Nicolae-Alfredo Toloii v Gaesti Court, Romania

Mr Justice Dexter Dias : This is the judgment of the court.

1. To assist the parties and the public follow the court’s line of reasoning, the text is divided into six sections and an appendix, as set out in the table below. Section Contents Paragraphs I. Introduction 3-9 II. Permission and grounds 10-11 III. Issues 12-19 IV. Ground 1 20-60 V. Ground 2 63-89 VI. Disposal 90-91 Appendix Materials I - Introduction

2. This is an appeal in extradition proceedings.

3. The appeal is against an extradition order made by District Judge (MC) Sarah Turnock (“the Judge”) sitting at the Westminster Magistrates' Court on 29 July 2024. By her order, the Judge ordered the return of the appellant Nicolae-Alfredo Toloii (“the requested person”), born in Romania on 24 June 1994, back to Romania (“the requesting state”). The respondent in the appeal is the Gaesti Court in Romania (“the judicial authority”). The order is made under section 21 of the Extradition Act 2003 (“ the Act ”). Romania is a Category 1 territory under the Act and thus extradition is governed by Part 1 of the statute, with the initial decision to be made by a district judge, as has happened here. Such an extradition order may be appealed to the High Court with permission. Permission has been granted in this case.

4. The requesting state seeks the appellant’s extradition on an arrest warrant issued under the EU-UK Trade and Cooperation Agreement 2020 on 22 December 2023. It was certified by the National Crime Agency on the same day. The warrant seeks the requested person’s return to serve an outstanding sentence of 8-months’ imprisonment (consisting of two sentences of 6 months’, consolidated as a sentence of 8 months’ imprisonment). The sentence was imposed for two offences in 2014 involving illegal tree-felling in a forest under the administration of the Valea Mare Forestry Office. The allegation is that with another person, he cut down two oak trees and three hornbeam trees and appropriated all the resulting wood. When interviewed by Romanian police on 10 May 2016, he made extensive admissions. Following his leaving Romania for the United Kingdom in 2017, he was tried in his absence. He was convicted and sentenced on 15 June 2018. The sentence was made final due to non-appeal on 4 July 2018.

5. The appellant does not consent to his extradition. He appeals the Judge’s return order on two grounds. They are, put shortly, that the Judge erred in finding that (1) for the purposes of section 20 of the Act he deliberately absented himself from his trial; (2) his extradition is not incompatible with his right to family life under article 8 of the European Convention on Human Rights (“ECHR”), when in fact it is a disproportionate interference.

6. On Ground 1, it is common ground that the appellant was not warned that he may be tried and convicted in his absence. Therefore, the question is that identified by the Supreme Court in the recent case of Bertino v Italy [2024] UKSC 9 (“ Bertino ”): whether notwithstanding such warning, the requested person’s behaviour establishes an “unequivocal waiver” of his right under article 6 of the ECHR to be present at trial. The section 20 question also requires consideration of a distinctive feature of Romanian criminal proceedings, where after formal charge there is a further step of assessment by the prosecuting authorities and, if justified, the issuing of an indictment. This additional procedural step was not argued before the Judge and she did not therefore consider it.

7. On Ground 2, the question is whether the instant case is one of the rare cases envisaged by the Supreme Court recently in Andrysiewicz v Poland [2025] UKSC 23 (“ Andrysiewicz ”) where the impact on family life is of such severity that it outweighs the public interest in making a return order.

8. The appellant is represented by Mr Joyes of counsel. The respondent is represented by Mr Davies of counsel. I am grateful to both counsel for the quality of their submissions and their assistance to the court. II – Permission and grounds

9. Permission was refused in the first instance by Johnson J on the papers on 4 November 2024.

10. Following a renewed oral hearing on 23 January 2025, permission was granted on two grounds by Pepperall J on 23 April 2025 on the two grounds for the following reasons: “Ground 1: Since the Appellant was tried in his absence and has no right to seek a retrial, the critical issue under s.20(3) of the is whether he deliberately absented himself from his trial. The district judge’s finding that he did depends upon whether (as the judge found) the Appellant was heard by prosecutors in Romania on 10 May 2016 and a decision had then been made to initiate criminal proceedings against him, or whether (as he seeks to argue) the case remained under police investigation on 10 May 2016 and there was then no certainty that a prosecution would follow. Extradition Act 2003 … there is now evidence before the court which (if admitted) might indicate that the case was still with the Romanian police and under investigation on 10 May 2016 such that, on a proper application of s.20 , the judge was required to discharge the Appellant. Ground 1 is therefore arguable and it is appropriate to grant permission to allow the Appellant to appeal the judge’s conclusion under s.20 . Ground 2: Both the Judge and Johnson J identified that the Article 8 arguments were very finely balanced. There is now further evidence which (if admitted) might affect the analysis under Article 8 even if ground 1 fails. Accordingly, it is also appropriate to grant permission to appeal on ground 2.” III - Issues Ground 1

11. It is common ground that the sole issue in this case under section 20 is whether the appellant deliberately absented himself from his trial for the purposes of section 20(3) . He was convicted in his absence and is not entitled to a retrial. Sections 20 and 21 provide, as material: “20 Case where person has been convicted (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 . 21 Person unlawfully at large: human rights (1) If the judge is required to proceed under this section (by virtue of section F2 ... 20) he must decide whether the person’s extradition would be compatible with the Convention rights within the meaning of the Human Rights Act 1998 (c. 42). (2) If the judge decides the question in subsection (1) in the negative he must order the person’s discharge. (3) If the judge decides that question in the affirmative he must order the person to be extradited to the category 1 territory in which the warrant was issued.”

12. Under section 206 of the Act , the respondent has the burden of proving to the criminal standard any of the issues it relies on. Ground 2

13. If the respondent proves deliberate absenting, the court then proceeds to consider ECHR compatibility, particularly in respect of article 8 and the associated proportionality question. In addition to Andrysiewicz , I have considered the seminal cases of Norris v United States of America [2010] UKSC 9 (“ Norris ”), HH v Deputy Prosecutor of the Italian Republic, Genoa [2012] UKSC 25 (“ HH ”), Celinski v Poland [2015] EWHC 1274 (Admin) (“ Celinski ”). Reduced to its bare minimum, the issue is that identified by Lady Hale in HH at para 8(3): “The question is always whether the interference with the private and family lives of the extraditee and other members of his family is outweighed by the public interest in extradition.”

14. For each ground, I set out the relevant principles I have applied in the section of this judgment addressing it, placing them closer to the discussion of the merits of the rival submissions.

