Zoltan Sara v Gheorgheni Court, Romania

This is an appeal against the decision of District Judge Leake (“the Judge”) dated 9 April 2024 (“the Decision”) to order the extradition of Zoltan Sara (“the Appellant”) to Romania. Permission to appeal was granted by Mould J on 21 November 2024. The Respondent is the Gheorgheni Court in Romania.

There are two grounds of appeal. First, the Judge was wrong when he found that section 20 of the Extradition Act 2003 (“the 2003 Act”) was satisfied in relation to Offences 1 and 2. Secondly the Judge was wrong when he found the Appellant’s extradition was not a disproportionate interference with his and his family’s right to respect for private and family life pursuant to Article 8 ECHR.

Before describing the factual background (from paragraph 22 onwards), I address the relevant legal principles.

An appeal against the decision of a district judge may be brought on a question of law or fact: section 26(3) of the 2003 Act. The Court may allow the appeal if the district judge ought to have decided a question before him at the extradition hearing differently: section 27(3)(a).

The approach of this Court on appeal from the district judge is set out in Love v USA [2018] EWHC 172 (Admin), applying the approach specific to Article 8 cases set out in Celinski v Poland [2015] EWHC 1274 at §§ 20(ii) and 24 (in turn citing Re B (A Child) [2013] UKSC and Belbin v Regional Court of Lille, France [2015] EWHC 149 (Admin)). In summary, the question is whether the district judge’s decision was wrong. The appeal court is entitled to stand back and say that a question ought to have been decided differently because the overall evaluation was wrong: crucial factors should have been weighed so significantly differently as to make the decision wrong, such that the appeal in question should be allowed.

As regards fresh evidence on an appeal, where a respondent to an appeal in an extradition matter seeks to adduce fresh evidence in the course of the appeal, the approach is governed by FK Germany [2017] EWHC 3160 (Admin) §40. The Fenyvesi criteria (which apply to an appellant) do not apply to a case in which a party seeks to put in new evidence with a view to defeating an appeal. (That is the position in relation to the further evidence now sought to be admitted by the Respondent: see paragraphs 61 and 62 below.) A respondent does not have “carte blanche” to adduce new material to bolster an existing decision in its favour, particularly if the material was available before the judge below. Availability of evidence before the district judge is a relevant factor, but it is only one of several material considerations. Ultimately the question is whether it is in the interests of justice to admit the further evidence. This is the only restriction on the exercise of this Court’s power. Circumstances in which it will be in the interests of justice include evidence which clarifies an issue of fact or law that might otherwise be ambiguous or unclear.

As regards fugitivity, I refer, (as the Judge did at his judgment (“the Judgment”) paragraphs 48 and 49), in particular to the two leading cases of Wisniewski v Poland [2016] EWHC 385 Admin §§59 to 62 and Makowska v Poland [2020] EWHC 2371 (Admin)at §§27, 28 and 31. The position is as follows.

A person subject to a suspended sentence who voluntarily leaves the jurisdiction in question, thereby knowingly preventing himself from performing the obligations of that sentence and in the knowledge that the sentence may as a result be implemented is a fugitive: Wisniewski §60 and Makowska §§27 and 28. (The Judge directed himself precisely in these terms at paragraph 48(c) of the Judgment: paragraph 51 below). In particular, a person who breaches conditions of his sentence which require him to keep in contact, thereby becomes somebody whose whereabouts are unknown to the authority, which is entitled to know of them, and puts it beyond the authority’s power to deal with him. For the requested person to be treated as a fugitive, it is not necessary that he knows that the sentence has been activated. It is enough that he knows that it is liable to be activated because of his breach of the terms of its suspension. In such a situation it is his conduct in breach of the suspended sentence that has given rise to his lack of knowledge that the sentence has been implemented. He has as a matter of choice placed himself beyond the reach of the criminal justice system concerned: Wisniewski §62.

In my judgment therefore, it is not necessary that the suspended sentence in question has as one of its conditions an express condition not to leave the jurisdiction or an express condition not to change address or an express condition to keep in contact. The position is more general. If a person leaves the jurisdiction in such a way as to make it impossible for him to comply with whatever the conditions may be (for example a regular meeting with a probation officer) then that person knowingly prevents himself from performing the obligations under the sentence.

Section 20 applies to a case where the requested person has been convicted and provides as follows:

“(1)

If the judge is required to proceed under this section (by virtue of s.11) he must decide whether the person was convicted in his presence.

(2)

If the judge decides the question in subsection (1) in the affirmative he must proceed under s.21.

(3)

If the judge decides that answer in the negative he must decide whether the person deliberately absented himself from his trial.

(4)

If the judge decides the question in subsection (3) in the affirmative he must proceed under s.21.

(5)

If the judge decides that question in the negative he must decide whether the person would be entitled to a retrial or (on appeal) to a review amounting to a retrial.

(6)

If the judge decides the question in subsection (5) in the affirmative he must proceed under s.21.

(7)

If he decides that question in the negative he must order the person`s discharge.

(8)

The judge must not decide the question in subsection (5) in the affirmative unless, in any proceedings that it is alleged would constitute a retrial, the person would have these rights –

(a)

the right to defend himself in person or through legal assistance of his own choosing or, if he had not sufficient means to pay for legal assistance, to be given free when the interests of justice so required;

(b)

the right to examine or have examined witnesses against him and to obtain the attendance and examination of witnesses on his behalf under the same conditions as witnesses against him.” (emphasis added)

The Council Framework Decision of 13 June 2002 on the European arrest warrant and surrender procedures between member states (“the Framework Decision”) provides, inter alia, as follows:

“Article 1

Definition of the European arrest warrant and obligation to execute it

1.

The European arrest warrant is a judicial decision issued by a Member State with a view to the arrest and surrender by another Member State of a requested person, for the purposes of conducting a criminal prosecution or executing a custodial sentence or detention order.

2.

Member States shall execute any European arrest warrant on the basis of the principle of mutual recognition and in accordance with the provisions of this Framework Decision.

…”

Article 4a of the Framework Decision (inserted by Council Framework Decision 2009/299/JHA of 26 February 2009) provides as follows:

“Decisions rendered following a trial at which the person did not appear in person

1.

The executing judicial authority may also refuse to execute the European arrest warrant issued for the purpose of executing a custodial sentence or a detention order if the person did not appear in person at the trial resulting in the decision, unless the European arrest warrant states that the person, in accordance with further procedural requirements defined in the national law of the issuing Member State:

(a)

in due time:

(i)

either was summoned in person and thereby informed of the scheduled date and place of the trial which resulted in the decision, or by other means actually received official information of the scheduled date and place of that trial in such a manner that it was unequivocally established that he or she was aware of the scheduled trial;

and

(ii)

was informed that a decision may be handed down if he or she does not appear for the trial;

…” (emphasis added)

These provisions are now reproduced in Article 601(i)(i)(A) and (B) of the Trade and Cooperation Agreement between the EU and the UK.In the present case, the latter provisions applied to the arrest warrant in issue.

I have been referred to the following authorities: Cretu v Romania [2016] EWHC 353 (Admin) at §§32 to 37; Bertino v Italy [2024] UKSC 9 at §§45, 54 to 56, and 58; Merticariu v Romania [2024] UKSC 10 at §§24, 26, and 27. From these authorities, I derive the following propositions.

Central to the argument in the present case that section 20(3) applies to the hearing and decision made on 11 April 2022 (see paragraph 38 below) is the case of Case C-271/17 PPU Criminal Proceedings against Zdziaszek [2017] 4 WLR 189 especially at §§87 to 92. The Court of Justice there held that a decision imposing a cumulative sentence resulting in a new determination of the level of custodial sentences previously imposed is relevant for the application of Article 4a where it entails a margin of discretion for the authority and gave rise to a decision which finally determined the sentence. The fact that the new sentence was hypothetically more favourable to the defendant was irrelevant.

