Enasoaie v Court of Bacau, Romania

Cesar Enasoaie (“Mr Enasoaie”) has been convicted before the court of Bacau in Romania of twelve offences of embezzlement. On 11 October 2017 he was sentenced to 5 years’ imprisonment, all of which remains to be served. In the absence of any appeal, that sentence was made final on 18 November 2017. On 29 November 2017 the Romanian court, as the competent judicial authority (for convenience, “the JA”), issued a European Arrest Warrant, reference number 16038/180/2016 (“the EAW”). The EAW was certified in this country by the National Crime Agency on 18 June 2019, and Mr Enasoaie was arrested two days later. On 23 August 2019 District Judge Zani (“the DJ”) ordered his extradition on nine of the offences but discharged him on the other three offences. Mr Enasoaie now appeals against the decision ordering his extradition. The JA cross-appeals against the decision discharging Mr Enasoaie on three offences.

We record at the outset our thanks for the very helpful written and oral submissions which we have received.

Mr Enasoaie is now aged 46. The EAW relates to offences, committed on various dates between February 2003 and November 2012, of embezzlement (Article 215 of the Romanian Criminal Code (Footnote: ¹)), forgery of documents under private signature (Article 290 (Footnote: ²)) and stamp forgery (Article 283 para 1 (Footnote: ³)).

Mr Enasoaie was convicted and sentenced on a total of 7 occasions. His final sentence of 5 years’ imprisonment was reached by the application of the procedure contained in the Romanian Criminal Code for aggregation of sentences for multiple offences. Under that procedure, the aggregated or final sentence (also referred to as

The EAW gives the following details of the twelve offences:

Romania has been designated as a Category 1 territory for the purposes of the Extradition Act 2003 (“the Act”) and Part 1 of the Act accordingly applies. Mr Enasoaie raised issues as to whether the offences set out in the EAW were all extradition offences and whether his extradition would violate his rights under articles 3 and 8 of the ECHR.

Section 10 of the Act required the DJ to decide whether each offence specified in the EAW was an extradition offence and, if it was not, to order the discharge of Mr Enasoaie on that offence.

Section 65 of the Act, so far as material for present purposes, gives the following definition of an extradition offence:

the conduct would constitute an offence under the law of the relevant part of the United Kingdom if it occurred in that part of the United Kingdom;

a sentence of imprisonment or another form of detention for a term of 4 months or a greater punishment has been imposed in the category 1 territory in respect of the conduct.”

The JA’s case is that the criterion in section 65(3)(b) is satisfied because in England and Wales, the conduct described in the EAW would constitute offences of theft (contrary to section 1 of Theft Act 1968) and fraud (contrary to section 2 of Fraud Act 2006). The statutory provisions creating those offences require, in each case, that a defendant be proved to have acted dishonestly. The decision of the Court of Appeal in R v Barton and Booth [2020] EWCA Crim 575 (Footnote: ⁴) confirms that there is a two-stage test of dishonesty: (a) what was the defendant’s actual state of knowledge or belief as to the facts; and (b) was his conduct dishonest by the standards of ordinary decent people?

Mr Enasoaie filed a witness statement, in which he said:

On 17 July 2019 the Crown Prosecution Service (“CPS”) sent to the JA a formal request for further information. They asked, amongst other things, for confirmation as to whether each of the offences listed in the EAW involved dishonesty. Unfortunately, the reply of the JA (“FI 1”) did not address that particular question. There was therefore no further information on that point before the DJ.

At the extradition hearing, the parties referred to Assange v Sweden [2011] EWHC 2849 (Admin) (“Assange”), Kazimierczuk v Poland [2011] EWHC 3228 (Admin) (“Kazimierczuk”) and Godlewski v Poland [2016] EWHC 2404 (Admin)

The DJ at [42 - 43] of his judgment ruled:

(he collected money but failed to deposit into the company’s account),

(he collected money relating to different operators but then appropriated the money), and

(he appropriated monies and in so doing caused a loss to the company)

(he appropriated goods, by failing to deliver them, thereby causing loss to the company)

he appropriated monies, failed to deposit into the company’s account, thereby causing loss to the company. [emphases added by DJ]

The DJ went on to reject the challenges under articles 3 and 8. His ruling in that regard is not the subject of this appeal and we need say no more about it.

