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	England and Wales High Court (Administrative Court) Decisions
You are here: BAILII >> Databases >> England and Wales High Court (Administrative Court) Decisions >> Bicioc v Baia Mare Local Court, Romania [2017] EWHC 3391 (Admin) (21 December 2017) URL: http://www.bailii.org/ew/cases/EWHC/Admin/2017/3391.html Cite as: [2017] EWHC 3391 (Admin)

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IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT

		Royal Courts of Justice Strand, London, WC2A 2LL
		21/12/2017

Mr Justice Dove :

The Facts

1. On 19^th May 2010 the appellant was found driving a car in Baia Mare having a concentration of alcohol in his blood of 1.30 g/l or "the equivalent of 130 milligrams per 100 millilitres of pure alcohol in blood" according to the European Arrest Warrant ("the EAW"). It appears that when he was encountered by the police and provided a sample, he gave the police an address where he had not lived for some time but which was still on his identification card. He has previously explained in evidence at the first hearing referred to below that that was because at that time he was living in Austria and only temporarily a resident in Romania. In fact, he is convinced that the date of the offence was the day prior to that recorded in the documentation, namely 18^th May 2010, on the basis that when he was stopped by the police he was celebrating his birthday which was the 18^th May. He never supplied the police with his correct address.
2. In October 2010 he came to the UK. He was convicted in his absence by the court in Romania, and on 29^th May 2012 a sentence of two years, six months imprisonment for this drink driving offence was made final. On the same date the first EAW in his case was issued. He was arrested pursuant to this first arrest warrant on 11^th December 2012, the same date that it was certified by the UK authorities.
3. The hearing in relation to that extradition request was heard by DJ Coleman who ordered extradition on 13^th September 2013. One of the grounds upon which extradition was resisted relied upon section 20 of the Extradition Act 2003. It was contended that having been convicted in his absence he had not deliberately absented himself from the trial and would not be entitled to a retrial upon return. The District Judge's conclusions in respect of the section 20 aspect of the case were as follows:

"My findings on this issue are as follows:

i. The defendant was not convicted in his presence.

ii. As to his absence from his trial, the evidence is clear. At the time he was arrested for the offence he deliberately provided police with an address in Romania where he had not lived for 4 years and where he is going to reside. Not only was he not living there, but on his own evidence, he was living in Austria at that time. He made no attempt to correct the information he had given. He certainly did not tell the Romanian police that he had moved to the UK.

I have listened to the RP's evidence on the point, but did not find it to be truthful. I find to the required standard that Mr Bicioc deliberately set out to deceive the police in order to avoid prosecution. He made it impossible for process to be served on him and therefore deliberately absented himself from his trial."

4. The appellant appealed this decision and the appeal came on before Mitting J on 26^th February 2014. Mitting J allowed the appellant's appeal. Having reviewed the relevant authorities Mitting J was satisfied that in order for an effective trial in a person's absence to occur it was always necessary for the true name and address of that individual to have been ascertained so that they could be served with the relevant papers in order to commence the trial process. Only if the trial process had been properly commenced and set in train in that sense could subsequent extradition proceedings be legitimately formulated. He expressed his conclusions pithily in paragraph 17 of his judgment in the following terms:

"17. In the light of those considerations, I am satisfied that the proper interpretation of section 23 of the 2003 Act requires at a minimum that a trial process must have been initiated from which the appellant has deliberately absented himself. It is not enough that he should be arrested in circumstances in which a trial is likely or even inevitable. He will in those circumstances undoubtedly be a fugitive and will not be able to rely on the passage of time to resist extradition, but that is all. The structure within which cases of this kind should be dealt within the Member States is, in my judgment, that set out in the 2009 Framework Decision. As it happens, our law is capable of being aligned with it and was for several years thought to be so aligned. It should revert to that position. On the District Judge's findings, adverse though they were to the appellant, he did not deliberately absent himself from his trial. What happened was that he made it difficult or impossible for the prosecuting authorities to serve him with the documents which would have notified him of the fact, date and place of the trial. If he had been entitled unequivocally to a right of retrial or to have his case reheard on the merits of the appeal his extradition could have been ordered. It is only because it is for the time being accepted that Romanian law does not give him that right I must allow this appeal."

