Marius Ene v Alexandria District Court (Romania) [2026] EWHC 286 (Admin)

[2026] EWHC 286 (Admin)Case No AC-2024-LON-004213
IN THE HIGH COURT OF JUSTICE
KING'S BENCH DIVISION
ADMINISTRATIVE COURT
IN THE MATTER OF AN APPEAL UNDER THE EXTRADITION ACT 2003
Venue Royal Courts of Justice, Strand London WC2A 2LLDate 12 February 2026
Before
HON SIR PETER LANE
Between
MARIUS ENEAppellantALEXANDRIA DISTRICT COURT (ROMANIA)Respondent
Mr Ben Watson KC and Mr Adam Squibbs (Instructed by Hollingsworth Edwards Solicitors) for appellantMr David Ball (instructed by the Crown Prosecution Service) for respondentHearing Hearing date: 20 January 2026
HMTL VERSION OF JUDGMENT
Crown Copyright ©T his judgment was handed down remotely at 10:30am on 12 February 2026 by circulation to the parties or their representatives by e-mail and release to the National Archives.Sir Peter Lane:
[1]The appellant appeals, with permission granted by Linden J on 17 May 2025, against the judgment of District Judge Bristow, dated 17 December 2024, in which he ordered the appellant (as he now is) to be extradited to Romania. 2 The arrest warrant is a conviction warrant. Box B states that it is based on the judgment of the respondent dated 20 December 2022, rendered final by non-appeal on 31 January 2023. Box C states that the appellant was sentenced to 1 year 8 months’ imprisonment, all of which is to be served. Box E confirms that the sentence relates to three driving offences, all committed on 7 September 2019. They were driving with excess blood alcohol, driving without a licence and driving an unregistered vehicle. 3 The appellant was arrested in this jurisdiction pursuant to the arrest warrant on 28 February 2024. He was compliant on arrest. He was produced before Westminster Magistrates’ Court on 29 February 2024, where he did not consent to his extradition and proceedings were opened and adjourned. He was granted conditional bail, (including, inter alia, an electronically monitored curfew requirement), which he has complied with throughout the proceedings. 4 The hearing before the District Judge took place on 22 November 2024. The District Judge heard oral evidence from the appellant and his partner. Amongst the evidence before the District Judge was a report of Dr Pauline Christmas dated 20 September 2024 concerning MME, then aged 13, who is one of the 9 children of the appellant and his partner. 5 Before the District Judge, the appellant advanced the following grounds for resisting extradition under the Extradition Act 2003. The arrest warrant was alleged to be insufficiently particularised (section 2); the offences were not extradition offences withing the meaning of sections 10 and 65; the appellant had not deliberately absented himself from the trial held in his absence and would not, if returned, be entitled to a retrial (section 20); and his extradition was incompatible with Article 8 of the ECHR (section 21). 6 Linden J granted permission on three grounds: Ground 1: The District Judge was wrong to find that the requirements of section 20 of the 2003 Act were satisfied. Ground 2: The District Judge was wrong to conclude that the extradition of the appellant would be compatible with his and his family’s rights under Article 8 of the ECHR. Ground 3: The District Judge was wrong to find that the extradition proceedings did not amount to an abuse of process. 7 In the High Court, the appellant has made three applications to adduce fresh evidence. The evidence sought to be adduced concerns Ground 2. At the hearing on 20 January 2026, I admitted the evidence de bene esse. Legal framework 2. 8 Section 20 of the 2003 Act (‘Case where person has been convicted’) provides as follows:
“(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. (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 that 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 had 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.” 3. 9 Section 27 of the 2003 Act (‘Court's powers on appeal under section 26’) provides: “ (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 4 in the way he ought to have done, he would have been required to order the person's discharge. (a) allow the appeal; (b) dismiss the appeal. (a) the appropriate judge ought to have decided a question before him at the extradition hearing differently; (b) if he had decided the question 4 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.” 6. 10 In the context of a Part 2 appeal brought under equivalent of section 27(3), the essence of the statutory appeal jurisdiction was characterised in the following terms in Love vGovernment of the United States of America [2018] 1 W.L.R. 2889 at paragraphs 25 and 26 (per Lord Burnett CJ and Ouseley J): “ 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 approach is more simply expressed by requiring the appellate court to decide whether the decision of the district judge was wrong. What was said in the Celinski case and In re B (A Child) are apposite, even if decided in the context of Article 8. In effect, the test is the same here. The appellate court is entitled to stand back and say that a question ought to have been decided differently because the overall evaluation was wrong: crucial factors should have been weighed so significantly differently as to make the decision wrong, such that the appeal in consequence should be allowed.”
The arrest warrant 7. 11 For the purposes of considering Ground 1 (section 20), the relevant parts of the arrest warrant, in English translation, are as follows:
“ ... (d) Specify whether the requested person appeared personally at the trial resulting in the decision: 1.. □ Yes, the requested person appeared personally at the trial resulting in the decision. 2. X No, the requested person did not appear personally at the trial resulting in the decision. 3. If you have ticked the box under point 2, please confirm the existence of one of the following, of appropriate: X 3.1 a. The person was personally summoned on 04.10.2022 (the writ of summons returned with the mention "addressee permanently moved from the locality, moved to England", 06.12.2022, being also publicly displayed on the courthouse door and on the court portal, and was heard during the criminal investigations as well; the person pleaded guilty and, therefore, was informed of the scheduled date and place of the trial which resulted in the decision, and was informed that a decision may be handed down if he does not appear for the trial. OR 3.1 b. □ the person was not summoned in person but by other means actually received official information of the scheduled date and place of the trial which resulted in the decision, in such a manner that it was unequivocally established that he was aware of the scheduled trial, and was informed that a decision may be handed down if he does not appear for the trial; OR X 3.2. being aware of the scheduled trial, the person had given a mandate to a legal counsellor, who was either appointed by the person concerned or by the State, to defend him at the trial, and was indeed defended by that counsellor at the trial; OR 3.3. □ the person was served with the decision on ... (day/month/year) and was expressly informed about the right to a retrial or appeal, in which he has the right to participate and which allows the merits of the case, including fresh evidence, to be re-examined, and which may lead to the original decision being reversed, and - the person expressly stated that he does not contest the decision. X -The person did not request a retrial or appeal within the applicable timeframe. OR 3.4. X The person was not personally served with the decision, but - the decision will be personally served without delay after the surrender, and - when served with the decision, the person will be expressly informed of his right to a retrial or appeal, in which he has the right to participate and which allows the merits of the case, including fresh evidence, to be re-examined, and which may lead to the original decision being reversed, and The person will be informed of the time frame within which he or she has to request a retrial or appeal, which is of 10 days. 4. If you have ticked the box under points 3.1b, 3.2 or 3.3 above, please provide information about how the relevant condition has been met: The decision was sent to the defendant's home address and was received by the named Fieraru Gabriela Loredana as his wife, on 26.08.2023.” (original emphases). Further information 12 There were three requests for further information. So far as relevant to this appeal, on 12 March 2024, the CPS asked if the appellant was under any obligation to notify the relevant authorities of a change of address; whether he would have known of the obligation; and whether he complied with it. It was also noted that box C.3.1a of the warrant stated that the appellant was heard during the criminal investigations and that he pleaded guilty. The CPS asked how the appellant was heard (in person, through a lawyer etc.) and whether he entered a guilty plea himself or through a lawyer. 13 On 28 March 2024, the Alexandria District Court replied. The reply stated that the appellant was officially aware of the existence of a criminal case against him through the statements he made before the criminal investigation body, when he was informed of his procedural rights provided for in Article 10 and Article 83 of the Code of Criminal Procedure. Mr Watson KC submits, correctly in my view, that the various rights set out in the response appear to be concerned with the criminal investigation; and that they do not suggest that the appellant was, at this point, someone who had been charged with the offences. Although he was told of the obligation to notify any change of address, the information certainly does not indicate that the appellant was, at this point, told that he might be tried in his absence. 14 In apparent answer to the question regarding the guilty plea, the District Court said that when the appellant was informed of his status as a suspect, “he admitted and regretted his acts [and] described the circumstances in which he committed them.”
He subsequently “evaded investigation and was not found at his residence to be informed of his status as an accused.” Those last words underscore the fact that the appellant was not an accused at the relevant time. 15 At the trial of the appellant on 15 November 2022, the court ordered “the appointment of a public defender given his absence from the residence address as he had left for England.” At trial the appellant was, accordingly, “represented by a public defender.” 16 On 26 April 2024, the CPS asked for further information concerning two different case file references supplied by the District Court. It also asked whether in respect of case 3035/740/2022, the appellant was informed he was going to be prosecuted; whether he was required to provide an address, to which a summons would be sent, with the date and place of his trial and/or that he was expected to make enquiries as to date and place; and whether he was informed that if he did not attend his trial, he may be convicted in absence. The CPS also asked when the appellant was heard as a suspect and whether, at that point, there was any agreement between the prosecutor and the appellant, as to his punishment. 8. 17 On 11 June 2024, the District Court replied. It said that case 1539/P/2019 was in respect of the indictment dated 19 May 2022, that being (it appears) when the appellant “was criminally charged ...”.Case 3035/740/2022 “corresponds to the trial phase, which concerns the final settlement of the criminal proceedings.” The reply continued as follows:
“ As mentioned in the arrest warrant, the person was summoned in person on 4 October 2022 (summons returned with the mention “addressee definitively left the town, moved to UK”), on 6 December 2022 by means of the summons on the courthouse door and on the web portal of the law courts, and was heard in the criminal phase on 6 July 2020” the defendant admitted the charges, was therefore informed of the date and place set for the trial leading to the decision, and was informed that a decision may be handed down if he does not appear for the trial. The defendant was officially aware of the existence of a criminal case against him, according to the statements made to the criminal investigation body as a suspect on 6 July 2020, and no guilty plea agreement was concluded in the case between the defendant and the public prosecutor, such an agreement having been initiated neither by the prosecutor nor by the defendant.” (original emphasis). 18 The third request for information, and the reply dated 3 July 2024, concern the blood alcohol level recorded in respect of the appellant at the time of the offence of driving with excess alcohol. It is not relevant to the present appeal. The District Judge’s judgment on section 20 9. 19 The passages from the judgment of the District Judge concerning the section 20 issues are as follows: “44. The Requested Person was not convicted in his presence. 45. I must next decide, pursuant to section 20(3) whether he deliberately absented himself from his trial. The words of section 20(3) of the 2003 Act are plain. The Judicial Authority must prove this to the criminal standard. 46. In Bertino -v- Public Prosecutor’s Office, Italy [2022] UKSC 9, the Supreme Court, at paragraph 45, held that: “... The phrase “deliberately absented himself from his trial” should be understood as being synonymous with the concept in Strasbourg jurisprudence that an accused has unequivocally waived his right to be present at the trial...”. 47. At paragraph 54 the Supreme Court continued: “..... 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...” 48. Further, at paragraph 58, it was held that: “..... 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 .....” 49. I am sure that the Requested Person deliberately absented himself from his trial and that he knew he could be convicted in his absence. This is for the following reasons. He knew, because he had been informed in the criminal prosecution phase of his obligation to communicate in writing, within three days, any change of address and that if he failed to communicate any change of address that summonses and documents served at the first address shall remain valid and considered acknowledged. This was disputed by the Requested Person, but I am sure of the information provided by the Judicial Authority on this topic. It will have been provided from written records and will, in my judgment, be more reliable than the Requested Person’s memory. He was also informed that he was obliged to attend court. Moreover, the Judicial Authority has expressly stated in the further information of 11 June 2024 that the Requested Person was “informed of the date and place set for the trial leading to the decision and was informed that a decision may be handed down if he does not appear for the trial.”