Further information has been obtained by both parties since the hearing below. We will summarise it in chronological order. Neither party objected to our considering all of it, and we have done so in reaching our decision. As will be seen, the information has given rise to further grounds of appeal, on issues which the JA accepts Mr Enasoaie could not have raised before the DJ.

In response to a request for further information made on 16 January 2020 the JA replied (“FI 2”):

Mr Enasoaie’s representatives obtained expert evidence from Dr Mihail Mareş, a Romanian attorney. In a report dated 25 March 2020, Dr Mareş said that under Romanian law, the resulting penalty imposed on a multiple offender has the force of res judicata and so in this case is fully enforceable as a penalty of 5 years’ imprisonment. He stated that disaggregation of that resulting sentence is not possible. However, he also stated that disaggregation of Mr Enasoaie’s resulting sentence on grounds of partial extradition and the speciality principle is “not likely”. He went on to refer to Article 598 of the Criminal Code, which permits a “challenge to the enforcement” of a criminal judgment in certain circumstances but said that possible violation of the speciality rule is not one of the specified circumstances. He then noted that, although Romanian case law “is very poor on this matter”, it appeared that the speciality rule had been invoked through the challenge to the enforcement of a criminal judgment in one case. He concluded:

On 22 April 2020 the CPS sought further information on three matters:

What was the mens rea or mental element or intent for the offences of embezzlement of which Mr Enasoaie was convicted and sentenced under criminal sentences 325/02.06.2006, 998/19.05.2008 and 708/12.05.2016?

Whether the intent for each of the offences on the warrant was such that ordinary decent people would consider his conduct was dishonest, and if so why.

If the High Court agreed that Mr Enasoaie could not be extradited on three offences, how would Romania comply with the principle of speciality set out in Article 27/2 of the Council Framework Decision (2002/584/JHA) in relation to the execution of the merged sentence of 5 years’ imprisonment?

In its reply (“FI 3”), the JA said that in all cases in which Mr Enasoaie was convicted by those criminal sentences,

FI 3 went on to say, in relation to the third question:

The JA also provided further information about some of the individual offences. This included, in relation to offences (i) and (ii), that during the investigation Mr Enasoaie had admitted appropriating 12,000 lei from his employer but stated that it was the amount of a guarantee which he had been required to pay when hired, and that “the company’s accountant stated he was allowed to recover from the collections at a later date”. That claim was contradicted by the company accountant, who denied having had any such discussion with him. The Romanian court concluded:

Dr Mares was asked to clarify a number of matters in his report. He provided a supplementary report dated 5 August 2020. He referred to a decision of the Suceava District Court in 2013 in which the speciality rule was successfully invoked in a challenge to the enforcement of a criminal judgment. The offender in that case had been sentenced to a resulting penalty of 12 years’ imprisonment. He was extradited from the Netherlands, but the Netherlands court discharged him on some matters. The Suceava District Court disaggregated the final sentence so that the offender would only serve the penalties for the offences in respect of which he had been extradited. The total sentence was thereby reduced from 12 years to 11 years.

Dr Mareş went on to refer to a decision of the High Court of Cassation and Justice (“HCCJ”), Romania’s Supreme Court, in a case which also involved an offender

Dr Mareş’ opinion, in the light of that decision, was that the speciality rule is not applicable in the present case and that a challenge to the enforcement of the final sentence of 5 years by invoking the speciality rule “may not be considered an effective remedy”.

