Gheorghe Girboiu v Vrancea Tribunal, Romania [2026] EWHC 1816 (Admin)
[2026] EWHC 1816 (Admin)Case No AC-2025-LON-001508
IN THE HIGH COURT OF JUSTICE
KING'S BENCH DIVISION
ADMINISTRATIVE COURT
Venue Royal Courts of Justice, Strand, London, WC2A 2LLDate 17/07/2026
Before
MR JUSTICE MOULD
Between
Gheorghe GirboiuAppellantVrancea Tribunal, RomaniaRespondentMatei Clej (instructed by HI Solicitors) for AppellantAdam Squibbs (instructed by Crown Prosecution Service) for RespondentHearing Hearing date: 18 March 2026Approved JudgmentThis judgment was handed down remotely at 10.30am on Friday 17 th July 2026 by circulation to the parties or their representatives by e-mail and by release to the National Archives..............................MR JUSTICE MOULD
Introduction
[1]The Appellant appeals from the order of District Judge King on 7 May 2025 that he be extradited to Romania.[2]The Appellant advances four grounds of appeal –(1) That the judge erred in finding that the requirements of section 2(6)(b) of the Extradition Act 2003 [“the 2003 Act”] had been satisfied.(2) That the judge erred in finding that the requirements of sections 10 and 65 of the 2003 Act had been satisfied.(3) That the judge erred in failing properly to apply section 20 of the 2003 Act.(4) That the judge was wrong to conclude that the Appellant’s extradition would not be a disproportionate interference with his right to respect for private and family life protected under article 8 of the European Convention on Human Rights [“ECHR”].[3]On 5 January 2026 Johnson J granted permission to appeal on grounds(1) and(2) but refused permission on grounds(3) and (4). At the hearing before me the Appellant argued his appeal on grounds (1) and (2) and renewed his application for permission on grounds (3) and(4) on a “rolled-up” basis. The Appellant also made an application to admit fresh evidence, which I shall address in the context of ground (4).[4]At the hearing, the Appellant was represented by Mr Matei Clej and the Respondent by Mr Adam Squibbs. I am grateful to them both for their helpful written and oral submissions.
Factual background
[5]The Respondent seeks the Appellant’s extradition on two arrest warrants. Both warrants were issued under the terms of the Trade and Cooperation Agreement (TACA). Romania is a category 1 territory for the purposes of the 2003 Act. Both arrest warrants were issued on 10 May 2024 and certified on 2 June 2024. Both are conviction warrants.[6]The first arrest warrant [“AW1”] seeks the Appellant’s return to Romania to serve a remaining sentence of 3 years and 4 months’ imprisonment for two offences, one of fraud and the other relating to tax evasion. The second arrest warrant [“AW2”] seeks the Appellant’s return to serve a remaining sentence of 4 years’ imprisonment for two further offences of fraud.[7]AW1 also related to the Appellant’s conviction for a third offence for which he received a fine. The judge discharged him in respect of that offence, as it fails to meet the definition of an extradition offence under section 65 of the 2003 Act.[8]The Appellant is a Romanian national. He was born on 28 May 1964. He is now 62 years of age. The offences to which AW1 relates were committed during the period between May and December 2007. The offences to which AW2 relates were committed in 2011.[9]On the judge’s findings, the Appellant came to the United Kingdom in 2012. He has lived openly in the UK since that date. He has not committed any offences since his arrival in the UK.[10]The Appellant’s sentence for the offences to which AW1 relates became final on 5 August 2013. His sentence for the offences for which his return is sought under AW2 became final on 10 May 2014. In 2017 he was the subject of an extradition request which was determined at Westminster Magistrates’ Court on 15 September 2017. On 18 October 2017 he was discharged following the Respondent’s failure to provide a satisfactory assurance in respect of prison conditions.[11]The Appellant was arrested on 21 November 2024. Following his initial extradition hearing, he was granted conditional bail. On 20 January 2025 the Respondent gave an assurance in respect of the prison conditions in which the Appellant would be held in the event of his extradition. Further information requested of the Respondent was provided on 12 March 2025 and 31 March 2025.[12]The extradition hearing took place at Westminster Magistrates’ Court on 1 April 2025. The Appellant was legally represented. He gave evidence and was cross-examined. In response to the Respondent’s application, the Appellant raised the single issue of the compatibility of his extradition with his rights protected under article 8 ECHR.[13]The judge found that when the Appellant left Romania in 2012, he was aware of the criminal proceedings against him and the risk he faced of being sent to prison in that country. The timing of his departure being so close to the time of the criminal proceedings against him provided clear evidence that the Appellant had deliberately and knowingly placed himself beyond the reach of the Romanian legal process. For those reasons, the judge found that the Appellant is a fugitive from justice.[14]In [28] of his judgment, the judge recorded that there was no challenge to the validity of the arrest warrants under section 2 of the 2003 Act. The judge found both arrest warrants to be valid. In [33], the judge said that there was no challenge under section 10 of the 2003 Act. The judge was satisfied that the offences set out in the arrest warrants are extradition offences and that the conditions in section 65(3) of the 2003 Act are met. The conduct took place in a category 1 territory. The conduct described in the warrants would constitute offences of fraud if committed in the UK. In the case of each warrant, the term of imprisonment exceeded four months.[15]At [35] the judge said that he must now go on to consider whether any of the statutory bars to extradition applied. He said that no challenge had been made under those bars and in [37] concluded that none operated to bar extradition of the Appellant. He included a reference to section 20 of the 2003 Act in that conclusion. The judge made no express finding in respect of section 20 but moved on to address the single issue raised by the Appellant, which was whether his extradition would be compatible with his Convention rights for the purposes of section 21 of the 2003 Act.[16]The judge addressed that issue in [38] to [54] of his judgment, concluding that the Appellant’s extradition would not constitute a disproportionate interference with his article 8 rights. In [51], in accordance with section 21(3) of the 2003 Act the judge ordered the Appellant’s extradition on two offences under AW1 and two offences under AW2.
Legal framework
[17]Under section 26 of the 2003 Act, with the leave of this court a person may appeal against the judge’s order for his extradition. The appeal may be brought on a question of law or fact. Section 27 states this court’s powers on appeal. This court may allow or dismiss the appeal. If the appeal is allowed, the court must order the person’s discharge and quash the extradition order.[18]This court may allow the appeal only if the conditions in subsection 27(3) or subsection 27(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”.[19]In Love v United States of America [2018] 1 WLR 2889 at [25]-[26] a Divisional Court gave the following guidance on this court’s appellate function under the 2003 Act – “The statutory appeal power in section 104(3) permits an appeal to be allowed only if the district judge ought to have decided a question before him differently and if, had he decided it as he ought to have done, he would have had to discharge the appellant. The words "ought to have decided a question differently" (our italics) give a clear indication of the degree of error which has to be shown. The appeal must focus on error: what the judge ought to have decided differently, so as to mean that the appeal should be allowed. Extradition appeals are not re-hearings of evidence or mere repeats of submissions as to how factors should be weighed; courts normally have to respect the findings of fact made by the district judge, especially if he has heard oral evidence. The true focus is not on establishing a judicial review type of error, as a key to opening up a decision so that the appellate court can undertake the whole evaluation afresh. This can lead to a misplaced focus on omissions from judgments or on points not expressly dealt with in order to invite the court to start afresh, an approach which risks detracting from the proper appellate function. That is not what Shaw or Belbin was aiming at. Both cases intended to place firm limits on the scope for re-argument at the appellate hearing, while recognising that the appellate court is not obliged to find a judicial review type error before it can say that the judge's decision was wrong, and the appeal should be allowed. 26. The true approach is more simply expressed by requiring the appellate court to decide whether the decision of the district judge was wrong”. Grounds(1) and(2) – particulars and dual criminality The issues
Grounds (1) and (2) – particulars and dual criminality
[20]Under these grounds, the Appellant argues that neither AW1 nor AW2 give sufficient particulars of the four offences of which he has been convicted, to enable the court to determine whether those offences are extradition offences within the meaning of section 65 of the 2003 Act. Both warrants are accordingly invalid in failing to satisfy the requirements of section 2(6)(b) of the 2003 Act. Moreover, the Appellant submits, neither AW1 nor AW2 satisfies the dual criminality requirement under sections 10 and 65(3)(b) of the 2003 Act.