15. I should record that the appellant made a fresh evidence application to admit various strands of evidence. This included an expert report by a Romanian criminal procedure expert (Adrian Sandru) that went to the Ground 1 section 20 question and a further statement by the appellant’s partner (Ms Chitu), going to Ground 2 article 8 incompatibility. The respondent’s objection is that the evidence is not “decisive”. This objection is based on the principled approach to the admissibility of fresh evidence set out in Hungary v Fenyvesi [2009] EWHC 231 (Admin) (“ Fenyvesi ”). The Divisional Court said: “32. In our judgment, evidence which was “not available at the extradition hearing” means evidence which either did not exist at the time of the extradition hearing, or which was not at the disposal of the party wishing to adduce it and which he could not with reasonable diligence have obtained. If it was at the party's disposal or could have been so obtained, it was available. It may on occasions be material to consider whether or when the party knew the case he had to meet. But a party taken by surprise is able to ask for an adjournment. In addition, the court needs to decide that, if the evidence had been adduced, the result would have been different resulting in the person's discharge. This is a strict test, consonant with the parliamentary intent and that of the Framework Decision, that extradition cases should be dealt with speedily and should not generally be held up by an attempt to introduce equivocal fresh evidence which was available to a diligent party at the extradition hearing. A party seeking to persuade the court that proposed evidence was not available should normally serve a witness statement explaining why it was not available. The appellants did not do this in the present appeal. […]

34. … there may occasionally be cases where what might otherwise be a breach of the European Convention in Human Rights may be avoided by admitting fresh evidence, tendered on behalf of a defendant, which a strict application of the section would not permit…

35. Even for defendants, the court will not readily admit fresh evidence which they should have adduced before the district judge and which is tendered to try to repair holes which should have been plugged before the district judge, simply because it has a Human Rights label attached to it. The threshold remains high. The court must still be satisfied that the evidence would have resulted in the judge deciding the relevant question differently, so that he would not have ordered the defendant's discharge. In short, the fresh evidence must be decisive.”

16. The parties invited me to consider the evidence de bene esse and assess the case as a whole without occupying a significant part of the allotted time with a detailed admissibility argument. This seemed to me to be a sensible and practical way forward and it was the course taken. Therefore, I emphasise that in fairness to the appellant, and in recognition of the implications of an extradition order, I have considered the evidence as a whole before me. This includes evidence in response filed by the respondent.

17. The appeal is brought under section 26 of the Act . Section 27 provides the relevant appeal test: (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.

18. The proper approach to the application of the appeal test was considered by the Divisional Court in Love v USA [2018] EWHC 172 (Admin) . The court said at para 26: “26. 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 Celinski and 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.” IV - Ground 1 ( section 20 ) Legal framework

19. This is not a case where the respondent seeks to prove any of the exceptions set out in article 4a(1) of the Amended Framework Decision (“AFD”). Therefore, as explained in Bertino , the question of extradition becomes one of domestic law. Here the applicable legal test is found in section 20 of the Act . It follows that the correct approach is to determine whether the appellant’s conduct is proved by the respondent to meet the statutory test under section 20 .

20. The phrase in section 20(3) “deliberately absented himself from his trial” is equivalent to the concept in the case law of the European Court of Human Rights (“ECtHR” or the “Strasbourg Court”) in relation to the right to a fair trial guaranteed by article 6 of the ECHR. This is that an accused person has unequivocally waived their right to be present at trial. Article 6 is an important right under the Convention. Lord Bingham of Cornhill recognised this at para 8 of his opinion in R v Jones [2002] UKHL 5 , referring to Strasbourg authority, where he underlines the “capital importance” of the right to be present at one’s trial. However, article 6 is a qualified right. It can also be waived. Thus the test in section 20(3) is broadly a statutory expression of the unequivocal waiver test established by Strasbourg jurisprudence. As the Supreme Court put it at para 47 of Bertino : “47. The Strasbourg Court has emphasised the “capital” importance of the right of defendants 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.”

21. I remind myself that the Supreme Court made clear in Bertino (para 58), having carefully examined the Strasbourg decisions, that the ECtHR 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”. I follow this approach. I examine the evidence holistically in determining whether the section 20 statutory test is proved by the respondent. In appellate test terms, I consider whether the Judge was wrong to conclude that it was.

22. During the course of oral submissions, the issues narrowed on Ground 1, such clarification being one of the positive benefits of oral argument. It was common ground that the law remains the two-limb test in Bertino set out at para 58. It will help to provide some context to the key passages in para 58.

23. In Bertino the appellant had been convicted in his absence as the consequence of a prosecution commenced in June 2017. He had been neither investigated nor formally questioned in any way before he left Italy and came to the United Kingdom although he had attended police stations at least twice. On the last of those visits in July 2015, he signed a document recording that he was under investigation and gave an address in Italy. On leaving Italy in November 2015, the appellant did not inform the police of the relocation abroad and, accordingly, had not provided an address at which he could be contacted. The prosecution had begun in June 2017 and the appellant had not received the summons requiring him to attend at court. As Lords Stephens and Burnett said at para 8: “…There was no personal service of the summons, nor could it be shown that the appellant was unequivocally aware of the place and date of his trial. On the contrary, the information provided by the requesting judicial authority, to which we have referred, confirms that he was unaware of the date and place of trial and, indeed, that he was unaware that a decision had been taken to prosecute him…”

24. The court continued: “36. Sejdovic restated additional article 6 principles. At para 89 the court referred to the right "to be informed promptly ... of the nature and cause of the accusation against him" guaranteed by article 6.3(a). It continued: “This provision points to the need for special attention to be paid to the notification of the 'accusation' to the defendant. An indictment plays a crucial role in the criminal process, in that it is from the moment of its service that the defendant is formally put on notice of the factual and legal basis of the charges against him (see Kamasinski v Austria , 19 December 1989, para 79, Series A no 168). It emphasised that "the provision of full, detailed information concerning the charges against the defendant, and consequently the legal characterisation that the courts might adopt in the matter, is an essential prerequisite for ensuring that the proceedings are fair....": see para 90.

37. In Sejdovic the Italian Government relied upon Medenica v Switzerland (Application No 20491/92 ECHR 2001-VI) in support of the proposition that the applicant had lost his entitlement to a new trial because he sought to evade justice and he had known or suspected that he was wanted by the police but had absconded. The court identified the difference between Medenica and Sejdovic : Medenica had been informed in good time of the proceedings and of the date of his trial. Sejdovic had not. The question was whether Sejdovic could be regarded as having sufficient awareness of the prosecution and trial to be able to decide to waive his right to appear at trial, or to evade justice: see paras 97 and 98.

38. The court then referred in general terms to previous cases which had established that "to inform someone of a prosecution brought against him is a legal act of such importance that it must be carried out in accordance with procedural and substantive requirements capable of guaranteeing the effective exercise of the accused's rights; vague and informal knowledge cannot suffice." It continued, at para 99: "The Court cannot, however, rule out the possibility that certain established 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. This may be the case, for example, where the accused states publicly or in writing that he does not intend to respond to summonses of which he has become aware through sources other than the authorities, 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."

39. This paragraph of its judgment sees the Strasbourg Court, in language that is familiar, carefully avoiding drawing hard lines. Cases are fact specific. It leaves open the possibility of a finding of unequivocal waiver if the facts are strong enough without, for example, the accused having been explicitly being told that the trial could proceed in absence. In Sejdovic , given that the argument for unequivocal waiver was based on no more than the applicant's absence from his usual address, coupled with an assumption that the evidence against him was strong, the court considered that the applicant did not have sufficient knowledge of the prosecution and charges against him. He did not unequivocally waive his right to appear in court: see paras 100 and 101.”