The CPS again sought further information, including asking what happened to a merged sentence if a requested person was returned to Romania in respect of some but not all of the offences within that sentence. The CPS referred to Article 117 of the Romanian Law No 302/2004 concerning international judicial cooperation in criminal matters (“Article 117”), which so far as material provides:

The JA replied (“FI 5”):

Finally, in its reply (“FI6”) to a request for further information made on 3 November 2020 the JA confirmed that FI 3 (see [20] above) also applied to the offences subject to criminal sentence 1519/11.10.2017.

In Assange at [57] the court summarised a submission made on behalf of Mr Assange, which it is apparent the court accepted:

In Kazimierczuk a Polish judicial authority had issued a conviction EAW in which an offence, referred to as “peculation” under Article 284(2) of the Polish Penal Code, charged that the defendant had “misappropriated” a mobile phone which had been entrusted to him. It was submitted on behalf of the defendant that the conduct alleged did not necessarily mean that there was an ingredient of dishonesty. Ouseley J accepted that the wording of the relevant Polish statute was not clear but concluded at [15 -16]:

That decision was followed in Godlewski, also a Polish case, in which the EAW alleged that the defendant had committed an offence contrary to Article 284(2) in which it was said he had “appropriated” property. Cranston J held that the District Judge had been entitled to find that the offence involved dishonesty and that dual criminality was established. He said, at [11]:

Assange was considered in detail in Cleveland v USA [2019] EWHC 619 (“Cleveland”) at [58] ff. Holgate J, with whose judgment Leggatt LJ (as he then was) agreed, said at [63]:

For Mr Enasoaie, Mr Hall QC submits that the DJ was correct to discharge Mr Enasoaie in respect of offences (i), (ii) and (xi), and wrong to order his extradition in respect of offences (vii), (viii) and (ix). He submits that FI 2 confirms that dishonesty is not an essential ingredient of the Romanian offence of embezzlement. It was therefore necessary for the JA to satisfy the DJ that the facts set out in the EAW not merely permitted, but compelled, the inference that Mr Enasoaie acted dishonestly: see Assange and Cleveland. The JA was unable to do so in relation to offences (i), (ii) and (xi): references in the EAW to Mr Enasoaie having “collected” or “appropriated” money did not clearly indicate that he dishonestly appropriated his employer’s money with the intention permanently to deprive the employer of it. “Appropriation” does not mean the same as “misappropriation” (see DPP v Gomez [1993] AC 442 at p. 495 per Lord Browne-Wilkinson), and therein lies the distinction between this case and Kazimierczuk. Godlewski must also be distinguished, because although the conduct in that case was referred to as “appropriation”, there was further information from the Polish authorities which clearly referred to “dishonest behaviour” by the requested person. For the same reasons, the DJ was wrong to find that offences (vii), (viii) and (ix) were extradition offences: the relevant conduct was again “appropriation”, and – in marked contrast to offence (x) - offences (vii), (viii) and (ix) are not said to have involved forgery.

For the JA, Miss Malcolm QC accepts that the equivalent offence in England and Wales requires proof of dishonesty, but the Romanian offence does not, and that the

The principle of speciality (also referred to as “specialty”) requires that an extradited person may only be dealt with for offences for which he is extradited to the requesting state, and may not be dealt with for any other offence allegedly committed prior to his extradition, unless he is first given a reasonable opportunity to leave the requesting state.

Romania is a signatory to the European Convention on Extradition 1957. Subject to exceptions which do not apply in this case, article 14 of that Convention provides as follows:

The principle of speciality is further provided for in Article 27 of the Council Framework Decision on the European arrest warrant and the surrender procedures between Member States of 13 June 2002 (Footnote: ⁶), (“Article 27”) which so far as is material for present purposes states:

Except in the cases referred to in paragraphs 1 and 3, a person surrendered may not be prosecuted, sentenced or otherwise deprived of his or her liberty for an offence committed prior to his or her surrender other than that for which he or she was surrendered.