I prefer and I am sure of the Judicial Authority’s information on this topic. I accept that the test for fugitivity and the test under section 20(3) of the 2003 Act are different, but I nevertheless, am fortified in my view that the Requested Person knew about the trial date, and the consequences of not attending, because he departed Romania without telling the Romanian authorities he was leaving, without complying with his obligation to provide his address in the UK, and in the knowledge, to use his own words, that he “thought that later on [he] would be prosecuted and [tried]” and that he might get a prison sentence. For all these reasons, I am sure, and I find, that the Requested Person deliberately absented himself from his trial within the meaning of section 20(3). 50. If I am wrong on that then I find that 3.4 in box (d) is endorsed to indicate that the Requested Person will be personally served with the decision without delay after surrender, and when served with the decision, he will be expressly informed of his right to a retrial or appeal, in which he has the right to participate and which allows the merits of the case, including fresh evidence, to be re-examined, and which may lead to the original decision being reversed, and he will be informed of the time frame within which he has to request a retrial or appeal, which is of 10 days. This, in effect, is an assurance that the Requested Person will receive a retrial: Merticariu v- Judecatoria Arad, Romania [2024] UKSC 10. I do not have any evidence that Romania breaches assurances relating to retrial rights or more generally. Accordingly, I am sure, and I find, that the Requested Person would be entitled to a retrial or (on appeal) to a review amounting to a retrial within the meaning of section 20(5). 51. For all these reasons, I am sure, and I find, that the Requested Person is not to be discharged for any of the reasons in section 20 of the 2003 Act ...” 20 Both Bertino and Merticariu featured heavily in the parties’ submissions to me. In order to address those submissions, passages from the judgments in these cases need to be set out at some length. Bertino 10. 21 At paragraph 2 of Bertino, the Supreme Court explained the relationship between the 2003 Act and the Council Framework decisions of 2002 and 2009:
“2. The circumstances in which a person convicted in his or her absence may be extradited pursuant to a European arrest warrant (“EAW”) are prescribed by the 2003 Act and by the Council Framework Decision of 13 June 2002 (2002/584/JHA) (“the FD 2002”) as amended by the Council Framework Decision of 26 February 2009 (2009/299/JHA) (“the FD 2009”). That Framework Decision as amended (“the Amended Framework Decision”) provides that a convicted person must be extradited in various given circumstances, notwithstanding a trial in absence. If none of those circumstances applies, a discretion to extradite remains to be exercised in the executing state in accordance with national law and the European Convention on Human Rights (“the Convention”).” 11. 22 The relevant facts in Bertino were as follows: “4. The offence was alleged to have taken place on 19 June 2015 in the Province of Venice at a holiday camp at which the appellant was working as an entertainer. The police were informed promptly of the allegation and attended the appellant’s place of work. His phone was seized. The formal information provided by the requesting judicial authority in response to a request for further information issued by the Crown Prosecution Service confirms that the appellant was not arrested or questioned formally at the time, although it appears from the appellant’s own account that he went to the local police station. The appellant was sacked from his job and returned to Sicily from where he came. He later voluntarily attended the police station in Spadafora, Sicily on 23 July 2015. He signed a document which recorded that he was under investigation. The document invited the appellant to elect domicile in Italy. The document stated that “as [the appellant] is being investigated, he is under an obligation to notify any change of his declared or elected domicile by a statement to be rendered to the judicial authority”
. It also warned “that if [the appellant] does not notify any change of his declared or elected domicile … the service of any document will be executed by delivery to the defence lawyer of choice or to a court-appointed defence lawyer.” The appellant elected his domicile by giving an address in Venetico, Messina. He also indicated on the form that he “will be assisted by a defence lawyer that will be appointed by the court.” The document was read to him by the judicial police officer. Both he and the police officer signed the document of which the appellant was given a copy. 5. The appellant left Italy in November 2015 and came to the UK. He found work and moved from time to time. The prosecution in Italy was commenced on 8 June 2017. A writ of summons for the hearing set by the judge was issued on 12 June 2017. It summoned the appellant to appear at the Pordenone Court on 28 September 2017 and included a warning that non-attendance without “lawful impediment” would “lead to a judgment in absentia”. The appellant did not receive the summons. By that date the requesting judicial authority knew that he was no longer at the address he had provided in July 2015. In information provided by the requesting judicial authority to the High Court of England and Wales dated 16 January 2022 it confirmed that “service of the judicial document failed because the addressee was untraceable ...[T]he writ of summons was served on the court-appointed defence counsel ... because Mr Bertino had failed to notify any change of address.” The requesting judicial authority made various unsuccessful attempts to trace the appellant in Italy between 2016 and 2019. They eventually obtained contact details at an address in England in January 2019 and were given his mobile telephone number by his mother. These factual details are found in further information provided by the requesting judicial authority during the extradition proceedings. The appellant’s unchallenged evidence before the District Judge was that he notified the authorities of his departure to the UK for family law purposes (his marriage was failing and arrangements had to be made for the children) but not the police in connection with the investigation.” 12. 23 At paragraph 20, the Supreme Court set out Article 4a of the Framework Decision, as inserted in 2009. Article 4a reads as follows:
“Article 4a Decisions rendered following a trial at which the person did not appear in person 1. The executing judicial authority may also refuse to execute the European arrest warrant issued for the purpose of executing a custodial sentence or a detention order if the person did not appear in person at the trial resulting in the decision, unless the European arrest warrant states that the person, in accordance with further procedural requirements defined in the national law of the issuing Member State: (a) in due time: (i) either was summoned in person and thereby informed of the scheduled date and place of the trial which resulted in the decision, or by other means actually received official information of the scheduled date and place of that trial in such a manner that it was unequivocally established that he or she was aware of the scheduled trial; and (ii) was informed that a decision may be handed down if he or she does not appear for the trial; or (b) being aware of the scheduled trial, had given a mandate to a legal counsellor, who was either appointed by the person concerned or by the State, to defend him or her at the trial, and was indeed defended by that counsellor at the trial; or (c) after being served with the decision and being expressly informed about the right to a retrial, or an appeal, in which the person has the right to participate and which allows the merits of the case, including fresh evidence, to be re-examined, and which may lead to the original decision being reversed: (i) expressly stated that he or she does not contest the decision; or (ii) did not request a retrial or appeal within the applicable time frame; or (d) was not personally served with the decision but: (i) will be personally served with it without delay after the surrender and will be expressly informed of his or her right to a retrial, or an appeal, in which the person has the right to participate and which allows the merits of the case, including fresh evidence, to be re-examined, and which may lead to the original decision being reversed; and (ii) will be informed of the time frame within which he or she has to request such a retrial or appeal, as mentioned in the relevant European arrest warrant.”
Decisions rendered following a trial at which the person did not appear in person (i) either was summoned in person and thereby informed of the scheduled date and place of the trial which resulted in the decision, or by other means actually received official information of the scheduled date and place of that trial in such a manner that it was unequivocally established that he or she was aware of the scheduled trial; and (ii) was informed that a decision may be handed down if he or she does not appear for the trial; (i) expressly stated that he or she does not contest the decision; or (ii) did not request a retrial or appeal within the applicable time frame; (i) will be personally served with it without delay after the surrender and will be expressly informed of his or her right to a retrial, or an appeal, in which the person has the right to participate and which allows the merits of the case, including fresh evidence, to be re-examined, and which may lead to the original decision being reversed; and (ii) will be informed of the time frame within which he or she has to request such a retrial or appeal, as mentioned in the relevant European arrest warrant.” 24 The Supreme Court had this to say about the Amended Framework Decision and the related Article 6 (right to fair trial) of the ECHR:

Decisions rendered following a trial at which the person did not appear in person

[45]The Amended Framework Decision recognises that the question whether to extradite is a matter for domestic law when none of the criteria is satisfied. In this instance the applicable domestic law is found in section 20 of the 2003 Act. The sole issue before the district judge was whether the appellant had “deliberately absented himself from his trial” for the purposes of section 20(3). The anterior question whether he was present at his trial was answered in the negative and the subsequent question regarding a retrial did not arise because the district judge concluded that the appellant had deliberately absented himself. Just as the Amended Framework Decision reflects the provisions of Article 6 of the Convention, as interpreted by the Strasbourg Court, on the right to be present at trial so too does section 20. The phrase “deliberately absented himself from his trial” should be understood as being synonymous with the concept in Strasbourg jurisprudence that an accused has unequivocally waived his right to be present at the trial. If the circumstances suggest a violation of Article 6, the answer to the question in section 20(3) would be “no” and the judge would be required to go on to consider the question in section 20(5) on retrial or appeal in accordance with section 20(8). By contrast, if the circumstances suggest that the trial of the accused in his or her absence did not give rise to a violation of Article 6 of the Convention, then the person is taken to have absented himself deliberately from the trial. The answer to the question in section 20(3) would be “yes” with the consequence that the judge must proceed pursuant to section 20(4) to consider wider compatibility with the Convention under section 21.[46]Such an interpretation ensures that section 20(3) conforms with the Amended Framework Decision and with the right to be present at trial guaranteed by Article 6, which itself is at the heart of the Amended Framework Decision. As we have explained above at para 26 we endorse the conclusions at para 34 in Cretu. They include that defendants in criminal proceedings are not to be taken as absent from trial if they have instructed a lawyer to be present who represents them; and that “trial” in section 20(3) (just as in the Amended Framework Decision) is an event with a scheduled date and place rather than a general process.[47]The Strasbourg Court has emphasised the “capital” importance of the right of defendants t to be present at their trials (Poitrimol v France (1993) 18 EHRR 130 para 35) and also that a fair hearing requires that defendants are notified of the proceedings against them (Colozza v Italy (1985) 7 EHRR 516, para 35). Moreover, as was reiterated in Sejdovic at para 89, the notification of the formal “accusation” to the defendant plays a crucial role because it is then that the defendant is put on notice of the factual and legal basis of the charges.[48]It was for the requesting judicial authority to prove to the criminal standard that the appellant had unequivocally waived his right to be present at his trial: see section 206 of the 2003 Act. ... 54.It is apparent from these cases that the standard imposed by the Strasbourg Court is that for a waiver to be unequivocal and effective, knowing and intelligent, ordinarily the accused must be shown to have appreciated the consequences of his or her behaviour. That will usually require the defendant to be warned in one way or another. A direct warning was expected from the judges in the exclusion cases. The Amended Framework Decision, reflecting an understanding of the obligations imposed by Article 6, requires the summons to warn the accused that a failure to attend might result in a trial in absence. In Sibgatullin there was no reason to conclude that the applicant should have been fully aware of the consequences of his actions.[55]It appears from the reasoning of the district judge that he may have regarded a general manifest lack of diligence which results in ignorance of criminal proceedings as itself being sufficient to support a conclusion that an accused had deliberately absented himself from trial (in the language of section 20(3) of the 2003 Act) or unequivocally waived his right to attend (in the language of the case law on Article 6 of the Convention). Dworzecki, to which he referred (see para 40 above), is not authority for that proposition. Indeed, Sibgatullin makes clear at para 47 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...”. ...[58]The certified question on this issue poses a choice in black and white terms:
“For a requested person to have deliberately absented himself from trial for the purpose of section 20(3) of the Extradition Act 2003, must the requesting authority prove that he had actual knowledge that he could be convicted and sentenced in absentia? The Strasbourg Court has been careful not to present the issue in such stark terms although ordinarily it would be expected that the requesting authority must prove that the requested person had actual knowledge that he could be convicted and sentenced in absentia. As we have already indicted, in Sejdovic at para 99 (see para 38 above), on which Miss Malcolm KC relied, the court was careful to leave open the precise boundaries of behaviour that would support a conclusion that the right to be present at trial had been unequivocally waived. The cases we have cited provide many examples where the Strasbourg Court has decided that a particular indicator does not itself support that conclusion. But behaviour of an extreme enough form might support a finding of unequivocal waiver even if an accused cannot be shown to have had actual knowledge that the trial would proceed in absence. It may be that the key to the question is in the examples given in Sejdovic at para 99. The court recognised the possibility that the facts might provide an unequivocal indication that the accused is aware of the existence of the criminal proceedings against him and of the nature and the cause of the accusation and does not intend to take part in the trial or wishes to escape prosecution. Examples given were where the accused states publicly or in writing an intention not to respond to summonses of which he has become aware; or succeeds in evading an attempted arrest; or when materials are brought to the attention of the authorities which unequivocally show that he is aware of the proceedings pending against him and of the charges he faces. This points towards circumstances which demonstrate that when accused persons put themselves beyond the jurisdiction of the prosecuting and judicial authorities in a knowing and intelligent way with the result that for practical purposes a trial with them present would not be possible, they may be taken to appreciate that a trial in absence is the only option. But such considerations do not arise in this appeal, where the facts are far removed from unequivocal waiver in a knowing and intelligent way.”