25. Subsequent to Bertino , courts have closely considered and applied para 58 of the Supreme Court’s judgment, which has been taken as a central and authoritative expression of the law. Para 58 says: “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.”

26. Therefore, there must be what the Supreme Court terms an “unequivocal waiver” of the trial to attend trial. The Bertino test has received helpful recent consideration by the Divisional Court (Holroyde LJ, Jay J) in Mohammed & Oprea v Romania [2025] EWHC 1671 (Admin) (“ Mohammed ”). The court said about Bertino : “45. The failure to notify the Italian authorities of the change of address amounted to a lack of due diligence. Taken in isolation, it was not sufficient to lead to a conclusion of deliberate absence. This was because Mr Bertino had not been charged with a criminal offence and whilst he was a suspect had done nothing which might permit the inference to be drawn that he was evading the criminal process . (emphasis provided) … The Supreme Court did not address the hypothetical question of whether Mr Bertino would or might have been deliberately absent if he had been charged and then, once in this country, failed to notify the Italian authorities of his change of address. Nor did the Supreme Court address the issue of deliberate absence on the hypothesis that, instead of doing nothing, Mr Bertino whilst in this country and still a suspect, was contacted by the Italian authorities and actively misled them with the intention of evading future prosecution. […]

47. Counsel subjected [paragraph 58 of Bertino ] to close analysis. It is common ground that Mr Mohammed and Mr Oprea were not warned, contrary to the practice in our courts, that a trial might proceed in their absence. All the possible factual scenarios in which a Respondent is able to prove to the necessary constituents of deliberate absence cannot be presaged although a clear steer is given by para 99 of the judgment of the ECtHR in Sedjovic . What is required is (1) a knowing and intelligent awareness of the criminal proceedings and the charges being faced, and (2) an unequivocal intention (usually proved inferentially) not to participate in a trial or to escape prosecution. In extradition cases the accused person will by definition have placed himself beyond the jurisdiction of the prosecution authorities, and that by itself is insufficient to prove deliberate absence. However, once these two limbs of the para 58 test is fulfilled, the Court is then permitted as a matter of inference to conclude that the accused also knew or appreciated that for all practical purposes a trial with him present would not be practical, or that a trial in absentia would be the only practical option. In reality, unless a prosecuting authority decides no longer to proceed at all, a trial in the accused’s absence will be the only practical option. I cannot accept Mr Perry’s submission that the only correct course would be to issue an accusation warrant.”

27. I consider what the Divisional Court in Mohammed called the “two limbs of the para 58 test” in Bertino as a structured path to determining “unequivocal waiver”. Relying on Bertino and Mohammed , I summarise the test as follows for the purposes of systematic analysis: Limb 1: “awareness” . The awareness of the existence of (a) criminal proceedings and (b) the nature and cause of the accusation (the charges); Limb 2: “intention” . An intention to evade criminal proceedings established (often inferentially) from the whole of the surrounding facts from the conclusion that the individual has (a) no intention to take part in the trial or (b) wishes to escape prosecution. Limb 1

28. Using this rubric, it is common ground that Limb 1 is proved. Therefore, I proceed on the basis that the appellant was informed and thus aware that criminal proceedings had been initiated against him and that he knew he had been formally charged. As Mr Joyes recognised, this was now “a Limb 2 case”. However, aspects of the Limb 1 analysis have a wider relevance for Limb 2 and indeed, Ground 2, so I briefly summarise how this conceded position arose.

29. The Judge found at para 39(ii) of her judgment: “a decision had been made to initiate criminal proceedings… [which] is sufficiently clear in its terms to satisfy me that a charging decision and an intention to prosecute had been made and that the Requested Person was personally aware of that when he left Romania to come to the UK”

30. Thus, she found as a fact that the criminal proceedings had been initiated. In the Further Information dated 11 January 2024, the respondent provided evidence that criminal proceedings had been initiated: “On 10.05.2016, the order for the initiation of criminal proceedings was issued against TOLOll Nicolae-Afredo for committing the offence of theft of trees from the national forest fund and/or committing the offence of theft of trees from the national forest and for committing the offence of unlawful felling of trees from the national forest fund, the offences set out in the warrant. Mr. TOLOII Nicolae Alfredo was personally informed on l0.05.2016 by the report of the. rights and obligations of the accused by the prosecution authorities that criminal proceedings were initiated against him, he was informed about the fact for which he is being investigated and the legal framework of the offence.”

31. The evidence of the appellant’s expert Mr Sandru states in terms that on 10 May 2016 “formal charges” were laid against the appellant; he was considered to be a “defendant”. The document has a line which records whether there are “Any other criminal proceedings against you” (emphasis provided). It is left blank in this case, but the implication is that there are criminal proceedings. From all this, there can be no doubt but that the appellant was aware of criminal proceedings against him and the nature of the charges he faced. As Mr Sandru put it, this step “is the act by which the criminal action is formally initiated against a person”.

32. This understanding is reinforced by the fact that the appellant made substantial admissions to the charges. In his statement filed for these proceedings, he states at para 5 “I do not agree that I am guilty of theft as I had permission from my work to gather wood.” Therefore, it assists, as the Judge did, to examine what he said when speaking to the Romanian police on 10 May 2016. There is a detailed record of his account: “On 27/09/2014 at approximately 0500 hrs together with Victor Dobre, I was riding a horse- drawn cart, which Victor Dobre had borrowed from Gheorghe Matei, also known as ‘Gogu al lui Mantel’. We were in the possession of a chainsaw of the ‘Micul Padurar’ make, which Victor Dobre had also borrowed from the same person on 26/09/2014, with the excuse he needed it to cut fire wood at his home. I had agreed with Victor Dobre to go into the woods and cut down and steal trees which we would have subsequently sold for money. We rode up the forest road that goes from the Scheiu de Jos village to the woods belonging to the Valea Mare Forest District, and after approximately 500 meters, we entered the woods belonging to the Valea Mare Forest District to the right of the road. We kept on going for another 400-500 meters into the woods, and then stopped the cart. We both got off the cart, and I took the chainsaw and cut down 5 (five) trees, to be more exact 2 (two) oak trees and 3 (three) hornbeam trees. … Neither Victor Dobre, nor I had any authorizations to cut down trees, and the trees we cut down had not been marked for that purpose by the Forest District. We did this at approximately 0630 hrs, when it was light outside. Victor Dobre told me that he returned the broken chainsaw to Gheorghe Matei, who subsequently sold it to scrap metal. We did not participate in the reconstruction in the field of our route, as we could not remember the exact place from where we had cut down and stolen the trees. This is the statement I make with assistance, which I personally sign after having read and agreed that the written facts match the facts I verbally declared.”