Statutory provisions and case law
[21]The material provisions of sections 2, 10 and 65 of the 2003 Act are as follows.[22]Subsections 2(1), (2)(b), (5) and (6) state – “(1) This section applies if the designated authority receives a Part 1 warrant in respect of a person. (2) A Part 1 warrant is an arrest warrant which is issued by a judicial authority of a category 1 territory and which contains – …. (b) the statement referred to in subsection (5) and the information referred to in subsection (6). …. (5) The statement is one that –(a) the person in respect of whom the Part 1 warrant is issued has been convicted of an offence specified in the warrant by a court in the category 1 territory, and(b) the Part 1 warrant is issued with a view to his arrest and extradition to the category 1 territory for the purpose of being sentenced for the offence or of serving a sentence of imprisonment or another form of detention imposed in respect of the offence. (6) The information is – (a) particulars of the person’s identity; (b) particulars of the conviction;(c) particulars of any other warrant issued in the category 1 territory for the person’s arrest in respect of the offence;(d) particulars of the sentence which may be imposed under the law of the category 1 territory in respect of the offence, if the person has not been sentenced for the offence;(e) particulars of the sentence which has been imposed under the law of the category 1 territory in respect of the offence, if the person has been sentenced for the offence”.[23]Section 10 states – “10(1) This section applies if a person in respect of whom a Part 1 warrant is issued appears or is brought before the appropriate judge for the extradition hearing. (2) The judge must decide whether the offence specified in the Part 1 warrant is an extradition offence. (3) If the judge decides the question in subsection (2) in the negative he must order the person’s discharge. (4) If the judge decides that question in the affirmative he must proceed under section 11”.[24]Section 65 states – “65(1)This section sets out whether a person's conduct constitutes an “extradition offence” for the purposes of this Part in a case where the person –(a) has been convicted in a category 1 territory of an offence constituted by the conduct, and(b) has been sentenced for the offence. (2) The conduct constitutes an extradition offence in relation to the category 1 territory if the conditions in subsection (3) … are satisfied. (3) The conditions in this subsection are that – (a) the conduct occurs in the category 1 territory; (b) the conduct would constitute an offence under the law of the relevant part of the United Kingdom if it occurred in that part of the United Kingdom;(c) a sentence of imprisonment or another form of detention for a term of 4 months or a greater punishment has been imposed in the category 1 territory in respect of the conduct”.
The particulars given in AW1 and AW2
[25]In Box E of AW1, the first offence in relation to which the judge has ordered the Appellant’s extradition are described as follows – “Fraud; stipulated by Art. 215 paragraphs 1, 3 Criminal Code ((Previous): During the period May – December 2007. In the capacity of manager of Gicam Construct Limited Liability Company Focsani, by misleading of 24 persons of Slobozia Bradului Commune, Vrancea County, he used them on the performing of building activities, without paying them adequately and not registering in the accounting documents the performed activities, prejudicing thus both the physical persons and the State Budget. … Nature and classification of the offences and the applicable legal provisions/Code: Fraud, stipulated by Art. 215 paragraphs 1, 3 Criminal Code (Previous)”. Nature and classification of the offences and the applicable legal provisions/Code:[26]AW1 also states paragraphs 1 and 3 of article 215 of the Romanian Criminal Code (Previous)” – “Art. 215 Previous Criminal Code – Fraud Paragraph 1 - The misleading of a person, by the presentation as true of a false deed or as false of a true deed, in the aim of obtaining for the self or for another and injust material benefit and if a damage was caused, is punished by prison from 6 months to 12 years. Paragraph 3 - The misleading or the maintaining in error of a person on the occasion of the conclusion or the performance of a contract, committed in such a way that without this error, the misled one would not have concluded or performed the contract under the stipulated conditions, is punished by the punishment stipulated in the preceding paragraphs, according to the distinctions there shown”.[27]The second offence described in Box E of AW1 is as follows – “Fiscal evasion, stipulated and punished by Art. 9 paragraph 1 letter b) in Law no. 241/2005, in the capacity of manager of Gicam Construct LLC Focsani he cashed in income for the erected buildings, without paying off the tax due to the State”. Nature and classification of the offences and the applicable legal provisions/Code: Fraud, stipulated by Art. 215 paragraphs 1, 3 Criminal Code (Previous) Fiscal Evasion, stipulated by Art. 9 paragraph 1 letter b) in law 241/2005”. Nature and classification of the offences and the applicable legal provisions/Code:
[28]AW1 also states article 9(1) of Law 241/2005 - “Law no. 241/2005 for the prevention and the combat of fiscal evasion Art. 9, paragraph 1 - constitute offences of fiscal evasion and are punished with prison from 2 to 8 years and the interdiction on the exercise of some rights, the following deeds committed with the aim of the embezzlement from the carrying out of the fiscal obligations: b) the omission, in all or in part, of the registration, in the accounting documents or in other legal documents, of the affected commercial operations or of the achieved incomes”.[29]In Box E of AW2, the description of the two offences in relation to which the judge has ordered the Appellant’s extradition is – “In total, the present Warrant has as its object 2 offences of fraud. - In his capacity of Manager of Limited Liability Company “Garcicos Agricultura” Garofala, in 2011 he purchased spare parts and agricultural machines from Limited Liability Company Catco Adjud, their counter-value being covered by payment instruments without coverage, and on the date of 11.10.2011 he drew up and issued a CEC Bank sheet in the value of 299,906.40 Lei towards Edil Dan Construct LLC, that, being introduced in payment was rejected for the reason “client being in banking interdiction”. Nature and classification of the offences and the applicable legal provisions/Code: - Fraud, stipulated by Art. 244 paragraphs 1, 2 Criminal Code”.
Nature and classification of the offences and the applicable legal provisions/Code:
[30]AW2 sets out paragraphs 1 and 2 of article 244 of the Romanian Criminal Code “Fraud” – “Paragraph 1 - The misleading of a person, by the presentation as true of a false deed or as false of a true deed, in the aim of obtaining for the self or for another and injust material benefit and if a damage was caused, is punished by prison from 6 months to 3 years. Paragraph 2 - The misleading committed by the use of false names or capacities, or by other fraudulent means, is punished by prison from 1 year to 5 years. If the fraudulent means constitutes by itself an offence, the rules concerning the concurrence of offences apply”.