Cretu and Merticariu 25 Merticariu was handed down at the same time as Bertino and is, like that case, a judgment written by Lord Stephens JSC and Lord Burnett of Maldon. Merticariu concerns the right to a re-trial, which arises if the judge in extradition proceedings finds that the requested person was not present at trial and did not unequivocally waive their rights to a trial in their presence. Before examining the judgment, it is necessary to consider the judgment of the Divisional Court in Cretu v Local Court of Suceava, Romania [2016] 1 WLR 3344, since it was cited with approval in Merticariu. Cretu 26 In Cretu, one sees from paragraph 4 of the judgment of Burnett LJ that the requesting authority had marked boxes in the European Arrest Warrant, which stated that the appellant had not been present in person at the trial which led to the decision. He had been legally summoned on a number of specified occasions in 2009 and 2010 “and therefore was informed about the date and place settled for the trial whose decision was issued and was informed that a verdict can be issued even if he doesn’t come to the trial.” The appellant was stated to have authorised a defender “who was appointed either by himself or ex officio in order to defend him during the trial and indeed he was defended by that lawyer at the trial.” 27 Paragraph 4 of the judgment records that box 3.4 was marked. This said that the appellant was not given the decision personally but that when he will be given the decision, he “will be expressly informed about the right of case re-judgment or a means of appeal that he has the right to, where he could attend personally and that means the whole case, including the new proofs, to be re-examined and this could lead to the annulment of the previous decision”. The time limit for asking for case re-judgment or appeal was 10 days. 18. 28 The following paragraphs of the judgment are relevant: “23. The structure of the 2002 Framework Decision establishes three different broad classes of case. First, cases where the state receiving a request to surrender must do so. That is the default position. Secondly, cases where it is mandatory to refuse to execute an EAW. Those are described in Article 3. Thirdly, cases where the state receiving the request may refuse to execute. Article 4 identifies various circumstances when that may happen. Article 4a provides an additional non mandatory ground to refuse to surrender, where a trial has taken place in the absence of the defendant unless one or more of the four circumstances are established. If they are not then the default position applies and surrender must follow. In short, paragraph 1 of Article 4a allows, but does not require, the state in receipt of a request to refuse to surrender if the person did not appear at “the trial resulting in the decision” unless at least one of the four exceptions is established. 24. The first point to note is that paragraph 1 contemplates that the relevant exceptions will be established by statements in the EAW itself. It does not envisage a general evidential inquiry into the matters thereafter set out. ...[28]Mr Jones submits that the two alternatives found in paragraph 1.(a)(i) of Article 4a (summons or other official means of notification) both require the person concerned to have actual knowledge of the scheduled date. It matters not, for example, if a defendant in criminal proceedings were deliberately to contrive to avoid receiving notification of a trial date by moving during the course of the proceedings, whilst not telling the court. He submits that the first alternative contemplates personal service, as that concept would be understood in this jurisdiction, and is not concerned with posting or delivering a summons to an accused person’s address.29. To my mind, these submissions are not consistent with recitals (1) and (8) to the 2009 Framework Decision. Recital (1) refers to Article 6 of the European Convention on Human Rights, including the right of an accused to appear at his trial, but notes that the Strasbourg Court has declared that right not to be absolute. The accused may “by his own free will, expressly or tacitly but unequivocally, waive that right.” Recital (8) provides: “The right to a fair trial of an accused person is guaranteed by the Convention for the Protection of Human Rights and Fundamental Freedoms, as interpreted by the European Court of Human Rights. This right includes the right of the person concerned to appear in person at the trial. In order to exercise this right, the person concerned needs to be aware of the scheduled trial. Under this Framework Decision, the person’s awareness of the trial should be ensured by each Member State in accordance with its national law, it being understood that this must comply with the requirements of that Convention. In accordance with the case law of the European Court of Human Rights, when considering whether the way in which the information is provided is sufficient to ensure the person’s awareness of the trial, particular attention could, where appropriate, also be paid to the diligence exercised by the person concerned in order to receive information addressed to him or her.”30. Recital (7) provides in narrative form exactly the same description which emerges in paragraph 1(a)(i) of Article 4a. These two recitals suggest that the phrase “summoned in person and thereby informed of the scheduled date” should be interpreted in accordance with the jurisprudence of the Strasbourg Court when it has considered cases where a trial proceeded in the absence of an accused who may not have been aware of the date of the trial but was himself responsible for his state of ignorance. Furthermore, the structure of 1.(a)(i) itself suggests a contrast between that first alternative and the second (other official information) which in terms requires it to be established unequivocally that the person was aware of the scheduled trial. If the Strasbourg Court would consider the summons sufficient to meet the requirements of Article 6, even if the accused did not in fact receive it, then in my opinion it would be sufficient to satisfy Article 4a. ...[34]In my judgment, when read in the light of Article 4a section 20 of the 2003 Act, by applying a Pupino conforming interpretation, should be interpreted as follows:-a. “Trial” in section 20(3) of the 2003 Act must be read as meaning “trial which resulted in the decision” in conformity with Article 4a paragraph 1.(a)(i). That suggests an event with a “scheduled date and place” and is not referring to a general prosecution process, Mitting J was right to foreshadow this in Bicioc.b. An accused must be taken to be deliberately absent from his trial if he has been summoned as envisaged by Article 4a paragraph 1.(a)(i) in a manner which, even though he may have been unaware of the scheduled date and place, does not violate Article 6 ECHR;c. An accused who has instructed (“mandated”) a lawyer to represent him in the trial is not, for the purposes of section 20, absent from his trial, however he may have become aware of it;d. The question whether an accused is entitled to a retrial or a review amounting to a retrial for the purposes of section 20(5), is to be determined by reference to Article 4a paragraph 1(d).e. Whilst, by virtue of section 206 of the 2003 Act, it remains for the requesting state to satisfy the court conducting the extradition hearing in the UK to the criminal standard that one (or more) of the four exceptions found in Article 4a applies, the burden of proof will be discharged to the requisite standard if the information required by Article 4a is set out in the EAW. 35. 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. Article 1 of the 2009 Framework Decision identifies improvement in mutual recognition of judicial decisions as one of its aims. It also contemplates surrender occurring very shortly after an EAW is issued and certified. To explore all the underlying facts would generate extensive satellite litigation and be inconsistent with the scheme of the Framework Decision. Article 4a provides additional procedural safeguards for a requested person beyond the provision it replaced in the original version of the Framework Decision, but 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 statement in the EAW is accurate. That is a process which might well entail a detailed examination of the conduct of the proceedings in that other state with a view to passing judgment on whether the foreign court had abided by its own domestic law, EU law and the ECHR. It might require the court in one state to rule on the meaning of the law in the other state. It would entail an examination of factual matters in this jurisdiction, on which the foreign court had already come to conclusions, but on partial or different evidence. None of that is consistent with Article 4a of the Framework Decision. 36. Should a requested person be surrendered on what turns out to be a mistaken factual assertion contained in the EAW relating to Article 4a, he will not be helpless. He would have the protections afforded by domestic, EU and ECHR law in that jurisdiction. Furthermore, Article 4a does not require the executing judicial authority to refuse to surrender if the person did not appear at his trial, even if none of the exceptions applies. No doubt that is because it can assumed that whatever may be the circumstances of a requested person on his surrender, he will be treated in accordance with Article 6 ECHR in an EU state. ... 41. The judicial authority has additionally stated, by virtue of having ticked point 3.4 on the EAW that, so long as he applies within 10 days of his surrender, the appellant will have a right to a re-hearing. In my judgment Mr Knowles was correct to submit that, even if the district judge was wrong under section 20(3) of the 2003 Act, he would have been obliged to conclude that the appellant would be entitled to a retrial for the purposes of section 20(5). The Romanian retrial provisions are found in Articles 466 to 469 of the Romanian Code of Criminal Procedure 2010, which were amended in 2014. In this regard, Mr Jones developed an argument on the wording of Article 466 of the Code. It mirrored an argument advanced in BP v High Court, Maramures, Romania [2015] EWHC 3417 to the effect that given the appellant’s circumstances, he would not be regarded as having been tried in absentia and so would not have a right to a retrial; or in the language of section 20(5) of the 2003 Act would not have an “entitlement”. 42. This submission illustrates the type of dispute which Article 4a of the Framework Decision is crafted to avoid, by requiring the condition which removes the discretion to refuse to execute the EAW, to be judged by reference to a statement in the EAW. We are being asked to determine the meaning and effect of a piece of Romanian legislation (which in English law is a question of fact rather than law) by reference to little more than its language alone, in a way which contradicts the statement in the EAW. Once again, in my judgment, the statement in the EAW must be taken at face value and is sufficient to satisfy the requirements of both Article 4a and section 20(5). That said, it is common ground that Article 466 was introduced by way of amendment to transpose into Romanian law the relevant parts of Article 4a of the Framework Decision. It can be assumed that Romanian law will provide the right to a retrial in appropriate cases.” Merticariu 29 Merticariu concerned the right to a retrial; in particular, whether section 20(5) will be satisfied even if the right is conditional upon a finding by a court in the requesting state that the requested person was not deliberately absent from their trial (paragraph 6). 21. 30 The Supreme Court made a number of points at paragraphs 23 to 29, concerning Article 4a of the Amended Framework Decision, of which the following are relevant for present purposes:
“25 Fourth, sections 20 and 206 of the 2003 Act, interpreted in conformity with Article 4a, require that the burden of proof to the criminal standard will be discharged by the requesting judicial authority if the information required by Article 4a is set out in the EAW. The issue at the extradition hearing will be whether the EAW contains the necessary statement: Cretu at paras 34(v) and 35. For the purposes 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. 26. Fifth, it will not be appropriate for the 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: 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. ... 29. Seventh, in circumstances where a person is surrendered under Article 4a(1)(d), Article 4a(3) requires that a retrial or appeal shall begin in the requesting state within due time after surrender. Accordingly, if box 3.4 in point (d) of an EAW is ticked by the issuing judicial authority and the requested person is surrendered on the basis of Article 4a(1)(d) the only scope for the courts in the requesting state to decide that the requested person is not entitled to a retrial or on appeal to a review amounting to a retrial, would be on procedural grounds. If the requested person complies with the procedural steps, then there is an obligation to begin the retrial or the appeal. In this way the issuing judicial authority binds the court in the requesting state to begin the retrial or the appeal. ... 22. 31 The Supreme Court found that the box ticking in the EAW was ambiguous: “31 In this case the issuing judicial authority ticked the box under point 2 of point (d) of the EAW, thereby stating that the appellant did not appear in person at the trial resulting in the decision to convict him. Having ticked the box under point 2, the issuing judicial authority was then required to confirm the existence of one of circumstances in the boxes under points 3.1-3.4. The issuing judicial authority ticked the box under point 3.2 and then deleted the words accompanying that box, substituting them with the following: “Being aware of the scheduled trial, he had instructed a lawyer who was either appointed by the person concerned or ex-officio, to defend him at the trial, and was indeed defended by that lawyer at the trial.”