33. Seen in this light, his comments in his statement to this court lack credibility. He told the police that he knew he had no authorisation to fell the trees. He read and signed the written account and confirmed it matched his verbal account. The nature and content of his admissions have relevance for the Limb 2 analysis, which I now turn to. While there is no evidence that the appellant had been informed of the trial date in Romania, the fixing of a trial date and the accused’s awareness of it is not essential to the Bertino test. The focus for Limb 1 is on awareness of criminal proceedings and the charges faced. The respondent has proved these matters to the criminal standard and this is conceded by the appellant for the reasons given. Limb 2

34. To recapitulate, the question is whether the appellant intended to evade criminal proceedings in the sense outlined above. Discussion

35. For organisational clarity, I divide the discussion under three main heads. First, the status of the indictment step for section 20 ; second, its implications for Limb 2; third, the appropriate inferences to be drawn.

36. First , I consider the question of the status for the section 20 test of a characteristic step in Romanian criminal procedure following charge where there is review by the prosecuting authorities before an indictment is “issued”. Mr Sandru’s evidence is to the effect that in the Romanian criminal process there are three statuses: suspect, defendant, accused. A person under suspicion moves from suspect to defendant once formally charged. The defendant then becomes the accused once an indictment is issued. Mr Sandru says that the person is not being “prosecuted” until an indictment is issued. He said in his report: “(57) At the time of 10 May 2016, the case was still at the investigative stage (urmărirea penală). On the same date, a decision to charge RP was issued - in the Romanian system, this is known as ‘ punerea în mișcare a acțiunii penale ’ and marks the moment of bringing formal charges against a suspect, who then acquires the status of defendant ( inculpat ). The decision to charge DOES NOT move the case out of the investigation phase. (58) Notification of the status of defendant is not a guarantee that a referral to trial will take place. It might be, for example, that an order for discontinuance is made in a defendant’s case when it is decided that a trial would be uneconomic and that a caution would suffice. Notification of defendant status and referral to trial are distinct steps. They cannot be merged into one. There is a strict rule against doing so and there must be a reasonable period of time between the two stages. He could not have been aware at that time that the matter would be referred for trial, because that is a distinct procedural step: whatever his status at that time, whether suspect or defendant, there was no guarantee that the matter would go to court. (59) No decision to prosecute had been made at that point. In the Romanian legal framework, a decision to prosecute corresponds to the issuing of the indictment ( rechizitoriu ) and the referral of the case to trial. In this case, the indictment was issued at a much later date, on 29 August 2017. (60) Therefore: • The proceedings were still at the investigative stage. • A decision to charge had been made. • A decision to prosecute had not yet been made as of 10 May 2016.”

37. The appellant’s original position was that as a result of this third procedural step in Romania, the Limb 1 section 20 test was not met. This was said to be the result of a combination of Mr Sandru’s evidence and the guidance by the Divisional Court in Mohammed . The submission was that Mohammed “moved the law on”. Thus, it was submitted in the skeleton argument that Mohammed “has narrowed the aperture through which ‘deliberate absence’ may be proven in Romanian cases.” This was made as the first submission made at the appeal hearing. In oral submissions, the argument was refined following questions from the court, and it was submitted that Mohammed provided “guidance”. Inevitably, counsel was asked what the guidance was. The appellant resiled from his initial submissions and put the matter in a different way, accepting that Mohammed provided “no fresh guidance as to principle” in general, nor for Romanian cases in particular.

38. The court’s concern was that the appellant appeared to maintain that Mohammed provided a new or additional test in Romanian cases. I was not persuaded that Mohammed had done this in the way the appellant sought to assert. When the question was posed whether Mohammed is authority for the proposition that there must be an indictment before a person charged with criminal offences in Romania can be extradited, Mr Joyes said that he could not make that submission. This is clear from the decisions (plural, importantly) in the Mohammed case. The Divisional Court’s judgment also dealt with a second requested person sought by the Romanian judicial authorities called Oprea. In Oprea’s case, the court rejected the appeal and confirmed the return order to Romania. Oprea was a person who was charged but not indicted, as is the position with this appellant. Oprea’s case makes it impossible to sustain the submission that in Romanian cases being indicted is a precondition to extradition. To my mind, examining the content of article 6 makes this clear. Article 6(3) provides: “3. Everyone charged with a criminal offence has the following minimum rights: (a) to be informed promptly, in a language which he understands and in detail, of the nature and cause of the accusation against him”

39. Article 6 does not require an indictment to be laid. The nature of the protection and the requirement of fairness is that the accused understands the substance of what he is accused of. Indeed, in Sejdovic , the ECtHR said at para 99 that “established facts” may “unequivocally show that he is aware of the proceedings pending against him and of the charges he faces” and the court could not “rule out the possibility that [such] established facts might provide an unequivocal indication”, that is, of waiver of article 6 rights. It seems to me that this is why the test enunciated at para 58 of Bertino assumes the form it has. Awareness of criminal proceedings and charges may be sufficient in place of awareness of a formal indictment and this is why the Supreme Court said at para 38 that cases are “fact specific” and the boundaries of behaviour remain “open” (para 58).

40. Second , I consider the implications of the indictment step. If, as is now common ground, an indictment is not a necessary requirement, the question arises about its significance. The appellant submits that it is a relevant factor going to Limb 2 awareness. The respondent submits that it can “be safely ignored” and this additional procedural step in Romanian criminal process is a “red herring” for Bertino test purposes.

41. The appellant cited the case of Manciuca v District Court of Bacau, Romania [2025] EWHC 766 (Admin) (“ Manciuca ”), a first instance decision of Eyre J. The appellant submitted that in Manciuca , proceedings had progressed to a decision to prosecute. The judgment says at paras 9 and 60: “9. The Appellant travelled to the United Kingdom in October 2016 shortly after he had been interviewed and had learnt that the control measures had come to an end. As the District Judge found he did so knowing that he had the status of defendant in respect of both charges and that the proceedings had moved from the stage of investigation to that of prosecution. “60. … As the District Judge found the Appellant was aware that he was no longer just a suspect but the defendant and that the proceedings were continuing with a view to a trial.”

42. However, it is not ascertainable from the judgment what is meant by the “prosecution” stage and whether the additional stage of being indicted was examined by the first instance judge or on appeal. This authority does not assist the appellant.

43. The appellant then sought to draw a close comparison between his case and that of the requested person in Mohammed , and to distance his facts from Oprea’s. Mohammed had his extradition order quashed by the Divisional Court. The order was upheld in Oprea’s case. The similarities with Mohammed are said to include that both had been charged, notified an address and then changed address without notification. For this reason, the cases are said to possess “no material difference”. The respondent submits that detailed factual comparisons between cases is of limited assistance. The appellant submits that his position was not dealt with by the Supreme Court in Bertino . This is taken from para 45 of Mohammed , where the court said: “45. The failure to notify the Italian authorities of the change of address amounted to a lack of due diligence. Taken in isolation, it was not sufficient to lead to a conclusion of deliberate absence. This was because Mr Bertino had not been charged with a criminal offence and whilst he was a suspect had done nothing which might permit the inference to be drawn that he was evading the criminal process. The Supreme Court did not address the hypothetical question of whether Mr Bertino would or might have been deliberately absent if he had been charged and then, once in this country, failed to notify the Italian authorities of his change of address. Nor did the Supreme Court address the issue of deliberate absence on the hypothesis that, instead of doing nothing, Mr Bertino whilst in this country and still a suspect, was contacted by the Italian authorities and actively misled them with the intention of evading future prosecution.”