5. For the purposes of the submissions of Mr Seifert, who appeared on behalf of the appellant, the essence of the appellant's evidence is that his wife had moved with him to the UK in October 2010. Their son (born 4^th April 2005) had initially stayed with family in Romania, but in April 2011 the appellant and his wife had returned to Romania to fetch their son to live with them. Since June 2011 the appellant and his wife and son had been living in the UK. In the evidence which was before DJ Coleman the records of the flights to Romania were available. In addition, it is important to note that in her evidence before DJ Coleman the appellant's wife noted the impact on her health which the extradition proceedings had been having, causing her to suffer mental ill health and seek treatment from her GP in that respect. On two occasions in 2013, whilst the extradition proceedings were on foot, she had found that she had accidentally fallen pregnant and had to undergo a termination of each of those pregnancies because of the uncertainties in their domestic circumstances caused by the extradition proceedings.
6. The first EAW having been discharged as a consequence of the appeal to Mitting J, the appellant and his wife and son continued their family life in the UK. Both the appellant and his wife have worked and supported themselves independently during their time in the UK. As a consequence of the extradition proceedings having apparently gone away they had a second child, a son, born 5^th April 2015.
7. It appears that at some point in 2014 there was a change in the law in Romania so as to permit the retrial of a person tried in their absence. This change in the law was designed to overcome the lacuna which had led in the appellant's case to the discharge of the EAW against him in the circumstances described by Mitting J. On 3^rd September 2015 the EAW relevant to the present proceedings was issued. It was certified on 29^th November 2015 and on 6^th January 2016 the appellant was again arrested. A hearing occurred before DJ Wright on 1^st March 2016 and on 3^rd March 2016 she ordered the appellant's extradition. The pertinent parts of the District Judge's judgment for the purposes of the appeal are as follows:

"3. Before dealing with this matter it is right to say that Mr Bicioc was the subject of an earlier EAW for the same matter. On the 13^th September 2013 Mr Bicioc's extradition was ordered by District Judge Coleman. The issues in the case at the time were the question of whether the requested person was a fugitive and the lack of a right to a retrial following conviction in absence and there was an argument under section 2 Extradition Act 2003 because the date of the offence was incorrectly stated on the warrant. Mr Bicioc appealed to the High Court and although the court held that the error in relation to the date of the offence was not material, it also held that as Mr Bicioc was not a fugitive and there was then no right to a retrial in Romania, his appeal against the extradition was allowed.

…

6. The warrant relates to an offence of driving with excess alcohol. He was convicted for committing an offence in that on 19^th May 2010 he drove on public roads in Baia Maria with an alcohol concentration which exceeded the prescribed limit. It is an extradition offence because the blood alcohol concentration was 130 micrograms of alcohol per 100 ml/breath. He was arrested by the police after being involved in a collision.

…

My Findings

15. I did not accept that Mr Bicioc did not know that it was inevitable that court proceedings would follow his arrest given that he accepted that he would be disqualified and that he expected to be sentenced to a suspended sentence of imprisonment. Nor did I accept that the police didn't ask him for his current address. That is so inherently unlikely that I can discount it. He provided an address which he knew was no longer current and I am sure that he was deliberately trying to evade the consequences of his actions in driving whilst over the prescribed limit. Clearly he did not know of the proceedings themselves and that was because he could not be contacted because he had failed to give the police his address.

…

19. I have no doubt that Mr Bicioc has settled in the UK, that he has worked and that his wife and children are also settled. I accept that if he is extradited it will have an adverse effect on his Article 8 rights and those of his family. Denis [his first son] is due to start secondary school, a time which is pivotal in his education and very important to him.

20. Since being in the UK Mr Bicioc has not committed any offences.

…

23. In respect of Article 8 I have fully taken into account the relevant principles laid down in Norris v Government of the United States of America (No 2) [2010] UKSC 9, and in particular HH v Deputy Prosecutor of the Italian Republic, Genoa [2012] UKSC 25. I have also carefully noted the judgment of the Lord Chief Justice in Cielinski and others [2015] EWHC 1274 (Admin).

24. In carrying out the requisite balancing exercise I conclude that the factors supporting extradition are the fact that the offence for which Mr Bicioc is wanted is a serious one which attracted a significant custodial sentence, the importance of the UK upholding its obligations to those countries with which it has treaty obligations and the importance of not allowing the UK to be seen as a safe haven for those who have committed offences abroad.

25. The factors against extradition are the fact that Mr Bicioc has been living in the UK for some five and a half years. He has settled here. I acknowledge that if Mr Bicioc is returned to Romania to carry out his sentence there or to have his case retried, he will be separated from his wife and children if they do not return to Romania with him. Either way, his close relationship with his children means that his separation from them will have an adverse effect upon them. If Denis returns to Romania with his parents it will have an adverse effect upon his education and I have no doubt that it will be a time of worry and stress for the family members individually and as a whole.

26. I conclude, however, that the need for this country to comply with its international obligations in respect of extradition far outweigh the Article 8 rights of the requested person and his immediate family, having carried out that balancing exercise and that an extradition order in this case is both necessary and proportionate."