Having ticked box 3.2 the issuing judicial authority was required under point 4 to provide information about how the condition in point 3.2 has been met. The information provided under point 4 was:
“The defendant Bogdan Ionut-Merticariu was not present in court during the trial, he was represented at the hearings by public defender appointed by the court. None of the other boxes was ticked including the box under point 3.4. 32 The EAW pro forma does not request any legal pledges from the requesting judicial authority. However, a legal pledge was added to this EAW as follows: “According to Article 466 Penal Procedure Code: Reopening criminal proceedings in case of an in absentia trial of the convicted person par. (3) ‘In the case of a 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 country, they receive the conviction verdict.’” 33 In this case, the information provided by the issuing judicial authority in the EAW as summarised above demonstrates the following: Having ticked box 3.2 the issuing judicial authority was required under point 4 to provide information about how the condition in point 3.2 has been met. The information provided under point 4 was: “The defendant Bogdan Ionut-Merticariu was not present in (i). It confirms that the appellant was not present at the trial resulting in the decision. (ii) The combination of the answers at points 3.2 and 4 is ambiguous as to the context surrounding the appellant’s representation at trial. The answers show that the appellant was represented by a lawyer at his trial, but they state that the lawyer could have been appointed by the appellant rather than having been appointed “by the court”
. Furthermore, the answer at 3.2 states that, irrespective of who had appointed the lawyer, the appellant had instructed him. This would explain why the box under point 3.4, which is intended to confirm that a retrial will be afforded to the appellant on surrender, was not ticked, because if the appellant was aware of the scheduled trial and had instructed a lawyer to defend him at the trial (whether appointed by him or by the state) he would not be entitled to a retrial and the executing judicial authority would be required to order his surrender: Article 4a(1)(b) of the Amended Framework Decision. (iii) The ambiguity was not resolved by the legal pledge which does not state that the appellant is entitled to a retrial. Rather, the pledge identifies a date from which time runs leaving it to be assumed that a period, which is unspecified, is relevant to an application by the appellant to reopen the criminal proceedings. Furthermore, the legal pledge refers to some of Article 466 of the Romanian Code Criminal Procedure (“the Romanian Code”) without reproducing it in full. 24. 32 Having analysed the findings of the District Judge and (on appeal) of the High Court, the Supreme Court explained the proper construction of section 20(5):
“50 The short point in this appeal concerns the proper construction of section 20(5) of the 2003 Act. The point arises in circumstances where box 3.4 in point (d) of the EAW was not ticked by the issuing judicial authority. If it had been ticked, then subject to the appellant’s extradition being compatible with the Convention rights within the meaning of the Human Rights Act 1998, it would have been mandatory for the executing judicial authority to extradite the appellant. However, where, as here, box 3.4 has not been ticked there remains discretion for the executing judicial authority to order the appellant’s extradition: Article 4a(1). The discretion is to be exercised in accordance with section 20(5) of the 2003 Act and in compliance with the Convention. In so far as relevant section 20(5) provides: “… the judge … must decide whether the person would be entitled to a retrial or (on appeal) to a review amounting to a

retrial.” (Emphasis added)

51 We consider that the natural 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) to a review amounting to a retrial: see Bohm v Romania [2011] EWHC 2671 (Admin), at para 5. 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. Accordingly, we consider that the Divisional Court in BP v Romania [2015] EWHC 3417 (Admin), at para 44, incorrectly construed section 20(5) of the 2003 Act and in Zeqaj v Albania [2013] EWHC 261 (Admin), at para 12, incorrectly construed the equivalent provision in section 85(5) of the 2003 Act. 52 We agree 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, at para 44, incorrectly characterised as a procedural step 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.” entitled to a retrial or (on appeal) to a review amounting to a retrial.” (Emphasis added) 25. 33 At paragraphs 58 to 60, the Supreme Court considered the relationship between the executing judicial authority (in our case, the courts of the UK) and the courts in the requesting state:
“58. It was also submitted on behalf of the respondent that respect for the independence of the courts in the requesting state supports a construction of section 20(5) of the 2003 Act that the executing judicial authority must only decide whether the requested person is entitled to apply for a retrial rather than being entitled to a retrial. It was said that if further information was sought by the executing judicial authority in the UK as to “whether a retrial will be granted in the requesting state” this would place judges, courts and prosecutors in the requesting state in a difficult position. It is said that if the issuing judicial authority was a judge or a court then the issuing judicial authority would be asked to pre-determine their (or their colleagues’) application of domestic law to facts which had not yet been found by the court in the requesting state. It was also said that this problem would be even more acute in several states which had appointed prosecutors as the issuing judicial authorities: see Assange v Swedish Prosecution Authority (Nos 1 and 2) [2012] UKSC 22, [2012] 2 AC 471. If the issuing judicial authority was a prosecutor, then in providing information in response to a request from the executing judicial authority they would be asked to give an opinion on what an independent court in their state may conclude. This, it was submitted, would obviously trespass on the independence of the court in the requesting state. It is suggested that these problems would be overcome, if the true construction of section 20(5) guaranteed not the granting of, but the right to apply for, a retrial 59 We reject those submissions. First, subject only to completion of procedural steps, there is an obligation on the requesting member state to begin the retrial or appeal if the issuing judicial authority, whether a judge, a court or a prosecuting authority, ticks box 3.4 in point (d) of the EAW and thereby secures the surrender of the requested person under Article 4a(1)(d): see para 29 above. The Amended Framework Decision is structured on the basis that a retrial or appeal will begin based on information provided by the issuing judicial authority in box 3.4 in point (d) of the EAW. So, equally if the issuing judicial authority provides further information pursuant to Article 15, subject only to completion of procedural steps, there is no reason why the court in the requesting state is not obliged to begin a retrial or an appeal. 60 Second, before the executing judicial authority in the UK decides whether the requested person would be entitled to a retrial, it must first have decided that the requested person was not convicted in his presence and had not deliberately absented himself from his trial. The issuing judicial authority participates in those decisions as it is represented at the extradition hearing by the CPS and the decisions are based on information provided by it in the EAW or in response to requests for further information. The issuing judicial authority will also have participated in the decision as to whether the requested person was entitled to a retrial. In those circumstances it would be in accordance with the principle of mutual trust and confidence, and also in accordance with the objective in Article 1 of the FD 2009 of improving mutual recognition of judicial decisions, if the courts in the requesting state recognised the decisions of the executing judicial authority that the requested person was not convicted in his presence, had not deliberately absented himself from his trial and was entitled to a retrial in the requesting member state, subject only to completion of procedural steps.”
Trade and Cooperation Agreement 26. 34 Following the UK’s departure from the European Union, the Framework Decision has been replaced by provisions of the Trade and Cooperation Agreement between this country and the present members of the Union. Article 601 is entitled “Other grounds for non-execution of the arrest warrant.” Article 601(1)(i) mirrors Article 4a(1)(a) to (d) of the Framework Agreement, save for the words highlighted in bold below (which carry no materially different meaning):
“1. The execution of the arrest warrant may be refused: (a)-(h)… (i) [I]f the arrest warrant has been issued for the purpose of executing a custodial sentence or a detention order and the requested person did not appear in person at the trial resulting in the decision, unless the arrest warrant states that the person, in accordance with further procedural requirements defined in the domestic law of the issuing State… (i) in due time… (ii) being aware… (iii) after being served… (iv) was not personally served…” 35 The appellant submits that the effect of leaving the EU nevertheless affects the way in which cases, including Cretu and Merticariu, should be applied in the case of arrest warrants to which the TCA applies. I shall address this submission in due course. GROUNDS 1 AND 3 The appellant’s case under section 20 36 The appellant contends that the District Judge was wrong to find that the appellant was deliberately absent from his trial; and to find, in the alternative, that the appellant was entitled to a retrial. So far as concerns the first limb, the District Judge wrongly applied the “manifest lack of diligence” test, disapproved in Bertino. He was, in particular, wrong to rely on the appellant’s statement in the further information of 11 June 2024, that the appellant was informed of his trial date. The District Judge was also wrong to regard the evidence of the appellant, that he “thought that later on [he] would be prosecuted and [tried],” as demonstrating that he was deliberately absent. Mandated lawyer 37 Before considering these submissions, and Mr Ball’s response to them, it is necessary to address an additional reason, not articulated by the District Judge, why the respondent now contends that the District Judge’s conclusion in respect of section 20(3) of the 2003 Act was correct. Box 3.2 of the arrest warrant has been ticked. This states that the appellant had given a mandate to a legal counsellor, who defended the appellant at his trial. 38 At paragraph 26(iii) of Cretu, Burnett LJ held that an accused who has mandated a lawyer is thereby not absent from his trial for the purposes of section 20. Mr Ball relies upon paragraph 35 of Cretu, approved by the Supreme Court at paragraph 27 of Merticariu, that “it will not be appropriate for the requesting judicial authorities to be pressed for further information relating to the statements made in an EAW pursuant to Article 4a [of the Framework decision] save in cases of ambiguity, confusion or possibly in connection with an argument that the warrant is an abuse of process...”