44. The submission is that the failure to notify post-charge amounts only to a general “lack of diligence”, not a greater intention to evade, and thus cannot be an unequivocal waiver. For my part, one must return to the test in Bertino and strictly apply it without gloss. Limb 2 of Bertino requires “ an unequivocal intention (usually proved inferentially) not to participate in a trial or to escape prosecution”. The appellant made very substantial admissions of guilt. It is difficult to envisage what his defence would have been. The progression of the initiated criminal proceedings to what in Romanian law is called “prosecution”, that is, being formally indicted and with the trial as the end result, was all but inevitable. The correctness of this conclusion is supported by the fact that this is precisely what happened, a completely unsurprising eventuality. I must note that I have not been assisted by the particulate factual comparisons between this case and Mohammed . I remind myself of what the Divisional Court said in Celinski in respect of article 8 factual comparisons: “14(iii) Decisions of the Administrative Court in relation to Article 8 are often cited to the court. It should, in our view, rarely, if ever, be necessary to cite to the court hearing the extradition proceedings or on an appeal decisions on Article 8 which are made in other cases, as these are invariably fact specific and in individual cases judges of the Administrative Court are not laying down new principles. Many such cases were referred to in the skeleton arguments. We have referred to none of them in this judgment, as the principles to be applied are those set out in Norris and HH . If further guidance on the application of the principles is needed, such guidance will be given by a specially constituted Divisional Court or on appeal to the Supreme Court. It is not helpful to the proper conduct of extradition proceedings that the current practice of citation of authorities other than Norris and HH is continued either in the extradition hearing or on appeal.”

45. In similar vein, comparisons with different factual cases for the purposes of section 20 provide, to my mind, little material assistance to the court, particularly when both the ECtHR and the Supreme Court have emphasised the openness of the boundaries of factual combinations that may amount to unequivocal waiver of article 6 rights. In any event, the appellant’s submissions as advanced ignore vital differences between Mohammed and the instant case. I turn to them to emphasise, as envisaged by the ECtHR and the Supreme Court, the perils of making factual comparisons rather than examining each case on its own facts.

46. Mohammed notified the Romanian authorities of an address in the United Kingdom. He then changed his address in this country without notification. But he had informed the Romanian judicial authorities that he would be in the United Kingdom. This appellant provided his family address in Romania. He then left Romania for the United Kingdom and at no point informed the Romanian judicial authorities that he was in this country. It seems to me that there is a stronger inference of an intent to evade justice in this appellant’s case. The appellant could have gone almost anywhere in the world. In Mohammed’s case, they knew he had travelled to the United Kingdom, and that was a starting-point for locating him. Further, this appellant made extensive admissions of guilt. Mohammed had not. That is a factor undoubtedly relevant to the inferences that may be drawn from the appellant’s failure to notify. The prospects of proceedings advancing to trial and conviction are significantly higher where detailed admissions have been made as the admissions provide substantial additional evidence of guilt. The appellant points to his not having legal representation at the police station. However, there is no evidence before the court that this would or would be likely to have been a basis for the exclusion of the evidence at trial in Romania or that it was in contravention of proper Romanian procedure.

47. Overall, I am not persuaded by the respondent’s submission that the court can “simply ignore” the lack of indictment. I conclude that the fact that an indictment has not been “issued” (to use the Romanian term) is a factor relevant to the Limb 2 intention question and I accept the appellant’s submission on this point. The reason is that once a person knows that they have been indicted in Romania, that final step towards trial has been taken. However, as correctly accepted by the appellant (based on Mohammed/Oprea ), the absence of the step cannot of itself invalidate the making of an extradition order. Thus, it is an additional relevant factor in determining whether the requisite Limb 2 intention can be inferred as part of the structured deliberate absenting test. Therefore, while the lack of indictment seems to me to be a relevant factor, there must be clarity about what it goes to, and does not. Mr Sandru said elsewhere in his report at para 29: “(29) The bringing of formal charges by the prosecutor – acquiring defendant status: The bringing of formal charges by the prosecutor, as governed by Article 309(1) RCCP, is the act by which the criminal action is formally initiated against a person, marking the transition from suspect to defendant. It is ordered by means of an ordinance when there is evidence indicating that the person has committed an offence and none of the grounds for non-prosecution under Article 16(1) RCCP apply. Although this evidentiary threshold is higher than that required for suspect status, in the Romanian legal system, the bringing of formal charges occurs during the criminal investigation, prior to the issuance of the indictment.”

48. In Romania, the decision to charge does not bring the investigation to a halt, but it continues as the criminal proceedings that have been initiated proceed towards trial. The appellant was told by the police that criminal proceedings had been initiated, and that was in conformity with article 309 of the Romanian code, following a decision to initiate by the prosecutor. While the lack of indictment is not a Limb 1 prohibition to extradition, it has relevance to Limb 2 in respect of the strength of inference that may or may not be drawn. If a person wanted by the Romanian judicial authorities knew an indictment had been issued, the failure to notify may provide a stronger inference of deliberate absence. On the other hand, I accept the respondent’s submission that it is speculative whether this appellant would have returned should he have known that he had been indicted. There is no evidence that he would. It was open to him to file such evidence; he did not. It is here that the evidence of his refusal to return to Romania since 2019 when he knew of the sentence imposed on him has relevance. He remains opposed to cooperating with Romanian judicial authorities. He continues to evade Romanian justice. Further, the correct inference about the lack of indicting is informed by his substantial admissions. He would have appreciated once he was indicted that he faced serious difficulties in contesting the case. His was not an incidental or cursory admission, but a very full and detailed account of his guilt, what he had done, how he had done it and his recognition that he did so without permission.

49. At trial in the lower court, the appellant testified that he had been told of the initiation of criminal proceedings. He was aware, therefore, that proceedings had progressed beyond his being a mere suspect. There was a degree of formality and vital progress in the criminal proceedings. He admitted his guilt to the allegation. When he left Romania for the United Kingdom, he knew the risk of criminal sanction was more than a theoretical risk: there was charge and admission. Furthermore, the appellant accepts that the nature and substance of the case against him and the charges did not change from those he was confronted with and answered questions about when he made his admissions. In Sejdovic , the court said at para 89: “the provision of full, detailed information concerning the charges against the defendant, and consequently the legal characterisation that the courts might adopt in the matter, is an essential prerequisite for ensuring that the proceedings are fair....”

50. The allegation was put in detail to the appellant and he was able to respond to it. Formal charges were laid against him.