Case law
[31]In King v France [2015] EWHC 3670 (Admin) at [18], a Divisional Court said that section 2(6)(b) of the 2003 Act requires more than a mere recital of the conviction. What is needed in all cases is sufficient information to enable any mandatory or optional bar to extradition to be considered, whether by the authority in the executing state or the requested person. In Alexander v France [2018] QB 408 at [51] and [83], the court followed that approach. The principles are summarised by Hickinbottom LJ in FK v Germany [2017] EWHC 2160 (Admin) [“FK”] at [54]-[55] – “54. About the particularisation required by these provisions, the following propositions, regularly repeated in the authorities (see, e.g., King v Public Prosecutors of Villefranche sur Saône, France [2015] EWHC 3670 (Admin) at [16] and following; and Alexander at [83]) are uncontroversial. There is a particularly high level of mutual trust, confidence and respect between states which are parties to the Framework Decision. The object of the EAW process is to remove the complexity and potential for delay in extradition between such states. There is consequently no requirement for full and exhaustive particularisation, the appropriate level of particularisation being dependent upon the circumstances of the specific case. In assessing whether a description is adequate, the EAW should be considered as a whole. However, sufficient circumstances must be set out to enable the requested person and the requested state(i) to identify the offence with which the requested person is charged;(ii) to understand, with a reasonable certainty, the substance of the allegations against the requested person and in particular when and where the offence is said to have been committed, and what he is said to have done;(iii) to perform a transposition exercise, when dual criminality is in issue; and(iv) to determine whether any compulsory or optional barriers to extradition apply. Where a request for extradition is made in respect of more than one offence, each offence must be adequately particularised. 55. Because there is a need for the EAW to provide sufficient particulars to enable a transposition exercise to be performed, there is some overlap between the requirements of section 2(4)(c) and those of sections 10 and 65. Each require that the description of the alleged conduct reveals the basic elements of an offence in the requested state. If the conduct does not particularise an offence, then section 2(4)(c) is not satisfied, and the EAW is void. If the description of conduct reveals the basic elements of an offence, then that provision is satisfied; but the dual criminality provisions of sections 10 and 65 require the court to go on to consider matters such as whether, if the conduct occurred in the England and Wales, there would be territorial jurisdiction to prosecute for an offence here”.[32]Mr Clej drew my attention to Dhar v The Netherlands [2012] EWHC 697 (Admin) at [117] as a pertinent illustration of the application of these principles – “117. Although I accept that the warrant need not contain highly detailed information of the kind that one might expect to find in a civil pleading, it must contain enough information to enable the requested person to understand with a reasonable degree of certainty the substance of the allegations against him, namely, what he is said to have done, when and where, and also, in a case where knowledge of particular matters is an essential ingredient of the offence, sufficient information to enable him to understand why it is said that he had the necessary knowledge. In the present case I do not think that the warrant satisfies these requirements because the information given in it fails to make it reasonably clear what the appellant is said to have done by way of handling property that was, and that he knew was, the proceeds of crime”.[33]The so-called “conduct test” which is to be applied where dual criminality is raised under sections 10 and 65(3)(b) of the 2003 Act was approved by the House of Lords in Norris v United States of America [2008] 1 AC 920 [“Norris”] at [91] – “91. The committee has reached the conclusion that the wider construction should prevail. In short, the conduct test should be applied consistently throughout the 2003 Act, the conduct relevant under Part 2 of the Act being that described in the documents constituting the request (the equivalent of the arrest warrant under Part 1), ignoring in both cases mere narrative background but taking account of such allegations as are relevant to the description of the corresponding United Kingdom offence”.[34]The principles are summarised in Cleveland v United States of America [2019] 1 WLR 4392 [“Cleveland”] at [21]-[28]. In particular – “A number of relevant legal principles are well-established. In Norris v Government of the United States of America [2008] 1 AC 920 the House of Lords decided that a court should not consider whether the elements of the offence in an extradition request correspond with the elements of an English offence. Instead the court should consider whether the alleged conduct, if it had occurred in the United Kingdom, would amount to an offence under English law. Where, as in the present case, the request alleges multiple offences, each one needs to be considered separately, but need not be assigned to a reciprocal offence under English law”.[35]In Cleveland, it was necessary for the Divisional Court to consider the effect of the following passage at [57] in Assange v Swedish Prosecution Authority [2011] EWHC 2849 (Admin) [“Assange”] – “It was accepted by Mr Assange that it was not necessary to identify in the description of the conduct the mental element or mens rea required under the law of England and Wales for the offence; it was sufficient if it could be inferred from the description of the conduct set out in the EAW. However, the facts set out in the EAW must not merely enable the inference to be drawn that the Defendant did the acts alleged with the necessary mens rea. They must be such as to impel the inference that he did so; it must be the only reasonable inference to be drawn from the facts alleged. Otherwise, a Defendant could be convicted on a basis which did not constitute an offence under the law of England and Wales, and thus did not satisfy the dual criminality requirement. For example, an allegation that force or coercion was used carries with it not only the implicit allegation that there was no consent, but that the Defendant had no reasonable belief in it. If the acts of force or coercion are proved, the inference that the Defendant had no reasonable belief in consent is plain”.[36]In Cleveland at [61]-[64] the Divisional Court distinguished two situations in which, on a correct analysis, the principle stated in that passage in Assange is not engaged – “61. First, in some cases the argument raised is not that the offence alleged in the foreign state lacks an ingredient essential to criminality in this jurisdiction, but simply that the particulars of conduct supplied in the warrant or request do not address an ingredient of an equivalent English offence. In such cases there is no legal justification for applying the "inevitable inference" test in para. 57 of Assange in order to ensure that the person requested could not be convicted of an offence overseas which would not amount to any crime in this country. That risk does not arise. Instead, the issue is whether the particulars contained in the warrant or request are sufficient to enable an offence under English law to be identified. In this situation, it is the principles summarised in paras. 21 to 28 above which fall to be applied. If a warrant or request fails to include any allegation dealing with an essential ingredient, the court may conclude that the particulars are insufficient and decline to order extradition. But in other cases, the court may conclude that a gap (whether as to conduct or any mental element) is filled because an inference can properly be drawn from information contained in the warrant or request. Here, that approach to the drawing of an inference is legally correct because the offence for which a person is to be extradited does not lack an ingredient essential to criminal liability under English law.62. This distinction may be illustrated by considering the mental element of criminal conduct. The offence alleged in the foreign jurisdiction may require proof of a simple intention to commit that crime and the equivalent English offence may not require the proof of any additional specific intent. In this country proof of intention depends in most cases upon the drawing of inferences by the jury (or by the magistrates' court). Such inferences may be drawn from the conduct of an accused person and from what they said before, at the time of, and following the incident (see e.g. Chapter 8 of Part 1 of the Crown Court Compendium – December 2018). In this situation there is no "gap" in the mental element of the foreign offence which needs to be filled. The mere fact that intention would need to be inferred from conduct in order to establish guilt in any future trial in the foreign court, does not justify the imposition of an "inevitable inference" test in order to satisfy dual criminality at the extradition stage. Instead, where this issue is raised, the court need only consider whether the inference of intention is one which is capable of being drawn from the matters alleged, leaving the question of whether that inference will be established to the trial process.63. But in some instances, extradition may be resisted because the English equivalent offence requires proof of a specific intent (e.g. dishonesty or knowledge of or belief in a state of affairs), whereas the foreign offence for which extradition is sought only requires proof of a simple intent and not also that specific intent. In this situation it is necessary for the court to apply the test in para. 57 of Assange to decide whether that gap in the ingredients of the foreign offence can be filled by drawing an inference from other matters set out in the warrant or extradition request. Here, dual criminality depends upon the court being satisfied that, if the matters constituting the alleged foreign offence were to be proved, the inevitable or only reasonable inference would be that the additional intent required by English law would also be established.64. There is a second situation which needs to be distinguished where the objection is not that the foreign offence lacks an essential ingredient of an English equivalent, but that the particulars fail to address an essential ingredient. If the respondent argues that that gap may be filled by the drawing of an inference from matters contained in the warrant or request, the court may conclude that those matters are incapable of supporting any such inference. This is the obverse case of the example considered in paragraph 61 above. Here again, the outcome does not depend upon the application of the test in para. 57 of Assange. Instead, the straightforward conclusion of the court is that it is inappropriate or impossible to draw the inference suggested”.
