LUCIAN FLORIN BADEA v ROMANIAN JUDICIAL AUTHORITY

The offences are not serious and would not be imprisonable in the UK

The Judge then said this (at §43, emphasis added):

21A Person not convicted: human rights and proportionality.

If the judge is required to proceed under this section (by virtue of section 11), the judge must decide both of the following questions in respect of the extradition of the person (“D”) – (a) whether the extradition would be compatible with the Convention rights within the meaning of the Human Rights Act 1998; (b) whether the extradition would be disproportionate.

In deciding whether the extradition would be disproportionate, the judge must take into account the specified matters relating to proportionality (so far as the judge thinks it appropriate to do so); but the judge must not take any other matters into account.

These are the specified matters relating to proportionality – (a) the seriousness of the conduct alleged to constitute the extradition offence; (b) the likely penalty that would be imposed if D was found guilty of the extradition offence; (c) the possibility of the relevant foreign authorities taking measures that would be less coercive than the extradition of D.

The judge must order D's discharge if the judge makes one or both of these decisions – (a) that the extradition would not be compatible with the Convention rights; (b) that the extradition would be disproportionate.

The judge must order D to be extradited to the category 1 territory in which the warrant was issued if the judge makes both of these decisions – (a) that the extradition would be compatible with the Convention rights; (b) that the extradition would not be disproportionate.

…

In this section “relevant foreign authorities” means the authorities in the territory to which D would be extradited if the extradition went ahead.

… to ensure that the extradition system between the Member States, on the one side, and the United Kingdom, on the other side, is based on a mechanism of surrender pursuant to an arrest warrant in accordance with the terms of this Title.

Within that mechanism of surrender, which is expressed as forming the basis of that extradition system, Articles 597, 598(a) and 613(1) provide as follows:

It seems to me that until such time as section 14 can be amended by Parliament, article 8 provides an appropriate and effective alternative means of addressing passage of time resulting in injustice or oppression in cases where the defendant has been convicted in absentia. Passage of time is clearly capable of being a relevant consideration in weighing the article 8 balance in extradition cases. (See HH v Deputy Prosecutor of the Italian Republic, Genoa [2013] 1 AC 338, paras 6 and 8, per Baroness Hale JSC.) It is capable of having an important bearing on the weight to be given to the public interest in extradition. In the article 8 balancing exercise, the relevant period of time will not be subject to the restrictions which appear in section 14. I note that in Lysiak v District Court Torun, Poland [2015] EWHC 3098 (Admin), a conviction case, the Divisional Court (Burnett LJ and Hickinbottom J) attached great weight to the nine years the criminal proceedings in Poland took to come to trial and the further 2½ years it took for the conviction to be confirmed in appeal proceedings, when concluding that it would be disproportionate under article 8 to return the defendant to Poland. Furthermore, in cases where it is maintained that passage of time would result in injustice at the retrial to which the defendant is entitled, this consideration could also be brought into account under article 8. The risk of prejudice at a retrial would be highly relevant in the balancing exercise which the extradition court would be required to undertake. Moreover, the threshold test to be satisfied would not be one of injustice or oppression but the lower one of disproportionality. This feature also makes reliance on article 8 a more effective solution than abuse of process where the burden on an appellant would be a much heavier one.

Mr Hepburne Scott characterised this passage as recognising a ‘modified Article 8’ approach, in which the same passage of time and the same consequences which would made extradition oppressive in an accusation warrant case when analysed under section 14, would fall to be given “determinative weight” to make extradition disproportionate in Article 8 terms in a retrial-conviction case.