Paragraph 2 does not apply in the following cases:

The provisions of Romanian law implementing these principles are contained in Article 117 of the Romanian Criminal Code, set out at [26] above. Dr Mares, in his first report, confirms (Footnote: ⁷) that that Article “essentially … regulates the principle of specialty under similar terms” as Article 27(2).

The relevant domestic legislation is in sections 11 and 17 of the Act. By section 11(1)(f) and (3), a requested person must be discharged if his extradition is barred by reason of speciality. Section 17, so far as material for present purposes, provides:

A person's extradition to a category 1 territory is barred by reason of speciality if (and only if) there are no speciality arrangements with the category 1 territory.

There are speciality arrangements with a category 1 territory if, under the law of that territory or arrangements made between it and the United Kingdom, a person who is extradited to the territory from the United Kingdom may be dealt with in the territory for an offence committed before his extradition only if—

the offence is one falling within subsection (3), or (b) the condition in subsection (4) is satisfied.

The offences are—

the offence in respect of which the person is extradited; …

The condition is that the person is given an opportunity to leave the category 1 territory and—

he does not do so before the end of the permitted period, or

if he does so before the end of the permitted period, he returns there.”

In Hiali v Spain [2006] EWHC 1239 (Admin) it was contended on behalf of the appellant that the court could not be satisfied that the requisite speciality arrangements were in place in Spain. At [46] Scott Baker LJ, giving the judgment of the court, summarised the issue as being –

The appellant’s submission was rejected as misconceived. Scott Baker LJ at [51] noted that the burden was on the appellant to establish that his extradition was barred on this ground. At [52] he said –

In the related later case of R (Hilali) v City of Westminster Magistrates’ Court [2008] EWHC 2892 (Admin), [2010] 1 WLR 241 it was held that a District Judge had been correct to hold that he did not have jurisdiction to investigate whether the claimant, following his return to Spain, was being detained or proceeded against in breach of the speciality rule. Dyson LJ (as he then was), giving the judgment of the court, said at [40]:

In Brodziak v Poland [2013] EWHC 3394 (Admin) (“Brodziak”) a judge had ordered the appellant’s return to Poland on only two of the three offences set out in a conviction EAW, for which the appellant had been sentenced to a cumulated term of imprisonment. On appeal, he argued that his extradition was barred by reason of speciality: further information had been provided by the judicial authority to the effect that there was no prospect of the single sentence being disaggregated. It was submitted that there were therefore no effective speciality arrangements in place to cover the circumstances of the case. The relevant provisions of the Polish Criminal Procedure Code, contained in article 607e, stated:

The court (Richards LJ and Silber J) said at [45-46, 49] that those provisions –

The court went on to say that the evidence that there could be no disaggregation of the single penalty had caused them “a degree of anxiety” but having considered the unsatisfactory nature of the information provided by the judicial authority they concluded that the evidence was not sufficiently compelling to displace the strong presumption that the Polish authorities would act in accordance with their international obligation in respect of speciality. The court gave two principal reasons for that conclusion. First, the law as stated in article 607e was consistent with the protection of speciality, and it was a matter for the Polish courts how that provision would be implemented in practice. Secondly, and very importantly –

In Edutanu v Romania [2016] EWHC 124 (Admin), [2016] 1 WLR 2933

On the premise that at least one of the offences covered by the EAW was not an extradition offence, Mr Hall submits that the speciality principle will be breached if Mr Enasoaie is returned pursuant to the EAW. He accepts that the burden is on a requested person to show on the balance of probabilities that appropriate speciality arrangements are not in place in the requesting state: see Kucera v Czech Republic [2008] EWHC 414 (Admin) at [59]. He further accepts that Article 117(2), on its face, applies the Framework Directive. He submits, however, that the information now before the court, in particular in FI 3, shows that Romania will probably not be able to disaggregate the non-extradition offences from the extradition offences in respect of the resulting sentence of 5 years’ imprisonment. Mr Enasoaie will accordingly be imprisoned for an offence committed before his surrender other than an offence for which he was surrendered. The speciality arrangements in Romania are therefore not effective to ensure compliance with Article 27(2) of the Framework Directive, and there will be a breach of section 17 of the Act.