51. Third , in assessing the appropriate inference to be drawn, the terms of the article 108 warning the appellant was given are significant. It informed him in unmistakable terms that his failure to attend any summons issued could result in arrest and/or judge-ordered detention. Having been warned in these terms, the appellant refused to inform the Romanian authorities that he had left the country for the United Kingdom and where to contact him in this country. This amounts to an effective refusal to be served with the summons. Faced with this, the respondent could either suspend the initiated criminal proceedings or proceed to trial in the appellant’s absence. It was an entirely reasonable, unsurprising and legitimate course under Romanian law for the judicial authorities to try the appellant in his absence.

52. The Judge put it this way at her para 50: “when he came to the UK he was fully aware of the ongoing proceedings in Romania and the fact that he was liable to conviction for these offences and that his decision to come to the UK was deliberately engineered to avoid this situation.”

53. It seems to me that this was a rational conclusion for the Judge to reach and certainly one open to her on the evidence. Her conclusion was sound that the appellant deliberately put himself beyond the reach of Romanian justice in full knowledge of the criminal proceedings and the charges against him and his detailed admissions of guilt. It was supported by the strong temporal connection between the summons being served on his family home in Romania and his applying for a national insurance number in the United Kingdom. The Judge dealt with it this way at para 50: “I also find it to be highly suspicious that the date of the letter, indicating that the Requested Person had applied for a national insurance number in the UK, was on 12 December 2017. It is reasonable to presume that he will have applied for this shortly after arriving in the UK, in light of his evidence that he started working in the UK almost immediately. And although he stated in evidence that he came to the UK in 2017, he gave no further details as to precisely when this was. And we know that the summons, notifying him about the first trial date in this case, was sent to his family’s home address in Romania on 24 November 2017, i.e. very shortly before this application for a national insurance number was made (as evidenced by the jobcentreplus letter dated 12 December 2017). There does therefore appear to be a temporal connection between the date when notification was sent to his nominated address of the trial date and his decision to move to the UK. This lends further support to the contention that when he came to the UK he was fully aware of the ongoing proceedings in Romania and the fact that he was liable to conviction for these offences and that his decision to come to the UK was deliberately engineered to avoid this situation.”

54. His filed witness statement in these proceedings simply says at para 9 that he “moved to the UK in 2017”. The Judge was correct to be “highly suspicious” that the appellant’s application for a national insurance number in the United Kingdom is three weeks after the summons being sent to his family’s home address in Romania, which was his nominated address. This concern is supported by his admission that he avoided returning to Romania to avoid his sentence of imprisonment. The Judge said at para 13: “He conceded that he had not returned to Romania since leaving in 2017 and he was asked whether the reason for this was to avoid being sent to prison for these offences. The Requested Person insisted that, when he left Romania in 2017, he was unaware of these proceedings. He denied having been told by prosecutors on 10 May 2016 that criminal proceedings were being initiated against him and being made subject to an obligation to notify them in writing of any changes to his address. He did, however, accept that sometime in 2019 officers attended his mother’s house in Romania to execute a warrant and that he was aware – from that date – that he was wanted in Romania. He accepted that after then he had not returned to Romania in order to avoid being sent to prison.”

55. The Judge made a rational inference. I draw the same inference. It is deeply unsatisfactory that the appellant could provide no assistance whatsoever about when in 2017 he left Romania for the United Kingdom. It is an obvious and safe inference that his failure to furnish details is because of the clear temporal connection. The Judge continued at para 50: “when he came to the UK he was fully aware of the ongoing proceedings in Romania and the fact that he was liable to conviction for these offences and that his decision to come to the UK was deliberately engineered to avoid this situation.”

56. It seems to me that this was a rational conclusion for the Judge to reach and certainly one open to her on the evidence. Her conclusion was sound that the appellant deliberately put himself beyond the reach of Romanian justice in full knowledge of the criminal proceedings and the charges against him and his detailed admissions of guilt. Conclusion: Limb 2

57. The appellant’s behaviour viewed as a whole runs contrary with a desire to participate in the initiated proceedings. Once he knew of the initiation of criminal proceedings and the charges, he disengaged from proceedings in Romania. There is strong evidence to safely infer that the appellant had the necessary evasive intention for Limb 2. The Judge drew that inference; I also find it a proper inference to draw.

58. I test my conclusion by reference to the decision of the Luxembourg Cout in IR (2022) C-569/20 (judgment 19 May 2022) (“ IR ”), referenced in Bertino at para 39.In IR , the court examined the article 6 implications of trials in absence with a reference under articles 8 and 9 of Directive 2016/343 which concern the right to be present at trial. The terms are identical for all practical purposes to the AFD and thus have relevance here. The case concerned an accused tried in his absence for tax evasion in Bulgaria. At para 48 the court said: “It is only where it is apparent from precise and objective indicia that the person concerned, while having been officially informed that he or she is accused of having committed a criminal offence, and therefore aware that he or she is going to be brought to trial, takes deliberate steps to avoid receiving officially the information regarding the date and place of the trial that the person may, … , be deemed to have been informed of the trial and to have voluntarily and unequivocally foregone exercise of the right to be present at it.”

59. I have no hesitation in concluding that Limb 2 has been proved by the respondent. The Judge was not wrong in her conclusion on intention to evade. Conclusion: Ground 1

60. Limb 1 has been accepted. Limb 2 has been proved by the respondent, notwithstanding the new evidence about Romanian procedure and the indicting stage. With both Limbs 1 and 2 proved, I am completely satisfied that the section 20 test is proved: the appellant deliberately absented himself from his trial. This is unquestionably an unequivocal waiver of his article 6 rights. The Judge’s decision was not wrong. It should not be answered differently.

61. Therefore, section 20 provides no bar to an extradition order in this case. I proceed to consider the article 8 arguments. V - Ground 2 (article 8)

62. I have full regard to the cardinal principles in Norris, HH, Celinski and Andrysiewicz in approaching the article 8 dispute between the parties. Discussion

63. I subdivide my analysis into ten prime areas.

64. First , I observe that the Judge concluded at para 51 that: “It is a much more powerful inference that the Requested Person has failed to apply for leave to remain to regularise his immigration status in the UK because he has been hiding from the authorities in order to avoid being found and extradited to serve the sentence of imprisonment to which this AW relates.”

65. It is now common ground that the appellant did make an application for settled status. The Home Office confirms receipt of the appellant’s application under the EU Settlement Scheme on 13 November 2020. His application was rejected on 24 March 2023. It seems to me that this is such a fundamental factual departure from the matrix the Judge assessed article 8 on that this court on appeal should perform the balancing exercise again. As such, I am not reviewing the article 8 decision of the Judge, but assessing whether an extradition order on the facts as they are now before the court is disproportionate and incompatible with the appellant’s article 8 rights.