The Appellant’s submissions in summary
[37]Mr Clej submitted that the particulars given in AW1 and AW2 failed to describe conduct which would constitute offences under English law, had that conduct occurred in the United Kingdom. In the case of the first offence under AW1 and the two offences under AW2, the judge had been wrong to find that the conduct described in the warrants would constitute offences of fraud. The offence of fraud by false representation under section 2 of the Fraud Act 2006 [“the 2006 Act”] requires proof of a specific intent, namely dishonesty. Dishonesty cannot be inferred from the particulars given in Box E in AW1 and AW2 respectively.[38]Mr Clej made essentially the same submission in relation to the second offence of which particulars are given in AW1. The Respondent’s case was that those particulars were sufficient to constitute the common law offence of cheating the public revenue. That offence, however, also requires proof of dishonesty. Again, it was submitted that dishonesty cannot be inferred from the particulars given in Box E in AW1.[39]Mr Clej relied upon Gruszka v Poland [2015] EWHC 2564 (Admin) at [22]-[23], where the arrest warrant alleged that the requested person had purchased goods with a deferred payment term “not intending or being able to pay this amount due”. At [23], King J said that had the conduct been described only as not intending to pay, that would have been sufficient to found the inference of dishonesty. However, the conduct was also described in the alternative as not being able to pay. The particulars were accordingly equivocal and did not impel the inference that the failure to pay the amount had been dishonest. Counsel also relied on similar reasoning in Kusza v Poland [2018] EWHC 2610 (Admin) at [20]-[22], where the particulars described in the arrest warrant and further information provided by the issuing judicial authority were found to be equivocal and consistent with the requested person’s evidence that she honestly intended to pay off her debts.[40]Mr Clej submitted that the particulars described in Box E of AW1 and AW2 are also equivocal and do not enable the inference of dishonesty properly to be drawn. There was accordingly a “missing ingredient” in the particulars in failing to describe the mens rea of dishonesty which is an essential ingredient of both the offence of fraud under the 2006 Act and common law offence of cheating the public revenue.[41]Mr Clej advanced a further submission on the basis of the reasoning of the Divisional Court in Cleveland at [63] explaining the application of the principle stated in Assange at [57], which he characterised as the “irresistible inference” test. He submitted that the Romanian offences upon which both AW1 and AW2 are founded do not require proof of specific intent in the form of dishonesty, which is an essential ingredient of both the offence of fraud under section 2 of the 2006 Act and the common law offence of cheating the public revenue.
Discussion
[42]At the outset, it is necessary to address an issue of approach which arose between the parties. On behalf of the Appellant, it was submitted that for the purpose of considering dual criminality, the question whether the offences described in the arrest warrants fulfil the condition stated in section 65(3)(b) of the 2003 Act must be answered only on the basis of the Appellant’s conduct described in Box E of AW1 and AW2 respectively. On behalf of the Respondent, it was submitted that the information on the basis of which that question falls to be answered is not so confined. In particular, the Respondent submits that for that purpose, regard may properly be had to the description of the ingredients of the Romanian offences in the arrest warrants.[43]I accept the Respondent’s argument on that point of dispute. In FK at [54]-[55] Hickinbottom LJ said that in assessing whether the description of an offence in a Part 1 arrest warrant is adequate to meet the requirements of section 2 of the 2003 Act, the arrest warrant should be considered as a whole. In the present case, the descriptions given in Box E in both AW1 and AW2 include cross-references to the specific provisions of the Romanian Criminal Code which are also stated in terms in warrants themselves. Thus, Box E in AW1 refers to “Fraud, stipulated by Art.215 paragraphs 1,3 Criminal Code (Previous)” and “Fiscal evasion, stipulated and punished by Art. 9 paragraph 1 letter b) in Law no. 241/2005” as part of the description of the circumstances in which those two offences were committed. Likewise, Box E in AW2 refers to “Fraud, stipulated by Art.244 paragraphs 1, 2 Criminal Code”.[44]The Appellant sought to argue that extending the inquiry beyond the conduct described in Box E of the arrest warrants to consider the ingredients of the Romanian offences is in conflict with the approach approved at [91] in Norris. I do not accept that submission. In that paragraph, the House of Lords said that mere narrative background should be left out of account, but that account should be taken of “such allegations as are relevant to the description of the corresponding United Kingdom offence”. I see no good reason why allegations which are expressed by reference to constituent elements of the Romanian offences of which the Appellant has been convicted must be ignored, for the purpose of judging whether the conduct described in the arrest warrants in this case would amount to offences under English law.[45]Reading the particulars given in AW1 in that way, the conduct described as constituting the first offence is that between May and December 2007 the Appellant, acting as manager of a construction company, misled 24 persons into carrying out building works for which he failed to pay them adequately. On the basis of that conduct, the Appellant was convicted of the offence of fraud, in that the Appellant misled those 24 people with the aim of obtaining for himself or another an unjust material benefit, a benefit that he would not have obtained had he not misled those persons into performing that work. The particulars given cannot sensibly be read as describing nothing more than a pay dispute between the construction company of which the Appellant was manager and the company’s employees.[46]The Respondent’s case is that these particulars are sufficient to describe conduct which would constitute the offence of fraud by false representation, contrary to section 2 of the 2006 Act. The offence of fraud by false representation has the following ingredients – “2(1) A person is in breach of this section if he -(a) dishonestly makes a false representation, and(b) intends, by making the representation - (i) to make a gain for himself or another, or (ii) to cause loss to another or to expose another to a risk of loss. (2) A representation is false if - (a) it is untrue or misleading, and (b) the person making it knows that it is, or might be, untrue or misleading”.[47]The Appellant is correct to say that the description of his conduct does not refer expressly to the Appellant having acted dishonestly. Nor does the description in AW1 of the offence of fraud under Article 215 of the Romanian Criminal Code refer expressly to dishonesty as a necessary ingredient of the offence.[48]However, in my view the description of the Appellant’s conduct by reference to the ingredients of the offence for which he has been convicted impels the inference of his having acted dishonestly. Read and understood in that way, the conduct alleged against the Appellant was that he misled certain people into acting to their detriment “in the aim of obtaining” for himself or for another “an injust material benefit”. That is a description of dishonest intent. There is no missing ingredient in the description of the Appellant’s conduct which formed the basis for his conviction for the first offence under AW1. I am satisfied that the offence for which the Appellant was convicted under the Romanian criminal code required the equivalent of both the actus reus and the mens rea of the offence of fraud under section 2 of the 2006 Act to be proven against him. It must be proved that he misled 24 persons with the dishonest intention of making an unjust gain for himself and for others; and to cause those persons to suffer a loss. The offence of which the Appellant has been convicted and in respect of which his extradition is sought does not lack an ingredient essential to criminal liability under section 2 of the 2006 Act.