First, there is his primary (‘narrow’) argument. In it, he submits that “the principle of proportionality” in Article 597 of the TCA necessitates – in both accusation warrant and conviction warrant cases (see TCA Article 598(1)) – a distinctive and narrow evaluation of the “seriousness of the act”, viewed in terms of how a sentencing judge in the executing state would deal with the question of sentence. In other words, it involves the equivalent exercise to the one performed under the Criminal Practice Direction in the context of the proportionality bar. If there is a lack of “proportionality”, in performing that distinctive and ‘narrow’ evaluation, the extradition court is required to discharge the requested person in the conviction warrant case. In an accusation warrant case, this position is already achieved by virtue of the proportionality bar in section 21A, applied in accordance with the Criminal Practice Direction guidance. That is the exercise necessitated by the terms of Article 597, on its correct interpretation. The legal consequence is that, on a “conforming interpretation” of section 21(1) and Article 8 as scheduled to the Human Rights Act 1998 (“HRA”), the same distinct exercise is equally necessitated in all conviction warrant cases. The consequence is that the “seriousness of the act” as assessed through this distinctive and narrow evaluation falls to be given “determinative weight” in the Article 8 balancing exercise. In the present case, in light of the reasoning in paragraph 43 of the Judge’s judgment, the outcome of the distinctive and narrow evaluation necessitated by Article 597 is clear and there is no basis to disturb it. Indeed, even if this Court were re-evaluating the same question, it should come to the same conclusion. Either way, the Appellant must be discharged because extradition is incompatible with his Article 8 rights.

Then there is Mr Hepburne Scott’s secondary (‘broader’) argument. Here, he submits as follows. The “principle of proportionality” found in Article 597 of the TCA necessitates – in both accusation and conviction warrant cases – a distinctive evaluation of proportionality in light of the “seriousness of the act” than arises on a conventional Article 8 balance sheet evaluation. That is a distinctive evaluation, albeit that it is ‘broader’ than the specific exercise for which the Criminal Practice Direction guidance calls in an accusation warrant case. The distinctive ‘broader’ evaluation involves having close regard to the seriousness of the act, and taking account of how a sentencing judge in the executing state would deal with the question of sentence had the trial been in the executing state. This ‘broader’ exercise is necessitated by Article 597 on its correct interpretation, achieved by a conforming interpretation of section 21(1) and Article 8. What follows is that “the seriousness of the act”, and the putative sentence which the judge in the executing state would impose, are given greater “weight” in the overall Article 8 evaluation of proportionality than is ‘conventionally’ the case. As is reflected in paragraph 43 of the Judge’s judgment, the outcome of the modified Article 8 balancing exercise stands to be materially affected by this ‘broader’ but distinctive approach. The correct outcome, which this Court should reach on this appeal, is that surrender of the Appellant is disproportionate and he should be discharged because extradition is incompatible with his Article 8 rights.

One foundational question is about applicability in law of Article 597. The ‘narrow’ and the ‘broader’ arguments each entail the proposition that Article 597 can, in law, be relied on in the application of the domestic statutory framework; specifically, in the approach to Article 8.

The other foundational question is about the meaning of Article 597. The ‘narrow’ argument, and the alternative ‘broader’ argument, each involves an analysis of the true meaning of Article 597, correctly interpreted.

Several important points can be derived from Polakowski v Westminster Magistrates’ Court [2021] EWHC 53 (Admin) [2021] 1 WLR 2521 at §§15-18. First, that the correct “starting point” for the legal analysis is the 2003 Act, being the Act of Parliament which governs extradition, and not any external international instrument or agreement: see Polakowski at §15. Second, that the TCA – which addresses the ongoing relationship between the UK and the EU – is an international agreement which is “not part of UK domestic law save to the limited extent that it is specifically incorporated by statute”: see Polakowski §17. Third, that it is important that any legal question involving rights or obligations in the extradition context should be approached “in the first instance” through “the lens of domestic law”: see Polakowski at §18. However, the phrases “starting point” and “in the first instance” are significant. True, the TCA is “not part of UK domestic law”. But the question is whether the TCA can properly affect the interpretation of those provisions which are part of UK domestic law. In this case, that means section 21(1) read with Article 8. The answer is yes. There can be a principled justification for interpreting the domestic provisions of the statute in conformity with an international instrument.