66. The appellant also criticises the Judge for an allegedly errant approach to the appellant’s precarious immigration status. She concluded that it “almost nullified” his article 8 argument. This is said to be wrong in light of Chamberlain J’s decision in ZA v Romania, [2025] EWHC 595 (Admin) (“ ZA ”) on the significance of irregular immigration status for the article 8 balancing exercise . As indicated, I need not examine the Judge’s approach on this question as I must remake the article 8 decision. However, I am assisted by Chamberlain J’s decision in ZA at para 46, where he states: “46. I have considered carefully whether this conclusion is affected by the appellant’s precarious immigration status. In my judgment, it is not. Although the appellant’s deportation appeal was unsuccessful, I understand that he has made further representations that his deportation should not be carried out. Those representations have not yet been considered. They fall to be considered under a different statutory regime, under which different considerations may be relevant. The deportation order may or may not be maintained. If it is, the appellant may have to leave the UK or face compulsory removal. That, however, is not the same as extradition to Romania in custody. This appeal falls to be considered independently.”

67. However, I do not understand ZA to be authority for the proposition that lack of settlement status and consequent implications, such as for prohibition against working, to be irrelevant to the balancing exercise. As said in ZA , extradition must be considered “independently”.

68. Second , I repeat as the point of embarkation the words of the Divisional Court in Celinski about the undesirability of article 8 factual comparisons.

69. Third , the appellant accepted at the appeal that he is a “technically” a fugitive. The respondent submits that either the appellant is a fugitive or he is not; he has admitted that he is. The fact of his fugitivity immediately engages the strong public interest considerations outlined in HH and Celinski and elsewhere. The strength of the public interest depends, however, on the precise facts of the case, which I consider.

70. Fourth , the proper approach is contained, as said in Celinski , in using the yardsticks in Norris and HH . The sole question is clear and is, as previously indicated, succinctly set out by Lady Hale in HH at para 8(3), which bears repetition here, along with further guidance at para 8(7): “Paragraph 8: (3) The question is always whether the interference with the private and family lives of the extraditee and other members of his family is outweighed by the public interest in extradition. (7) Hence it is likely that the public interest in extradition will outweigh the article 8 rights of the family unless the consequences of the interference with family life will be exceptionally severe.”

71. This last observation has recently been echoed by the Supreme Court in Andrysiewicz . The court said at para 43: “43. We have set out above relevant passages in Norris , H(H ) and Celinski at some length because it is clear that there is a need to reiterate the essential points they make. Cases in which a submission founded on article 8 ECHR may defeat the public interest in extradition will be rare. It is most unlikely that extradition will be held to be disproportionate on the ground of interference with private life. Even in cases where interference with family life is relied upon, it will only be in cases of exceptionally severe impact on family life that an article 8 ECHR “defence” will have any prospect of success.”

72. Fifth , in his reply to the respondent’s oral submissions, the appellant sought to raise the question of whether the sentence imposed in Romania for the tree-felling is “grossly disproportionate”. This raises a point of principle. Once more, Celinski provides guidance on the proper approach: “48 (iv) The fact that the sentence had been imposed after conviction by a court of competent jurisdiction following a trial attended by witnesses. The judge did not have the information (whether personal or relating to the offence) which had led the court in Slovakia to impose the substantial custodial sentence. The courts of England and Wales, in the absence of very cogent evidence, must assume that the sentence reflected the gravity of the offending in all the circumstances as legitimately seen through the eyes of a court which did have that knowledge. Where a sentence has been imposed following conviction in the requesting state that is the approach which the courts of England and Wales should adopt. The judge should not have considered in this context how the courts of England and Wales would have sentenced for these offences, even where there was a high degree of variance between the two approaches. The decision of the Slovakian court is entitled on principles of mutual confidence to proper respect. That, of course, does not mean that the duration of the sentence during which the impact on family and private life will be felt is irrelevant to the assessment of proportionality.”

73. Similar sentiments were stated by Lord Judge in HH at para 132: “ … we must exercise caution not to impose our views about the seriousness of the offence or offences under consideration or the level of sentences or the arrangements for prisoner release which we are informed are likely to operate in the country seeking extradition.”

74. The appellant submits, notwithstanding these authoritative pronouncements, that the proportionality analysis is “very seriously affected by the nature of the offending.” I fully accept, as was noted in ZA at para 44, that “the gravity of offending may be taken into account” and this reflects the precept enunciated by Lady Hale in HH at para 8(5) that the public interest varies “according to the nature and seriousness of the crime”.

75. As the Judge noted, in the United Kingdom it is highly unlikely that a custodial sentence would have been imposed. Further, the case would not have proceeded to trial if this were an accusation warrant, given the nature of the offences. These were offences of felling trees. However, to my mind, it is significant that the sentence imposed of 8 months’ custody is twice the minimum four-month floor for a conviction warrant. The unauthorised felling of trees can amount to a criminal offence in both jurisdictions. However, there is divergence in the gravity with which the crime is viewed. That said, I judge that we must take seriously the right of Romania, an ECHR signatory state and EU member, to set sentencing levels in accordance with its national priorities, just as this country does. I have heard no evidence to suggest that the sentence imposed in Romania was manifestly excessive or disproportionate in Romanian terms. Despite the different approach that would be taken in the country, it is not the place of this court to resentence the appellant or second-guess the decision of a Romanian court of competent jurisdiction. As the Divisional Court said in Celinski at para 10, “the decisions of the judicial authority of a Member State making a request should be accorded a proper degree of mutual confidence and respect.” I do so in the spirit of comity. I cannot think that it is right for this court to find that the sentence in Romanian terms is grossly disproportionate, nor that it should not be afforded the necessary respect because the sentence would be different in this jurisdiction. However, I do take the nature of the offending into account in the overall balancing exercise.

76. Sixth , the respondent submits that the appellant’s openness in the United Kingdom is undermined by his arrest by the Home Office on the grounds of suspected absconding from his immigration bail. This appears to me to carry no real weight against the appellant: he was rebailed.