[49]The conduct described as constituting the second offence under AW1 is that the Appellant, acting in the same capacity, evaded tax by cashing in income from the completed building works without paying the tax due to the state revenue. The Respondent’s case is that these particulars are sufficient to describe conduct which would constitute an offence of cheating the public revenue, contrary to common law. The common law offence of cheating the public revenue may be committed by dishonestly concealing or omitting to disclose or declare a tax liability or income with the result that money is diverted from HMRC and HMRC is deprived of money to which it is entitled: see R v Steed [2011] EWCA Crim 75 at [11].[50]The Appellant is again correct to say that the description of his conduct under the second offence in AW1 does not refer expressly to the Appellant having acted dishonestly. Nor does the description in AW1 of the offence of fiscal evasion under Law 241/2005 refer expressly to dishonesty as a necessary ingredient of the offence.[51]However, in my view, here again the description of the Appellant’s conduct by reference to the ingredients of the offence for which he has been convicted impels the inference of his having acted with dishonest intent. The conduct alleged against the Appellant was that he cashed in income earned from the building project without paying the tax due on that income. On the basis of that conduct, the Appellant was convicted of the offence of fiscal evasion, in that he failed to fulfil his tax obligations “with the aim of embezzlement”. To fail to pay tax that has fallen due with that aim is plainly to act with the dishonest intent of diverting that money for personal gain; and thereby depriving the state of tax revenue which it is entitled to receive. Again, there is no missing ingredient in the description of the Appellant’s conduct which formed the basis for his conviction. The Romanian offence of fiscal evasion for which the Appellant was convicted required the equivalent of both the actus reus and the mens rea of the common law offence of cheating the public revenue to be proven against him. The offence of which the Appellant has been convicted and in respect of which his extradition is sought does not lack an ingredient essential to criminal liability under English law.[52]I turn to the two offences described in AW2. In each case, Box E describes action taken by the Appellant in his capacity as manager of an agricultural enterprise whereby he bought agricultural equipment using “payment instruments without coverage” and purported to make a payment to another company using a “bank sheet” which on presentation the bank rejected as the Appellant or his company was “in bank interdiction”. In straightforward language, on each occasion the Appellant made payments for goods or services which on subsequent presentation by the payee were dishonoured by the Appellant’s or his company’s bank. The cheques bounced.[53]In itself, the conduct thus described would not be sufficient to establish dual criminality. Merely to write and hand over a cheque for the purpose of paying for goods and services does not suffice to establish the ingredients of the offence of fraud under section 2 of the 2006 Act. However, in the case of each offence described in Box E of AW2, the description identifies the nature of the offence for which particulars are given as fraud, as stipulated by article 244 of the Romanian Criminal Code. AW2 then sets out a full description of that offence. On the basis of that description, it is to be inferred that the Appellant’s conduct for which he was convicted was that in purporting to pay for goods or services with bank instruments which on presentation were dishonoured by the bank, he misled a person or persons by presenting as true a false deed, “with the aim of obtaining for the self or for another an injust material benefit”.[54]As with the first offence under AW1, the description of the Appellant’s conduct in Box E of AW2 by reference to the ingredients of the offence for which he has been convicted impels the inference of his having acted dishonestly. Read and understood in that way, in each case the conduct alleged against the Appellant was that he made a false representation to the payee with the aim of securing an unjust benefit, namely obtaining goods and services by offering instruments by way of payment which he well knew would not be honoured by his bank. That is a description of dishonest intent. There is no missing ingredient in the description of the Appellant’s conduct which formed the basis for his conviction for those two offences of fraud. I am again satisfied that the offence for which the Appellant was convicted under the Romanian criminal code required the equivalent of both the actus reus and the mens rea of the offence of fraud under section 2 of the 2006 Act to be proven against him. It must be proved that he made a fraudulent misrepresentation with the dishonest intention of making an unjust gain for himself and for others. The offence of which the Appellant has been convicted and in respect of which his extradition is sought does not lack an ingredient essential to criminal liability under section 2 of the 2006 Act.
Conclusions
[55]In the light of this analysis, I do not accept the Appellant’s case that the particulars of his conduct given in AW1 and AW2 are insufficient to fulfil the requirements of section 2(6)(b) of the 2003 Act. Nor do I accept that the judge was wrong to decide that both the first and second offences described in AW1 and those described in AW2 are extradition offences for the purpose of section 10 of the 2003 Act. In each case, sufficient information was given in AW1 and AW2 to enable the transposition exercise to be undertaken and dual criminality to be determined. The Appellant’s more detailed criticisms of the sufficiency of information given in AW1 and AW2 about his conduct are without merit. In the case of each offence, read together with the ingredients of the relevant provisions of the Romanian Criminal Code which are stated in the warrants and incorporated by reference into the descriptions of the Appellant’s conduct, the information given in Box E of AW1 and AW2 respectively is sufficient to fulfil the requirements stated in FK at [54].[56]For these reasons, I must reject grounds(1) and(2) of this appeal.
Ground (3) – deliberate absence from trial
[57]The Appellant seeks permission to argue that the judge was wrong in failing to discharge him from both AW1 and AW2 in accordance with the provisions of section 20 of the 2003 Act.[58]The material provisions of section 20 of the 2003 Act are as follows - “20(1) If the judge is required to proceed under this section (by virtue of section 11) 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 absented himself from his trial. (4) If the judge decides the question in subsection (3) in the affirmative he must proceed under section 21”.[59]In the present case, the Respondent argues that the judge found that, by virtue of being represented at trial by his chosen lawyer, the Appellant was convicted in his presence of the offences for which his extradition is sought under AW1. The Respondent contends that the judge found that the Appellant was deliberately absent from his trial at which he was convicted of the offences for which his extradition is sought under AW2. The Appellant’s contention is that the judge did not make a finding either way. In any event, Mr Clej submitted that, on the basis of the evidence before the judge, the judge was wrong to find that the Appellant was convicted of the offences stated in AW1 in his presence; and of the offences stated in AW2 in his deliberate absence.