At §96 of the judgment the Court of Justice answered the question referred to it in the following terms:

“… The concept of a “trial resulting in the decision”, within the meaning of article 4a (1) of Framework Decision 2002/584, must be interpreted as referring not only to the proceedings which gave rise to the decision on appeal, where that decision, after a fresh examination of the case on the merits, finally determine the guilt of the person concerned, but also to subsequent proceedings such as those which led to the judgement handing down the cumulative sentence at issue here, at the end of which the decision that finally amended the level of the initial sentence was handed down, inasmuch as the authority which adopted the latter decision enjoyed a certain discretion in that regard.” (emphasis added)

Both the final finding of guilt at the end of appeal proceedings and the subsequent modification of sentence were a relevant “trial resulting in the decision”. At §86, the Court gave, as an example of such a later sentence decision, a case of several convictions each of which involved the imposition of a sentence but those sentences then being combined to obtain a cumulative sentence which is less than the sum of the various original sentences. This applies where the proceedings for the determination of the overall sentence “are not a purely formal and arithmetic exercise but entail a margin of discretion in the determination of the level of the sentence, in particular, by taking account of the situation or personality of the person concerned, or of mitigating or aggravating circumstances” (§88).

In summary, proceedings which give rise to the conviction and subsequent proceedings (after earlier sentences) are both a “trial resulting in the decision”, where the later decision imposing a cumulative sentence involves an exercise of discretion and is not merely a formal and arithmetic exercise.

Zdziaszek was applied by this Court in Rego v Portugal [2022] EWCHC 642 (Admin) §23. More recently it was referred to in Todirica v Romania [2024] EWHC 3113 (Admin). One of the two issues in that case was whether the relevant “trial” for the purposes of section 20(3) was not a hearing in 2017 at which the appellant was convicted and fined, but a subsequent hearing in 2019 at which that fine was converted to a prison sentence. In fact Bourne J did not need to reach a conclusion on that first issue, because in any event he upheld the district judge’s finding that the appellant had waived his right to attend the later proceedings. In relation to the first issue however, Bourne J set out the relevant authorities, including Bertino, Cretu, and Zdziaszek. Although the issue did not strictly arise, Bourne J went on to conclude that the 2019 hearing was not a “trial” for the purposes of section 20(3). He did so on the basis that as a matter of Romanian law he was satisfied that, in that case, the conversion of a fine into a term of imprisonment was an “essentially mathematical” exercise and that in that case there was no evidence of any discretion: see §§50 to 55 The judge applied the analysis in Zdziaszek to the facts of the particular case and to the question of whether a subsequent hearing was a “trial” within the meaning of section 20(3). The analysis of Bourne J supports the application of the principle in Zdziaszek.

Section 20(1) refers to “conviction”; by contrast section 20(3) refers to “trial resulting in the decision”.

In its further written submissions, in the context of the interrelationship between section 20(1) and section 20(3) the Respondent referred to four additional authorities which it contended are relevant to the meaning of “conviction” and “trial” in section 20(1) and (3) respectively. These were: Virciglio v Austria [2006] EWHC 3197 (Admin) at §§22 and 23; Raimondas Baksys v Ministry of Justice of the Republic of Lithuania [2007] EWHC 2838 (Admin) at §8; Grzegorz Kubiak v Judicial Authority of Poland [2011] EWHC 449 (Admin) at §5; and Beretki v Romania [2012] EWHC 336 (Admin) §§18, 21, 22. I have also considered Case C-571/17 Samet Ardic judgment of the Court of Justice 22 December 2017 at §§77 to 82 (and cited by Bourne J in Todirica at §§22 and 23) where the Court expressly applied the principles in Zdziaszek to the activation of a suspended sentence.

In my judgment these cases establish the following:

On the question of delay in the context of Article 8, I have been referred to HH v Deputy Prosecutor of the Italian Republic [2012] UKSC 25 at §8, 8(6) and 46; Judkowiak v Poland [2015] EWHC 2524 at §19; Dabrowski v Poland [2017] EWHC 179 (Admin) at §44; Vajdik v Slovakia [2022] EWHC 55 (Admin) at §§14 to 20 citing Dabrowski; Sergios Dos Santo Amazonas v Portugal [2023] EWHC 1951 (Admin) at §37 and 38; Koc v Turkey [2021] EWHC 1234 (Admin) at §23. I derive the following propositions from these authorities.

The Respondent seeks the extradition of the Appellant pursuant to an arrest warrant (“AW”) issued by the Respondent on 24 July 2023. The AW was certified by the National Crime Agency on 3 August 2023.

The Appellant was arrested on or about 9 September 2023 and appeared before Westminster Magistrates Court on that day, when he was released on conditional bail.

The AW is a conviction warrant which seeks the Appellant’s surrender to serve a cumulative sentence for eight offences totalling 4 years, 9 months and 10 days. One day has been served.

By the Decision the Appellant was discharged for Offences 3 to 8. The particulars of the two remaining offences which are the subject of this appeal are as follows:

The initial domestic warrant was dated 27 April 2022. The AW states at Box (b) that the “enforceable decision” (upon which the AW is based) is the criminal sentence No 92 of 11 April 2022, which became final on 27 April 2022 by not exercising an appeal. Box (d) paragraph 2 of the AW states that “the person did not appear at the trial leading to the decision”. Thus the “trial resulting in the decision” was the hearing on 11 April 2022.

The Respondent has provided further information on two occasions; first Further Information dated 4 December 2023 (“First FI”) and secondly, and following the oral hearing of this appeal, Further Information dated 23 April 2025 (“Second FI”). The First FI was before the Judge. I address the Second FI in paragraphs 63 to 68 below.

The following facts are drawn from the AW and the First FI. As the Judge observed (see Judgment, paragraphs 43, 68 and 70) the First FI was not clear and “tainted by ambiguity”.

In relation to Offences 1 and 2 the Appellant appeared in person at hearings on 10 February 2016, 23 March 2016, and 27 April 2016. At the last hearing he recognised the facts and was assisted by a legal aid lawyer.

On 1 June 2016, the Appellant was sentenced for Offence 1 and Offence 2 to 2 years and 10 months imprisonment, suspended with a supervision period of two years. This is referred to as Sentence No 123. The Appellant accepted in evidence, and in his skeleton argument for this appeal, that he was present in person for this sentence. On 21 June 2016 Sentence No 123 became final. (The Second FI appears to modify this explanation: see paragraphs 102 and 103 below.)

On 16 December 2016 the suspension under supervision in Sentence No 123 was revoked, based on the admitted complaint by the Probation Service. This is Sentence No 303, which became final on 4 January 2017 (by “non-contestation”). The Appellant was not present at the hearing. The summons for the hearing was “taken over” by the Appellant’s mother on an unspecified date. There is no evidence as to whether the Appellant was aware of this summons or aware that his mother had received it. The First FI states that Sentence No 303 ordered that Sentence No 123 should be enforced in detention and that from 4 January 2017 the Appellant should have presented himself to prison to serve the sentence of 2 years and 10 months.

The Respondent maintains that all court decisions were communicated at the active residence in Romania of Zoltan Sara. Some of the mail was picked up by his mother who lived at the same home address.

On 30 March 2018, by Sentence No 92, the Appellant was sentenced to 1 year 6 months in prison for driving without a licence. This became final on appeal 29 November 2018. This was for one of the discharged offences. On that date, based on Romanian criminal procedure a sentence of 2 years was imposed for Offence 1 and 6 months for Offence 2. When aggregated with other offences the total sentence was 3 years 8 months in prison. This then led to the Respondent’s first arrest warrant and the European arrest order was issued on 21 December 2018.