. The ticking of box 3.2 is, therefore, determinative. 39 I do not accept this conclusion. Paragraph 37 of Cretu says that, where further information has been provided, there is no reason why that information should not be taken into account, in seeking to understand what has been stated in the EAW. Reading paragraph 37 together with the qualification in paragraph 35, concerning cases of ambiguity and confusion, it must be the case that where a box has been ticked in the warrant, so as to make a formal statement of the requesting authority’s position, the statement can be rendered ambiguous or confusing by the provision of further information. 40 That is precisely the position here. The further information supplied on 28 March 2024 contradicted the statement in the arrest warrant. The public defender was not appointed until the day of the trial, 15 November 2022. The appointment was due to the appellant’s “absence from the residence address, as he had left for England.” The defendant was then “represented by a public defender.” There is no suggestion that the appellant was in some way able to mandate the lawyer from England on 15 November. On the contrary, it would be absurd to draw such an inference. Deliberate absence 41 I therefore return to address the submissions outlined above. The parties are in substance agreed as to the law, following Bertino. As stated in paragraph 45 of that case, the sole question for the District Judge was whether, in the words of section 20(3) of the 2003 Act, the appellant had “deliberately absented himself from his trial”; and that phrase is to be interpreted as being synonymous with the concept in the Strasbourg jurisprudence that the appellant had “unequivocally waived his right to be present at his trial.” In Bertino, the Supreme Court concluded that, on the facts, the appellant had not done so. 42 Mr Watson and Mr Ball draw attention to what they consider to be respectively points of factual similarity and difference between those of Bertino and the present appellant. Like Mr Bertino, the appellant was merely under investigation when he left the jurisdiction of the requesting state. Although both knew they were under investigation, they had not been charged with an offence. In neither case was there certainty that a prosecution would follow; and in both cases charges were not brought until some two years later. Both were under an obligation to notify the authorities of any change of address. 43 Unlike Mr Bertino, however, the appellant was questioned, during which, according to the first set of further information, he “admitted and regretted the acts [and] described the circumstances in which he committed them.” He also told the District Judge that he “thought that later on [he] would be prosecuted and [tried]” (paragraph 49 of the judgment). It is plain from paragraph 49 that the District Judge regarded these aspects as significant. So too was the second set of further information of 11 June 2024, in which the respondent stated that the appellant was “informed of the date and place set for the trial leading to the decision and was informed that a decision may be handed down if he does not appear for the trial.” 44 I also take account of the point made by Mr Ball, that in Bertino the EAW was silent as to all the exceptions provided by Article 4a(i) of the Framework Decision, which led the Supreme Court at paragraph 44 to describe the warrant as “unusual”. 45 Comparison of the facts of cases is, however, of limited usefulness and is in any event no substitute for an analysis that keeps the legal questions firmly in mind and applies them to the specifics of the case in hand. Those specifics, relied on by the District Judge, include the further information of March and June 2024. On proper analysis, I agree with Mr Watson that this information is so contradictory and otherwise problematic as to be incapable of satisfying the legal requirements for a finding of deliberate absence. 46 As foreshadowed in paragraph 13 above, the further information of March 2024 puts beyond doubt the fact that what was said in box 3.1a of the arrest warrant cannot be correct. The appellant did not “plead guilty”. In order to plead, he needed to be charged (or indicted) with the offences. What the appellant said at the investigation stage cannot be conflated with a plea to a charge. This seems to be impliedly acknowledged in the June 2024 response where, in bold type, the respondent confirmed that no guilty plea agreement was concluded in July 2020. Read as a whole, the further information of June 2024 lays bare the difference between the investigatory proceedings and the trial phase, some two years later, which followed the bringing of charges on indictment in May 2022. 47 It may, of course, be possible at an investigation stage unequivocally to waive one’s right to a trial in one’s presence; such as, to use an example mentioned by the Supreme Court, by stating that one will ignore any summonses that might be forthcoming. The appellant’s statement that he thought later on he would be prosecuted is, however, far removed from the extreme position needed to demonstrate a knowing and intelligent decision on the part of the appellant to put himself beyond the law. 48 The District Judge placed weight on the statement in the further information of June 2024 that the appellant was “informed of the date and place set for the trial leading to the decision and was informed that the decision may be handed down if he does not appear at the trial.” The quoted words are a synthesis of the wording in box 3.1a of the arrest warrant, which is repeated almost verbatim in the further information of June 2024. Both box 3.1a and the further information are confusing, in that they are inherently contradictory. 49 Being summoned “personally”, as the arrest warrant has it, or “in person”, as in the further information, has to be understood in the extradition context by reference to Article 4a(1)(a) or, now, Article 601(1)(i) of the Trade and Cooperation Agreement. It cannot be read as including cases where, under the domestic law of the requesting state, the summons was not, in fact, personally served but was deemed to be effectively served, such as by being placed on a “courthouse door and on the web portal of the law courts.” If the position were otherwise, then no matter what the circumstances, an individual would be at great risk of being found to have been deliberately absent from their trial. On the facts set out in paragraph 5 of the judgment in Bertino (where the summons was served on court-appointed counsel), Mr Bertino would have been “summoned in person”. There would have been no need to go further. 50 Since the words “personally” and “in person” fall to be read in accordance with the Framework/TCA, the statements about the summons being posted on the courthouse door and on the web portal are contradictory of the assertion of personal service. Box 3.1a cannot be taken as authoritative. The problematic status of the summons directly impacts upon the findings at paragraph 49 of the District Judge’s judgment because of the relationship between the summons and the assertion that the appellant was heard at the investigation stage in 2020 when he “admitted the charges” and was “therefore" informed of the date and place of the trial and that a decision may be handed down if the appellant failed to appear at the trial. For the reason I have given, there can be no question of the appellant in 2020 admitting any charges. This cannot therefore be any part of the reason for saying that the appellant was informed of the date and place for trial or that he was warned about the possible consequence of non-attendance. In any event, there is nothing in the first two pages of the arrest warrant, which sets out the nature of the rights and obligations at the investigation stage, as contained in Articles 10, 83 and 108 of the Romanian Code of Criminal Procedure, which suggests the appellant was at that point given any warning about the consequences of not attending any trial. 51 This leaves the linkage between the summons of 4 October 2022 and the information about the date/place of trial and the warning as to non-attendance. It is highly likely that the summons included both information and warning. Indeed, it is axiomatic that the summons would tell the summonsed person where and when to attend. But, for the reasons already given, the appellant was not actually informed and warned. Instead of asking whether, in all the circumstances, the appellant had by his actions in 2020, unequivocally waived his right to a trial in his presence, the District Judge took the last part of the further information of June 2024 as showing that the appellant had, in 2024, be informed and warned, despite its being inherently confused. Had the District Judge approached the issue correctly, he could not have been satisfied that the respondent had discharged the burden of showing beyond a reasonable doubt that the appellant had deliberately absented himself from his trial. Right to retrial 52 The issue under section 20 therefore becomes whether the District Judge was wrong in his alternative finding at paragraph 50 of the judgment that the appellant “would be entitled to a retrial or (on appeal) to a review amounting to a retrial” (section 20(5)). 53 The District Judge noted that box 3.4(d) had been endorsed to indicate, inter alia, that on return, the appellant will be informed of his right to a retrial or appeal, which allows for the merits of the case, including fresh evidence, to be re-examined, and which may lead to the original decision being reversed. The time limit for making the request is 10 days. The District Judge described this as in effect “an assurance that the Requested Person will receive a re-trial: Merticariu v Judecatoria Arad, Romania [2024] UKSC 10.” The District Judge said that he had no evidence “that Romania breaches assurances relating to retrial rights or more generally.” He was therefore sure that the appellant would, if extradited, be entitled to a retrial or an appeal that amounted to a retrial. The parties’ submissions on right to retrial 54 The respondent submits that the District Judge was right in his application of Merticariu. Box 3.4(d) had been ticked. There was no ambiguity, confusion or abuse of process: Merticariu, paragraphs 26 and 27, applying Cretu, paragraphs 34, 35, 37 and 41. Not only was the District Judge right, he was, says Mr Ball, required to follow Merticariu. 55 The appellant’s submissions under this heading may be summarised as follows, albeit that the order I adopt is not that of the appellant’s skeleton argument. First, the arrest warrant in the present case is ambiguous etc. Second, the right to a retrial in Romania is founded on Articles 466-470 of the Criminal Code. The Supreme Court in Merticariu found that Article 466 empowers the domestic courts of Romania to decide whether someone convicted in absence is entitled to a retrial; and that this is insufficient to satisfy the requirements of section 20(5). 56 In Chicea v Romania [2024] EWHC 1479 (Admin), Swift J examined further information concerning the Code, concluding that it “confirms the conclusion of the Supreme Court that under s. 466 there is not a right to a retrial of the sort envisaged by s. 20(5) of the Extradition Act 2003.” (paragraph 10). In Mohammed v Law Court of Arad, Romania; Oprea vBucharest Regional Court, Romania [2025] EWHC 1671 (Admin) (“Mohammed”), box 3.4(d) had been ticked in both cases (paragraphs 34 and 37 of the judgments). Nevertheless, counsel for the respondent conceded before the Divisional Court “in the light of the further material that has been filed on this topic that the issue under subsection (5) does not arise because neither Mr Mohammed nor Mr Oprea would be entitled to a retrial. In these circumstances, it is unnecessary for me to examine the decision of the Supreme Court in Merticariu ...” (Jay J; paragraph 37). 57 Mr Watson made reference to the existence of expert evidence, filed in other cases, regarding retrial rights under the Criminal Code. I have not seen any such evidence. Nevertheless, Mr Watson submits that this Court and Westminster Magistrates’ Court can and do take account of factual findings by the High Court regarding the position in requesting states (such as prison conditions); and that it is unnecessary and undesirable for repeat, bespoke expert reports to be obtained in subsequent cases concerning the same issue. Dobrowolski v District Court in Bydgosszcz, Poland [2023] EWHC 763 at 18. It is my understanding that there may have been such evidence in Mohammed, although the judgments do not mention it (understandably, in the light of the concession). 58 Following the judgments in Mohammed, those instructed by the present appellant made a formal request to the CPS, pursuant to the duty of candour, asking for an explanation as to why the concession was made. This was with a view to understanding the basis on which the High Court would be invited by the respondent to take what was said to be a different approach in the present appeal. The CPS relied that such disclosure was not required pursuant to the duty, in that the Divisional Court did not examine Article 466. It was not accepted that Mohammed had wider implications for Romanian re-trial rights cases. 59 The appellant does not accept this explanation. The concession was the reason why the Divisional Court did not need to consider Article 466. The appellant contends that the duty of candour has been breached. This alleged abuse of process forms the basis of Ground 3. It is a further reason why the ticking of box 3.4(d) in the present case cannot have the consequences that the respondent contends. 60 Finally, the appellant submits there is another reason why the ticking of box 3.4(d) does not have those consequences. The present case concerns an arrest warrant, not an EAW. Irrespective of the materially identical wording of Article 4a of the Framework Decision and Article 601 of the TCA, the “conforming interpretation obligation,” which drove the decision in Cretu, does not apply. The appellant draws attention to the recent judgment of the Grand Chamber of the CJEU in the case of MA (C-202/24); ECLI:EU:C:2024:649) [2025] 1 CMLR 35. Right to retrial: discussion 61 I do not consider that the problems I have identified with box 3.1(a) infect box 3.4. As Cretu makes clear at paragraphs 4 and 41, a requesting authority may legitimately tick more than one box, such as, in that case and this, 3.1a and 3.4, so that, in this jurisdiction, both section 25(3) and (5) may be advanced before the District Judge as discrete alternatives. Any ambiguity or other problem regarding 3.1a is not, therefore, to be treated as infecting box 3.4. In so finding, I have taken account of the judgment of Eyre J in Maciuca v District Court of Bacau [2025] EWHC 766 (Admin).in which he found at paragraph 70 that, “in the circumstances of that case, the ticking of both box 3.1a and box 3.4 and the fact that no date had been inserted in box 3.1a was just sufficient to create ambiguity such as to warrant consideration of whether the appellant had a right to a retrial.” The circumstances of that case were markedly different from the present. At paragraph 16 of the judgment, we see that box 3.1a was purely the uncompleted pro forma (including the words “was summoned in person on ... (day/month/year)”), whereas in the present case the dates and circumstances of the summons were set out. Even so, Eyre J considered that the ambiguity was only “just sufficient”. His finding on section 20(5) was, in any event, obiter, since the District Judge was found to have committed no error on the section 20(3) issue: paragraph 67 of the judgment. 62 The appellant contends, however, that there is a conflict between box 3.3 and 3.4. This concerns service of the decision (ie the conviction in absence). The appellant says that because a mark was placed against the second alternative (“he ... did not request a retrial or appeal or appeal within the applicable timeframe”), the respondent was, in fact, relying upon box 3.3 (“the person was expressly served with the decision ...and was expressly informed about the right to a retrial or appeal...”). The appellant cannot, however, both have been served with the decision and yet not have been personally served with the decision, which is what the ticking of box 3.4 avers. 63 I do not accept the appellant’s submission. Box 3.3 is not ticked. The marking of the second alternative was, as Mr Ball submits, mere untidiness. Far from assisting the appellant, as Mr Watson KC asserts, box 4 and the information contained under it, are coherent. The respondent’s case was that the relevant condition was met because the appellant had given a mandate to his lawyer and the decision was sent to the appellant’s home address, where it was received by the appellant’s wife. Just as the ticking of boxes 3.1a and 3.4 is not inconsistent, it was permissible for the respondent to contend that the appellant had a mandated lawyer, making him present at the trial; but that if this was not found to be the position by the court in England and Wales (which it was not: see above), the appellant would have a right to a retrial. 64 Subject to the appellant’s other arguments, this means that the District Judge was right to invoke Merticariu. The Supreme Court had before it the text of Article 466 of the Criminal Code. The effect of the judgment is that, where box 3.4 is not ticked in the warrant, the Code alone is insufficient to show that, if a person is extradited to Romania in circumstances where the extraditing court is relying upon a right to retrial, the judicial authorities in Romania will afford the person that right, subject only to purely procedural requirements. Where, however, box 3.4 is ticked, the position is wholly different. At paragraph 50, the Supreme Court held that “If it had been ticked, then subject to the appellant’s extradition being compatible with the Convention rights within the meaning of the Human Rights Act 1998, it would have been mandatory for the executing judicial authority to extradite the appellant.” 65 The reason for this is made pellucid in paragraph 29 of the judgment. Where box 3.4 is ticked “and the requested person is surrendered on the basis of Article 4a(1)(d) [of the Framework Decision] the only scope for the courts in the requesting state to decide that the requested person is not entitled to a retrial or on appeal to a review amounting to a retrial, would be on procedural grounds.” The paragraph goes on to say that if the person complies with the procedural steps, “then there is an obligation to begin the retrial or appeal. In this way the issuing judicial authority binds the court in the requesting state to begin the retrial or the appeal.” 66 The Supreme Court reiterated this point at paragraph 59 of the judgment:
“... there is an obligation on the requesting member state to begin the retrial or appeal if the issuing judicial authority, whether a judge, a court or a prosecuting authority, ticks box 3.4 in point (d) of the EAW and thereby secures the surrender of the requested person under Article 4a(1)(d): see para 29 above.” 67 At paragraph 60 of its judgment, the Supreme Court pointed out that the requesting state participates in the decisions reached by the UK courts in extradition proceedings, including “the decision whether the requested person was entitled to a retrial”
. It would therefore “be in accordance with the principle of mutual trust and confidence, and also in accordance with the objective in Article 1 of the FD 2009 of improving mutual recognition of judicial decisions, if the courts in the requesting state recognised the decisions of the executing judicial authority that the requested person was not convicted in his presence, had not deliberately absented himself from his trial and was entitled to a retrial in the requesting member state, subject only to completion of procedural steps.” 68 Thus, whatever may be the position of the Romanian judicial authorities under Article 466 where box 3.4 is not ticked, where it is ticked, the Supreme Court was clear. Those authorities can be expected to respect and give effect to the basis upon which the court in this jurisdiction has resolved that it may extradite the person concerned. 69 The Supreme Court would not have made these findings if there had been evidence before it that, even if box 3.4 is ticked, the Romanian judicial authorities routinely refuse to accept the juridical basis upon which the person is being extradited. Whilst I accept that this Court will, in accordance with judicial comity, be expected to follow the conclusion of, for example, the Divisional Court on a factual issue such as prison conditions in the requesting state, without demanding that the evidence underpinning those conclusions is adduced afresh, that is very far from being the position here. My attention was not drawn to any case in which the Court has found that the passages in the judgment in Merticariu, which I have cited, can no longer be relied upon because the authorities in Romania are routinely disregarding their responsibilities under the Framework Agreement and/or the TCA. Nor was any expert evidence adduced on this matter. I observe that in Maciuca, the District Judge had heard expert evidence from Dr Mures, a Romanian lawyer, who opined that, on the facts of Mr Maciuca’s case, he might not be afforded a retrial because he had known of the investigation in the criminal proceedings. No such evidence was adduced before the District Judge in the present case. It is entirely unclear whether Dr Mures was asked whether, as a general matter, the judicial authorities in Romania routinely act contrary to what the Supreme Court supposed in Merticariu, when those authorities have ticked box 3.4 of an arrest warrant. In the circumstances, his evidence cannot be read across to the present case. 70 The appellant relies heavily upon the judgments in Mohammed. Mr Mohammed had actually been denied a retrial when he applied for it in May 2024, despite (it seems) having being ordered to be extradited in 2023 by the District Judge on the basis that he would have a right to retrial and despite box 3.4 being ticked (paragraphs 8, 10 and 13). At the time of the application for a retrial, it would seem that the extradition had not crystallised because the District Judge’s decision was being appealed. Mr Oprea was ordered to be extradited by reference to section 20(5) of the 2003 Act, despite box 3.4 being ticked. There is no indication that he sought and was refused a retrial. 71 At paragraph 37, Jay J recorded “in light of further material that has been filed on this topic that the issue under subsection (5) does not arise because neither Mr Mohammed nor Mr Oprea would be entitled to a retrial. In these circumstances, it is unnecessary for me to examine the decision of the Supreme Court in Merticariu...” It is no criticism of the judgment to observe that it does not describe the nature of the further material. It does, however, mean that I am not in a position to infer that the material comprised evidence to the effect that, quite apart from the particular circumstances of Messrs. Mohammed and Oprea, Romania routinely acts contrary to how the Supreme Court considered it could be expected to act, where extradition is ordered on the basis of a right to retrial. 72 The appellant submits there has been a breach of the duty of candour by the respondent, in that it has refused to explain the reason why the concessions were made in Mohammed. I accept the duty would be breached if the respondent refused to disclose information that could, objectively, undermine the case for extradition. I have no reason to assume that the respondent, acting through the CPS, is unaware of its duty of candour. In refusing to provide the explanation, the respondent must therefore be taken to say that the explanation for the concessions does not undermine its case in the present proceedings. Indeed, the respondent’s email of 16 July 2025 states in terms that “It is not accepted that those cases have wider implications for other Romanian re-trial rights cases.” The appellant’s submission under Ground 3 therefore assumes what it seeks to establish; namely, that the explanation is undermining of the present case. 73 The appellant criticises the respondent’s email of 16 July 2025, in which it said that the Divisional Court in Mohammed “did not look at or indeed deal with Art 466 in any way.” The appellant points out that this was because of the concessions. The appellant’s email of 15 July had, however, mentioned Article 466 as the provision on which the right to retrial was said to be based. It was therefore unproblematic for the response to say what it did about Article 466. Concentration on that Article is, in any event, beside the point in the light of Merticariu. Article 466 plainly is the mechanism through which the judicial authorities of Romania act in connection with retrial rights for those tried in absence who are being returned through extradition. Article 466 is, on its own, insufficient to secure the right to retrial. But, when coupled with the formal statement in box 3.4 of the arrest warrant, it is effective for the reasons given by the Supreme Court at paragraphs 29, 59 and 60 of its judgment. The appellant’s duty of candour submission is an attempt to circumvent the need to show this court, by expert evidence, that, contrary to the assumptions of the Supreme Court, there is on the ground a generalised failure to comply with Romania’s international obligations in the field of extradition, as regards retrial rights. 74 The appellant also seeks to rely upon the judgment of Swift J in Chicea. I can see no reference to box 3.4 having been ticked in that case. The further information supplied by the respondent merely relied upon the existence of Article 466. The judgment does no more than record that Article 466, on its own, does not confer a right to retrial of the kind demanded by section 20(5) of the 203 Act (paragraph 10). 75 I therefore turn to the appellant’s submissions on the “conforming interpretation obligation.” In summary, the appellant says that the considerations which underlay the Divisional Court’s emphasis in Cretu upon Article 4a of the Framework Decision, relied upon by the Supreme Court in Merticariu, no longer apply, following the UK’s departure from the EU. Reliance is placed on the CJEU judgment in MA. In that case, the Court considered the position of an individual whom the UK wished to see extradited from Ireland. The Court held that the Framework Decision of 2002 did not govern execution of warrants issued by the UK after the expiry of the transition period on 31 December 2020. Article 1 of the TCA provided that the TCA established the basis for a broad relationship between the EU and the UK within an area of prosperity and good neighbourliness characterised by close and peaceful relations based on cooperation, respectful of the parties’ autonomy and sovereignty. Recital 23 referred to enhancing the security of the EU and the UK by allowing cooperation relating to, interalia, the execution of criminal penalties, including safeguarding and preventing threats to public security. 76 At paragraph 46 of the judgment, the Court held that, although the TCA did not expressly require a Member State to act upon a UK arrest warrant issued on the basis of the TCA, “it follows from ... in particular ... the respective functions of Articles 600 to 604 of that agreement that ... a Member State may refuse to execute such an arrest warrant only for the reasons arising from the TCA.” At paragraph 48, the Court noted that Article 524(2) provides that nothing in Part Three of the TCA alters the rights and principles set out in the ECHR and the EU Charter. 77 At paragraphs 56 to 76, the Court explained that the principle of mutual trust, which underlies the Framework Decision, applies as between Member States, who may only exceptionally check whether another Member State has actually, in a specific case, observed the fundamental rights guaranteed by the EU. This limitation is based on the intrinsic nature of the EU. 27. 78 At paragraphs 65 to 85, the Court held that the TCA does not establish arrangements between the UK and the EU that are as close as the arrangements that exist between the EU and Norway; and that the TCA is not presented as being based on the preservation of mutual trust between the EU states that existed before the UK left the EU. An executing judicial authority in the EU cannot, therefore, order surrender if the authority considers, following a specific and precise examination of that person’s situation, that there are valid reasons for believing that the person would run a real risk to the protection of their fundamental rights, if surrendered to the UK. Paragraphs 82 and 83, read with paragraphs 53 and 54, explain that the scrutiny required from the EU state, in the case of extradition to the UK, is not the same as the approach in Aranyosi (C-404/15 & C-659/15 PPU). That two-stage test involves, first, determining if there is a real risk of infringement on account of either systematic or generalised deficiencies, or deficiencies affecting an objectively identifiable group of persons; and then, determining, specifically and precisely, to what extent the deficiencies identified in the first step are liable to impact on the person concerned and whether there are substantial grounds for believing the person will run a real risk of a breach of their fundamental rights. Where the requesting state is the UK, the EU executing judicial authority must: “... examine all the relevant factors in order to assess the foreseeable situation of the requested person if he or she is surrendered to the UK, which, unlike the two-step examination referred to in paragraphs 52 to 54 above, assumes that both the rules and practices that are generally in place in that country and, if the principles of mutual trust and mutual recognition are not applied, the specific features of that person’s individual situation are to be taken into account simultaneously.” (paragraph 82) 28. 79 The upshot was that, at paragraph 85, the Court held that: “... the executing judicial authority may refuse to give effect to an arrest warrant on the basis of Article 524(2) and Article 604(c) of the TCA, read in conjunction with Article 49(1) of the Charter, only if it has, having regard to the individual situation of the requested person, objective, reliable, specific and properly updated information establishing substantial grounds for believing that there is a real risk of a breach of Article 49(1) of the Charter [“No one shall be held guilty of any criminal offence on account of any act or omission which did not constitute a criminal offence under national law or international law at the time when it was committed...]...” 80 Mr Ball drew attention to the judgment of Julian Knowles J Banica v PogoaneleDistrict Court, Romania [2023] EWHC 405 (Admin). The appellant in that case submitted that mutual trust and confidence in extradition arose only under the Framework Decision. At paragraphs 47 to 53, Julian Knowles J explained why he did not consider the submission had force. Even in the case of countries outside the EU, such as the USA and Trinidad and Tobago, there was high judicial authority that there is a fundamental presumption that states with which the UK has extradition treaties will act in good faith, recognising that the arrangements are founded on mutual trust and respect and that there is a strong public interest in respecting such treaty obligations: Ahmad v USA [2006] EWHC 2927 (Admin); Gomes v Republic of Trinidad andTobago [2009] 1 WLR 1038; Khan v USA [2010] EWHC 1127 (Admin). 81 It is common ground that MA is not binding on this court: section 6(1) of the European Union Withdrawal Act 2018. I can, however, have regard to the judgment, if I consider it appropriate: section 6(2). 82 I agree with Mr Ball that the non-EU cases mentioned in the judgment of Julian Knowles J are of significance. They show that extradition is in all cases rooted in the trust and confidence that exists between signatories to an international treaty and in the implicit belief of each signatory that the other will respect its obligations arising under the treaty. The same must be true of the parties to the TCA. 83 Not being bound by MA, the courts of this jurisdiction are entitled to have full regard to the fact that EU Member States are, like the UK, signatories to the ECHR. In the present case, this means that Article 6, guaranteeing the right to a fair trial, continues to be part of the rationale for Article 601(1) of the TCA, just as it is for Article 4a of the Framework Decision. What the Supreme Court had to say about the significance of Article 6 ECHR in Bertino (eg. paragraph 45) therefore continues to hold good, irrespective of the EU principle of mutual trust. The same is true of Cretu, and its approval in Merticariu. 84 Furthermore, in deciding the extent to which confidence can be placed in statements of EU Member States contained in arrent warrants issued pursuant to the TCA, the courts of this jurisdiction are entitled to have regard to the fact that the Framework Decision continues to govern extradition between EU Member States and that it is frankly fanciful to think such a state would adopt a different attitude towards the importance of statements made in an arrest warrant conveyed to the authorities of the UK, compared with statements made in an EAW conveyed to the authorities of another Member State. 85 Finally, the conclusion reached by the CJEU in MA does not, on careful reading, constitute a change that is likely to produce, on the ground, any drastic difference in outcome. Paragraph 82 tells us that the two-stage Aranyosi test is, in effect, collapsed into a single exercise. It is, however, apparent from paragraph 85 that a Member State may refuse to extradite someone to the UK only if the Member State has, having regard to the individual situation of the requested person, objective, reliable, specific and properly updated information establishing substantial grounds for believing that there is a real risk of a breach of fundamental rights, such as, in that case, the right not to be subjected to retrospective criminal law. 86 Transposing this to the present case, there is a dearth of objective, reliable, specific and up to date evidence that the respondent, having ticked box 3.4, would not afford the appellant a right to a retrial, subject only to the satisfaction of purely procedural requirements. The District Judge was, accordingly, not wrong to find that the respondent had shown to the criminal standard that section 20(5) was satisfied. 87 Before leaving this topic, I should say for completeness, that there is nothing in the appellant’s criticism of the District Judge’s comment in paragraph 50 of his judgment, that ticking box 3.4 was, in effect, an assurance. Mr Watson says that ticking this box is not to be equated with an assurance given regarding, for example, the conditions in which someone will be held in detention, in the event of extradition. I see no difficulty, even if this was the analogy the District Judge was seeking to draw. The District Judge did not, however, say that the assurance was of this nature. He meant only to convey that, in the light of Merticariu, ticking the box represented a formal statement of what would happen if the appellant were extradited. In this, he was entirely correct. 88 For all these reasons, the District Judge was not wrong to find that the respondent had shown to the criminal standard that section 20(5) was satisfied. GROUND 2 The District Judge’s judgment on Article 8 ECHR 89 The District Judge’s consideration of Article 8 was as follows:[53]The Requested Person is a national of Romania. He has settled status in the UK. When he applied for settled status, he did not disclose that he had been convicted of offences, in answer to the question:
“Have you ever been convicted of a criminal offence, or arrested or charged with an offence that you are on trial for or awaiting trial?”