Discussion – AW1
[60]Box D 3.2 and 4 of AW1 makes the following statements – “Having knowledge of the established lawsuit, the person appointed a lawyer, in the person of Mr lawyer Balas Codrut (Power of Attorney no. 040068/2012), who represented him during the course of the carrying out of the criminal procedure. In the legal case registered pending before Vrancea Tribunal, on the date of 18.05.2012, under no. 2846/91/2012, the defendant Girboiu Gheorghe defaulted at all trial terms and was represented by chosen council Balas Codrut within Vrancea Bar, with counsel's mandate no. 040068/2012 on record”.[61]At the extradition hearing before the judge, the Appellant gave evidence during cross-examination that whilst Balas Codrut had been his lawyer in 2007, he had acted for him in a separate case and had nothing to do with the criminal proceedings relating to AW1. The information to the contrary stated on the face of AW1 was incorrect.[62]Mr Clej submitted that there was no dispute that the Appellant had been absent in person from his trial in May 2012. Notwithstanding the information given in Box D of AW1, in the light of the Appellant’s evidence at the extradition hearing there was an obvious uncertainty as to whether he had in fact been represented by a lawyer of his choice at those proceedings. That being the case, it was not possible to be sure that the Appellant had been convicted in his presence, by virtue of being represented at the trial which resulted in his conviction by his chosen lawyer.[63]It is settled law that for the purposes of applying section 20 of the 2003 Act, an accused person who has instructed a lawyer to represent him in his trial is not absent from trial: see Cretu v Romania [2016] 1 WLR 3344 at [34(iii)]. At [35] the Divisional Court said – “It will not be appropriate for requesting judicial authorities to be pressed for further information relating to the statements made in an 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. The issue at the extradition hearing will be whether the EAW contains the necessary statement. Article 4a is drafted to require surrender if the European arrest warrant states that the person, in accordance with the procedural law of the issuing Member State, falls within one of the four exceptions. It does not contemplate that the executing state will conduct an independent investigation into those matters. That is not surprising. The EAW system is based on mutual trust and confidence”.[64]In Merticariu v Romania [2024] 1 WLR 1506 at [27], the Supreme Court approved that principled approach. It is determinative of the question whether, for the purpose of applying section 20(1) of the 2003 Act, the Appellant is to be taken as having been present at his trial for the offences of which he was convicted as stated in AW1. There is no ambiguity or confusion in the statements contained in Box D of AW1 which I have set out in paragraph 60 above. On the basis of those statements, the judge was correct to find it proven to the requisite standard that the Appellant had been present at that trial by virtue of being represented by the lawyer whom he had instructed to represent him at those proceedings.
Discussion – AW2
[65]Box D in AW2 provided the following information – “During the course of the carrying out of the criminal lawsuit he had his legal assistance provided ex officio in the person of Mr attorney Soare Maricel (Power of Attorney no. 43/2014 issued by Vrancea Bar Association. The person was personally summoned on (Day/month/year), and consequently was informed concerning the date and the place established for the lawsuit following which the judicial decision was pronounced and he was informed that a judicial decision can be pronounced in case he does not appear at the lawsuit”.[66]On 4 March 2025 the Respondent was asked to provide the date on which the Appellant had been summoned in person. The Respondent’s initial response on 12 March 2025 did not answer that question. It did however provide the following further information in response to the following questions - “Q.2 The Requested Person denies being a fugitive. Can you please clarify whether he has ever been arrested, questioned by the police and/or asked to go to court in relation to both sets of proceedings covered? (original emphasis) Q.3 Was the Requested Person under any obligation not to leave the jurisdiction in relation to the proceedings? Was he under any obligation to inform the authorities of his whereabouts or current address? If so, did he breach these obligations, and how so? How was he made aware of these conditions? Q.4 Is there any other information indicating that the Requested Person is a fugitive from justice in relation to AW1 and AW2? A.2 The convicted person Girboiu Gheorghe was not arrested for the crimes for which the conviction was ordered in the two cases in which the Vrancea Court ruled and for which warrants for the execution of the prison sentence and, subsequently European arrest warrants were issued. During the judicial procedure carried out in case no. 2846/91/2012, the defendant gave statements regarding the acts for which he was investigated. From the checks carried out by the police bodies it resulted that the defendant Girboiu Gheorghe left Romania during November 2012, and being put on national and international surveillance most likely based on an European warrant issued by the Foscani Court based on criminal sentence no. 146/2012, prior to the issuance of the arrest warrants issued by the Vrancea Court. A.3 The convicted person was obliged to notify the judicial body of, within a maximum of period of three days, of any change of address, an obligation of which he was informed before the first hearing during the criminal investigation. A.4 Considering the above, it follows that the defendant Gheorghe Girboiu knew about the existence of the trials pending before our court, since he gave statements at the beginning of the criminal proceedings, and his criminal activity had begun long before and he already had a warrant issued by the Focsani Court. It follows beyond doubt that he left the territory of Romania precisely to evade the execution of the sentence is established by the Romanian courts.”
From the checks carried out by the police bodies it resulted that the defendant
[67]The request for the missing date in Box D of AW2 was repeated on 31 March 2025 and received a response on the same day - “Q.Regarding Box D of AW2 (ref. 5971.91.2013). Box D indicates that the requested person was not present at the trial resulting in the decision but was summoned in person. Please can you provide the date on which the requested person was summoned in person? A. Throughout the criminal trial number 5971/91/2013, procedure initiated on the 9th of December 2013 when the court was entrusted with the trial of the case, the defendant was summoned to the address indicated by him. From the checks carried out by the police bodies it resulted that the defendant Girboiu Gheorghe left Romania during November 2012, being put under national and international surveillance, based on the warrant for the execution of the prison sentence and the European arrest warrant issued in file no. 2846/91/2012.”[68]Having considered the further information provided by the Respondent and heard the evidence of the Appellant, in [27] of his judgment the judge found that the Appellant had left Romania in November 2012. The judge found that the Appellant was aware of the criminal proceedings against him and the risk of his imprisonment in Romania at the time when he left that country. The judge was satisfied that he was a fugitive from justice.[69]Both parties relied upon the principle stated at [58] in Bertino v Italy [2024] 1 WLR 1483 - “…the [Strasbourg] court was careful to leave open the precise boundaries of behaviour that would support a conclusion that the right to be present at trial had been unequivocally waived. The cases we have cited provide many examples where the Strasbourg Court has decided that a particular indicator does not itself support that conclusion. But behaviour of an extreme enough form might support a finding of unequivocal waiver even if an accused cannot be shown to have had actual knowledge that the trial would proceed in absence. It may be that the key to the question is in the examples given in Sejdovic v Italy 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”.[70]For the Appellant, Mr Clej submitted that the further information provided on 12 March 2025 before the court was equivocal and lacking in sufficient particulars to justify the finding to the criminal standard that the Appellant had been deliberately absent from his trial for the offences under AW2. The further information provided by the Respondent on 31 March 2025 asserting that the Appellant had been summoned to an address indicated by him was plainly insufficient to establish that he had been deliberately absent with proper knowledge of the proceedings against him. The circumstances known to the court did not demonstrate that in November 2012, the Appellant had put himself beyond the jurisdiction of the prosecuting and judicial authorities in a knowing and intelligent way in relation to his trial for the offences under AW2.