It is also true that in R (Norris) v Secretary of State for the Home Department [2006] EWHC 280 (Admin) [2006] ACD 57 the Divisional Court (at §§44 and 46) described the constitutional position in the UK in an extradition context in the following way: that the rights of those being extradited are “governed by domestic legislative arrangements” and that a treaty arrangement between states addressing the principled approach to extradition were not to be regarded “standing alone” to have “created personal rights enforceable by … individual citizens”. But Norris is not authority for the proposition that the domestic statute is the ‘ending point’. Even if it were, it would have been overtaken by subsequent cases, including Polakowski where the domestic statute is instead the “starting point”. Norris was not a case about whether and when the domestic statute could be interpreted in conformity with an international instrument. The issue in Norris was whether it was unlawful or unreasonable for the Secretary of State to have continued the designation, by statutory instrument, of the United States as a Category 2 territory. The argument that this was unlawful or unreasonable was based on a conflict between (i) the ‘prima facie case’ precondition contained in a subsisting 1972 US-UK extradition Treaty and (ii) express statutory provisions of the 2003 Act (applicable to extradition to designated Category 2 territories) which ‘disapplied’ the domestic statutory precondition needing a ‘case to answer’ (see §§27, 29). The argument was that the Secretary of State’s maintained Category 2 designation of the US was legally unjustifiable given that conflict. That argument was rejected. No question or argument as to compatible interpretation arose. That is unsurprising. The ‘disapplication’ was doubtless an aspect of the clear and unequivocal language of the Act, so that no ‘compatible interpretation’ would have been ‘possible’. That is not the case when it comes to section 21(1) read with Article 8.

When the European extradition arrangements were underpinned by the EU Framework Decision 2002/584/JHA, it was recognised as sometimes “necessary” to interpret the UK domestic legislation in conformity with that undomesticated international (regional) instrument. That ‘conforming interpretation’ course was only to be taken “exceptionally”, in situations “where the domestic law was unclear or failed properly to implement the underlying EU instrument”: see Polakowski at §16. This is the familiar principle of conforming interpretation articulated by the Supreme Court in Konecny at §16, when Lord Lloyd-Jones said: “The provisions of Part 1 of the 2003 Act must … be interpreted as intended to give effect to the Framework Decision and, so far as possible, construed consistently with its terms and purpose”.

This principle of conforming interpretation was the reason, to take one concrete example, why the provisions of section 20 of the 2003 Act (which address trial in absence) were interpreted compatibly with Article 4a of the Framework Decision: see Cretu v Romania [2016] EWHC 353 (Admin) [2016] 1 WLR 3344 at §34. That example brings the point in the present case into sharp focus. The provisions which were previously found in Article 4a of the Framework Decision are now to be found within Article 601(1)(i) of the TCA. Just as the principle of conforming interpretation entailed that section 20 be interpreted compatibly with Framework Decision Article 4a, an equivalent principle of conforming interpretation now equally entails that section 20 would still be interpreted compatibly with those same substantive requirements, through interpretation compatibly with TCA Article 601. The legislative changes that were made to the domestic legislation upon withdrawal from the EU did not entail amendment of section 20 to mirror Cretu, because Parliament understood that compatible interpretation could and would continue.

It is right to say (as Ms Burton does) that when domestic extradition judgments emphasised the status of the Framework Decision within EU law, they did so in the context of the particular provisions of the European Communities Act 1972 (“the 1972 Act”), including section 2(1) of the 1972 Act. The importance of the status of the Framework Decision, including its change to an enhanced ‘status’, were moreover aspects emphasised in Cretu at §§16-18. That means the position of the TCA with its distinct status, after the repeal of the 1972 Act, is not identical to the position which applied to the Framework Decision when section 20 was reinterpreted, in Cretu. However, a ‘conforming’ – or ‘compatible’ – interpretation is still appropriately secured through “the canon of statutory construction the Parliament does not intend to legislate contrary to the United Kingdom’s international obligations”, albeit that this was identified as a “weaker” principle than the principle of conforming interpretation with the Framework Decision (see Cretu at §16). That other “canon of construction” was the route by which a ‘compatible interpretation’ had been derived by the Supreme Court in Assange v Sweden [2012] UKSC 22 [2012] 2 AC 471 (see Lord Phillips at §10, with whom Lord Walker and Lord Brown agreed, Lord Kerr at §112 and Lord Dyson at §122). Even if not as strong as the principle of conforming interpretation seen in Cretu, the Assange canon of compatible interpretation is itself a “strong presumption”: see Assange at §122.

It does not matter that the provisions of the 2003 Act were enacted prior to the TCA. It is enough that Part 1 of the 2003 Act has been maintained (with amendments) with the purpose of giving effect to objective of Title VII of the TCA (see TCA Article 596 and Polakowski at §17): to provide for the single uniform system involving the United Kingdom and EU member states for the surrender of those accused or convicted. In a similar way, it was no answer that the 2003 Act had been enacted prior to the Framework Decision and its securing an enhanced ‘status’ (Cretu §13).