8. An appeal was lodged in time against this decision. Again, as a consequence of the uncertainties over the appellant's family's domestic circumstances his wife terminated a pregnancy in May 2016 having been concerned as to the impact of an additional child were she to be left as a single mother in the UK without any wider family support.
9. These proceedings were then held up for some time as a consequence of ongoing litigation in relation to prison conditions in Romania and the question of whether or not they complied with Article 3 of the ECHR. Ultimately the Divisional Court in the case of Grecu & Bagarea v Romania [2017] EWHC 1427 (Admin) concluded that there was a real risk that extradition of those appellants would give rise to a breach of their Article 3 rights based upon the conditions in which they might be held in Romania, but afforded the Romanian Government the opportunity to provide assurances which would overcome these concerns. On 27^th August 2017 an assurance was made in this appellant's case guaranteeing that at all times whilst in custody in Romania he would be held in at least three square metres of personal space and thus the Article 3 ground of appeal was abandoned. The appeal continues to be pursued on the basis of Article 8.

The Law

10. As the District Judge correctly identified the law in relation to Article 8 claims in extradition cases is fully rehearsed in Norris v Government of the United States of America (No 2) [2010] UKSC 9, HH v Deputy Prosecutor of the Italian Republic Genua [2012] UKSC 25 and by the Divisional Court in the seminal case of Celinski and others [2015] EWHC 1274 (Admin). Drawing on the earlier authorities, Lord Thomas LCJ provided the following synthesis of this area of the law in Celinski:

"7 It is clear from our consideration of these appeals that it is important that the judge in the extradition hearing bears in mind, when applying the principles set out in Norris and HH , a number of matters.

8 First, HH [2013] 1 AC 338 concerned three cases each of which involved the interests of children: see in particular the judgment of Baroness Hale JSC, at paras 9–15, 24–25, 33–34, 44–48, 67–79, 82–86; Lord Mance JSC, at paras 98–101; Lord Judge CJ, at paras 113–117, 123–132; Lord Kerr of Tonaghmore JSC, at paras 144–146; and Lord Wilson JSC, at paras 153–156, 170. The judgments must be read in that context.

9 Second the public interest in ensuring that extradition arrangements are honoured is very high. So too is the public interest in discouraging persons seeing the UK as a state willing to accept fugitives from justice. We would expect a judge to address these factors expressly in the reasoned judgment.

10 Third the decisions of the judicial authority of a member state making a request should be accorded a proper degree of mutual confidence and respect. Part 1 of the 2003 Act gave effect to the European Framework Decision of 13 June 2002 on the European arrest warrant and surrender procedures between member states ( Decision (2002/584/JHA) ); it replaced the system of requests for extradition by Governments (of which the judicial review before the court in respect of the Polish national is a surviving illustration). The arrangements under Part 1 of the 2003 Act operate between judicial authorities without any intervention of governments. In applying the principles to requests by judicial authorities within the European Union, it is essential therefore to bear in mind that the procedures under Part 1 (reflecting the Framework Decision ) are based on principles of mutual confidence and respect between the judicial authorities of the member states of the European Union. As the UK has been subject to the jurisdiction of the Court of Justice of the European Union since 1 December 2014, it is important for the courts of England and Wales to have regard to the jurisprudence of that court on the Framework Decision and the importance of mutual confidence and respect.

11 Fourth, decisions on whether to prosecute an offender in England and Wales are on constitutional principles ordinarily matters for the independent decision of the prosecutor save in circumstances set out in authorities such as R v A (RJ) [2012] 2 Cr App R 80 ; challenges to those decisions are generally only permissible in the pre-trial criminal proceedings or the trial itself. The independence of prosecutorial decisions must be borne in mind when considering issues under article 8 .

12 Fifth, factors that mitigate the gravity of the offence or culpability will ordinarily be matters that the court in the requesting state will take into account; it is therefore important in an accusation warrant for the judge at the extradition hearing to bear that in mind. Although personal factors relating to family life will be factors to be brought into the balance under article 8 , the judge must also take into account that these will also form part of the matters considered by the court in the requesting state in the event of conviction.

13 Sixth in relation to conviction warrants:

(i) The judge at the extradition hearing will seldom have the detailed knowledge of the proceedings or of the background or previous offending history of the offender which the sentencing judge had before him.

(ii) Each member state is entitled to set its own sentencing regime and levels of sentence. Provided it is in accordance with the Convention, it is not for a UK judge to second guess that policy. The prevalence and significance of certain types of offending are matters for the requesting state and judiciary to decide; currency conversions may tell little of the real monetary value of items stolen or of sums defrauded. For example, if a state has a sentencing regime under which suspended sentences are passed on conditions such as regular reporting and such a regime results in such sentences being passed much more readily than the UK, then a court in the UK should respect the importance to courts in that state of seeking to enforce non-compliance with the terms of a suspended sentence.