[71]For the Respondent, Mr Squibbs submitted that the judge’s finding in [36] of his judgment, that the bar under section 20 of the 2003 Act does not operate in this case, is to be taken as a clear finding that the Appellant was deliberately absent from his trial for the offences in AW2. The Respondent submitted that on the basis of the information before the court, the judge was justified in that conclusion.[72]I do not consider that any significant weight can be given to the further information provided by the Respondent on 31 March 2025. By 9 December 2013 the Appellant had left Romania without providing a forwarding address to the Romanian authorities. It is improbable that he did in fact receive any notice of the trial proceedings initiated against him on 9 December 2013, despite the best efforts of the judicial authority in Romania in communicating summons to the address which the Appellant had given while he was in Romania.[73]Nevertheless, it does not follow that the Appellant cannot properly be found to have absented himself deliberately from those criminal proceedings. Actual knowledge of the trial proceedings and that they might proceed in his absence is not a necessary prerequisite to a finding that he had unequivocally waived his right to be present at those proceedings.[74]In my view, the further information provided by the Respondent on 12 March 2025 which I have set out in paragraph 66 above clearly supports the finding that in November 2012, the Appellant put himself beyond the jurisdiction of the Romanian prosecuting and judicial authorities in a knowing and intelligent way. That information demonstrates that by November 2012, the Appellant well knew that there were criminal proceedings against him in respect of the alleged offences under both AW1 and AW2. The Respondent is specific in stating that the Appellant knew about the existence of the trials pending before the Romanian courts, since he had given statements at the beginning of the criminal proceedings in relation to alleged offences for which he was already then under investigation. He knew that he was obliged to notify the Romanian authorities of any change in his address. Applying the principle stated in Bertino at [58], these werecircumstances which surely demonstrate that in November 2012, the Appellant knowingly put himself beyond the jurisdiction of the Romanian authorities, fully appreciating that for practical purposes a trial in his presence for the offences under AW2 would no longer be possible and that a trial in his absence was the only option available to the Respondent. By leaving the jurisdiction without notice and in the knowledge of the criminal proceedings against him, he unequivocally waived his right to be present at his trial.[75]The judge was accordingly correct in finding it proven to the requisite standard that the Appellant was convicted of the offences stated in AW2 in his deliberate absence.[76]Permission to appeal is refused on ground (3). Ground (4) – Article 8 ECHR The judgment
Ground (4) – Article 8 ECHR
[77]The main issue raised by the Appellant at the hearing before the judge was whether his extradition to Romania to serve his remaining prison sentences would constitute a disproportionate interference with his right to respect for his private and family life protected under article 8 ECHR.[78]The Respondent’s case before the judge was that extradition would be compatible with the Appellant’s Convention rights in this case. The Respondent relied on the weighty public interest in upholding the UK’s treaty obligations and ensuring that the UK does not become a safe haven for persons seeking to evade justice. The Appellant was a fugitive from justice. The offences for which his extradition was requested under the warrants were serious ones. The remaining prison sentences to be served were significant. Although the Appellant had asserted that he had a partner with whom he was involved in custody proceedings in relation to a 3 year old child in their care, there was no independent evidence to verify that. There was no witness statement from the alleged partner.[79]The Appellant’s case before the judge was that he had not been convicted of any offence since his arrival in the UK. He had lived openly in the UK since 2016, having come to this country to work and since then supporting himself throughout his time living here. He had been discharged following extradition proceedings in 2017. That had been a stressful experience for him. The arrest warrants concerned offences committed many years ago and he had long since set up a law abiding life in the UK. He and his partner were guardians to a 3 year old child whose mother had been found unfit to parent.[80]The judge approached the question whether the Appellant’s extradition would be compatible with his rights protected under article 8 ECHR in accordance with the principles established by the well-known case law. The judge referred to Norris v USA [2010] 2 AC 487, H(H) v Italy [2013] 1 AC 338 and Polish Judicial Authorities v Celinski [2016] 1 WLR 551. The judge stated his overall conclusion in [54] of his judgment. He found the offending for which the Appellant’s extradition was sought under the warrants to be serious. There was a lengthy period of imprisonment still to be served. The Appellant was a fugitive from justice. He bore responsibility for the long delay in proceeding against him for offences committed many years ago. Nevertheless – “Putting aside his culpability and simply looking at an overall period of 19 years between the offending taking place and now, I do not consider that such a delay means extradition would be disproportionate when weighed against the serious nature of the offending and the time Mr. Girboiu has left to serve. In addition, the importance of the UK honouring its treaty commitments means that this is not a case where it could be said that extradition would be disproportionate”.
The Appellant’s submissions in summary
[81]Mr Clej submitted that the judge was wrong to conclude that the Appellant’s extradition would be compatible with his rights protected under article 8 ECHR. He relied on two main contentions.[82]Mr Clej’s first contention was that the judge had failed to give proper weight to the unexplained delay on the part of the Romanian authorities since the Appellant was discharged from the previous extradition request in October 2017. From that time onwards, the Romanian authorities had been well aware that the Appellant was living openly in the UK. The Respondent was plainly in a position to take the necessary steps to issue fresh arrest warrants in a timely way. The Respondent had failed to do so. Instead, a period of over six and a half years had elapsed between the Appellant’s discharge in October 2017 and the issue of AW1 and AW2 in May 2024. During that period, the Appellant had consolidated his life in the UK, meeting his partner and assuming responsibility with her for the care of a small child.[83]Mr Clej relied on the principle stated at [8(6)] in H(H) – “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”.[84]It was submitted that the judge had failed to give proper weight to that principle in this case.[85]Mr Clej’s second contention was that the judge’s consideration of the Appellant’s relationship with his partner and the small child in their care had been fundamentally flawed. The Appellant had given evidence of his and his partner’s current living arrangements. They had lived together for 3 years. The Appellant had explained that the social services authority, Stockton-on-Tees Borough Council [“the Council”], wished that he and his partner should be permanent guardians of the small child for whom they cared. The judge had declined to find the Appellant’s account of his and his partner’s caring role for the child to be credible. The judge had based that adverse finding on the absence of any evidence from the Council or from the Appellant’s partner to substantiate the Appellant’s account. In doing so, the judge had engaged in impermissible speculation.[86]Counsel submitted that the credibility of the Appellant’s evidence was now established by the witness statement of his partner, Rodica Asavi, which was the subject of the application to admit fresh evidence in support of his appeal. Ms Asavi stated that she had now been appointed as foster carer for the child, that appointment being confirmed by a letter from the Council’s Agency Decision Maker dated 22 January 2026 which records that Ms Asavi has been found to be suitable to foster the child. It was submitted that Ms Asavi’s evidence should be admitted in accordance with Hungarian Judicial Authorities v Fenyvesi [2009] 4 All ER 324. The judge had failed to make the interests of the child a primary consideration in drawing the Article 8 balance in this case: see H(H) at [15]. That failure vitiated his overall conclusion that the Appellant’s extradition would not constitute a disproportionate interference with the Appellant’s rights protected under article 8 ECHR.
