stephens and Lord Burnett concluded at para 51 in Merticariu, the right to request a retrial is not sufficient to satisfy section 20(5) (para 75 above).[113]The retrial opportunity identified by both the Respondent and Professor Neagu is provided for by Articles 466 and 469 of the Criminal Procedure Code. Applying the concepts in the way in which they were used by Lord Stephens and Lord Burnett at para 52 in Merticariu, the Article 466(2) criteria involves “a decision on a substantive issue” rather than simply the need to take “procedural steps” to obtain the retrial (para 75 above), whether or not those criteria are likely to be satisfied. Furthermore, on Professor Neagu’s analysis, the conflicting lines of Romanian cases introduces a further element of uncertainty and evaluative assessment for the Court making the Article 469 determination, as I have explained at paras 45 – 47 above.[114]In light of this conclusion, I do not also express a view on the mandatory legal assistance issue raised in relation to section 20(8)(a). The evidence I heard on that point was relatively limited and I prefer not to express a view on whether the statutory test of legal assistance to be given free “when the interests of justice so required” would be met in this instance. The Article 8 ground of appeal The submissions

The Article 8 ground of appeal

[115]Mr Clej advanced the following contentions: i). The DJ failed to properly assess the severity of the offence and in the second offence he miscalculated the value of the offence, as the sum stolen was closer to £500 in value, than £2,000; ii). The DJ erred in finding that the Appellant was a fugitive. There was no basis to suggest that his account that police told him that he could expect to be fined was unreliable and he was entitled to rely upon this; iii). The DJ was wrong to place reliance on the Spanish convictions which were minor and a decade old. The DJ gave insufficient weight to the lack of convictions in this country and the extent to which the Appellant had lived a law-abiding life here; iv). The DJ failed to take proper account of the passage of time. There was no evidence pointing to the delay being other than the fault of the requesting judicial authority. The Appellant had lived an open, documented life in the United Kingdom – conduct that was not consistent with someone who was trying to thwart attempts to locate him; v). The cumulative factors of the passage of time, the nature of the offending, the good character of the Appellant in the United Kingdom, his positive contribution to society here and the impact on his partner meant that even if the DJ was correct in his conclusion on fugitivity, this was still a case where the balance lay in favour of extradition; vi). This Court should weigh against extradition the fact that the Appellant’s partner had given birth to their first child and he was now the sole breadwinner in relation to their family unit; vii). This Court should weigh against extradition that the Appellant had now spent just short of 1,000 days subject to the electronically monitored curfew; viii). The prospect of early release if the Appellant was extradited, as identified by Professor Neagu (paras 53 – 56 above), should also be taken into account. During his oral submissions (made after the Professor had given his evidence), Mr Clej said that he was not seeking to go beyond Swift J’s approach in Andrysiewicz; and ix). This Court should weigh against extradition Professor Neagu’s unchallenged indication that if the Appellant successfully applied for a retrial, the most probable outcome would be that the case would be dismissed, in light of the expiration of the relevant limitation period for criminal liability (para 50 above).[116]Ms Brieskova took issue with each of these points, submitting that the DJ had correctly directed himself in accordance with the appellate caselaw and that he had arrived at an unimpeachable conclusion after taking all relevant matters into account.

The DJ’s conclusion that extradition was not disproportionate

[117]I will first focus on the particular errors that the DJ is alleged to have made, that is to say the points I have summarised at para 115 (i) – (v) above. I will deal with the points in the same order, for ease of cross reference.[118]The Respondent accepts that the DJ may have erred, as alleged, in the currency conversion value of the monies stolen by the Appellant in the second offence for which extradition is sought. However, I accept Ms Brieskova’s submission that this does not undermine his overall characterisation of the seriousness of the conduct. As the DJ observed, the Appellant committed two dishonesty offences within a short space of time. Moreover, in line with the approach explained in Prusianu (para 84 above), the DJ rightly placed weight on the length of the sentence imposed by the Romanian Court, which at 16 months was rightly described by him as “not insubstantial”.[119]I consider that the DJ was fully entitled to find that the Appellant was a fugitive. As I have addressed at para 94 above, the DJ was entitled to reject the Appellant’s evidence that he did not know about the obligation to notify his change of address. On the DJ’s findings, the Appellant left Romania, aware of this obligation, but failing to provide any new address and he did so in circumstances where he accepts that he knew he had committed the thefts and that the prosecution was ongoing. This is plainly a sufficient basis for a finding to the criminal standard that the Appellant had knowingly placed himself beyond the reach of the Romanian legal process.[120]Mr Clej’s point about the fine does not assist Mr Dimin. The DJ did not reject the Appellant’s evidence on this point but, rightly, considered that even if Mr Dimin had held this belief about his likely sentence at the time when he left Romania, it was immaterial as it did not alter the fact that he had left the country in the face of what he knew was an ongoing criminal prosecution and in relation to which he knew he was expected to appear in court and that he did so without providing his new address despite having been told that he was obliged to do so.[121]There is nothing in the point about the Appellant’s previous convictions. The DJ did not weigh his Spanish convictions against him when he undertook the Article 8 balancing exercise and did not mention them at all during this part of his judgment. On the contrary, the DJ expressly took into account as positive factors, the Appellant’s lack of convictions in this jurisdiction and his “open and honest life in the UK”.[122]Mr Clej accepted the Respondent’s point that apparent delay by the NCA in certifying the EAW could not be equated with fault on the part of the Romanian judicial authority. On the basis of para 5 of the response to the first RFFI and the DJ’s findings at para 16(v), the DJ was entitled to find that the Respondent had acted with appropriate promptitude, issuing a warrant seeking the Appellant’s return within a month of his sentence becoming final (paras 16 and 26 above). As the DJ also found, the Romanian authorities did not have any information as to the Appellant’s whereabouts at the time. Furthermore, the DJ rightly took into account such unexplained delay as there had been as a factor weighing against extradition (para 29 above), but he was entitled to also weigh in the balance against him, that the Appellant was the author of the delay and that his private and family life in the United Kingdom had been built on “shaky foundations” (paras 28 and 30 above).[123]Accordingly, the Appellant’s criticisms of the DJ’s assessment are not well-founded. It is also quite apparent that he correctly applied the principles identified in the leading authorities and bore in mind all relevant features of this case. In light of the unassailable finding that the Appellant was a fugitive, very strong counterbalancing factors were required before his extradition could be regarded as disproportionate. The DJ was entitled to find that such factors did not exist in this case. Having reached that conclusion, I turn to consider the impact of the factors that were not before the DJ.