(iii) It will therefore rarely be appropriate for the court in the UK to consider whether the sentence was very significantly different from what a UK court would have imposed, let alone to approach extradition issues by substituting its own view of what the appropriate sentence should have been. As Lord Hope of Craighead DPSC said in HH [2013] 1 AC 338 , para 95 in relation to the appeal in the case of PH, a conviction warrant:

"But I have concluded that it is not open to us, as the requested court, to question the decision of the requesting authorities to issue an arrest warrant at this stage. This is their case, not ours. Our duty is to give effect to the procedure which they have decided to invoke and the proper place for leniency to be exercised, if there are grounds for leniency, is Italy."

Lord Judge CJ made clear at para 132, again when dealing with the position of children, that:

"When resistance to extradition is advanced, as in effect it is in each of these appeals, on the basis of the article 8 entitlements of dependent children and the interests of society in their welfare, it should only be in very rare cases that extradition may properly be avoided if, given the same broadly similar facts, and after making proportionate allowance as we do for the interests of dependent children, the sentencing courts here would nevertheless be likely to impose an immediate custodial sentence: any other approach would be inconsistent with the principles of international comity. At the same time, 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. It certainly does not follow that extradition should be refused just because the sentencing court in this country would not order an immediate custodial sentence: however it would become relevant to the decision if the interests of a child or children might tip the sentencing scale here so as to reduce what would otherwise be an immediate custodial sentence in favour of a non-custodial sentence (including a suspended sentence)."..

15 As we have indicated, it is important in our view that judges hearing cases where reliance is placed on article 8 adopt an approach which clearly sets out an analysis of the facts as found and contains in succinct and clear terms adequate reasoning for the conclusion arrived at by balancing the necessary considerations.

16 The approach should be one where the judge, after finding the facts, ordinarily sets out each of the "pros" and "cons" in what has aptly been described as a "balance sheet" in some of the cases concerning issues of article 8 which have arisen in the context of care order or adoption: see the cases cited at paras 30–44 of In re B-S (Children) (Adoption Order: Leave to Oppose) [2014] 1 WLR 563 . The judge should then, having set out the "pros" and "cons" in the "balance sheet" approach, set out his reasoned conclusions as to why extradition should be ordered or the defendant discharged.

17 We would therefore hope that the judge would list the factors that favoured extradition and then the factors that militated against extradition. The judge would then, on the basis of the identification of the relevant factors, set out his/her conclusion as the result of balancing those factors with reasoning to support that conclusion. As appeals in these cases are, for the reasons we shall examine, common, such an approach is of the greatest assistance to an appellate court…

24. The single question therefore for the appellate court is whether or not the district judge made the wrong decision. It is only if the court concludes that the decision was wrong, applying what Lord Neuberger said, as set out above, that the appeal can be allowed. Findings of fact, especially if evidence has been heard, must ordinarily be respected. In answering the question whether the district judge, in the light of those findings of fact, was wrong to decide that extradition was or was not proportionate, the focus must be on the outcome, that is on the decision itself. Although the district judge's reasons for the proportionality decision must be considered with care, errors and omissions do not of themselves necessarily show that the decision on proportionality itself was wrong."

11. In the course of his submissions Mr Seifert drew attention to two authorities which he submitted were of some assistance in relation to the particular issues in the present case. The first was the case of Camaras v Baia Mare Local Court, Romania [2016] EWHC 1766 (Admin). This was a decision of a Divisional Court of McCombe LJ and Ouseley J. The circumstances of the appeal were that the appellant had been convicted in his absence, firstly, in relation to an offence which was the equivalent of section 5 Public Order Act 1986 together with an offence of criminal damage in bar premises for which he was sentenced to one year, six months imprisonment. Secondly he was convicted of two other offences concerned with occasions when he drove a car without a driving licence for which he was sentenced to a further one year, six months. In total, he was sentenced to four years, six months imprisonment.
12. Initial extradition proceedings in relation to this sentence foundered on the same basis as the initial proceedings against this appellant, namely the appellant had no guaranteed rights to a retrial after being tried in his absence. Raising of this objection to his extradition led to the appellant being discharged. Subsequently the Baia Mare court replaced the four year, six month sentence with a single sentence of one year, 10 months on 18^th December 2014 and a further EAW was issued to replace the ones which had been discharged leading to the appellant's arrest and the ordering of his extradition in the Magistrates' Court.
13. Delivering the judgment of the Divisional Court Ouseley J rejected an argument that the proceedings were an abuse of process. He also rejected the ground of appeal based upon oppression and section 14 of the 2003 Act. The appellant nonetheless succeeded under Article 8. Whilst the District Judge in that case had noted that after the discharge of the first EAW the appellant in that case had formed an expectation that he would not be extradited and got on with his life, and had noted the impact which extradition would cause for the appellant and his partner, the Divisional Court expressed their conclusion that the District Judge was wrong in the following terms:

"43 If this had been a conventional case, without the earlier EAWs, and the erroneous view of retrial rights which the omission of the issuing judicial authority caused the district judge to form, I would probably not have regarded the decision as wrong, though quite tough. However, in all the circumstances, I have come to the conclusion that it is wrong, when all the factors are weighed. Essentially, I regard the previous discharge, and all the circumstances associated with that, when considered with the lapse of time and the minor nature of the offences, in particular, as making extradition a disproportionate interference with his Article 8 rights. I regard the previous discharge as much more significant than did the district judge."

14. The court then went on to articulate conclusions in respect of the seriousness of the offences for which the appellant had been sentenced in the following terms:

"46 The two driving licence offences are triable only summarily, and could not attract a sentence of imprisonment in the UK, nor could a s5 Public Order Act offence. A s 4 offence could do so. The value of the items in the related criminal damage offence appears to be well within the level for a summary only trial, and though it can carry a prison sentence, on the Magistrates' Courts Sentencing Guidelines, a prison sentence would be unlikely.

47 The Criminal Practice Direction to Part 50 guidance as to what is disproportionate, states that it depends on the facts alleged in each warrant. If the offence falls into the category of those tabulated, extradition should generally be regarded as disproportionate. Minor road traffic offences, where there was no loss or damage or injury, are exemplified by driving while using a mobile phone and cycling while intoxicated. Driving without a licence is not mentioned but is probably more serious as it takes with it the problems of competence to drive and insurance. Minor criminal damage is exemplified by breaking a window. I suspect that a vase and a few glasses may come into that category though the circumstances, linked with the disorder, probably take it out of what the guidelines contemplate. The public order offence probably goes beyond those exemplified; the suggestion appears to be that he started it, it was in licensed premises, and may have been threatening. So I would not treat these as offences for which extradition for trial would have been disproportionate, if this were an accusation EAW. Romania plainly regards them as more serious than the UK appears to, in view of the sentences, but it is the country where they were committed and it is entitled to adopt that approach. But for all that, they are quite minor offences."

15. Having addressed the lapse of time and the overall delay which had to be brought into account from the particular circumstances of that case, the court went on to address as a separate and free-standing issue the consequences of the discharge of the earlier warrant and the re-arrest of that appellant following the re-issuing of a further warrant:

"51 Fourth, the consequences of the discharge and re-arrest cannot be treated merely as aspects of delay. The Appellant felt a sense of relief that the proceedings were over; he was released from his bail conditions. He was not released on some technicality, in which a further EAW was a real possibility. He then faced re-arrest and a further long period on quite onerous bail conditions; and he and his family had to go through the whole process all over again, having believed it to be over in the UK at least. Life was again on hold. The Appellant was entitled to feel a real sense of unfairness. These problems were caused by the failure of the issuing judicial authority to put its case together properly. For some offences and with some errors, all this may have to be accepted in the public interest. But, whether diminishing the weight to be given to the public interest in extradition, or, probably more appropriately, increasing the weight to be given to the impacts on Article 8 rights, the conduct of the issuing authority itself in causing those impacts has to be taken into account as a factor weighing against the proportionality of extradition. Here, the issuing judicial authority was made aware early on in the proceedings, if it had not already alerted itself to this as a possible issue, that retrial rights would be an issue. It had ample opportunity to provide the evidence about those rights, before the March and then May hearings, and then again before the June 2014 decision. An adjournment was granted for that very purpose. It did nothing. It might have tried to appeal, after urgent discussions, though there would have been admissibility difficulties. It has not explained the reason for the inaction or apologised for it to court and Appellant. It has in effect used the necessity for a new EAW as the vehicle to do what it should have done nearly two years ago. Such conduct by the issuing judicial authority diminishes the proportionality of extradition though it does not of itself bar it."

In the light of these conclusions the Divisional Court decided that the District Judge had not only been wrong but that when properly weighed in the balance the factors against extradition were weightier than those in favour. The appeal was allowed.