Insofar as it is argued that a ‘conforming’ or ‘compatible interpretation’ is legally unjustifiable because reliance on the Framework Decision arose in the context of section 2(1) of the 1972 Act, there is a further point. The TCA is itself the subject of a specific provision of the European Union (Future Relationship) Act 2020 – namely section 29 – to which Ms Burton very properly drew the Court’s attention. That section provides that, post withdrawal from the EU: “Existing domestic law” – which includes “any existing enactment” – “has effect … with such modifications as are required for the purposes of implementing in that law the [TCA] … so far as [the TCA] is not otherwise so implemented and so far as such implementation is necessary for the purposes of complying with the international obligations of the UK under the [TCA]”. That reinforces – or constitutes, if one is needed, a domestic statutory provision to underpin – the appropriateness of a ‘conforming’ or ‘compatible interpretation’.

As with section 20 of the 2003 Act in Cretu (and unlike the position in Norris), there is no difficulty in finding a provision of the statutory scheme apt for a ‘conforming’ or ‘compatible interpretation’. Section 21(1) of the 2003 Act requires that extradition must not violate Article 8 ECHR. Article 8 is invariably engaged, since any extradition will by its nature involve an “interference” with, at least, the requested person’s “private life”. Article 8 ‘proportionality’ can, perfectly properly, be applied so as to give “determinative weight” to a narrow feature which – of itself – necessarily renders extradition disproportionate, whatever the particular strength of the private life (or family life). It can achieve this outcome, just as it could identify as disproportionate extradition which in section 14 terms (in an accusation warrant case) would be oppressive (see Konecny). Konecny is not the only illustration of Article 8 giving “determinative weight” to features of a case. Another example is the way that the deductibility of ‘qualifying remand’ under Framework Decision Article 26 (now TCA Article 624) can of itself, in a case where the ‘qualifying remand’ extinguishes the time to serve, constitute “a necessary violation of Article 8”: see the Article 8 cases cited in Molik v Poland [2020] EWHC 2836 (Admin) at §17. Article 8 involves necessity and proportionality. If there is a ‘modified’ proportionality exercise necessitated by the principle of proportionality in Article 597, it is an exercise which fits with Article 8, which can be interpreted and applied compatibly with the obligation.

Finally, this analysis is reinforced by the recognition of the fact that the application of the proportionality test in a qualified ECHR right such as Article 8 should be interpreted and applied so as to promote the state in question honouring its international law obligations. This is powerfully illustrated by the judgment of the Strasbourg Court (Grand Chamber) in Demir v Turkey Application No. 34503/97 (2009) 48 EHRR 54. In that case, the Grand Chamber discussed, in detail, the principled approach to the interpretation and application of a qualified ECHR right (Article 11), by reference to relevant international law obligations: general; regional (European); emerging practice or consensus; and international agreements entered into by the relevant State (Turkey): see §§65-86. Further, when the Grand Chamber came to apply the “necessary in a democratic society” test under Article 11, it did so by reference to international law instruments including emphasis on instruments which Turkey had ratified: see §§121-125. Those international law obligations informed the Grand Chamber’s conclusions (§§125-127): that the Turkish domestic statutory provisions precluding civil servants from engaging in trade union activity, restrictively interpreted by the Turkish courts, had produced an unjustified and disproportionate interference with the Article 11 rights of the civil servants whose unionising activities had been outlawed.

The TCA operates only on the ‘international plane’. It is no part of UK domestic law. In principle, international obligations in an extradition treaty are legally irrelevant to the meaning and application of the domestic statutory scheme. The sole question is the proper, natural and freestanding interpretation of the domestic statute, as was explained in Polakowski. The TCA is an instrument which reflects the relationship agreed between the UK and the EU member states. But it does not give rise to any enforceable freestanding rights. The points made in Norris at §§44, 46 apply equally here.