Mr Hall submits that Brodziak should be distinguished because in that case there was evidence of a possible remedy before the Polish courts. He relies on Edutanu as showing that the position is different in Romania.

The primary submission of the JA is that all the offences covered by the EAW were extradition offences and accordingly no speciality issue arises. If, however the issue does arise, Miss Malcolm submits that there is no bar to extradition in this case.

Section 2(2) of the Act defines a Part 1 warrant as an arrest warrant which is issued by a judicial authority of a category 1 territory and which contains, amongst other information, the statement referred to in subsection (5) and the information referred to in subsection (6). The statement required by subsection (5) in one that –

Article 8.1(c) of the Framework Decision (2002/584/JHA) requires a European arrest warrant to contain, amongst other information –

In Goluchowski v District Court in Elblag, Poland [2016] UKSC 36 (“Goluchowski”) the Supreme Court confirmed at [26] that it is necessary to satisfy Article 8(1)(c) in a conviction case.

Mr Hall submits (again, on the premise that at least one of the offences covered by the EAW was not an extradition offence) that in the light of FI 4, the EAW does not contain particulars of an enforceable judgment. On the contrary, FI 4 says that the relevant judgment is “impossible to enforce, due precisely to the application of the specialty principle” Mr Hall relies on Criminal Proceedings against Bob-Dogi [2016] 1 WLR 4583 as showing that a failure to comply with Article 8(c) must in principle result in the court not giving effect to the warrant. Even if a future appeal under the Article 598 procedure might at some stage in the future result in an enforceable decision, there was and is no currently enforceable judgment.

Miss Malcolm (again, emphasising that this issue should not arise at all, because all of the offences covered by the EAW were extradition offences) submits that the requirement of section 2(6)(e) of the Act have been fulfilled: the EAW set out the particulars of the sentence which has been imposed in Romania. Article 8(1)(c) requires that a warrant shall contain evidence of an enforceable judgment: the EAW contained that evidence, and it would not become invalid if extradition were ordered on some but not all offences. The judgment remains enforceable in accordance with the principle of speciality, and it matters not if a further decision must be made in Romania as to the extent to which the warrant can be enforced. The EAW was issued on the basis of an enforceable judgment. It would be curious if, when the District Judge found that three of the offences were not extradition offences, the warrant became unenforceable: that would involve a circular process in which the judge first found that section 2 was satisfied; then considered section 10; and then returned to section 2 to find that it was no longer satisfied.

The starting point is that each of the six offences concerned was an offence of embezzlement contrary to a provision of Romanian law which makes such an offence punishable with imprisonment from 1 to 15 years (and more if the offence had extremely serious consequences). We would not expect such a penalty to be prescribed for the appropriation by an employee of his employer’s property in circumstances which do not involve dishonesty, and we are therefore surprised by the statement in FI 2 that such offences “do not belong to the category of those committed by dishonesty”. However, the CPS did not obtain any clarification of that statement, and for the purposes of this appeal it is accepted on behalf of the respondent that the Romanian offence does not involve proof of dishonesty as a necessary ingredient of the crime. We therefore assess the issue by reference to the test in Assange and Cleveland.

Applying that test, we have no doubt that Miss Malcolm’s submission is correct: it is clear from FI 3 (and the accompanying information about the offences) and FI 6 that the only reasonable inference to be drawn from the facts of the offences is that Mr Enasoaie acted dishonestly. He took money which he knew belonged to his employer and used it for his own gain. In the words of FI 3, he misappropriated the money, with guilty intent. In relation to offences (i) and (ii) he put forward an innocent explanation, but the Romanian criminal court found his account to be untrue. Moreover, the offences of embezzlement were occurring during the same overall period as the offences of forgery by which he attempted to cover up some of his misappropriations of money. It is, in our view, artificial to focus only on one word in the description of an offence (“appropriated” or “collected”) without also having regard to the full circumstances of the offences of embezzlement shown by the EAW and the further information.