16. The other case to which particular reference was made by Mr Seifert as part of his submissions was that of Einikis v Ministry of Justice Lithuania [2014] EWHC 2325 (Admin). The simple point upon which reliance was placed by Mr Seifert in respect of that case was that Ouseley J, in allowing the appeal, took into account as a factor against extradition being ordered that in that case the appellant had been the subject of a curfew between 2100 hours and 0500 hours for a period of one year and seven months together with a reporting requirement which was itself a not inconsiderable restriction of the appellant's liberty, albeit not one which would give rise to a deduction from the appellant's sentence.

Submissions and Conclusions

17. In support of the appeal Mr Seifert makes a number of submissions in support of the contention that the District Judge's decision was wrong. Firstly, he draws attention to her reference to the appellant being a fugitive in paragraph 3 of the judgment, which he contends is a most infelicitous way of expressing the circumstances of the appellant. Whilst Mr Seifert accepted in the course of argument that there was a sense in which the appellant might be regarded as a fugitive, he submitted that the reality was in the light of the findings by Mitting J that he was somebody who had merely been "not deliberately absent from his trial". This was a factor which the District Judge had left out of account.
18. Secondly, he submitted that the District Judge had erred in her conclusion that this offence was one which was serious. He relied upon the fact that the District Judge had specified that the reading of 130 arose in the context of a measurement of breath. In fact that was wholly incorrect, and the measurement of 130 was a measurement neither of micrograms as specified by the District Judge nor from a sample of breath. It was rather a measurement of milligrams in blood. Mr Seifert pointed out that the threshold in England and Wales for drink driving measured in a blood sample is 80 milligrams per 100 millilitres of blood, and therefore whilst the appellant was clearly over the limit in England and Wales, he was not significantly so. This could be judged by the fact that the sentencing guidelines in respect of such an exceedance would give rise to a Band C Fine and never a term of imprisonment. By contrast the threshold in relation to a measurement in breath in England and Wales is 35 micrograms of alcohol per 100 millilitres of breath. Had the reading been 130 in breath it would have been, therefore, around four times over the limit and plainly a serious matter by which of context would have attracted a prison sentence, had it occurred in England and Wales. Thus Mr Seifert contended firstly that the District Judge was materially wrong as to the nature of the measurement upon which criminal liability had turned and secondly, and to some extent consequentially, the District Judge had made a clear error in characterising the offence involved in this case as being one which was serious.
19. Thirdly, Mr Seifert submitted that the District Judge had erred in failing to mention the significant element of delay in this case since the successful appeal on 26^th February 2014. The delay since that time was unexplained and extensive, and the appellant was entitled to rely upon it and have it taken into account by the District Judge.
20. Fourthly, Mr Seifert submitted that the District Judge had failed to mention and take into account the consequences of the earlier discharge of the warrant and the changes which had occurred in the appellant's life as a consequence of the extradition proceedings seeming to go away. He drew attention to the fact that not only had the appellant and his family got on with their lives in the UK but also they had had a further child prior to the subsequent extradition proceedings being taken. This he submitted was an extremely pertinent factor which the District Judge had left out of account.
21. Fifthly, Mr Seifert submitted that the District Judge had failed to take into account at all the fact that the appellant had been on conditional bail involving a curfew for nearly two years as a consequence of his conditional bail in the present extradition proceedings. This represented a considerable restriction on the appellant's liberty which had not been taken into account.
22. In response to these submissions Mr Swain on behalf of the respondent contended that the District Judge had appropriately identified consequences of Mitting J's decision in paragraph 3 of the decision and had correctly identified that the appellant was a fugitive, as well as somebody who had not deliberately absented themselves from the trial. This was a marginal point he submitted in any event. In reality, the appellant had by giving a false address put himself beyond the reach of the Romanian authorities and this action on his behalf attracted significant weight. He submitted that the offence of drink driving was a serious offence and that could be gauged by the substantial punishment which was imposed upon the appellant. He drew attention to the fact that there may be other policy or personal factors for why such a heavy sentence was imposed. He submitted that the District Judge had taken account both of delay in bringing about the extradition proceedings in paragraph 3 and 4 of her decision, where she set out the timescales involved and had also referred to the timescales when conducting the balance in paragraph 25 of the judgment. He contended that the District Judge had dealt with the family circumstances and the impact upon family life which would arise in particular at paragraphs 19 and 25 of the judgment. In response to Mr Seifert's reliance on the additional delays caused by the problems in addressing Article 3 in the case he submitted that any delays involved were not disproportionate.
23. Mr Seifert in the course of argument also relied upon evidence which was not before the District Judge and which he submitted the court could take into account. This evidence included the statements before District Judge Coleman, which as the appellant's solicitor explains, were not placed before District Judge Wright on the basis of an oversight, and evidence of the appellant's wife having had a third termination of pregnancy in May 2016. Further evidence has been provided to the court in relation to the current circumstances of the family explaining that both of the children are English speakers and neither of them are able to speak any Romanian and would struggle were they to be plunged into the Romanian education system.