There is no safe analogy between the TCA and the Framework Decision, and no legitimate invocation of the principle of ‘conforming interpretation’ which allowed the Framework Decision to be relied on, since that was an EU principle and the specific consequence of a particular status of instrument in EU law, in the context of section 2(1) of the 1972 Act. That is why the principle did not apply until the Framework Decision was given its enhanced ‘status’: Cretu §§16-18. Nor could the “weaker” Assange canon of statutory construction justify an interpretation of section 21(1) with Article 8, so as to ‘modify’ the Article 8 proportionality exercise, any more than the Framework Decision could at the time of its prior and weaker ‘status’ have warranted a reinterpretation of section 20 by reference to Article 4a. Any and all rights or obligations are governed by domestic legislative arrangements. That is the beginning and the end of it.

Konecny was a case about interpreting and applying the domestic statute. It did not involve any external international instrument. Nor, correctly understood, did it involve any ‘modification’ to Article 8.

As to qualifying remand and Article 26 of the Framework Decision, and the effect for Article 8 seen in the Article 8 cases cited in Molik, these are an unsafe analogy. The Article 26 deduction of qualifying remand is a matter for the issuing state. True, it can be a feature of Article 8 proportionality, but that is not a ‘conforming’ or ‘compatible interpretation’ of the 2003 Act in the light of the Framework Decision. Indeed, uncontroverted evidence about the operation of a clear domestic statutory provision in the issuing state could also be a feature of Article 8 proportionality. Not because it is an aid to interpretation, but because it is one of the features of the individual case.

As to the Cretu-interpretation of section 20, it “may be” that the Cretu approach to section 20, previously interpreted in ‘conformity’ with Article 4a of the Framework Decision, is no longer the correct interpretation of section 20, given the absence of a principle of ‘conforming interpretation’ with TCA Article 601(i). But that is “not this case” and the answer would turn on an analysis specific to those provisions.

Even if the correct meaning of Article 597 were that it is providing for a narrow proportionality bar – like section 21A(1)(b)(2)(3) – applicable to conviction warrant cases, it would be impermissible to apply that new bar to extradition through the ‘compatible interpretation’ of section 21(1). Whether, and to which species of warrants, to apply a proportionality bar is for Parliament in the primary legislation. Parliament has addressed that question in the design of the Act: see section 21A read with section 11(5).

If there is an inconsistency between the 2003 Act and Article 597, the situation is covered by the proposition identified in the Tin Council case (J H Rayner (Mincing Lane) Ltd v Department of Trade and Industry [1990] 2 AC 418, 512A per Lord Oliver): “If the treaty contained such a provision and Parliament had not seen fit to incorporate it into a municipal law by appropriate legislation, it would not be for the courts to supply what Parliament had omitted and thus to confer on the Crown a power to alter the law without the intervention of the legislature”. It is not the role of the domestic court to seek to fill gaps in primary legislation by reference to an undomesticated international instrument.

There is no equivalent to section 2(1) of the 1972 Act, which (together with the status of the Framework Decision in EU law) was crucial to the conforming interpretation. The extent to which the TCA is implemented in the extradition field (section 29 of the 2020 Act) is exclusively governed by the 2003 Act. That includes amendments deliberately made by Parliament. An example is section 12(2)(b) of the 2020 Act. Previously, there was a reflection, achieved by virtue of section 64(5)(c) of the 2003 Act, with a list of offences by reference to which the condition of double criminality was disapplied, that list being found in the Framework Decision Article 2(2). By virtue of section 12(2)(b) the equivalent list – now found in TCA Article 599(4) – is not now reflected in the domestic statute.

In light of all of these considerations, Article 597 can simply be put to one side as being incapable of having any legal effect on the application of the domestic statutory provisions.

Applied as a condition for the surrender of the requested person (Article 613(1)), the executing judicial authority has to decide whether the surrender of the person is “necessary and proportionate”.

In deciding that question, the executing judicial authority is to “take into account” both “the rights of the requested person” and “the interests of the victims”, and is to “have regard” to three further specified matters.

The three further specified matters are the seriousness of the act, the likely penalty that would be imposed and the possibility of a stay taking measures less coercive than surrender (particularly with a view to avoiding unnecessarily long periods of pre-trial detention).

Even viewed in terms of the three further specified matters, the Article 597 “principle of proportionality” will apply in a different way in different kinds of cases, including a different way in “accusation” and “conviction” warrant cases. As Mr Hepburne Scott accepts, as the Divisional Court in Saptelei said (at §35), the second and third of the three further specified matters are “otiose” in the context of a conviction warrant. Certainly, there is no “likely” penalty that “would be” imposed (rather there is an “actual” penalty that “has been” imposed). Whether or not ‘less coercive measures’ could have a role in a conviction warrant case, the reference to the avoidance of periods of “pre-trial detention” is plainly inapt.