On 25 April 2018 following his conviction and sentence in absentia for Offence 4, Sentence No 123 was first split into individual sentences (one sentence of 2 years and one sentence of 6 months) and then merged with sentences for Offences 3, 4 and 8 into an aggregate sentence of 3 years and 10 months.

On 29 November 2018, following his conviction and sentence in absentia for Offence 7, Sentence No 123 was again split into individual sentences and then merged with sentences for other offences, arriving at the total of 3 years and 8 months.

The First FI further suggested that on 29 July 2021, as a result of further offending, the driving offences were all merged giving a sentence of 2 years 7 months 10 days. A warrant was issued on 31 August 2021 and then a European arrest warrant was issued on 8 September 2021.

According to Box (d), paragraph 3.1 of the AW, on 11 November 2021 the Appellant was personally summoned and therefore informed of the date and place set for the trial and was informed that the decision may be rendered if he did not appear at the trial. In Box (d), paragraph 2, the AW states that “the person did not appear at the trial leading to the decision”, but went on to state that “the court appointed an ex officio defence counsel from the state to defend” his interests. Box (d), paragraph 3.4 of the AW was not ticked – thus it was not stated that the Appellant had been or will be handed the decision.

On 11 April 2022 the Romanian court reconsidered the sentences for the final time. Sentence No 123 was first disaggregated into two individual sentences (2 years for Offence 1 and 6 months for Offence 2) and then merged with other sentences into a cumulative sentence of 4 years 9 months and 10 days. This is Sentence No 92 which is the enforceable decision the subject of the AW.

As a result a European arrest warrant was issued and subsequently at the request of Interpol a further arrest warrant issued on 4 October 2022. As that warrant was discharged, the Respondent issued a further warrant on 24 July 2023 i.e. the AW.

Thus when it was imposed originally in June 2016, Sentence No 123 for Offences 1 and 2 was 2 years and 10 months. However by the end of the aggregation process on 11 April 2022, it consisted of one sentence of 2 years and one sentence of 6 months, before being merged with sentences for other offences.

In the First FI, the answers to three particular questions are of importance.

First the CPS asked the Respondent: “Was Zoltan SARA subject to a suspended sentence? If so, what are the conditions of suspension? Have the conditions been met?” (“Question XI”). The Respondent provided the following answer:

“With regard to some of the sentences contained in Arrest Warrant No 1/24.07.2023 suspended prison sentences under supervision were established. In view of the failure to fulfil the obligations set by the court during the suspension of the execution of the sentence, the Harghita Probation Service requested the revocation of the suspension under supervision and the execution of the sentences under detention regime. The request of the Harghita Probation Service was granted by the Gheorgheni Court as mentioned in Section I of this reply.”

(emphasis added)

In relation to this answer, the Appellant contended that the Respondent does not explain the conditions of suspension. Although it mentions “obligations set by the court”, the evidence does not explain or list those obligations. The specific conditions of suspension of “some of the sentences” (plural, which may or may not include suspended Sentence No. 123) are not provided. The use of words “some of the sentences”, without specifying which, is imprecise and ambiguous. The Respondent contended that the sentences referred to must include Sentence No 123 and further that it does not matter what obligations or conditions were set by it.

Secondly, the CPS asked the Respondent: “Was Zoltan SARA under any restriction to remain in the jurisdiction of the judicial authority? For what period was Zoltan SARA under this restriction? How would Zoltan SARA have known about this restriction?” (“Question XII”). The Respondent provided the following response:

“Yes, the named Zoltan SARA was under the restriction of remaining within the jurisdiction of the Romanian judicial authority according to the court decisions rendered against him and indicated in Section I of this reply. These court decisions imposing the restrictions on leaving the country were communicated to the named Sara Zoltan at his active residence in Romania.

(emphasis added)

Here the Appellant contended that the evidence refers to “court decisions” from Section I but does not specify which (of the many) court decisions in Section I contained the requirement of remaining in the jurisdiction of Romania. There is no evidence on how long the restriction was in place, nor when the decisions containing these restrictions were communicated. The evidence does not state that the restriction of remaining in Romania was part of suspended Sentence No. 123. The Respondent contended again that “court decisions” must include Sentence No 123.

Thirdly, the CPS also asked: “Was Zoltan Sara under any obligation to notify the competent authorities of any change of address? If so, for what period was Zoltan SARA under this obligation? How would Zoltan SARA have known about this obligation?” (“Question XIII”). The Respondent stated:

“The named Zoltan SARA had the obligation established by the court decisions presented in Section I to notify the judicial authorities of her [sic] departure from Romania and of any change of address, domicile or residence. The named Sara Zoltan has never changed her [sic] official home address since the initiation of court proceedings – Suseni Commune, Valea Stramba Village, no 379, Harghita county, respectively the official address of residence – Suseni Commune, Chileni village, no. 257, Harhgita county.” (emphasis added)

The Appellant made the same observation as above in relation to the reference, in general terms, to “court decisions presented in Section I”. The Respondent does not state that Sentence No. 123 contained this requirement.

The Appellant was subject to extradition proceedings for Offences 1 and 2 on two previous occasions. The first set of proceedings was in 2018. The extradition hearing before Westminster Magistrates’ Court took place on 12 February 2018 and the Appellant was discharged on 11 April 2018 because the assurances about Prison conditions were deficient. The second set of proceedings took place in 2022 and 2023. On 4 October 2022, a warrant was issued for the Appellant covering the identical 8 offences. The Appellant was arrested on 4 January 2023, released on conditional bail and his extradition hearing took place on 2 May 2023. The Respondent applied to adjourn on the basis that an assurance for Article 3 purposes was outstanding, but this was denied on the basis that the Respondent had ample opportunity to do so. The Appellant was discharged. The Respondent re-issued the warrant (i.e. the AW) for the third time on 24 July 2023.

The Appellant resisted extradition on the two bases referred to above. The extradition hearing itself took place on 13 February 2024 before the Judge. The Appellant was represented, gave evidence and was cross examined. His evidence is summarised in the Judgment. The Judgment was delayed as a result of the Judge requesting more time to write the judgment and as a result of further submissions being sought on the Supreme Court judgments in the cases of Merticariu and Bertino: see paragraph 13 above.

In the Judgment, after an introduction and setting out in detail the terms of the AW and the background of certification, the Judge summarised the First FI, stating (at paragraph 25) that “it provides detail of each of the convictions and the dates of the sentences imposed (sufficient to address deficiencies in the warrant in this respect) and how they were aggregated and disaggregated at various times”. He continued:

“26.

It is clear from the further information that:

(1)

On 1 June 2016, the RP was sentenced by the judicial authority in relation to Offences 1 and 2 to 2 years’ and 10 months’ imprisonment, which was conditionally suspended under supervision for a period of two years. That sentence became final on 21 June 2016 “by failing to appeal”.

(2)

On 16 December 2016, in the requested person’s absence, that suspended sentence in relation to Offences 1 and 2 was revoked by the judicial authority on complaint of the Harghita Probation Service. That sentence became final on 4 January 2017 “by non- contestation”.

(3)

Sentences for Offences 3 to 8 were imposed at various times and then the penalties for all offences were combined on the dates set out in the warrant.”

At paragraphs 33 to 37 the Judge summarised part of the Appellant’s evidence as follows:

“33.

As to Offences 1 and 2, he accepted that he was present at the hearing when the suspended sentence was imposed. He said that he had not been told that he was prohibited from leaving Romania or that he had to inform the authorities of any change of address. If I was told this, he would not have left. He said, however, that he had provided the authorities with his phone number (to the local police and at the town hall) and told them that he was going abroad – but not that he was coming to the UK. The phone number was a Romanian number and he had continued to use that number until early 2018.

34.