24. I propose to initially address matters on the basis that this additional evidence of matters which were not before District Judge Wright, or which have emerged since her decision, should be excluded. If having excluded that material I nonetheless conclude that the District Judge's decision was wrong and the appeal should be allowed then the existence of that additional evidence is of no consequence.
25. I have reached the conclusion that the District Judge was wrong in the decision she reached in relation to the appellant. My reasons for being driven to that conclusion are as follows. Whilst I reject Mr Seifert's first submission in relation to the description of the appellant as a fugitive in paragraph 3 of the judgment, since I am satisfied that the judgment adequately explains the conclusions which Mitting J reached and I can find no error in them, there are other aspects of the District Judge's decision which in my view are seriously problematic.
26. In paragraph 6 of the judgment the District Judge has, at the very least on the face of the judgment, made an error as to the findings in relation to the measurement of the sample taken from the appellant which led to his conviction. I am unable to accept that this is simply a typographical error. Two key words in the expression of the reading leading to conviction are clearly and completely misstated. Firstly, the use of the word "micrograms" which ought to be "milligrams" and which is apt for a measurement in breath but not in blood. Secondly, the expression of the sample as being one in breath rather than in blood. In my view, it appears clear that the District Judge has reached a confused conclusion in relation to the nature of the sample which led to conviction, notwithstanding it being clearly specified in the EAW.
27. That there is confusion in the judgment in relation to this issue is in my view supported by the conclusion which the District Judge reaches at paragraph 24 of her decision that this was a serious offence. As Mr Seifert pointed out in the course of his submissions, if the reading is properly understood as one of 130 milligrams of alcohol per 100 millilitres of blood then the exceedance involved does not, for instance, amount to a multiple of the threshold which applies in England and Wales. In other words, it is beyond doubt that the appellant's driving abilities would have been impaired as a consequence of this finding, but not that he was by any means completely drunk whilst at the wheel. By contrast, as set out above, if it was genuinely a reading of 130 micrograms of alcohol in 100 millilitres of breath that would be around four times the limit in England and Wales and bespeak someone who was seriously incapable of competently driving, giving rise to an undoubtedly serious offence. Whilst the threshold values in England and Wales and the sentences which might be received are only at best context for an assessment for the seriousness of the offence, and it is clearly inappropriate to proceed to consider whether or not extradition should be ordered on the basis of any likely sentence in the UK let alone embarking on a re-sentencing exercise, nonetheless, bearing in mind the level of the alcohol in the appellant's bloodstream identified in the EAW, whilst this was not an offence which was trivial or minor, in my view properly understood it could not be contended that it was serious. Clearly the sentence which was imposed is a factor to be taken into account in this assessment, and it would appear very plain that the courts in Romania regard offences of this kind with greater seriousness than the UK, but nevertheless even taking this factor into account I am satisfied that the District Judge was wrong and overstating matters to suggest that this is properly to be regarded as a serious offence in the overall balancing exercise.
28. Secondly, it appears to me clear that whilst the District Judge took into account the period of time which had been involved in bringing the extradition proceedings (measured at five and a half years at the time of her assessment in paragraph 25 of the judgment) there does not appear to have been any examination of the impact of the earlier discharge of the EAW as a consequence of the appeal before Mitting J. In my view it was, as the Divisional Court in Camaras accepted, an additional factor which cannot be merely treated as an aspect of delay. Whilst Mr Swain draws attention to an exchange after judgment was given before Mitting J suggesting that changes in the law were on foot in Romania in relation to the question of retrial, there was nor could there have been any indication in that post-judgment exchange that fresh extradition proceedings were to be instigated against this appellant. It is clear in my view that a factor to be taken into account in weighing the balance as to whether or not extradition should be ordered is the fact that once the earlier warrant had been discharged the appellant not unreasonably sought to get on with further establishing his life within the UK. Of considerable importance in my view in this connection is the conception and birth of the appellant's second child after the EAW had been discharged and prior to the issuing of the EAW which is the subject of these proceedings. The District Judge was in my judgment wrong to fail to take into account that material factor.
29. Thirdly, I am satisfied that the District Judge ought to have taken account of that which was apparent from the court record, namely that the appellant had spent a very substantial amount of time on conditional bail which included a condition of a curfew which represented a not insignificant restriction on the appellant's liberty. That was a further factor which ought to have been taken into account.