77. Seventh , the question of the impact on the appellant’s family life is of central importance to his case. It requires careful examination. The position since Brexit is that he has had no right to work legally in this country. His immigration status is precarious and his application for settled status has been rejected. While his partner Ms Chitu is presently here and his children were born in the United Kingdom, his partner is a Romanian national. Ms Chitu’s filed evidence is of significance. She came to this country from Romania in 2018, the year after the appellant, and, as the appellant states, he met her in the street by chance in 2019. She has a brother in Romania. She regards herself as Romanian (para 5: “we are both Romanian”). It appears that aside from the appellant, she has no other substantial ties to the United Kingdom (para 11). While in her first witness statement (undated) Ms Chitu stated that her mother had left the United Kingdom for Italy, in her second statement (15 January 2025), she states that her mother is back in this country, although she and her mother are “not on good terms at all”. This ill-will was not mentioned in the first statement and not explained in the second. Further, the appellant retains strong and relevant ties in Romania such that in the period before the trial below, Ms Chitu lived in Romania with cousins of the appellant from 27 November 2023. This was with the children, and she lived with the appellant’s family in Romania for approximately six months. The Judge’s observations about this justify being set out in detail (para 59): “Moreover, I do not accept that credibility of the evidence – given by both him and his partner – that they could not both return to Romania in the event of his extradition. Indeed the Requested Person’s partner had only just returned from a six month period of living in Romania at the time of the extradition hearing. She had been living, with her two young children, with members of the Requested Person’s family. She provided no credible evidence to explain why her experience in Romania in recent months was so difficult and I did not believe her evidence on this point. The overwhelming inference from the nature of her evidence and the manner in which she appeared when giving her evidence in the witness box is that, as was put to her in cross-examination, she had in fact only returned from Romania to join the Requested Person to support him during these extradition proceedings. Her children are not yet of school age and would clearly be able to speak the language and integrate into Romanian society by the time that they were required to attend school. Moreover, in light of her settled status there would appear to be nothing preventing her from returning to the UK should she wish to do so for the sake of her children – following the conclusion of the Requested Person’s sentence. There has been no evidence has been adduced to indicate that the Requested Person would not be eligible for entry clearance in the event that he were to make an application to join his family in the UK, meaning that there is nothing to indicate in this case that he would be prevented from returning and joining his family in the UK. Although Ms Chitu stated that she did not want to return to Romania, she provided no specific details or evidence as to why this was (referring generically to it being “difficult” and “expensive” in Romania) or indeed why she could not return. Ultimately, and as already stated above, I found this part of her evidence to be unbelievable and believe instead that this part of her evidence was specifically designed to bolster the Requested Person’s extradition case.”

78. There is no reason to go behind this finding of fact. Indeed, no such argument has been made. The partner has settled status in the United Kingdom and no reason is provided to suggest that once he has served his sentence in Romania he cannot return to the United Kingdom to rejoin her and the children. Alternatively, it does not appear impossible in light of the Judge’s findings for her to return to Romania with the children for the duration of the sentence. He plainly has a supportive family in Romania and they have recently accommodated her and the children for an extended period.

79. Eighth , the Supreme Court in Andrysiewicz made clear that it will be rare for article 8 challenges to succeed, particularly where, as here, the appellant is a fugitive. His life in the United Kingdom has been built in full knowledge of his fugitivity, “on the sands of it” as the respondent puts it. That diminishes the weight of article 8 arguments while not eliminating them.

80. Nineth , I have in mind the observations of Lord Phillips in Norris at para 56 that “A judge should not be criticised if, as part of his process of reasoning, he considers how, if at all, the nature and extent of the impact of extradition on family life would differ from the normal consequences of extradition.”

81. I do not consider that the impact of extradition on family life in this case materially differs from the normal consequences of extradition. However, as noted in Norris (paras 50-65), the article 8 rights of the family must be considered as a whole, including how innocent family members may be affected. All enforced separations and relocations involve a degree of hardship, familial distress and disruption (see Debiec v Poland [2017] EWHC 2653 (Admin) at para 35). I note the example given by Lord Phillips in Norris at para 65 of the degree of interference where article 8 rights may outweigh the public interest in extraditing the requested person: “If extradition for an offence of no great gravity were sought in relation to someone who had sole responsibility for an incapacitated family member, this combination of circumstances might well lead a judge to discharge the extraditee under section 87 of the 2003 Act ”

82. The appellant is not the sole carer, and until recently his partner had been the primary carer. As the Judge noted (para 13), “the Requested Person accepted that he does not have any lawful right to reside, or work, in the UK at the present time.”

83. Tenth , as to delay, the appellant’s fugitivity has caused the delay here. I do not understand that there is a submission of dilatoriness on the part of the Romanian authorities. The time delay between the offending and the impugned return order is significantly less than, for example, in Celinski . It is true that the offending behaviour is alleged to have occurred in 2014 when the appellant was aged 20. He is now in his early thirties and has no other criminal convictions in this country or Romania. However, these factors can properly be considered by the Romanian judicial authorities if the question of discretionary early release arises. I place those in the balancing exercise in his favour, but there is limited weight to delay given that he left Romania in 2017 and refused to inform the authorities of his change of address. He bears strong responsibility for the delay in this case.

84. Further, it seems to me wrong to prescribe to Romania how one of its convicted offenders should be sentenced or released. I note in passing that in its prison assurance dated 15 January 2024, Romania has “guaranteed” that he would be imprisoned in “decent conditions” and “likely in an open prison regime at first”. Conclusion: Ground 2

85. I have conducted a fresh balancing exercise. I have also considered the Judge’s article 8 factors checklist in the judgment at paras 53 (five factors in favour of extradition) and 54 (five factors against), but give them the weight I deem appropriate. As will be immediately apparent from the discussion above, I have modified that checklist in light of the new circumstances. I have identified and discussed all the relevant factors advanced by both parties and accorded them the weight I judge they merit.

86. I conclude that an extradition order is not disproportionate in this case given the appellant’s fugitivity and his limited ties to the United Kingdom, built as they have been in full knowledge of his fugitivity. I cannot accept that his fugitivity is “merely technical” as he asserts. I am satisfied, and the Judge found, that he deliberately evaded the criminal proceedings he was aware of. At no point has he informed the Romanian authorities of his presence in the United Kingdom in flagrant and deliberate breach of his notification duties under article 108. The public interest in this case includes returning a fugitive from Romanian justice and thereby honouring the United Kingdom’s international treaty obligations; preventing this country becoming or being perceived to be a “safe haven” for fugitives from justice ( HH ); and preventing “crime or disorder” (ECHR article 8(2)), cited in Andrysiewicz at para 15. These are all, in article 8 terms, “necessary in a democratic society”.

87. The impact on his article 8 rights and more broadly those of his family is not “exceptionally severe”. While there is no exceptionality test ( HH , paras 8-15; recently recognised in this court by ), the impact is not of a nature or degree to outweigh the subsisting and strong public interest, despite the nature of his offending, which I have particular regard to, conscious that it would not result in a sentence of imprisonment in the United Kingdom. But I must respect the judgment of the properly constituted Romanian court. As said by the Supreme Court in Norris , in an authority also considered by the Judge, in order to outweigh the public interest in extradition of a fugitive, the interference with human rights must be “extremely serious” (para 55). The court said at para 82 that “only the gravest effects of interference with family life will be capable of rendering extradition disproportionate to the public interest that it serves”

88. That is not the case here. Therefore, a return order is not disproportionate nor incompatible with the appellant’s article 8 rights or those of his family. VI - Disposal

89. I return to the fresh evidence application. If the Fenyvesi fresh evidence test at para 32 of the Divisional Court’s judgment is applied strictly, as it must be, the evidence sought to be adduced by the appellant is not “decisive”. Its admission would not result in the appellant’s discharge. Therefore, the application to adduce the evidence sought by the appellant is refused. As a consequence, the evidence sought to be adduced by the respondent in reply falls away and is refused. There is nothing remaining for it to reply to. It will be clear from the substance of my judgment that, as agreed by the parties, I have fully considered the evidence on a de bene esse basis.

90. Turning back to the merits of the appeal, the two grounds relied upon by the appellant fail. The appeal is dismissed.