He came to the UK on 10 January 2017, travelling by car, with the aim of starting a new life here and raising a family. His wife was pregnant before we came to the UK and they wanted to raise their child in a better environment. Before he arrived in the UK he had spent a five months in Hungary and then a month and a half in Germany. He acknowledged that there was a coincidence between the date on which the activation of his suspended sentence became final (4 January 2017) and the date he arrived in the UK; but said he had not left Romania to avoid serving the sentence.

35.

He said that before he arrived in the UK he had been travelling around Europe (Hungary and Germany) and all the paperwork relating to the court case in Romania had been sent to his mother’s address. He was not in contact with her at the time and was not aware of any correspondence from the authorities or a summons for not complying with the suspended sentence.

36.

When he was cross-examined about the conditions of the suspended sentence, he said that the only conditions were that he should not commit any further offence. He denied that there was any restriction on him remaining in Romania and he repeated that he had provided his phone number to the authorities. He denied again that he had left Romania to avoid serving the sentence imposed.

37.

As to the aggregate sentence imposed on 11 April 2022, he said that he could not have been personally summoned for the hearing because he had been living in the UK. He was not aware of any hearing taking place on that date and he had not provided any instructions to a lawyer to represent him.” (emphasis added)

At paragraphs 43 to 46 the Judge made findings of fact as to the circumstances of absence from hearings. At paragraph 43 he stated the First FI “does not address the key issues raised in the questions asked by CPS”. He continued at paragraphs 44 and 45:

“44.

In relation to Offences 1 and 2 only, I am sure:

- that the requested person was present at the hearings on 10 February 2016, 27 April 2016 and 21 June 2016 when he was sentenced to 2 years and 10 months conditionally suspended for two years.

- that he was required to remain in Romania

- that he breach the suspended [sic] resulting in the proceedings brought for revocation by the Hargita probation service

- that he left the territory of Romania during the sentence knowing that he was liable to serve an executed term if he failed to comply with the suspended sentence.

45.

To the extent that the requested person asserted in his evidence that he had not been aware of a requirement to remain in Romania and in so far as he asserted that he had notified the authorities of his phone number and that the was travelling abroad, I am sure that he was not telling the truth. Those assertions are clearly rebutted by the fact of the proceedings for revocation of the suspended sentence by the Hargita probation service.” (emphasis added)

He added in relation to Offences 3 to 8:

“46.

However, in relation to Offences 3 to 8, I am not sure that the requested person attended any of the hearings in relation to those offences, that he was personally summoned or otherwise informed of any of them, that he was ever arrested or questioned in relation to them, that he was ever informed that he could be convicted in his absence if he did not attend, or that he provided a mandate to a lawyer to represent him at any of those hearings”.

The Judge dealt with fugitivity at paragraphs 47 to 52. At paragraphs 48 and 49 he directed himself as to the relevant legal principles. In particular at paragraph 48(c) he set out expressly the test where a person is subject to a suspended sentence, as stated in Wisniewski (see paragraph 8 above). He then concluded at paragraph 51 in relation to Offences 1 and 2

“51.

Dealing with Offences 1 and 2, the position is in my judgment very clear. The requested person was made subject to the suspended sentence in his presence on 21 June 2016. A summons for the hearing on 16 December 2016 was sent to his address and the sentence was activated in his absence due to non-compliance with the suspended sentence. The requested person then left Romania in February 2017. In my judgment, those circumstances clearly bear the hallmarks of fugitivity identified in Makowska and I am sure that the requested person is to be regarded as a fugitive in relation to those offences.”

By contrast, in relation to Offences 3 to 8, he concluded:

“52.

The circumstances in relation to Offences 3-8, however, are very different. In relation to those offences, I have not been satisfied to the criminal standard that the requested person was aware of any of the proceedings relating to those offences. In those circumstances, it cannot be said that the requested person knowingly placed himself beyond the reach of the legal process. In short, I am not sure that the requested person is a fugitive in relation to Offences 3-8.”

At paragraph 59 the Judge repeated that he was sure that the Appellant is a fugitive from justice in Romania and decided that the two earlier sets of extradition proceedings did not amount to exceptional circumstances for not applying the fugitivity principle because “the requested person was “unlawfully at large” for the purpose of section 14 in relation to this warrant until 27 April 2021 [sic] when the aggregate sentence (for which extradition is sought) became final”. (emphasis added)

The Judge dealt with section 20 in relation to Offences 1 and 2 briefly at paragraph 62:

“62.

Section 20(1) requires me to decide whether the requested person was convicted in his presence. There is no dispute in this case that he was convicted in his presence in relation to Offences 1 and 2 and so I will proceed under section 21 in relation to those offences (see below).” (emphasis added).

He then went on at paragraphs 63 to 69 to address section 20 in relation to Offences 3 to 8. He found that there was no dispute that, in relation to those Offences, the Appellant was convicted in his absence and that “in those circumstances, section 20(3) requires me to determine whether the requested person deliberately absented himself from his trial”. He then set out in the rest of paragraphs 63 and 64 to 66 the legal principles relevant to section 20(3), citing as some length the cases of Cretu,Bertino and Merticariu and section 20(3) and (5). In particular, he referred to the fact that section 20(1) and 20(3) fall to be interpreted in conformity with Article 4a (1) of the Framework Decision: Judgment, paragraph 64(d). He concluded at paragraphs 67 to 69 as follows (accepting Mr Mak’s case):

“67.

On behalf of the requested person, Mr Mak submits that the statements in Box E and in the further information are contradictory, such that the court cannot be sure that the requested person deliberately absented himself from his trial. More particularly, he submitted that although Box D3.1a had been ticked in the warrant, it was contradicted by the statement later in Box D that the requested person had been personally summoned on 11 November 2021 and informed of the date and place of the trial and that a decision may be rendered in absence. Furthermore, the further information states that the requested person was unlawfully at large from 4 January 2017. If he has been unlawfully at large since 4 January 2017, he cannot be personally summoned on 11 November 2021. The same logic applies, he submitted, to the statement in Box 3.2 that he “mandated” (i.e. “personally instructed”) a lawyer.

68.

I entirely agree with that analysis.In my judgment, the warrant and further information is substantially tainted by ambiguity. I have recorded my finding of fact in this respect above. In short, there is no evidence before me of the requested person being summoned to any of the trials in relation Offences 3-8, or that he was ever arrested or interviewed in relation to them. I am not sure based on the content of the warrant and the further information that the requested person was aware of the consequences of not attending his trials, and that he unequivocally and knowingly waived his right to be present at them. In those circumstances, in relation to Offences 3-8, there is no basis on which I can conclude that he deliberately absented himself from his trial.

69.

Accordingly, I am required to determine "entitled" to a retrial or (on appeal) to a review amounting to a retrial. As to that, however, Box D3.4 has not been ticked. Although some text indicating a time-limit has been inserted in that Box, that is not a sufficient basis, in my judgment, in light of the decision in Merticariu on which I can be sure that the answer to the question in section 20(5) should be answered “yes”.” (emphasis added)

His overall conclusion on section 20 is summarised in paragraph 71 as follows:

“71.

In summary:

•

in relation to Offences 1 and 2, I am sure that the required person was convicted in his presence. Accordingly, I am required to proceed under section 21 in relation to those offences; and

•

in relation to Offences 3-8, I am not sure that the requested person deliberately absented himself from his trial, and I am not sure that he would be entitled to a retrial or (on appeal) to a review amounting to a retrial. Accordingly, I will order his discharge under section 20(7) in relation to those offences.”

The Judge addressed the Article 8 ground at paragraphs 77 to 90. He summarised the relevant principles at paragraphs 77 to 79, and recorded the parties’ submissions at paragraphs 80 and 81. At paragraphs 82 and 83 respectively he set out the factors in favour of, and against, extradition

“82.