The DJ drew a distinction between offences (i), (ii) and (xi) on the one hand, and offences (vii), (viii) and (ix) on the other hand. The basis on which he did so appears to have been that in the latter trio of offences, but not the former, the description of the conduct in the EAW included a statement that Mr Enasoaie’s actions caused loss to his employer. With respect to the DJ, we are unable to agree that that was a sufficient basis. The details in the EAW state that in offence (i), Mr Enasoaie collected money and did not pay it into his employer’s account; in offence (ii), he collected and appropriated various amounts of money; and in offence (xi) he appropriated money “at the expense of the same passive subject”. All of those descriptions connote personal gain to Mr Enasoiae and commensurate loss to his employer. In his witness statement (see [10] above), Mr Enasoiae admitted that he had committed a series of similar offences and made no suggestion that during the same period of time he embezzled money in a way which somehow did not cause loss to his employer. In those circumstances, the decisions as to each of the six offences should in our view have been the same.

But even if the DJ was entitled, on the evidence before him, to draw the distinction he did, the subsequent further information makes it unarguably clear that all the offences involved dishonesty, and all were extradition offences. We accept Miss Malcom’s submissions in this regard. The DJ’s decision to discharge Mr Enasoiae on offences (i), (ii) and (xi) was therefore wrong. He was correct to find offences (vii), (viii) and

That is sufficient to dispose of the appeal because, as we have indicated, Mr Hall readily acknowledges that his further grounds of appeal are contingent upon our having found that at least one of the offences was not an extradition offence. We have hesitated before embarking upon what will be obiter dicta in relation to those further grounds of appeal. We have, however, been told that the issue of speciality in circumstances such as these has been the subject of different approaches in decisions at first instance, and that assistance on that issue may therefore be welcome.

When an offender has to be sentenced for a number of offences, it may often be the case that simple addition of the sentences which would be appropriate for each individual offence, if viewed in isolation, will result in a total sentence which is unjust and disproportionate to the seriousness of the offending as a whole. In England and Wales, the Sentencing Council’s definitive guideline on Totality sets out overarching principles to be followed by judges and magistrates when sentencing for more than offence but does not suggest that those principles can be expressed in, or reduced to, an arithmetical formula. FI 3 (quoted at [21] above) shows that Romanian law adopts a different approach to the cumulation of sentences: “the hardest sentence plus an increase of 1/3 of the total of other sentences”. That approach results in a single final sentence: not, as in England and Wales, in a number of discrete sentences which are ordered to be served either concurrently or consecutively.

The submission on behalf of Mr Enasoaie was that the resulting sentence cannot be disaggregated so as to avoid his serving any part of that sentence in respect of offences (vii), (viii) and (ix), which were said not to be extradition offences. The consequence of that submission, if correct, would seem to be that a Romanian offender who was subject to a resulting sentence imposed for multiple offences, not all of which were extradition offences, could not be returned to serve any part of his sentence because he could not be returned to serve all of it. That would lead to surprising results. It would mean, for example, that an offender who had been convicted of one offence could be returned to serve his sentence, but an offender who had convicted of multiple offences, all but one of which were extradition offences, could not be returned. It would mean that the principle of speciality, which protects a returned person against punishment for anything other than the offences in respect of which he has been extradited, would be used as a means to prevent his serving any sentence for his extradition offences.

