Mircea Georgescu v Constanta Tribunal, Romania

Hearing dates: 1.4.2025

Approved Judgment

This judgment was handed down remotely at 10.00am on Wednesday 9 th April 2025 by circulation to the parties or their representatives by e-mail and by release to the National Archives.

The Parties

The Appellant is a Romanian man who is married and has one son. The son is married and has two small children. They all live in Kent. He was convicted of a crime in Romania in 2018 and fled to the UK before the trial. The Respondent is a Romanian Judicial Authority who wish to have him extradited from the UK to serve his prison sentence in Romania. Thus, the Respondent is the requesting judicial authority (RJA).

The Appeal

By a notice of appeal dated 3.4.2024 the Appellant seeks to overturn the decision made by District Judge Leake (the Judge) at Westminster Magistrates Court on 28.3.2024 extraditing him back to Romania to serve a 2 year sentence for tax evasion. S.26 of the Extradition Act 2003 (the EA03) provides a right to appeal on questions of fact or law. The Appellant was found by the Judge to have fled Romania to the UK in February 2017 after being charged with evading tax and making a plea with the police or the RJA in October 2016, whilst he was in prison for other offences. He was released in December 2016. The Judge found that he was and is a fugitive (a finding which is not appealed) and so could not rely on S.14 of the EA03 to avoid extradition on the basis that extradition would be unjust or oppressive. As Lord Diplock ruled in Kakis v. Government of the Republic of Cyprus [1978] 1 WLR 779, at pages 782–783:

“Delay in the commencement or conduct of extradition proceedings which is brought about by the accused himself by fleeing the country, concealing his whereabouts or evading arrest cannot, in my view, be relied upon as a ground for holding it to be either unjust or oppressive to return him. Any difficulties that he may encounter in the conduct of his defence in consequence of the delay due to such causes are of his own choice and making. Save in the most exceptional circumstances it would be neither unjust nor oppressive that he should be required to accept them.”

The Appellant seeks to overturn the balancing exercise carried out by the Judge under S.21 of the EA03, which involved consideration of his rights under Article 8 of the European Convention on Human Rights (Art.8). The Judge decided that the factors in favour of extraditing the Appellant to serve his sentence were heavier than the Art. 8 and other factors weighing against extradition. The Appellant relies on his accrued human rights in the UK exemplified by his family life here and he relies on the (1) delay since his offence; and (2) “culpable and unexplained” delay caused here in the UK since 2017 in issuing an NCA certificate, which is a necessary step before a foreign convicted national can be arrested and extradited.

Bundles

For the hearing I was provided with an appeal bundle, an authorities bundle, two skeleton arguments and then two last minute applications and a supplementary bundle.

The Issues

There is really only one issue in this appeal. That related to whether the Judge applied the wrong test when balancing the factors under S.21 of the EA03 and/or excluded delay (or the effects of the delay) from the balancing exercise. The grounds of appeal were not really boiled down to that issue but as the hearing progressed that became more apparent.

The Appellant submitted that the Judge applied the wrong test. At paras. 51, 96, 97 and 99 the Judge used an “on/off switch” test for the delay factor triggered by his decision that the Appellant was a fugitive. Whereas the Appellant submits that a “titration test” would have been the correct one, under which over 5 years of delay, or the effects thereof, should have been a material and decisive factor weighing in the Appellant's favour.

In response the Respondent submits that delay is only relevant in so far as it creates the effect of increasing, or enhancing the Appellant's family life, family roots and ties and entrenches the Appellant's Art.8 rights. The Respondent submits that there is no right for a fugitive to require the Court to enquire into the cause of the delay. Finally, the Respondent submits that the delay, long though it was, arose from the Appellant fleeing Romania to avoid serving his soon to come sentence. The cause of the delay, whether it was by the RJA or, as in this case, the executing judicial authority (EJA), is not relevant. Only the effect is relevant for the S.21 balancing exercise and the Judge took the effect fully into account.