In my judgment, the factors in favour of extradition in this case are as follows:

•

The requested person is a fugitive from justice in relation to Offences 1 and 2.

•

There is a constant and weighty public interest in the UK honouring its Treaty obligations.

•

The conduct of which the requested person has been convicted is properly to be regarded as serious, involving as it does leaving the scene of an accident at which bodily injury was caused to other road users, and then driving a vehicle without a licence.

•

The judicial authority imposed a suspended custodial sentences of 2 years and 10 months for Offences 1 and 2.

•

That sentence was executed by the judicial authority due to non-compliance by the requested person.

•

Decisions of and requests by the judicial authority of a member state should be afforded a proper degree of mutual confidence and respect.

•

The UK must not be, and must not be seen to be, a safe haven willing to accept and shelter fugitives from justice including those who wish to avoid proceedings in another country.

83.

Factors against extradition are as follows:

•

Whilst the requested person is to be regarded as a fugitive, he has been the subject of two previous sets of extradition proceedings in relation to Offences 1 and 2.

•

No offences have been committed by him whilst he has been in the UK.

•

The requested person has been in the UK since 2017.

•

He has worked consistently and found stable accommodation for himself and his family.

•

His daughter was born in the UK and she has no connection to Romania. She has British citizenship and she is settled at primary school.

•

His wife is settled in the UK and she has obtained settled status here under the EU Settlement Scheme.

•

The family do not speak English and Hungarian at home and none of them speak Romanian.

•

The requested person has been the principal source of income for the family.

•

Extradition would cause financial and emotional difficulties for both his wife and their daughter.”

At paragraph 84 he continued:

“I remind myself that the balancing exercise required by Article 8 in extradition proceedings is intensely fact-specific. The approach I adopt is not simply to count the number of factors on either side of the balance. Each factor has a different weight (which I must determine) and so I must weigh all the factors collectively and cumulatively in order to determine where the balance lies. I also remind myself that the heightened public interest in cases of fugitivity is not a factor which will in every case outweigh the cumulation of factors against extradition. But it is right that very strong counterbalancing factors will ordinarily be required.”

(emphasis added)

The Judge continued (at paragraphs 85 to 88)

“85.

I have discharged the requested person under section 20 in relation to the most serious conduct in the warrant (the kidnapping and the burglary). Nevertheless, it is clear that Offences 1 and 2 were considered by the judicial authority to be sufficiently serious to warrant a sentence measured in years. That seriousness is compounded, in my judgment, by the requested person’s failure to comply with the suspended sentence imposed. It is particularly relevant that the revocation of the suspended sentence was before the sentences for Offences 3 to 8 were imposed.

86.

Equally, however, significant weight must be attached to the fact that these are now the third extradition proceedings faced by the requested person in relation to Offences 1 and 2. The significance is that the whereabouts of the requested person were known to the judicial authority once the first EAW had been executed, and thereafter the requested person remained at his address in the UK. It may be understandable in circumstances where he was discharged due to a lack of a prison assurance that the requested person did not return subsequently to Romania to serve the sentence imposed. To an extent, therefore, since the proceedings on the first EAW, the requested person and his family have continued to build their life in the UK and his daughter has spent all of her life here. In my judgment, this feature of the case weakens the usual principal [sic] that a fugitive’s new life has been built knowing that there were unresolved issues from the past that could resurface at any time. The delay in issuing the second EAW in this case has been unexplained and the longer it went on the more reasonable it would be for the requested person to assume that the Romanian authorities no longer sought his extradition.

87.

Significant weight must also be attached to the circumstances of the requested person’s daughter. She is young and clearly absence of her father during a key developmental stage would be adverse to her and could have a long-term impact on the nature of her relationship with the requested person. However, this is not a sole carer case; and it is clear from the evidence I have heard about working circumstances that the requested person’s wife has the principal role in caring for the child. Furthermore, I have not received any particular evidence about the circumstances of the child, and I have only received a very limited description of the family’s financial circumstances from the requested person. Having regard to the burden of proof, only limited weight can be attached to the consequences for the family of the requested person’s income.

88.

Taking all circumstances into account, I am satisfied that the balance falls decisively in favour of extradition. Whilst have referred to the impact of delay in this case on the requested person and his family (as, to an extent, weakening the fugitivity factor), it remains the case, in my judgment, that there is a very strong public interest in ensuring that the UK is not a safe haven willing to accept and shelter fugitives from justice. That is a different aspect to fugitivity, which is not, in my judgment, weakened to the same extent. That factor, together with the seriousness of the extradition offence and the severity of the penalty imposed, weigh very heavily in favour of extradition in this case. Whilst there is significant weight to be attached to the circumstances of the requested person’s wife and daughter in particularly, I have not received detailed and cogent evidence of the impact of the extradition upon them.” (emphasis added)

The Judge concluded as follows:

“89.

In those circumstances, I am satisfied that the balance lies decisively in favour of extradition in relation to Offences 1 and 2 in this case. There are not sufficiently strong counterbalancing factors pointing the other way; and in my judgment it cannot be said that extradition will be exceptionally severe. Whilst there will clearly be an impact of extradition for the requested person, his wife and their daughter, it will in my judgment be what Lord Mance described in Norris as the adverse consequences which extradition has by its nature.”

Finally, at paragraph 91, the Judge stated his conclusions as follows:

“91.

In summary, I am:

(1)

sure, for the purposes of section 2, that the TCA warrant is a valid Part 1 warrant;

(2)

sure, for the purposes of section 10(2), that the conduct specified in the warrant amounts to extradition offences as defined in section 65;

(3)

sure, in relation to Offences 1 and 2 that the requested person is a fugitive from justice in Romania;

(4)

not sure, of the same in relation to Offences 3 to 8;

(5)

satisfied, for the purpose of section 11, that no bar to extradition arises in relation to Offences 1 to 8

(6)

sure, for the purposes of section 20(1), that the requested person was present at his trials in relation to Offences 1 and 2;

(7)

not sure, for the purposes of section 20(3), that the requested person deliberately absented himself from his trials in relation to Offences 3 to 8;

(8)

not sure, for the purposes of section 20(5), that the requested person would be "entitled" to a retrial or (on appeal) to a review amounting to a retrial in relation to Offences 3 to 8;

(9)

satisfied, for the purposes of section 21, that extradition in relation to Offences 1 and 2 would be compatible with rights under articles 3 and 8 of the ECHR.” (emphasis added)

At the close of the oral hearing of this appeal, I invited further written submissions from the parties on particular questions. In response, on 23 April 2025, the Respondent in fact provided further information (the Second FI) and on 25 April 2025 applied to adduce the Second FI as fresh evidence, and made further written submissions, covering both that application and other matters, The Appellant responded by written submissions dated 9 May 2025, objecting to the admission of the Second FI and making further submissions (on the assumption that the Second FI was admitted).

Applying the test of the “interests of justice” test in FK Germany §40 (see paragraph 6 above), whilst I accept that the information was available at the time of the hearing before the Judge, I am satisfied that the admission of this fresh further evidence from the Respondent is in the interests of justice in circumstances. It seeks to clarify issues of fact and/or law which thus far have exhibited a certain lack of clarity. In some respects the Second FI clarifies a number of matters which (as the Judge himself indicated) were unclear in the AW and the First FI (most particularly as to the conditions of the suspended sentence and other matters). However in other respects in fact the Second FI introduces yet further uncertainty and ambiguity.

By Question 1, the CPS asked, regarding Sentence No 123, what were Zoltan Sara’s supervision obligations if any (e.g. community service, contact with probation service, travel restrictions)? The response is that:

“According to Article 93 paragraph 1 of the Penal Code, Zoltan Sara was required during the supervision period to comply with the following supervision measures:

a)

to report to the Probation Service… at dates set by it;

b)

to receive visits from the probation officer assigned to supervise;

c)

to notify in advance any change of residence or travel exceeding 5 days;

d)

to communicate any change of workplace;

e)

to provide information and documents allowing monitoring of his means of subsistence.”