It is unfortunate that the manner in which Romania deals with a resulting sentence, in circumstances where an offender has been extradited on some but not all of the offences covered by a warrant, did not emerge with immediate clarity from the further information initially provided by the JA. We understand why Mr Enasoiae attaches importance to the statements in FI 3 that Romanian law “does not provide for the possibility of the ‘disaggregation’ of sentences” and that “the final warrant issued as a result of the merger will not be able to be enforced”. Those words must, however, be read in the context of the remainder of that part of FI 3, in particular its reference to avoiding a result which would be unfavourable to the defendant. When FI 3 is read as a whole, we understand it to mean (a) that a resulting sentence, reflecting all the offences covered by a warrant, cannot be enforced against a defendant who has only been extradited for some of the offences; and (b) that it is not possible to disaggregate the resulting sentence so as to restore the original separate sentences if, cumulatively, they will lead to imprisonment for longer than the final sentence. Neither of those restrictions necessarily means that the Romanian courts are powerless to enforce the appropriate total sentence for the offences in respect of which a defendant has been extradited.

That understanding is strengthened by the later further information. FI 4 (see [27] above) confirms that the reason why the final sentence cannot be enforced in full is “due precisely to the application of the specialty principle”. It goes on to describe the appeal procedures by which “the Court would be able to decide, to what extent, the punishments ordered against the convict, could actually be enforced”. FI 5 (see [29] above) is to similar effect.

The further information demonstrates that Romania does have in place effective arrangements to comply with its international obligations as to speciality. Article 117 directly implements Article 27(2) of the Framework Directive, and Article 598 provides a remedy if there is an obstacle to enforcement of the resulting sentence. Whether there is such an obstacle will no doubt depend on the details of an individual case and the length of the sentences for individual offences which were taken into account in calculating the resulting sentence. The important point, however, is that the further information shows Romania to have complied with its international obligations as to speciality and to have put in place effective arrangements to implement the principle of speciality.

Mr Enasoiae has not been able to adduce any compelling evidence to the contrary. The reports of Dr Mares do not contain any clear evidence that Article 598 cannot be used as a means of ensuring that a returned person will only serve his sentence for the offence(s) for which he was extradited. Indeed, Dr Mares refers to a case in which Article 598 was used in that way. Other cases to which Mr Hall invited our attention do not in our view support his argument. The decision in Edutanu turned on the specific information provided in that case and does not in our view assist Mr Enasoaie in the circumstances of this case. We are not persuaded that there is any evidence of there being any real problem in practice in ensuring that the principle of speciality is observed. Mr Hall realistically acknowledged that in order for his submissions to succeed, the court would have to be able to distinguish Brodziak. In our view, there is no basis on which we should do so. Although that case was concerned with Polish legislation, it is apparent from the passage which we have quoted at [47] above that the court saw no objection in principle to a sentence being enforced “only in so far as it relates to the offences for which the requested person has been extradited”.

We are unable to accept the submission that the terms of FI 4 and FI 5 leave open the possibility that an appeal court in Romania might consider the matter pursuant to Article 598 but uphold the sentence in its entirety. There is in our view no compelling evidence that such a decision might be made in circumstances where exclusion of the sentences for any non-extradition offences should lead to a reduction in the resulting sentence. There is no compelling evidence that Romania, having put in place effective arrangements to implement the principle of speciality, will then abandon that principle.

For those reasons, if it had been necessary for us to decide this ground of appeal, we would have rejected it.

We deal with this point briefly. We accept Miss Malcom’s submission that the requirements of section 2 have been met: the EAW contained the necessary particulars of “the sentence which has been imposed”. We are not persuaded by Mr Hall’s submission that although valid and enforceable when issued, the EAW would cease to be enforceable if extradition was refused in respect of one or more offences. If that argument were correct, it would again mean that the principle of speciality would have the effect of preventing a defendant from being returned to serve his sentence for the offences in respect of which he would otherwise be extradited. We cannot accept that an EAW which is enforceable at the start of an extradition hearing becomes unenforceable, on this basis, by the end of the hearing.

Accordingly, if it had been necessary for us to decide this ground of appeal, we would have rejected it.