This judgment was handed down remotely at 4pm on Tuesday 15th April 2025 by circulation to the parties or their representatives by e-mail and by release to the National Archives.
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MR JUSTICE MOULD
MR JUSTICE MOULD :
- The Appellant, a 33 year old Romanian national, renews his application for permission to appeal from the decision of the District Judge on 15 September 2023 ordering his extradition to Romania, a Part 1 territory, on a conviction warrant issued on 15 October 2021 ["the AW"] and certified by the National Crime Agency on 19 November 2021. The Appellant was arrested on 31 May 2023 and on 1 June 2023 remanded on conditional bail before Westminster Magistrates Court. He remains on conditional bail.
- At his extradition hearing on 18 August 2023, the Appellant argued that his extradition would be disproportionate to the interference with his right to private and family life protected under article 8 of the European Convention of Human Rights ["ECHR"]. The District Judge concluded that his extradition would be compatible with article 8 ECHR and ordered his surrender to the Respondent judicial authority pursuant to section 21(3) of the Extradition Act 2003. On 3 May 2024, on the papers Linden J refused the Appellant's application for permission to appeal against the District Judge's order.
- The AW gives particulars of 3 offences –
(1) On 30 April 2016, the Appellant committed an assault in which he punched the head and back of his victim, causing her actual bodily harm requiring 2 to 3 days' medical care.
(2) On 26 June 2010, the Appellant committed a public order offence at a discotheque in Bacau County.
(3) On 26 June 2010, the Appellant committed an assault at that discotheque causing his victim to sustain actual bodily harm which required 7 to 8 days' medical care.
- The AW seeks the Appellant's extradition to serve a sentence of 11 months' imprisonment, all of which remains to be served.
- Both the Appellant and his partner, Ms Floares, gave oral evidence at his extradition hearing before the District Judge. Having heard their evidence and considered the information provided by the Respondent, the District Judge made certain findings of fact –
(1) The Appellant received a suspended prison sentence for the offence committed in 2010. He was aware that his prison sentence may be activated were he to commit a further offence. In 2016, the Appellant attended court hearings but following his conviction for the offences committed in 2016 and pending the determination of an appeal, he left the jurisdiction.
(2) The Appellant was accordingly a fugitive from justice.
(3) The Appellant came to the UK initially and then returned to Romania. In 2018 he again came to the UK and settled here. He later moved in with his partner and her child. The Appellant and his partner later had a child of their own. The Appellant was a source of support for his partner and family. He works and provides for them.
- In [28]-[38] of her judgment, the District Judge directed herself in accordance with the principles established in Norris v USA (No. 2) [2010] UKSC 9; [2010] 2 AC 487, H(H) v Italy [2012] UKSC 25; [2013] 1 AC 338 and Polish Judicial Authority v Celinski [2015] EWHC 1274 (Admin); [2016] 1 WLR 551.
- In particular, the District Judge reminded herself that in a case in which a child's rights are involved, the child's best interests are a primary consideration. Those interests must be weighed carefully in the balance in reaching an overall conclusion whether the extradition of a parent, particularly a primary carer, is compatible with article 8 ECHR. However, there is no test of exceptionality. The court will consider each case on its specific facts. It must evaluate the impact of extradition on article 8 rights against the important public interest in the UK honouring its international obligations. In both Norris and HH the Supreme Court stated the strong public interest in those convicted of crimes being required to serve their sentences; and that the UK should not be seen as a safe haven for fugitive offenders. That point was emphasised by the Divisional Court in Celinski.
- In [39]-[42] of her judgment, the District Judge considered the balance of factors weighing in favour of and against the extradition of the Appellant to Romania to serve his remaining sentence of 11 months' imprisonment. She identified the fact that the Appellant is a fugitive offender, convicted of serious offences of assault, one in a domestic setting, and facing a substantial prison sentence as weighing in favour of his surrender. Weighing against his extradition were the fact that the Appellant and his partner had a young child together, that the Appellant was a source of financial and emotional support for his partner and the children, that he has worked since arriving in the UK, that his offending in Romania took place several years ago and that he has a largely unblemished record, with a single caution, since he came to this country.