Another example of that contextual application of features of the Article 597 “principle of proportionality” is that “the interests of the victims” will only be a feature of a case in which the public interest in the requested person serving their sentence or standing trial engages interests of “victims” of the index criminality. The present case – involving the criminal conduct of driving a car without a licence – may illustrate that there can be cases where there are no identifiable “victims” whose “interests” are to be taken into account.

The features identified in Article 597 as informing the application of the “principle of proportionality” are, clearly, not exhaustive. Express reference is made to necessity and proportionality taking into account the rights of the requested person and the interests of the victims. No reference is made to taking into account the rights of family members of the requested person. No reference is made of the best interests of a child. Express reference is made to the likely penalty that would be imposed. No reference is made to the nature of the penalty that has been imposed.

It is not difficult to understand why. Article 597 is describing a single, overall evaluation of necessity and proportionality which by reason of Article 613(1) is to be applied by an executing judicial authority, as a condition applicable to the decision whether the requested person is to be surrendered. It is identifying a general test (necessity and proportionality) and a number of identified relevant considerations which feed into the consideration of that test. It is not providing an exhaustive and prescriptive set of features. And it is not indicating “determinative weight” being given to features to which regard is to be had.

The word “necessary” reflects the language of Article 8 itself (“necessary in a democratic society…”). The words “and proportionate” and the phrase “principle of proportionality” reflect the proportionality principle which is the recognised governing test for evaluating the justification in Article 8 terms for the act of extraditing the requested person, given the interference with private life (and frequently family life) which extradition would entail.

In an Article 8 case “the rights of the requested person” are naturally at the forefront, including the rights to respect for private life and family life. But third party rights – for example the partner or child – are also highly relevant and their principled protection is consistent with the language and structure of Article 597. Article 597 does not say that the only relevant rights are those of the requested person.

In an Article 8 case although the interests of the victims do not have the statutorily prescribed status seen in relation to issues of “forum” (cf. 2003 Act s.19B(3)(b)), the nature of the interests of any victims of the requested person’s criminal conduct (in a conviction warrant case) or alleged criminal conduct (in an accusation warrant case) are part of the familiar ‘public interest’ considerations in favour of extradition. To take an example, the link between the rights of the victims of criminal offences and the public interest imperatives in favour of extradition was identified by Lord Judge CJ in the leading ‘conventional’ Article 8 case of HH v Italy [2012] UKSC 25 [2013] 1 AC 338 at §121. I can see that an extradition judge might be encouraged by reference to the language of Article 597 to make explicit reference to whether there are “victims” whose “interests” fall to be weighed in the public interest balance, but I cannot accept that such explicit reference would in substance materially change the nature and outcome of the conventional Article 8 balancing exercise, including in the present case.

Under a ‘conventional’ Article 8 ECHR balancing exercise, “regard” is had “to the seriousness of the act”. The principled approach under ‘conventional’ Article 8 was described by Lady Hale at §8(5) of HH, when she explained that the public interest in extradition “will always carry great weight, but the weight to be attached to it in the particular case does vary according to the nature and seriousness of the crime or crimes involved”. That ‘variable weight’ can only be calibrated because regard is being had to “the seriousness of the act”. Under a ‘conventional’ Article 8 balance sheet exercise the extradition court will, in a conviction warrant case, have regard to the seriousness as characterised and reflected in the sentence which was imposed by the issuing state’s sentencing court: see Celinski §13. That is what the Judge did in this case. But that is a part of having “regard” to “seriousness” of the “act”, in the contextual application of a necessity and proportionality standard, in an area underpinned by appropriate mutual respect.

In an accusation warrant case the three features which govern the proportionality bar can all in principle be relevant to an overall assessment of proportionality, which is why there is an “overlap” between Article 8 proportionality and the distinct proportionality bar: see Miraszewski §29. Under the 2003 Act, proportionality is addressed in an accusation warrant case by reference to a distinct proportionality exercise which has regard to those three matters. That, as I have explained, is compatible and consistent with Article 597, albeit not necessitated by the wording and structure of Article 597.