Additionally he was obliged to attend reintegration programs run by the Probation service and to perform unpaid community service.

Question 2 asked whether Zoltan Sara was present at the 2016 sentencing and judgment delivery and how he was informed of the obligations relating to the suspended sentence. The response was that Zoltan Sara was present in person at hearings on 23 March 2016 and 27 April 2016. He was represented by a court-appointed attorney. The response to Question 2 continued:

“The contents of judgment no 123 of June 1, 2016 were communicated to Zoltan Sara on June 21, 2016 when the decision became final through lack of appeal. He signed for receipt in front of the postal agent on June 23, 2016”

I note that this answer did not say that the Appellant was present at a hearing on 1 June 2016 and nor that he was informed of the obligations in the suspended sentence on that date or on 21 June 2016. This is contrary to what is stated in the Judgment and what appears to have been accepted by the Appellant and his counsel.

Question 3 asked “When was the sentence pronounced and what were the individual sentences for offenses 1 and 2 (judgment no 123/01.6.2016)? How was the total sentence of 2 years and 10 months calculated”. The response to Question 3 stated:

“Under Article 338 paragraph 1 Penal Code, with application of Articles 374 (4), 375, and 396 (10) Criminal Procedure Code, Zoltan Sara was sentenced to 2 (two) years imprisonment for leaving the scene of an accident.

Under Article 335 paragraph 2 Penal Code, with application of Articles 374 (4), 375, and 396 (10) Criminal Procedure Code, he was sentenced to 6 (six) months imprisonment for driving without a license

Under Article 39 (1) (b) in conjunction with Article 38 (1) C of the Penal Code, the court applied the most severe punishment of 2 years imprisonment, to which it added a 10-month increase, resulting in a final sentence of 2 years and 10 months.”

This question was directed towards the sentence pronounced on 1 June 2016 and so the answer itself relates to that event on that date. This seems to suggest, for the first time, that individual sentences for each offence were imposed on 1 June 2016 and then a composite sentence was also passed on that date with a 10 month increase.

Question 4 asked which supervision obligatons were violated by Zoltan Sara leading the Probation Service to request revocation of the suspended sentence. The Second FI responded that on 9 September 2016 the Probation service informed the Court of the impossibility of enforcing the decision due to Zoltan Sara’s “failure to attend probation activities, despite having knowledge of the schedule. He did not contact the Probation Service and took no steps to present himself.”

Question 5 referred to answers XII and XIII in the First FI and asked “when was the defendant informed of the obligation to report address changes and of travel restrictions?” The response was as follows:

“Zoltan Sara was under restriction to remain within the jurisdiction of the Romanian judicial authority, as imposed by the court decisions against him, which included travel bans. The travel ban order no 6 was issued on April 27, 2022 when the criminal judgment no 92/11.04.2022 became final, sentencing him to 4 (four) years, 9 (nine) months, and 10 (ten) days imprisonment, and enforcement warrant no 97/2022 was issued that same day. He had the obligation to notify about any departure from the country or change of residence, which he failed to comply with.

This answer seems to refer to the imposition of a travel ban in April 2022. It does not expressly state that there was any such travel ban or obligation to remain within the jurisdiction imposed by the decision of 1 June 2016. Yet again there is a general statement of such a restriction being imposed by “the court decisions against him”.

Finally Question 6 stated as follows:

“The final sentence in 2022 for offences 1 and 2 was 2 years and 6 months. Please explain how this was calculated - was it a purely formal arithmetic exercise, or did it involve discretion in determining the sentence level?” (emphasis added)

The answer to this question provided by the Second FI repeated verbatim the answer given to Question 3 (set out in paragraph 65 above) which itself was directed to the sentence imposed in June 2016. It does not answer the last part of the question about arithmetic or discretion; it is a response to the question which concerns the sentence in 2022.

I now turn to consider the substance of the Appellant’s appeal. In summary, the Appellant submitted as follows:

I first set out the parties’ respective cases on each of these three aspects in turn.

Fugitivity

The Appellant submitted that the Respondent failed to discharge the burden of proof upon it to establish fugitivity to the criminal standard. The Appellant did not knowingly put himself beyond the reach of the Judicial Authority.

First, the Judge was wrong (at paragraph 44) to find that the Appellant was required to remain in Romania and that he left the territory knowing that he was liable to serve a term if he failed to comply with a suspended sentence. There was no evidence before the Judge establishing to the criminal standard that Sentence No 123 required him to remain in Romania. The Judge’s finding to the contrary (at paragraph 45) that the Appellant was not telling the truth was wrong. The Second FI now makes clear that the Appellant did not have a requirement to remain in Romania. Moreover the Judge did not receive any evidence from the Respondent that the Appellant was told that he would be liable to serve a term of imprisonment if he failed to comply with the conditions of Sentence No 123. The Judge could not be sure that the Appellant left Romania in the knowledge that the sentence might be activated because he was knowingly preventing himself from performing an obligation from the suspended sentence.

Secondly the original answers to Questions XII and XIII in the First FI are unclear. The Judge could not be sure to the criminal standard that the requirements applied to Sentence No 123. The "court decisions" there referred to could be any of the several decisions referred to earlier in the First FI.

Thirdly, the judge was wrong to find (at paragraph 51) that the Appellant’s conduct clearly bore “the hallmarks of fugitivity” because the Appellant left Romania in February 2017 after the summons for the hearing on 16 December 2016 was sent to his address and Sentence No 123 was activated. Rather the Appellant’s evidence was that he had left Romania approximately 5 months before the summons was sent or the sentence was activated.

The Respondent submitted that the Judge’s decision that the Appellant was a fugitive was not wrong. The Judge was entitled to find that the Appellant was knowingly putting himself beyond the reach of the Judicial Authority by his actions.

Initially the Respondent contended that the Judge was correct to find that the Appellant was subject to a requirement to remain in Romania, which he breached, but accepted that this was not the case, as clarified in the Second FI. Nevertheless the Second FI reinforces the Decision. As there explained, the suspended sentence had a number of conditions. The Appellant was informed of, and agreed to, those conditions. The Appellant violated those supervision obligations as he failed to attend probation activities and did not contact the Probation service. He was aware of his conviction and sentence. The Judge was therefore correct in his findings at paragraphs 44 and 45. Whilst it now appears that the conditions of the suspended sentence did not include a requirement to remain in Romania, he was required to notify a change in address lasting long than 5 days, which the Appellant breached by not contacting the Probation Service. The Appellant knowingly put himself beyond the reach of the Respondent to enforce the sentence, as he did not comply with the probation conditions and instead left Romania in breach of them. The Appellant was not telling the truth in his evidence that he had notified the authorities that he was travelling abroad and had provided his phone number. The Appellant must have known that breach of the conditions might lead to implementation of the sentence.

Applying the test in Makowska the Appellant is plainly a fugitive. The Appellant left the country in breach of his obligation to inform them of the change of address and thereby disabled himself form complying with the other conditions of the suspended sentence.

Section 20

The Appellant submitted that the Judge was wrong when he considered that the Appellant’s presence at his initial conviction and/or sentence on 21 June 2016 for Offences 1 and 2 was dispositive of section 20. If the sentence had remained the same, the Judge would have been correct to answer the question in section 20(1) in the negative and proceed under section 21, as he did in paragraph 62 of the Judgment. However the Judge failed to reflect in his analysis that the length of the sentence for Offences 1 and 2 changed three more times after 21 June 2016. (The Second FI suggests, for the first time, that in June 2016 there were individual sentences of 2 years and of 6 months which were then aggregated into the 2 years and 10 months.) The three occasions were as follows: on 25 April 2018 (see paragraph 34 above); on 29 November 2018 (see paragraph 35 above); and finally, on 11 April 2022 when the sentences were again split into individual sentences of 2 years and 6 months respectively and then merged with other offences into a sentence of 4 years 9 months and 10 days (see paragraph 38 above). Thus on 21 June 2016 the sentence was 2 years and 10 months. Yet by 11 April 2022 the sentences for the two offences were 2 years and 6 months respectively.