- The District Judge's evaluation of these various factors was as follows –
"42. I find that it will not be a disproportionate interference with the Article 8 Rights of the [Appellant] for extradition to be ordered. My reasons and findings are as follows:
i. It is very important for the UK to be seen to be upholding its international extradition obligations and the decisions of the JA should be accorded proper mutual confidence and respect.
ii. The UK should not be seen as a safe haven for fugitives from justice and the [Appellant] is a fugitive from justice.
iii. The offence is serious for the reasons outlined above.
iv. There is a significant sentence outstanding.
v. The offending was a number of years ago when the [Appellant] was a much younger man. However, the passage of time is down to the [Appellant's] fugitive status. The 2010 offending is now some 13 years old, however, he received a suspended sentence for this offence, and it was because of his own actions in committing a new offence, that this was activated. He was then well aware of the proceedings flowing from the 2016 [offences] and attended for some of the hearings, but fled before the proceedings concluded. He then was aware that he had a sentence to serve, but did nothing about seeking to deal with it or returning to Romania to serve that sentence. It cannot be said that he has been lulled into a false sense of security.
vi. The [Appellant] has worked since he has come to the UK but cannot be said to have lived a completely unblemished life here in the UK due to the caution recorded against him from 2014, although I note there have been no convictions.
vii. The most weighty factor against extradition is the [Appellant's] family and the impact that extradition will have on [his partner] and their children. Clearly, they rely on the [Appellant] emotionally and financially. It is clear that the [Appellant] is a source of support to [his partner] and no doubt to her children. No doubt she will find it very difficult if he is extradited. I note however, that she says in her statement that they have no support network here and yet when she was going through her miscarriage, they left her eldest with a friend. Clearly, she has friends in the UK who she trusts. I also bear in mind that benefits will be available to [his partner] if she chooses to remain in the UK when the [Appellant] is extradited.
viii. Whilst time has passed since these offences were committed, that does not diminish the public interest in extradition for the reasons I have given above. I bear in mind the significant public interest in extradition given the nature of the offending, the sentence to serve and the fact that the [Appellant] is a fugitive. The counterbalancing factors in this case are not so strong as to mean that extradition would be disproportionate".
- The application for permission to appeal was advanced on the single ground that the District Judge had been wrong to conclude that extradition of the Appellant would not be a disproportionate interference with his and his family's rights protected under article 8 of the ECHR. It was not suggested that the District Judge had in any way misdirected herself as to the correct approach to evaluating the balance of factors in favour and against extradition. Such an argument would have been hopeless. Instead, the Appellant argued that the District Judge had been wrong to find that the Appellant's partner has a support network upon whom she could rely and that she would have access to financial support from the state.
- Linden J rejected these arguments as amounting to no more than disagreement with the District Judge's evaluation of the evidence which she had read and heard at the Appellant's extradition hearing. I respectfully agree. I have set out the District Judge's reasons above. In [42(vii)], the District Judge found the loss of financial and emotional support which the Appellant gives to his partner and children to be the most weighty factor against extradition. She accepted that the Appellant's partner would find it very difficult if he was extradited. Nevertheless, the evidence before the District Judge did indicate that the Appellant's could rely on support with the children from her friends in the UK. The District Judge was clearly correct that a single mother with (as at 15 September 2023) two young children would be able to claim benefits following the loss of financial support from the Appellant.
- In his skeleton argument, Mr Clej argued that the District Judge had given insufficient weight to the changes in the Appellant's life since he committed the offences upon which the AW is based. He was a young man in 2010 and 2016, 19 and 25 years of age respectively. He is now in his early thirties, an active and supportive father and family man. Although his remaining prison sentence is not insubstantial, it is not so long as to weigh heavily in the balance in favour of extradition.