Given all these features, I can see no lack of ‘conformity’ or ‘consistency’ between the ‘conventional’ application of Article 8 conventionally and the language and structure of Article 597. The article 8 proportionality balancing exercise is conducted “taking into account’ and ‘having regard to” the matters identified in Article 597, to the extent that they are relevant to the nature of the warrant and on the facts and circumstances of the case. No particular recalibration would be called for, because no part of Article 597 attributes primacy, hierarchy or specific weight to any particular feature.

It is true that the Judge specifically addressed section 21A and referred to discharging the Appellant as something which he would have had “little hesitation” in doing, had this been an “accusation case”. It is also true that a finding in the application of section 21A(3)(a) and the terms of the Criminal Practice Direction would be an evaluative judgment for the Judge, with which this court would not readily interfere, and would not do so simply on the basis of substituting a different evaluative judgment. It is also right to record that, in the Order granting permission to appeal, Griffiths J made clear that – for his part – he saw paragraph 43 of the Judge’s judgment as a “clear finding”.

The section 21A proportionality bar point did not, however, arise. It was not necessary to the Judge’s decision. In making his comment, he did not in my judgment – unsurprisingly, in those circumstances – make a specific “finding”. Nor, moreover, did he give any reasons for any finding. Nor did he consider the terms of the Criminal Practice Direction. None of that is by way of criticism: the point did not arise for determination. Nor were the Appellant’s previous convictions before the Judge and they are in principle relevant to the application of the guidance in the Practice Direction. Unlike the position before the Judge, the section 21A analysis has been invoked as central to the arguments ventilated in this appeal. In all these circumstances, had it mattered, I would have been persuaded by Ms Burton that it would have been right and appropriate that this Court should scrutinise the soundness of the premise that the Appellant would stand to have been discharged pursuant to the proportionality bar had this been an accusation warrant case where he was facing trial for the alleged index offences of 28 May 2017 and 5 June 2017 rather than a conviction warrant case in which he faces serving sentence having been convicted of that offending.

Turning to what I made of the application of the guidance in the Criminal Practice Direction, and recognising that it is a floor and not a ceiling (Miraszewski §28; Saptelei §37), the issue would need to be determined on the facts of the case (CrimPD §50A.2) and the guidance that for offences listed in the Table the judge should “generally” determine that extradition “would be disproportionate” is subject to the caveat “unless there are exceptional circumstances”. It is right to identify the index offending within the description in the Table of the category “minor road traffic”, “driving-related offences” where “no injury loss or damage” was incurred. The two instances listed within the Table are examples. Driving without a licence is a further example. But the “exceptional circumstances” guidance expressly includes (CrimPD §50A.4) “multiple counts” and “previous offending history”. Either one of those would constitute exceptional circumstances. In the present case they are both present. The “multiple counts” arise – treating this as if it were an accusation warrant – because of the index offence of 28 May 2017 together with the later offence of 5 June 2017. Those would constitute multiple counts even had they been the subject of a single accusation AW. The “previous offending history” involves four convictions of aggravated theft in September 2003, September 2004, May 2013 and July 2014, each of which attracted a substantial custodial sentence. But more significantly in evaluating the seriousness of the index offending of driving without a licence are these circumstances. In June 2011 the Appellant was convicted of driving without a licence or while disqualified. On the same occasion he refused or objected or evaded the giving of a sample or breath test. The ultimate sentence for that offending was a custodial sentence of two years. Subsequently, the driving licence which he held was cancelled on 7 June 2013. That was the context the Appellant, on returning to Romania, committing the (multiple) offences of driving without a licence. In my judgment, these features would take the case above the triviality “floor”, and would also lead to an outcome of declining to characterise the circumstances as attracting the section 21A “proportionality bar”. I repeat: the Judge is not to be criticised because (a) this point was not a live point and (b) he did not have the details relating to the previous offending history.

It follows that I would not have accepted the premise that there is an “injustice” in this case, when a comparison is made between accusation warrant scenario and a conviction warrant scenario. Moreover, in my judgment, the strong public interest considerations in favour of extradition would have outweighed the features capable of weighing against extradition, in the Article 8 balance, even were this an accusation warrant case.