He is now 40 years of age. He was born in Alexandria in Teleorman County. He speaks Romanian. His mother is deceased. His father is in the UK. The Requested Person does have a relationship with his father. This relationship has recently been restored. His sister, Cristina Ene lives in Birmingham in the UK. He has contact with her. His brother, Gheorghe Mirel Ene lives in Germany. He has contact with him. His third sibling is deceased. When the Requested Person was about 09 years of age he moved, with his father, to Serbia. He then went back to Romania. When he was 22 or 23 years of age, he moved to Spain. He first entered the UK in 2014. He has resided in the UK for around 10 years. His family joined him in 2015 except for CE. There were issues with CE’s birth certificate. She remained in Romania with one of the Requested Person’s grandmothers and joined the rest of her family about a year later. He went to Romania, with his whole family, in 2017 and 2019. During the 2019 visit, his father-in-law transferred a house in Romania into the Requested Person’s name. That house was later transferred back to his father-in-law. The Requested Person, as he told me in evidence, intends to return to Romania to live at some point in future. The Requested Person and his family live in Birmingham. He has been employed in the UK. The Requested Person has a Baker’s cyst in his one of his legs which causes pain. The Requested Person has been convicted in Romania of offences over and above those described in the AW. These convictions date back to 2003. He has not been convicted of offences in the UK.[54]The Requested Person’s partner is Ms Fieraru. Ms Fieraru speaks Romanian. She does not speak English. She is illiterate. The Requested Person and Ms Fieraru have been together for about 19 years. Ms Fieraru confirmed in evidence to me that if the Requested Person is extradited, she, and her children, “will have to follow him. We would not leave him alone”. The family would choose to travel to Romania with him. Ms Fieraru’s parents live in Alexandria in Romania. Ms Fieraru passes out when she is stressed or anxious. She has been examined by a doctor. No underlying cause was diagnosed. She has been advised to avoid stress.[55]The Requested Person and Ms Fieraru have nine children: BPE is 16 years of age. SME is 15 years of age. CE is 14 years of age (as of 20 December 2024). MME is 13 years of age. MAE is also 13 years of age. MME and MAE are twins. CNE is 10 years of age. CLE is 09 years of age. GGE is 08 years of age. SAE is 02 years of age. 12 21 BPE, CE, MME and MAE were born in Spain. SME was born in Romania. CLE, GGE and SAE were born in the UK. MME and MAE attend Smith’s Wood Academy. CNE, CLE and GGE attend Yorkswood Primary School. CE, SME and BPE attend Small Heath Academy. BPE and SME are West Midlands Police cadets. All of the children, except MME are in, at least, satisfactory mental and physical health. All the children, except MME, do not have special needs of special educational needs. The family have a support worker. As Ms Fieraru told me, in evidence, the family support worker attends with an interpreter. The Requested Person’s partner’s cousin babysits in case of emergency. She has now moved away from Birmingham. His sister, Cristina Ene, also provides help with hospital appointments but she could not previously provide all the help required by the family. In re-examination by Mr Squibbs, the Requested Person confirmed that Cristina Ene would move in with Ms Fieraru and the children in the event that he is removed to Romania. She told him this a few days before the extradition hearing. The Requested Person also told me, in evidence, that if he is extradited, his brother will come to the UK to help with the children. Later he was asked:
“If [you are] removed, your brother would come and help [your] family?”
He replied: “Yes”. He also told me, when re-examined by Mr Squibbs, that his brother had told him that he would come to the UK to look after the children the day before the extradition hearing or the day before that. The whole family have previously travelled back to Romania for a holiday. The children all speak Romanian. They speak English amongst themselves. The Requested Person and Ms Fieraru converse in Romanian with the children.[56]MME has a mixed cerebral palsy presentation with both positive and negative motor signs, including spasticity, hypotonia and weakness. A major symptom is limited postural control which affects her stability and balance. This impacts her ability to carry out both fine and gross motor skills. She relies on equipment and assistance from others. Substantial support is provided by both parents. Extradition, in the absence of other assistance, would place an unrealistic burden on Ms Fieraru and there would be an extremely negative effect on MME. MME has a doctor in the UK.[57]The Requested Person relies only on his right to respect for his private and family life under Article 8 of the Convention.[58]I have found that the Requested Person has a private and family life to the extent set out above. Extradition will interfere with that private and family life. The interference is sufficient to engage Article 8. It will interfere with his life in the UK, 13 22 a life of around ten years duration. It will interfere with the life of his family. The interference is lawful. It is also a necessary interference in a democratic society in order for the UK to honour its international treaty obligations and for the prevention of disorder and crime.[59]The key question for me is whether the interference is proportionate. If it is, then the Requested Person’s extradition will be compatible with the Convention rights and I must order extradition. If it is not, then it will not be compatible, and I must discharge the Requested Person.[60]I have considered Norris -v- Government of the United States of America (No.2) [2010] UKSC 9, HH -v- Deputy Prosecutor of the Italian Republic, Genoa [2012] UKSC 25 and Polish Judicial Authorities -v- Celinski and others [2015] EWHC 1274 (Admin).[61]In Celinski a balance sheet approach was commended. I must set out the factors that favour extradition and then the factors that militate against it. I must then set out reasoned conclusions as to why extradition should be ordered, or the Requested Person discharged.[62]There are nine children. Their best interests are a primary consideration. They must be considered first. I find that it is in their best interests to continue living with their father, the Requested Person, with whom they have a close and loving relationship, and their mother Ms Fieraru. Their best interests can be outweighed by the cumulative effect of other considerations.[63]I find that the following factors favour extradition:a. the public interest in ensuring extradition arrangements are honoured is very high, so too is the public interest in discouraging persons seeing the UK as a state willing to accept fugitives from justice;b. the offending described in the AW is, as is obvious from the sentence imposed, regarded as serious in Romania;c. a significant sentence of 01 year and 08 months has been imposed;d. the whole of that sentence remains to be served by the Requested Person;e. the Requested Person is a fugitive who fled Romania to avoid prosecution and punishment for the offences described in the AW; and 14f. the Requested Person has been convicted of offences over and above those described in the AW though the weight to be attached to this factor is limited because of the age of the convictions.[64]I find that the following factors militate against extradition:a. there will be an interference with the Requested Person’s private and family life in the UK;b. there will be an interference with the private and family life of his family in the UK;c. it is in the best interests of the nine children continue living with the Requested Person and Ms Fieraru;d. the offences described in the AW might not be regarded as seriously in the UK as they are in Romania; ande. the Requested Persson has not committed offences in the UK.[65]The cumulative weight of the factors I have identified in favour of extradition is very high. As Lady Hale explained before Celinski, in HH (and which I refer to here as an earlier statement of the principle set out again in Celinski):
“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 UK 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.”