Discussion and conclusions
[87]The approach to be taken by this court in determining an appeal against an extradition order which founds upon the judge’s evaluation of the article 8 balance is stated in Celinski at [24] – “The single question therefore for the appellate court is whether or not the district judge made the wrong decision. It is only if the court concludes that the decision was wrong, applying what Lord Neuberger said, as set out above, that the appeal can be allowed. Findings of fact, especially if evidence has been heard, must ordinarily be respected. In answering the question whether the district judge, in the light of those findings of fact, was wrong to decide that extradition was or was not proportionate, the focus must be on the outcome, that is on the decision itself. Although the district judge's reasons for the proportionality decision must be considered with care, errors and omissions do not of themselves necessarily show that the decision on proportionality itself was wrong”.[88]The first issue raised by the Appellant is whether the judge failed to give proper weight to the delay which had occurred between the Appellant’s discharge in October 2017 and the issue of AW1 and AW2 in May 2024. I accept Mr Clej’s submission that the Respondent has provided no satisfactory explanation for that period of delay, given that the Romanian authorities were well aware of the fact that the Appellant was now living openly in the UK. I accept that during that period of delay the Appellant continued to establish his life in this country and was able to begin his relationship with his partner, a relationship which, at the date of the extradition hearing, had been in place for 3 years. Applying the principle stated at [8(6)] in H(H), those are factors which both serve to diminish the weight to be attached to the public interest and increase the impact of extradition upon the Appellant’s private and family life.[89]The question, however, is whether the judge failed properly to evaluate the impact of that delay when he drew the article 8 balance in this case. It is necessary to quote [46] to [48] of the judgment, where the judge considered delay – “46. Mr Girboiu has lived and worked in the UK since arriving here in 2016. He has no previous convictions here and has supported himself and his partner in that time. It is correct that a significant period of time has passed since the commission of the offences and the imposition of the sentences in Romania. However, as a fugitive Mr Girboiu is culpable for that. The development of his private life in the UK was done in the knowledge that he had fled from criminal proceedings in Romania for serious offences and with a likely lengthy sentence to serve.47. Putting aside his culpability and simply looking at an overall period of 18 years between the offending taking place and now, I do not consider that such a delay means extradition would be disproportionate when weighed against the serious nature of the offending and the time Mr Girboiu has left to serve. In addition, the importance of the UK honouring its treaty commitments that this is not a case where it could be said that extradition would be disproportionate.48. It is correct that he was the subject of previous extradition proceedings in 2017 which led to his discharge. He was on conditional bail. Whilst he may have felt a sense of relief at the outcome of those proceedings, it ought to have been clear to him that the basis upon which he was discharged did not prevent future extradition proceedings being brought. The period of time between his discharge in those proceedings and his arrest in these new proceedings is 7 years, but I do not consider that passage of time would make extradition disproportionate”.[90]It is a central theme of decision-making in extradition proceedings that the fact that the requested person has been found to be a fugitive from justice attenuates the weight to be given to the impact of delay in the article 8 balance, even if that finding does not necessarily extinguish delay as a factor: see Pabian v Polish Judicial Authority [2024] EWHC 2431 (Admin) at [51]. That was the approach taken by the judge in the paragraphs which I have quoted in paragraph 89 above. It is clear from the judge’s reasoning that he gave weight to the overall delay of 18 years between the commission of the extradition offences and the current proceedings. Moreover, in [48] the judge recognised that some weight should be given to the period of delay which arose following the Appellant’s discharge in 2017.[91]However, the judge was clearly correct to find that the weight to be given to those periods of delay was considerably attenuated by the factors to which he referred in those paragraphs. Firstly, the fact that the Appellant left Romania as a fugitive from justice in November 2012 was a significant attenuating factor. Secondly, both the serious offending for which the Appellant had been convicted and the lengthy remaining custodial sentence to be served must inevitably carry significant weight. Thirdly, the Appellant was discharged in October 2017 for want of an acceptable assurance being provided by the Romanian authorities as to the prison conditions in which he would serve his remaining sentence. The judge was correct to find that it ought to have been clear to the Appellant thereafter that he faced the real prospect for further extradition proceedings in the future, given the seriousness of his offending and the length of his remaining sentence. Any sense of security which he may have developed after October 2017 was a false one.[92]In the light of the judge’s reasoning in [46] to [48] of his judgment, it is not arguable that he failed to give proper weight to the impact of delay. I am satisfied that the judge was correct to conclude that the periods of delay which he considered in those paragraphs do not render the Appellant’s extradition to serve his remaining sentence a disproportionate interference with his article 8 rights.[93]I turn to the judge’s consideration in [51] to [53] of his judgment of the impact of the Appellant’s extradition on the small child whom the Appellant said he and his partner look after and care for. Having summarised the Appellant’s evidence, at [52] the judge said – “52. Mr Girboiu’s description of the living arrangements and the decision of Stockton-on-Tees local authority to ask that he and his partner care for the child is peculiar and seems at odds with the approach that a local authority would take in relation to a very young child whose birth family are unable to care for them. There is absolutely no evidence to support or substantiate the claim of Mr Girboiu that the child does live with him and his partner or further that the local authority desire that this should become a permanent arrangement. This is odd given that if it was the case that the local authority supported such an outcome it would no doubt have been very easy and straightforward for Mr Girboiu to have obtained some confirmation of this from or on behalf of the local authority”.[94]The judge then set out a number of considerations which, in his view, called into question the credibility of these asserted arrangements, before concluding that he did not find the Appellant’s evidence on them to be “plausible or credible”.[95]In my view, given the absence either of any evidence from the Appellant’s partner or, more significantly, any documentary evidence in the form of correspondence from the Council evidencing these asserted child care arrangements, it was open to the judge to be sceptical about the Appellant’s account. However, it is unnecessary to dwell further on that point, since at [58] the judge went on to consider the position on the basis that he was wrong to dismiss the Appellant’s account of the child caring arrangements – “53. Even if I am wrong on that point and it is the case that the child is currently living with Mr Girboiu and his partner with a shared desire by the local authority and he and his partner that that living arrangement becomes permanent, I do not consider that his extradition in respect of these matters could be said to be disproportionate to the Article 8 rights of him, his partner or the child. There is no evidence in these proceedings regarding the impact of separation on the child. There is no detailed evidence about how long the child has been living with he and his partner to assist me in determining the strength of any bond between them. There is no evidence that the alternative living arrangements for the child that would be the consequence of Mr Girboiu’s extradition would be so detrimental to the child that it could be said that extradition would be disproportionate”.[96]That assessment of the position is plainly founded on the judge’s proper recognition of the principle that the best interests of the child are a primary consideration. Nevertheless, the impact of the Appellant’s extradition on the child is a matter for evidence. In the absence of evidence to the contrary, it was plainly open to the judge to conclude that the alternative living arrangements that would be the inevitable consequence of the Appellant’s extradition to Romania would not result in an exceptionally severe and thereby disproportionate impact on the child’s welfare: see Andrysiewicz v Poland [2025] 1 WLR 2733 at [43] and [81].[97]That conclusion has, in my view, been reinforced by the fresh evidence upon which the Appellant now seeks to rely. The Council’s decision of 22 January 2026 that Ms Asavi is suitable to act as foster parent to the child records that the child has an established attachment to Ms Asavi, has lived with her for a long time; and that Ms Asavi has suitable routines and security in place for the child. Reference is also made to Larisa as a person who is a good support for Ms Asavi. Ms Asavi is said to be committed to caring for the child and to accept her additional needs. Ms Asavi is commended for working with professionals and acting on the advice she is given.[98]In the light of that evidence, there is good reason to anticipate that the Appellant’s partner will both continue to act as a conscientious and loving foster parent to the child following the extradition of the Appellant; and be able to rely on personal and professional support in coping with the impact of the Appellant’s departure from the family. As a foster parent, Ms Asavi will be eligible to receive state financial support. Ms Asavi’s evidence in her unsigned witness statement must be understood against that context. I accept that the loss of the Appellant’s support in day-to-day care for her foster child will be disruptive, particularly in the short term as the family adjusts to his absence. However, the evidence before the court does not support the argument that the judge was wrong, in concluding that the impact on the Appellant’s private and family life would be sufficiently severe to override the weighty factors telling in favour of his return to Romania, as a fugitive from justice, to serve a substantial remaining custodial sentence for serious offences.[99]For these reasons I refuse both the application to admit fresh evidence and for permission on ground (4).