The approach in this appeal The right to appeal

The EA03 provides:

“ S. 26 Appeal against extradition order

(1) If the appropriate judge orders a person's extradition under this Part, the person may appeal to the High Court against the order.

(2) ….

(3) An appeal under this section—

(a) may be brought on a question of law or fact, but

(b) lies only with the leave of the High Court.”

Leave to appeal

Leave to appeal is required under S.26 of the EA03. To grant leave to appeal the Court has to determine whether any of the grounds is reasonably arguable, see Rule 50.17(4)(b) of the Criminal Procedure Rules. Permission was granted by Hill J on 17.9.2024 on the one ground under Art.8 of the European Convention on Human Rights.

The test on appeal

“S. 27 Court's powers on appeal under section 26

(1) On an appeal under section 26 the High Court may—

(a) allow the appeal;

(b) dismiss the appeal.

(2) The court may allow the appeal only if the conditions in subsection (3) or the conditions in subsection (4) are satisfied.

(3) The conditions are that—

(a) the appropriate judge ought to have decided a question before him at the extradition hearing differently;

(b) if he had decided the question in the way he ought to have done, he would have been required to order the person's discharge.

(4) The conditions are that—

(a) an issue is raised that was not raised at the extradition hearing or evidence is available that was not available at the extradition hearing;

(b) the issue or evidence would have resulted in the appropriate judge deciding a question before him at the extradition hearing differently;

(c) if he had decided the question in that way, he would have been required to order the person's discharge.

(5) If the court allows the appeal it must—

order the person's discharge;

quash the order for his extradition.”

So, in summary, under S.27 of the EA03 the High Court has the power to allow an appeal:

(1) for issues raised at the hearing, if the appeal court decides that the judge ought to have decided a material question differently and the effect of that error would have led to the Appellant's discharge; or

(2) for (a) a new issue which was not raised, or (b) for new evidence which was not available at the hearing, if the appeal court decides that it would have resulted in a material question being decided differently and as a result the judge would have discharged the Appellant.

Appeal by way of review not rehearing

The procedure on appeal is a review not a rehearing. The way the S.27 words have been interpreted in the past by the higher appellate courts, on issues decided at the hearing, is to ask whether the Judge's decision was wrong, namely, whether the Judge erred in such a way that he ought to have answered the statutory question differently.

When determining how to approach the words: “ought to have decided a question differently” and proof that this would have led to discharge of the extradition, in appeals on the balancing exercise under S.21 of the EA03 and Art 8., guidance from another field of law has been incorporated into this field. The guidance was given in Re B (A child) (Care proceedings: threshold criteria) [2013] UKSC 33, [2013] 1 WLR 1911 (SC) by Lord Neuberger:

“93 … There is a danger in over-analysis, but I would add this. An appellate judge may conclude that the trial judge's conclusion on proportionality was

(i) the only possible view,

(ii) a view which she considers was right,

(iii) a view on which she has doubts, but on balance considers was right,

(iv) a view which she cannot say was right or wrong,

(v) a view on which she has doubts, but on balance considers was wrong,

(vi) a view which she considers was wrong, or

(vii) a view which is unsupportable.

The appeal must be dismissed if the appellate judge's view is in category (i) to (iv) and allowed if it is in category (vi) or (vii).

94. As to category (iv), there will be a number of cases where an appellate court may think that there is no right answer, in the sense that reasonable judges could differ in their conclusions. As with many evaluative assessments, cases raising an issue on proportionality will include those where the answer is in a grey area, as well as those where the answer is in a black or a white area. An appellate court is much less likely to conclude that category (iv) applies in cases where the trial judge's decision was not based on his assessment of the witnesses' reliability or likely future conduct. So far as category (v) is concerned, the appellate judge should think very carefully about the benefit the trial judge had in seeing the witnesses and hearing the evidence, which are factors whose significance depends on the particular case. However, if, after such anxious consideration, an appellate judge adheres to her view that the trial judge's decision...