The 11 April 2022 sentence is a “new determination of the level of custodial sentences imposed previously” in which the competent authority enjoyed a margin of discretion: see Zdziaszek, paragraphs 14 to 16 above. Despite the clear terms of Question 6, the Second FI has provided no explanation of how the provisions of the Romanian Code amounted to a purely arithmetical exercise with no margin of discretion and without taking into account the Appellant’s personal circumstances. Since Sentence No 123 was aggregated and disaggregated at sentencing hearings for other, now discharged, offences, the Respondent must have applied a margin of discretion and must have taken into account the Appellant’s personal circumstances in setting the overall length of sentence.

It follows that for the purposes of section 20 in relation to Offences 1 and 2 the Judge ought to have asked whether the Appellant was present at the hearing of 11 April 2022 when the sentence for the two offences was finally determined. The Judge ought to have found that the Appellant was not present at this final 11 April 2022 sentence because the AW states that the Appellant was not present “at the trial leading to the decision” (The “decision” being the 11 April 2022 i.e. Sentence No. 92: see Box (d) paragraph 2) (and further that the Appellant was not a fugitive for Offences 1 and 2.)

Moreover, even if he was a fugitive, he was nevertheless not deliberately absent from the 11 April 2022 hearing. Although the AW contains an endorsement in Box (d), paragraph 3.1 that the Appellant was “personally served” on 11 November 2021, this cannot be correct. It is contradicted by the Respondent’s evidence that the Appellant was considered unlawfully at large from 4 January 2017. The Judge correctly found (at paragraphs 67 to 68) that, if the Respondent claims the Appellant was unlawfully at large since 2017, he could not have been “personally summoned” on 11 November 2021.

The Appellant was not deliberately absent from the hearing on 11 April 2022, just like he was not deliberately absent from the hearings concerning Offences 3 to 8, which occurred between June 2017 and August 2021. The Judge’s correct finding on this issue in relation to Offences 3 to 8 (at paragraphs 67 and 68), extends to the Appellant’s absence from the 11 April 2022 hearing. The Appellant was not aware of any hearing in his absence which would have allowed him to make an intelligent and knowing waiver of his right to attend: see Bertino §53, 54 and 58.

It follows therefore that the Appellant was not “deliberately absent” from the hearing on 11 April 2022 which finally determined his sentence for Offences 1 and 2. Further since no right to a retrial or appeal was endorsed on the AW the Judge ought to have discharged the Appellant for Offences 1 and 2 pursuant to section 20 (7).

The Respondent’s primary submission was that the Appellant was “convicted in his presence” in relation to Offences 1 and 2, and that further questions under section 20 do not arise. The “trial” for the purposes of a section 20(1) is the trial at which the Appellant attended, pleaded guilty and was sentenced. This is consistent with the ordinary meaning of “trial.” The Appellant was clearly present at the trial which resulted in the decision where the merits of the case were assessed. The Judge was correct so to conclude at paragraph 62.

Secondly, even if the “trial” for the purposes of section 20(1) was the later hearing in April 2022, the Appellant was deliberately absent under section 20(3) from these hearings, as he left the jurisdiction during the currency of the suspended sentence in breach of the known conditions of that sentence, without providing the judicial authority with an updated address and knowing that he was subject to probation supervision. Thus for practical purposes “a trial with him present would not be possible”: see Bertino §58. If the Appellant is a fugitive in relation to the proceedings, he could properly be considered deliberately absent from the subsequent hearings.

Thirdly and alternatively if the Court is not satisfied that the Appellant was deliberately absent and the trial could include the hearingwhich reinstated the sentences for Offences 1 and 2, there is no evidence in the FIs which supports these hearings being anything other than mathematical exercises and therefore Article 4a rights do not attached to these hearings.

As regards Zdziaszek, first the language of the Framework Decision is not mandatory. Secondly, considering what is said in that case, in this case the final determination would be 11 April 2022 when the sentences “reinstated in their individuality the component sentences”. The First FI does not indicate that the Court decision “entailed a margin of discretion in the determination of the level of the sentence” or that what took place at these hearings was not simply an arithmetical exercise applying various sections of the Romanian Penal Code. The fact that the First FI refers to the various applicable pieces of the Code rather than taking account of the situation or personality of the person concerned is supportive of this.

The Second FI clarifies the position. In June 2016 individual sentences of 2 years and 6 months respectively were imposed for Offences 1 and 2, respectively. The Court then applied the Code to increase and aggregate the sentence to 2 years and 10 months. The later change back to individual sentences of 2 years and 6 months in April 2022 means that the Appellant would have been aware of the original sentences imposed at the outset in June 2016 and thus the overall quantum of his sentences was known to the Appellant at his conviction.Here the original sentences were not merged or commuted. The Second FI, by setting out the provisions of the Romanian Code which were applied to the Appellant, clearly indicated that this was a “purely legal exercise in determining the level of sentence” and no indication is given that any margin of discretion was used.

In summary it is not accepted that there has been a discretionary decision by the Romanian court when these sentences were changed following activation.

Article 8

The Appellant submitted that the overall evaluation of the Judge was wrong. Crucial factors should have been weighed so differently to make the decision wrong. Had the Judge adopted the correct approach and assessed and weighed the factors correctly, the Judge ought to have decided the question before him differently.

First, the Judge was wrong when he found that the Appellant was a fugitive: see paragraphs 71 to 74 above. As a result of his error on fugitivity, the Judge was wrong to weigh in the balance the strong public interest that the UK is not seen as a safe haven for fugitives (at paragraph 82) and wrong to consider that the Appellant had to show very strong counterbalancing factors to outweigh the public interest in extradition (at paragraph 84).

Secondly, the Judge’s assessment and consideration of the passage of time and delay was wrong. He ought to have considered the overall passage of time from 2014 to 2024. The Judge was wrong not to have given any consideration to a decade-long overall period between the commission of the two offences and the latest warrant. Further he failed to consider the plainly culpable delay on the part of the Respondent due to its inadequate engagement with the earlier extradition proceedings. The Respondent failed to provide adequate assurances in 2018 or any assurance at all in 2022. This conduct alone added 5 years from 2018 to 24 July 2023. Accordingly the Respondent was solely responsible for half of the overall passage of time of 10 years. In summary the dilatory conduct was plainly culpable and the Judge ought to have considered it as a weighty factor against extradition.

Thirdly, the Judge gave inadequate weight to the consequences of extradition on the Appellant’s family. The Appellant was the sole breadwinner, supporting his wife and his child and although his wife now works part-time, the majority of her income went on rent and repaying overpaid benefits

In all the circumstances, and in particular the delay caused by the Respondent, extradition is a disproportionate interference with his and his family’s rights to a private and family life.

The Respondent submitted that the Judge’s finding on fugitivity was not wrong: see paragraphs 75 to 77 above. Therefore the Judge was right to take this into account in the Article 8 balance.

As regards matters other than fugitivity in relation to Article 8, the Judge did take account of the fact that the Appellant had been subjected to previous extradition requests and that the Appellant’s whereabouts were known and that he had continued to build his life here and that that this “weakens the usual principle that a fugitive’s new life here has been built knowing there were unresolved issues”.

As regards delay, there was no evidence before the Judge that it was culpable. The Judge properly considered that the delay in issuing the second AW was unexplained and that the Appellant as a result may have thought he was not wanted. The Judge was correct not to count the delay prior to the issue of the first warrant in 2018, given the Appellant’s fugitive status.