30. All of these matters are sufficient justification for concluding that the District Judge was wrong to strike the balance in the way in which she did. That leads to the need for the court to consider how the balance ought to have been struck in the circumstances which were before her. In doing so it is vitally important to emphasise, as Ouseley J did at paragraph 46 of the judgment in Camaras, that cases of this kind each depend on the detail of their own unique factual circumstances. Little assistance can be derived from a forensic search for precedents and comparisons between cases, beyond the identification of the material factors bearing upon the balance to be struck. Once the material factors are identified, then the relative weight that they will attract in the decision will necessarily vary from case to case. It will be clear that in the present case there are some very particular and in some respects perhaps unique dimensions to the circumstances of this appellant.
31. As the District Judge observed there was in this case the clear and potent public interest in upholding the UK's national obligations in relation to returning those who are wanted for offences which have been committed abroad alongside the important public interest in ensuring that this country does not become a safe haven for those who are avoiding justice in foreign countries. Very substantial weight has to be attached to this factor in any balancing exercise.
32. I also consider that some weight should attach to the fact that, as Mr Swain observed, this appellant was a person who, by providing a false address at the time when he was arrested, effectively put himself beyond the reach of the Romanian authorities. Mr Seifert, as I have indicated, conceded that he had to be identified as a fugitive albeit sought to contextualise that against the backdrop of Mitting J's findings that what had happened here was that the trial process had never in fact properly been started as his identity and address had never been established. I accept that there is some distinction to be drawn in this respect but nevertheless the fact that the appellant gave a false address which as the District Judge found involved him deliberately trying to evade the consequences of driving whilst over the limit is a factor which favours extradition in this case.
33. Factors which militate against extradition are in my view as follows. There is no doubt that the appellant, his wife and their children are settled in the UK. Both of the appellant's children are clearly settled in the UK in an education system which operates in a language which they can understand, and they are both at relatively important stages of their schooling and development. The dislocation to the children's family life by removing the appellant to Romania and the loss of the practical and emotional support which he is providing to them must carry weight in the balance against extraditing the appellant. The impact on the well-being of the children were they to be removed to Romania, into an environment using a language which neither of them understand or can speak, would be very significant. This is a matter to which weight has to be attached in the particular circumstances of this case.
34. A further factor which militates against extradition and which is very particular to the circumstances of the present case, is the discharge of the earlier EAW and the changes to the appellant's family life which have occurred since that event and prior to the inception of the present proceedings. What is perhaps unique in the present case is the fact which I have set out above that after the EAW was discharged and prior to new proceedings being issued, apparently reliant upon the spectre of extradition having been removed, the appellant and his wife embarked upon having a second child who has lived for his entire life in the UK. This circumstance which, as I emphasise, is perhaps unique to the present case, is a further factor to which weight must be attached and which is separate from considerations of the overall delays which have occured in this case.
35. Thirdly, it is a factor militating against extradition that there have been significant delays in this matter. No criticism can properly be levied in relation to the bringing of the first set of extradition proceedings or what happened up until February 2014. The proceedings appear to have been issued and then prosecuted with reasonable diligence and speed. However, after Mitting J allowed his appeal there is a gap of nearly two years before the appellant is again arrested, in circumstances where it would appear the law had already changed, or was in the course of changing at the time when Mitting J allowed the appeal, and the respondent was fully aware of where the appellant was. Indeed, the respondent ought to have been keenly aware of the respondent's circumstances since it was his case which appears to have been one of the two cases that drew to the Romanian authority's attention the defect in their law at that time. This further delay of nearly two years is a matter which in my view militates in favour of discharging the EAW. I do not attach any weight to the length of time these proceedings have taken to resolve. It was to be anticipated that resolution of the article 3 issues which were raised in this and other cases would not be resolved swiftly and I do not regard that as a matter which weighs in the balance in the appellant's favour in this case. Effectively it is part of the exigencies of extradition litigation.
36. Fourthly, it is necessary in my view to give some weight in this case to the fact that the appellant has, as set out above, been the subject of a curfew whilst on bail. This has been an interference with his liberty, and a form of punishment, albeit not by any means equivalent to the sentence which he is required to serve in Romania. It cannot, however, be ignored and provides further support for the appellant's case that the EAW should be discharged.
37. A final factor which militates against extradition in this case is that, as I have explained above, whilst the offence is not minor or trivial nor is it one which in my view is properly to be regarded as a serious offence. That necessarily tempers the weight to be attached to the factors in favour of extradition in this matter.
38. These are the principal factors which in my view bear upon the balance of considerations in this case. Having considered all of those factors and weighed them up I am satisfied that in this case the factors militating against extradition outweigh those in favour once appropriate weight has been attached to those various matters. It follows that in the circumstances I am satisfied that the appeal should be allowed.