Diyan Robertov Igov v Pernik Prosecutor's Office, Bulgaria

Introduction

This is my judgment on appellant's appeal pursuant to section 26 of the Extradition Act 2003 (“the Act”). The appeal is against the reserved decision of District Judge Calloway, dated 6 August 2024, to order the appellant's extradition to Bulgaria. The appellant pursues his appeal on three grounds. ground 1, dual criminality, and ground 3, article 8 ECHR, were permitted to proceed by order of Heather Williams J, seal dated 6 February 2025. Permission on ground 2, deliberate absence and right to retrial, was granted by Mould J at a renewal hearing on 19 March 2025.

The extradition order was made in respect of a conviction arrest warrant (“AW”) issued on 28 October 2022 and certified on 15 December 2022. The AW relates to two convictions concerning offences committed (1) in 2017 (“conviction 1”) and (2) in 2018 (“conviction 2”).

The convictions

Conviction 1 relates to an offence committed by the appellant on 9 April 2017 when he was 18. The details provided in respect of this offence record that the appellant rode a motorcycle without “the necessary legal capacity”, driving recklessly and in breach of the speed limit, thereby causing injuries to two other road users. One of those injured suffered an open craniocerebral injury, cerebral contusion and an epidural haematoma, resulting in a temporary life-threatening disorder, along with a fracture of the upper jaw, making chewing and speaking difficult, and a fracture of the left knee leading to difficulties in movement of that leg for some months. The second person injured suffered a fracture at the base of the first finger of his left hand, causing restricted movement for over a month. Although not stated in the AW, the appellant has explained that he also suffered serious injuries in this accident which resulted in a metal plate being inserted into his head to protect his brain.

The appellant was convicted of this offence on his entering a guilty plea on 23 January 2018. It is common ground that the appellant was present on this occasion and was legally represented. He had entered into an agreement with the prosecutor's office whereby he was then sentenced to a term of imprisonment of eight months, suspended for a period of three years. Under the terms of the sentence, the appellant was informed that he must not commit any further criminal offences during the operative period of the suspension or the sentence would be activated. The appellant signed the agreement concluded with the prosecutor's office, as well as the court record of 23 January 2018.

Conviction 2 relates to an offence committed on 14 September 2018, when it is stated that the appellant drove a car with THC in his blood. He was convicted of driving under the influence of a prescribed drug and, on 10 February 2022, was sentenced to one-year imprisonment for this offence.

As conviction 2 related to an offence committed during the currency of the appellant's suspended sentence, also on 10 February 2022, the eight-month custodial term for the earlier offence was activated.

The proceedings below and the decision of the District Judge

The appellant was arrested in the UK on 13 November 2023 and brought before the Westminster Magistrates' Court the following day when the extradition hearing was set for 15 March 2024. He was released on conditional bail upon which he has remained.

Following an application by the respondent for additional time, the first listing of the extradition hearing was vacated and relisted for 26 June 2024 when it was effective. The appellant was represented by counsel (albeit not by Ms Westcott, who now appears), and both he and his partner gave evidence. Judgment was reserved and handed down on 6 August 2024.

At the hearing below, it had been common ground that the appellant should have been discharged on conviction 2. That was because the Bulgarian authorities could not provide the level of drugs in the appellant's blood relating to conviction 2 (which could have led to a section 5A Road Traffic Act 1988 offence if over the limit in this jurisdiction), and they did not have information that the appellant's driving was impaired (which could have led to a section 4(1) driving while unfit through drugs offence). As dual criminality could not be established, the respondent had accepted that, in relation to conviction 2, pursuant to section 10 of the 2003 Act, the District Judge was bound to order the appellant's discharge. The District Judge proceeded, however, to order the appellant's extradition on both offences. It is not in dispute that this was an error and the respondent accepts that the appeal must be allowed on this ground (ground 1), such that this is to be treated as a single offence, eight-month penalty case.

Returning to the hearing before the District Judge, to the extent that conviction 2 was in issue, it was the appellant's case that he had been convicted in his absence; he had been unaware that he was ever to be charged and had not deliberately absented himself from trial. Pursuant to section 20 of the Act, it was, therefore, contended that the District Judge must order his discharge. The District Judge did not accept that case, finding that the appellant had been aware that he was the subject of an investigation for a drug-driving offence and, having provided a blood sample knew that any future prosecution would be predicated upon receipt of the laboratory analysis.

The District Judge further found that the appellant was also aware that any positive finding would place him in breach of the suspended sentence in respect of the first offence. The District Judge noted that the appellant had provided the police with a temporary address in Bulgaria, not his settled address in the UK, where he had been living since February 2018. He had also provided a telephone number but, when that was used, it was not answered. The District Judge recorded that the appellant had left Bulgaria within two days of being questioned by police and had travelled to the UK and remained uncontactable.

Considering the appellant's case, under section 20, the District Judge was satisfied to the criminal standard that the respondent had established that the appellant was deliberately absent from his trial for the second offence. Although strictly unnecessary to decide, the District Judge was also satisfied, from further information provided by the respondent, by letter of 10 May 2024, that he would be entitled fully to exercise his defence on a request for a retrial.

By his second ground of appeal, the appellant contends that the District Judge was wrong to conclude there was no bar to extradition on the basis of his absence from trial and/or right to a retrial.

The appellant also argued before the District Judge that his extradition would be incompatible with his article 8 ECHR right to a private and family life and he should thus be discharged pursuant to section 21 of the Act. In this regard, it was the appellant's case that he had an established life in the UK; his convictions related to offences committed when he was a young adult, ages 18 and 19, whereas he was now in a stable relationship with his partner who was expecting their child. The District Judge referred to the appellant's relatively young age when convicted and to the established life he had made for himself in the UK; he had regard to the character references provided, to the evidence of the appellant's medical condition – he had himself suffered a head injury during the course of the first offence – and to the evidence given by the appellant's partner. The District Judge accepted that the appellant had established himself in the UK, both in employment terms and socially, and that he was in a settled relationship with a partner who was expecting their child. He did not, however, consider the appellant's medical condition gave rise to any particular difficulty for extradition purposes.

The District Judge also took account, however, of the serious nature of the offences in issue and that the appellant was, as he had found, a fugitive from justice. Carrying out the requisite Celinski (that is Poland Judicial Authorities v Celinski...