- I am unable to accept that there is any force in that argument. The District Judge acknowledged that the offences were committed several years ago and that since 2018 the Appellant has built a life for himself and his family in the UK. She found that he and his partner had a settled relationship. However, whilst acknowledging those factors in his favour, in [42(v)] the District Judge found their weight to be diminished by the fact that the Appellant had fled Romania as a fugitive from justice. Not only did that mean that he was primarily responsible for the passage of time since the offending and the activation of his suspended prison sentence, but also it meant that he could not claim to have been lulled into a false sense of security as he built his life in the UK. I can detect no error in the District Judge's analysis of these factors. In the light of the Appellant's fugitive status, she was clearly correct to limit the weight that she gave to the age of the offences and the Appellant's new life in the UK.
- I bear in mind that the single question for this court on appeal is whether or not the District Judge reached the wrong decision on proportionality: see Polish Judicial Authority v Celinski [2016] 1 WLR 551 at [24]. In my judgment, in the light of the evidence before her and the factors which weighed in the balance in this case, it cannot reasonably be argued that the District Judge was wrong to conclude that extradition of the Appellant pursuant to the AW would be compatible with his rights protected under article 8 of the ECHR.
- However, there is now an application to admit and rely on fresh evidence. It is submitted that this evidence was not available at the extradition hearing before the District Judge. For the Appellant, Mr Clej submits that had the fresh evidence been before the District Judge, it is reasonably arguable that it would have resulted in her deciding that extradition was not compatible with the Appellant's article 8 rights and discharging him under section 21(2) of the 2003 Act. The conditions in section 27(4) of the 2003 Act are said to be satisfied and the fresh evidence should be admitted in accordance with the approach in Szombathely City Court v Fenyvesi [2009] EWHC 231 (Admin) at [32]-[35].
- The fresh evidence consists firstly of a report dated 27 July 2024 prepared by Dr Diana Birch, a paediatrician with special interest in adolescence and child protection. Dr Birch is a qualified medical psychotherapist and holds dual qualifications in paediatrics and mental health. She was asked to carry out an assessment of the Appellant's family – which then consisted of the Appellant, his partner, her 8 year old daughter and their 3 year old son – with respect to their general condition and their emotional and psychological state in relation to potential family issues and separation from the Appellant. Dr Birch conducted a remote assessment session lasting about one and a half hours with the Appellant and his family on 26 July 2024.
- I have carefully read and considered Dr Birch's report. It contains a fairly detailed account of the family's circumstances and history, concluding that the family is well-bonded with good, healthy attachments, the children being close to their parents and the Appellant having an integral role as the father. Dr Birch concludes that the Appellant's removal to Romania would be likely to be very seriously disruptive to the family's cohesion and the children's emotional and psychological welfare. The Appellant's mother would be greatly distressed by being separated from the Appellant. Dr Birch also offers the opinion that the Appellant's mental health would deteriorate as a result of being separated from his family.
- I do not find Dr Birch's conclusions surprising. More pertinently, nor would the District Judge have found those conclusions to be surprising. The evidence that Dr Birch was able to draw upon in her report adds nothing of substance about the Appellant and his family's circumstances to the information that was available to the District Judge. The conclusions drawn by Dr Birch as to the likely impact of extradition on the children and the Appellant's partner are essentially consistent with those reached by the District Judge in [42(vii)] of her judgment. Had Dr Birch's report been available to her when she heard evidence at the extradition hearing in August 2023, it would not have affected the District Judge's conclusions in September 2023 on the question of the compatibility of the Appellant's extradition with his article 8 rights.