[66]The factors I have identified relating to the Requested Person and the adult members of his family, which tend to militate against extradition, also carry weight. The weight to be attached to those factors is, in my judgment, diminished for a number of reasons. Nothing I write should be seen to diminish the weight to be attributed to best interests of the children. They are not to be blamed for the Requested Person’s conduct.[67]The Requested Person’s family’s position is at the heart of this issue. I accept that extradition will cause hardship to the family. However, Ms Fieraru and the children will continue to have the love and company of each other. The children will continue to have her care. Ms Fieraru has been examined by a doctor and interpretation is provided for her when she attends the doctor without the Requested Person. The family have a support worker. The support worker attends 15 24 with an interpreter to communicate with Ms Fieraru if the Requested Person is not present. All the children of school age are in education. There is nothing to indicate that this will not continue if the Requested Person is extradited. All of the children, with the exception of MME, are in at least satisfactory physical and mental health and they do not have special needs or special educational needs. Significantly, the Requested Person confirmed, in evidence, that his brother and/or his sister would help Ms Fieraru and the children in his absence. His brother would travel to the UK to do so. His sister has indicated she would move in to help. The Requested Person confirmed that these were recent offers of help provided in the days before the extradition hearing. This assistance from close family members is, in my judgment, a significant factor mitigating the consequences of the Requested Person’s absence. There is nothing to indicate that Ms Fieraru, and the children, would not be entitled to financial, social services and local authority support from the UK state on the same basis as any other family where one parent is absent serving a custodial sentence.[68]Alternatively, if wished, the family could relocate to Romania with the Requested Person if he is removed. This was Ms Fieraru’s stated intention in her evidence to me. Doubtless, consideration of that option will have involved careful thought about the children’s best interests by the Requested Person and Ms Fieraru. They will be in the best position, as loving parents, to decide what is best for their children. I note that the children do speak Romanian. They have visited Romania. The whole family has been able to travel there previously on holiday. They have family in Romania. It appears that the Requested Person himself maintains a close emotional bond with Romania. He has expressed his intention to return there when circumstances permit and a house was transferred to him (though later returned to his father-in-law) around 2019.[69]The Requested Person himself will be removed to Romania, the country of his birth and nationality. He has significant experience of the culture and society of Romania. He speaks Romanian. The Requested Person is in, at least, satisfactory health. He has the Baker’s cyst, but there is nothing to indicate that Romania would not be willing and able to provide adequate treatment for the complaint. There is nothing to indicate that he cannot withstand the rigours of custody and extradition. The Requested Person has built his private and family life in the UK on precarious foundations. He must have known, as a fugitive, that his presence would be detected, and he would have to return to Romania to serve his sentence. I accept that he has not committed offences in the UK but he would not have wished to draw attention to himself. I accept that the offences described in the AW might not 16 25 be regarded as seriously in the UK as they are in Romania, but I must defer to the Judicial Authority’s knowledge of conditions locally in Romania and the sentencing practice of the Romanian courts in relation to those circumstances. The offending described in the AW is plainly considered to be serious in Romania as demonstrated by the significant sentence.[70]I have carefully considered the respective weight to be attributed to both sets of factors. I have carefully balanced both sets of factors together. I am satisfied that greater weight attaches to the factors in favour of extradition. The factors against extradition have weight but, in my judgment, less weight than the factors in favour of extradition, even when the children’s best interests are taken into account as a primary consideration. The scales fall in favour of extradition.[71]I confirm that I would have reached the same conclusion even if I had not been sure that the Requested Person is a fugitive.[72]The extradition of the Requested Person to the Romania is a proportionate interference with his right to respect for his private and family life and that of his family.[73]I am satisfied, so that I am sure, that the Requested Person’s extradition is compatible with the Convention rights within the meaning of the Human Rights Act 1998 by reference to Article 8.[74]For all the reasons above, I am sure that extradition is compatible with the Requested Person’s Convention rights within the meaning of the Human Rights Act 1998. The appellant’s criticisms of the District Judge’s Article 8 findings 90 The appellant submits that the District Judge committed the following errors in his Article 8 analysis and findings. He failed to appreciate the impact of the appellant’s extradition on the appellant’s wife and children. He should have given greater weight to the fact that the offences were not serious. He did not consider what is said to be the culpable delay in the case. He gave inappropriate weight to the appellant’s previous convictions. He did not consider that the appellant had been subject to a deprivation of his liberty in the form of an electronically monitored curfew. Standing back, the District Judge’s overall decision was wrong. Fresh evidence applications 91 The first application to adduce fresh evidence is dated 9 July 2025. It concerns a witness statement dated 2 July 2025 from the appellant’s brother, Gheorge. It deposes that the brother has lived in the Netherlands since January 2025. Gheorge’s family (including six children) are in Romania and he visits them every few months. Gheorge could come to help with the appellant’s children in the UK in an emergency but only for a few days. He has no right to work here. The first application also seeks to adduce a witness statement dated 30 June 2025 from the appellant’s sister, Cristina. She has the right to live and work in the UK and comes here every couple of months, before returning to Romania to stay with her daughters, aged 11 and 13. She works as a delivery driver. She never intended to give the appellant the impression that she could live with his family for longer than a week. Although she could help out financially, she would be unable to be with the appellant’s family physically for “too long.” The application also seeks to adduce a witness statement of the appellant dated 30 June 2025. In this, he says he was mistaken in his live evidence when he said that his siblings would be able to move to the UK to help his wife raise the children. His children are well and go to school as normal. He still has issues with his knee. MME is likely to have foot surgery in 2025. 92 The second application to adduce fresh evidence is dated 9 January 2026. It concerns a further witness statement of the appellant. Dated 9 January 2026, with exhibits. As well as continuing to take MME to hospital appointments, the appellant took a son, G, to an appointment in November 2025 regarding a veinous malformation. His son, S, has a follow-up appointment in January 2026, after earlier hand surgery. MME is in need of surgery to correct the straightness of her eyes. There needs to be three additional appointments to check her eyes are stable, before the surgery can occur. The appellant says in addition that the couple’s daughter, B, is due to give birth on 28 January 2026. The appellant says that social services are concerned that B and her partner will not be able to look after the child and have advised her that she should move back in with the appellant and his partner. However, B does not wish to move back as “we do not accept her partner coming into our house, due to his habits that we do not agree with. He is 16 years old.” The appellant says B has been told she is welcome to move back, but the partner is not. B has still not decided what to do. 93 The third application to adduce fresh evidence is dated 16 January 2026. It concerns an NHS letter dated 12 January 2026. This states that MME has been listed for a left femoral extension and derotation osteotomy, patella pulldown, and possibly a right-sided femoral derotation osteotomy. MME is considered to require some orthotic support to mobilise. The writer states that children with cerebral palsy may experience a gradual loss of mobility as they grow, and this is also the case with MME. She has been referred for gait analysis in order to assess her functional status and to finalise the surgical procedures she will require. Article 8: discussion 94 The appellant must show that the overall evaluative assessment of the District Judge was wrong, in the sense articulated in Love: paragraph 10 above. In Andrysiewicz vCircuit Court in Lodz, Poland [2025] 1 WLR 2733, the Supreme Court emphasised that the public interest in extradition will outweigh the rights of the family under Article 8 unless the consequences of interference with family life are exceptionally severe: paragraph 81. 95 I do not consider that the District Judge erred with regard to the interests of the children. At paragraph 62, he expressly treated their best interests as a primary consideration. He had before him the report on MME of Dr Christmas, which detailed the role played by the appellant in her care, such as lifting her and liaising with outside agencies, matters also detailed in the appellant’s witness statement that was before the District Judge. The evidence regarding the help that would be forthcoming from the appellant’s brother and sister, if he were extradited and the family remained in the UK, came from the appellant: paragraph 55 of the judgment. In particular, the sister had told the appellant only a few days before the extradition hearing that she would move in with the children. The District Judge also noted the existence of a support worker for the family and that she “attends with an interpreter”, thus ameliorating any issues regarding the partner’s lack of English. The belated evidence from the sister and the appellant on the subject of her alleged limited ability to help fails both limbs of the Fenyvesi test. It could and should have been produced before the District Judge. It also fails the second limb of that test. Far from capable of being decisive, its belated production bears the hallmarks of self-serving evidence, concocted to deal with what was a weakness in the appellant’s case which was entirely of his own making, as was evident when the appellant received the judgment of the District Judge. The same is true of the brother’s belated evidence. The further evidence regarding MME does not constitute a difference in kind, compared with that presented to the District Judge. She awaits further medical interventions that flow directly from her underlying condition. There is nothing to show that these interventions will be denied her in the UK, if the appellant were extradited. The evidence regarding treatment for the two sons means that the demands on the parents are modestly increased, but to nothing like the extent needed to show that, had this evidence been before the District Judge, his overall conclusion on Article 8 would have been different. In this regard, I would add that, at the end of paragraph 67, the District Judge noted that there was nothing to suggest social services and local authority support would be anything other than available “on the same basis as any other family where one parent is absent serving a custodial sentence.” Such support would no doubt be tailored to the family’s circumstances, including that of MME. 96 The appellant contends that the District Judge was wrong to find at paragraph 69 of the judgment that the family could relocate to Romania. The District Judge is also said to have failed to acknowledge the “hugely disruptive effect on the children’s education that such a move would engender.” Far from exposing an error in the judgment, this submission draws attention to a further weakness in the Article 8 case. The appellant’s family life, and that of the other family members, has a decidedly international character. It has been pursued in a number of different countries, with children being born in Spain, Romania and the UK. The appellant’s first witness statement tells us that he came to the UK from Spain in 2014 with the rest of the family following in 2015. He therefore left his partner with four children, including MME and her twin brother (they were born on 3 November 2011), despite MME’s condition: paragraphs 8, 19 and 20 of the appellant’s first witness statement. It is also noteworthy that the arrest warrant records that the appellant’s partner was in Romania on 26 August 2023, as she is said to have received the decision in the appellant’s case at the appellant’s “home address” in Romania on 26 August 2023. The “whole family” has in any event been able to travel to Romania on holiday: paragraph 68 of the judgment. The appellant is recorded at paragraph 53 of the judgment as telling the District Judge that “he intends to return to Romania to live at some point in the future.” 97 There was no evidence to show that, if MME were to be taken to Romania along with the rest of the family, appropriate treatment would not be available, building on the work done by the NHS, whose records could be transmitted to the appropriate agencies in that country. Whilst there would be an impact on the education of the children who are at school, it has not been shown that this, either alone or in combination with MME’s medical circumstances, would be anywhere near so grave as to make a successful Article 8 case, applying the Andrysiewicz criteria. 98 The new evidence regarding the daughter, B, who was about to give birth, takes the appellant’s case no further. It is speculative to assume that she will decide to go to live with the appellant and the rest of the family, taking the baby with her. 99 The criticism of the District Judge’s assessment of seriousness is unfounded. The sentence of imprisonment was indicative of the view taken in Romania of the seriousness of the offending: paragraph 63b of the judgment. It might not, however, be offending that would be regarded as seriously in the UK: paragraph 64d. There is nothing wrong with those findings. Furthermore and in any event, there is no evidence that Romania’s attitude towards these kinds of driving offences is so out of line with international thinking (not just the UK’s) as to have required the District Judge to disregard or give materially less weight to that attitude. 100 I do not consider the District Judge erred on the issue of delay. Some two years elapsed between the investigation in October 2020 and the summons being issued in 2022. The delay is unexplained. It is not, however, in its own terms so gross as to have required the District Judge to regard it as manifestly culpable and to have accordingly reduced the weight to be given to the public interest in ensuring extradition requests are honoured. It has not been shown that the delay has materially strengthened Article 8 rights. MME’s underlying condition remains as it was, although as she grows, medical interventions are increasing. Those interventions will be materially unaffected by the appellant’s extradition, for the reasons I have given. 101 The District Judge did not err on the issue of according weight to the appellant’s previous convictions. At paragraph 63f of the judgment, he ascribed them limited weight because the appellant was only 19 at the time. The appellant submits that no weight should be given to the convictions. I do not accept this. The appellant was convicted in 2003 of three offences of robbery and one of aggravated larceny, for which he received a combined sentence of three years and six months’ imprisonment. Despite his young age, the offences were serious, as the sentence makes plain. The District Judge was not wrong to ascribe them the weight he did. 102 Finally, the appellant submits that the District Judge should have had regard to the restriction on liberty caused by the imposition, as a condition of bail, of an electronically monitored curfew, confining the appellant to his residence between midnight and 4am. (The reference in the appellant’s skeleton argument to 10pm –4am appears to be an error, as Linden J recognised at paragraph 10 of his order dated 17 July 2025.) The appellant refers to Hodjen v Poland [2022] EWHC 2725 (Admin), in which I pointed out that the significance of a curfew will vary, depending on the circumstances; and that even if the effect has merely been to prevent late-evening socialising, “a long-standing set of restrictions may make a difference, if the case would otherwise be finely balanced.” (paragraph 50). 103 At the time of the hearing before the District Judge, the appellant had been on bail, subject to the curfew condition, for a little less than 9 months. That can hardly be described as long-standing. The appellant has now been subject to the curfew for almost two years. As I understand the appellant, he asserts that this is now of such a length that, had he been deciding the case today, the District Judge would have been required to give the curfew a weight which, given the other factors tending against extradition, would have at least have tipped the proportionality balance in the appellant’s favour. 104 There are two problems with this. First, there is no evidence that the appellant has expressed a wish to engage in late-night socialising or otherwise complained that the curfew has prevented him from doing something he wished to undertake. There is nothing to suggest that, but for the curfew, he would have wished to be away from the children in the early hours. Without some evidential underpinning, curfew cases become merely notional, lacking any actual interference with the kind of family life the person concerned has been leading and/or would wish to lead. Second, a curfew issue of this kind comes into focus only where the Article 8 case is otherwise finely balanced. I do not find this is such a case. 105 I have stood back and considered all the Article 8 matters in the round. Having done so, I cannot accede to the appellant’s submission that the District Judge’s conclusion on Article 8 was wrong. This is so, taking account of the fresh evidence which was not capable of being placed before the District Judge because it relates to events that had not taken place prior to the hearing; namely, the evolving NHS plans regarding MME, the medical matters concerning two of her brothers; and the situation of B and her baby. None of this evidence, alone or cumulatively, would be decisive, taken together with the rest of the evidence. It is therefore not admissible. Decisions 106 The applications to adduce fresh evidence are refused. 107 The appeal is dismissed.

Cited in 1 later judgment