This Court’s assessment of the additional factors

[124]In accordance with Baroness Hale’s analysis in HH (paras 78 – 79 above), I accept that the impact on the Appellant’s young child is a primary consideration for me to bear in mind. However, this is not a sole carer case, as Ms Codescu is the primary carer for the couple’s son. I also accept that the Appellant’s extradition will make a greater difference to Ms Codescu’s life than was the case in 2022, for the reasons explained in her 2024 statement (para 35 above). However, although she is concerned about coping with the child alone in the United Kingdom, she does have the option of returning to Romania, her country of origin and where she has family members residing. This is not a case where the impact on the family comes close to being of the “exceptionally severe” kind that Baroness Hale had in mind (para 78 above).[125]I also accept that it is relevant to take into account the impact of the electronically monitored curfew that the Appellant and Ms Codescu have described (paras 34 and 35 above), as a factor weighing against extradition.[126]As I have indicated earlier, Mr Clej was content to make his substantive submissions on the basis of Swift J’s approach in Andrysiewicz, only indicating right at the end of his reply that he wanted to apply for a stay pending the Supreme Court handing down their decision on the appeal. I refused that application for a number of reasons, as set out in the oral judgment that I gave on the day of the hearing. One of those reasons was that given the evidence I had heard about the application of the Romanian early release provisions to the Appellant’s circumstances, I could only accord little weight to this prospect, even if the Supreme Court determined that it was right to go further than this in appropriate cases. This is because the prospects of Mr Dimin’s early release, if he is extradited, is subject to considerable uncertainty, for the reasons that I summarise in the next paragraph.[127]The Appellant has yet to begin serving his 16 month sentence. The time he has spent on conditional bail in this jurisdiction will not count towards it (para 52 above). Unless he undertakes certain work in prison, he will have to serve at least two-thirds of this sentence before he has any prospect of early release. This is a not insubstantial sentence in itself. Accepting Professor Neagu’s evidence that the Appellant would likely be held in open or semi-open conditions, Mr Dimin would have to show that he had paid back the value of what he stole or that he has no possibility of doing so (para 54 above). It has not been suggested that he has done so thus far and I have no evidence as to Mr Dimin’s ability to do so or his willingness to do so. In addition, it is unclear whether or not the Romanian Court would accept that the Appellant has reformed and can reintegrate into society; whilst he does not have other convictions in Romania, he did commit several offences in Spain and it is unclear whether or not his undoubted fugitive status would count against him in this regard (paras 55 - 56 above).[128]The dismissal of the proceedings on limitation grounds is unlikely to arise; I have found that the Appellant was deliberately absent from his trial and whilst the Romanian Court would make its own assessment of this matter, it appears unlikely in the circumstances that he would be granted a retrial (which he is not entitled to as of right).[129]It follows that the only new matters that are of some significance as weighing in the balance against extradition are the adverse impact on the Appellant’s young son and the related increased impact upon Ms Codescu and the time that the Appellant has spent subject to the electronically monitored curfew for a number of hours each night. In other respects, I endorse and apply the DJ’s evaluation (for the reasons I have already indicated), which I have already set out in detail at paras 28 – 31 above. In my judgment the new factors taken with the factors identified by the DJ as weighing against extradition, do not close to tipping the balance in the other direction. They do not amount to the very strong counterbalancing factors that would be required given the Appellant’s fugitive status.[130]It therefore follows that I reject the Article 8 ground of appeal.

Outcome

[131]For the reasons given at para 89 above, I refuse the application to rely on fresh evidence in the form of the 2022 proof and the 2022 witness statement. I grant the application in relation to the 2024 documents (para 90 above).[132]For the reasons given at paras 91 - 94 above, I refuse the oral application made during the hearing to amend the grounds of appeal.[133]For the reasons given at paras 100 – 109 above, I reject the section 20 ground of appeal. I also reject the Article 8 ground of appeal (paras 117 – 130 above).[134]Accordingly, the Appellant has not shown that the DJ ought to have decided a question that was before him differently; nor that the section 20 issue (which was not raised below) would have resulted in him arriving at a different conclusion if it had been raised.[135]I therefore dismiss this appeal.