- There is no obvious reason why a similar report could not have been obtained and placed before the District Judge at the extradition hearing on 15 August 2023. The Appellant's assertion that he was not advised about obtaining such evidence is not a persuasive explanation. In any event, as I have pointed out, the contents and conclusions of the report do not add substantially to the evidence which was before the District Judge as to the family's circumstances. It cannot reasonably be argued that if admitted and considered together with information already in evidence, Dr Birch's report would lead this court on appeal to conclude, contrary to the District Judge, that extradition would be incompatible with the Appellant's and his family's article 8 rights. For these reasons, I am unable to accept that Dr Birch's report is admissible under section 27(4) of the 2003 Act.
- The second element of fresh evidence which the Appellant seeks to admit are witness statements by his partner and himself dated 18 March 2025, together with recent medical notes in relation to his partner.
- This second element of fresh evidence concerns the recent birth of the Appellant's and his partner's second child on 6 March 2025, at Luton Hospital.
- This renewal application had been listed to be heard on 25 February 2025. Shortly before that date, Sheldon J adjourned the hearing at the Applicant's request, given that his partner was now expecting to give birth around that date. The hearing was adjourned until the first available date on or after 20 March 2025.
- In their witness statements dated 18 March 2025, the Appellant and his partner state that their son was born on 6 March 2025. There were complications which resulted in the Appellant's partner remaining in hospital for three days. She was discharged on 9 March 2025 and had been at home with her new baby since that date. Her notes indicate that she was feeling well on discharge and appeared well when visited on the following day. There is no indication of any significant medical issue with either the baby or mother since discharge from hospital on 9 March 2025.
- Both the Appellant and his partner reiterate that the loss of the Appellant's financial and emotional support as a parent will make it very difficult for the Appellant's partner. The Appellant's partner expresses her concern that the court may consider that she and the Appellant have brought their current predicament upon themselves by having a baby whilst the Appellant faced extradition to Romania. I make it clear that I draw no such conclusion.
- It is self-evident that the recent birth of their second child is not a matter that could have been put in evidence before the District Judge in August 2023. The Appellant's partner now faces the prospect of caring for her eldest child now aged 9, her son now aged 4 and her new baby as a sole parent and without the Appellant's financial and emotional support. The question under section 27(4) of the 2003 Act and applying Fenyvesi is whether it is reasonably arguable, in those circumstances, that this court on appeal would now draw the article 8 balance against the Appellant's extradition.
- At the hearing of this application, it was submitted that the circumstances of this case are such that, at least arguably, the consequences of the interference with the article 8 rights of the family, particularly the children, will be exceptionally severe and so outweigh the powerful public interest in the extradition of a fugitive offender: see HH at [8]. I wished to take time to reflect on that submission and accordingly reserved my decision until today.
- I have come to the clear conclusion that the fact that the Appellant's partner will now have the responsibility of sole parenthood of three children, including a baby, is not likely to have consequences of such severity. I accept that following the Appellant's extradition, his partner will become sole parent and carer for her two children and her new baby. Undoubtedly, she will find it very difficult to cope with the Appellant's absence. The loss of his financial support will be a source of hardship to her. But as a person with settled status in the UK and a single mother of three young children, she will have access to state benefits which will provide her with sufficient support to manage the financial impact of the Appellant's extradition. Any health issues which may arise out of her recent confinement will be able to be managed with the support of the National Health Service. Whilst the emotional impact on her daughter and eldest son is likely to be difficult for her to manage, the evidence before the District Judge was that the Appellant's partner was able to call on help from friends with childcare. In summary, the findings reached by the District Judge in [42(vii)] of her judgment continue to be justified.
- The impact on the Appellant's partner and the children remains the weightiest factor against his surrender. The weight to be given to that factor is reinforced by the recent birth of their second child and the added responsibilities and pressures which that brings for the family. It continues to be the case, however, that that the Appellant's extradition is compatible with his and his family's article 8 rights, for the reasons given by the District Judge in [42(viii)] of her judgment. In my judgment, there is no realistic prospect that this court would conclude otherwise at a substantive hearing of this appeal. The application to admit fresh evidence must accordingly be refused.
- For the reasons I have given, I must refuse permission to appeal.