The Judge considered the delay relevant to the Appellant’s daughter and the effect this would have on her. However he considered that the Appellant was not a sole carer and his partner was the primary carer. The Judge did not give inadequate weight to this factor or the consequences of extradition on his family.

The Judge weighed up carefully the factors for and against extradition, specifically excluding the Offences he had discharged and considering the two previous requests. The Judge, having considered the relevant factors, found in the particular circumstances of the Appellant’s case that extradition was compatible with his private and family life. The criteria in the case law on Article 8 are not met.

Before turning to each of the three issues, I observe that there are factual aspects of this case which remain unclear. The FIs from the Respondent have clarified certain matters, but not others and to some extent have added to the confusion.

Until the Second FI, the position appeared to be as follows. Sentence No 123 was imposed on 1 June 2016 and became final on 21 June 2016 because of lack of appeal. The Appellant accepted that he was present at the hearing when the suspended sentence was imposed (Judgment paragraph 33), albeit the First FI stated that he was present at earlier hearings, but did not refer to being present on 1 June 2016. The Judgment stated that the Appellant was present at the hearing when sentenced, but seemed to suggest that that hearing took place on 21 June 2016 (paragraphs 25, 44 and 51). Nevertheless the Appellant accepted (both in his evidence before the Judge and in his skeleton for this appeal) that he was present in person.

The position is now even more confused because in the Second FI it is not suggested that he personally attended a hearing on 1 June 2016 (when the sentence was imposed) or on 21 June 2016 when it became final (because, so it appears, there was no such hearing). Rather it is now suggested that the Appellant became aware of the sentence when he was handed a document on 23 June 2016: see Second FI, answer to Question 2 (paragraph 64 above).

Nevertheless I proceed on the basis that the Appellant was “present in person” when the suspended Sentence No 123 was imposed. This was found as a fact by the Judge and has not been disputed on this appeal.

Fugitivity

On the issue of fugitivity, as a result of the Second FI, it is now clear that the conditions of the suspended Sentence No 123 did not expressly include a condition not to leave the Romanian jurisdiction. It did however contain a series of other conditions, including a condition to notify any change of residence, to report to the Probation Service, to receive visits from the Probation officer and to attend Probation programmes. The Judge was therefore wrong when he found at paragraph 44 of the Judgment that in relation to Offences 1 and 2 “he was required to remain in Romania”.

However, first, the Judge directed himself correctly (at paragraph 48(c)) that the question is whether the person subject to a suspended sentence voluntarily left the jurisdiction thereby knowingly preventing himself from performing the obligations of the suspended sentence and in the knowledge that the sentence might as a result be implemented – and if so such a person is a fugitive : see Wisniewski §60 and Makowska §§27 and 28 and paragraph 8 above. This applies whether or not it was an express condition of the suspended sentence not to leave the jurisdiction. Secondly, the Appellant did voluntarily leave the jurisdiction – on his own case, some time in June or July 2016, very shortly after the suspended sentence was imposed in June 2016 (see Judgment, paragraph 34). Thirdly, he was aware of the terms of the suspended sentence in Sentence No 123and thus must have known that by leaving the jurisdiction he disabled himself from complying with the conditions of the suspended sentence e.g. he could not report to the Probation Service, he could not receive visits from the Probation officer and he could not attend Probation programmes. Accordingly he therefore knowingly prevented himself from performing the obligations of the suspended sentence.

The final issue is whether, additionally, the Appellant left the jurisdiction in the knowledge that the sentence might be implemented as a result of his non-performance of the obligations/conditions. The Judge found that he did, in the fourth bullet point of paragraph 44 of the Judgment. On this appeal, Mr Mak contended that there was no evidence that the Appellant was told that he would be liable to serve a term of imprisonment if he failed to comply with the conditions. However, it is not disputed that he was aware of Sentence No 123 (and its terms) and the Appellant did not suggest that he did not know of the consequences of non-compliance with the conditions. I agree with the Respondent’s submission that it cannot be said that someone who knows that they have been given a suspended sentence and knows of the conditions, would not know that they would be liable to have that sentence activated, should they be in breach of any of those conditions.

For these reasons I conclude that the Judge’s finding at paragraph 52 of the Judgment that the Appellant was a fugitive in relation to Offences 1 and 2 was not wrong. I go on to consider Grounds 1 and 2 therefore on the basis that the Appellant was a fugitive.

I should add that if, contrary to my conclusion in paragraph 106 above, in fact the Appellant was not aware of consequences of non-compliance, then I would have found that the Appellant was not a fugitive. In that event, this appeal would have succeeded on Ground 2 alone; and, additionally, that would have been a further reason also for finding in favour of the Appellant on Ground 1.

Section 20 (Ground 1)

The first issue is whether this ground falls to be determined purely on the basis of section 20(1), without any resort to section 20(3), as suggested by the Respondent, and as apparently found by the Judge (paragraph 62). I have not found the relationship between words “conviction” in section 20(1) and “trial” in section 20(3) easy to discern. (It is clear that “trial” in section 20(3) is “the trial resulting in the decision” as per Article 4aFramework Decision and that in the present case, the “trial” was the hearing on 11 April 2022). I have concluded that this case cannot be determined purely on the basis of section 20(1) and that what happened after June 2016 cannot be ignored. First, to do so, would be inconsistent with the case of Zdziaszek itself – where the Court of Justice took into account both the hearing which imposed the conviction and the later hearings which modified the sentence, as being relevant. Secondly, and in any event “the decision” in respect of which the AW in this case is expressly issued is the later decision of 11 April 2022. In the AW itself, Box (d) paragraph 2 (which itself is modelled on and reflects the wording of Article 4a) states that the Appellant “did not appear at the trial”. Finally I note that in paragraph 91(6) of the Judgment, the Judge refers, in relation to Offences 1 and 2, to “his trials” (the wording of section 20(3) and Article 4a) and not to “conviction”.

Secondly, turning to the decision of 11 April 2022, the position is governed by the case of Zdziaszek. The question is whether the amended sentence imposed on 11 April 2022 – disaggregating the sentence from 2 years 10 months to 2 years and 6 months – involved the exercise of discretion by the Romanian Court or was a purely formal and arithmetic exercise. Significantly, in the Second FI and following the oral hearing of the appeal, this very question was specifically asked of the Respondent by the CPS. But, despite this, the question was not answered: see paragraph 68 above. It remains unclear why that sentence was disaggregated (and then aggregated with other sentences). I do not accept the Respondent’s submission that, because this was “a purely legal exercise in determining the level of sentence”, this shows that there was no margin of discretion. First, a purely legal exercise is not the same thing as a “purely arithmetic” exercise; absent further explanation, the former does not necessarily exclude an element of discretion. Secondly, although the original sentences now appear to have been 2 years and 6 months respectively, the sentence actually imposed in June 2016 was 2 years 10 months and there is no explanation as to how this came about, nor how it was disaggregated and reduced in 2022. Thirdly, the Respondent did not answer directly the express question asked nor suggest or explain that the disaggregation (and aggregation) was automatic.

Taking account of the burden and standard of proof, I am therefore not satisfied that what happened on April 2022 was a purely arithmetic exercise. Accordingly what happened on 11 April 2022 was the “trial resulting in the decision” (as indeed stated in the AW itself).

Thirdly, whilst I accept that the Appellant was a fugitive, the question is whether he was deliberately absent from the hearing on 11 April 2022. In my judgment, this is not the same question as whether he was a fugitive. Whilst he may have known that his sentence could be activated by his leaving the jurisdiction and thereby disabling himself from complying with the conditions of the suspended sentence, he would not have necessarily been aware that there would be other further subsequent proceedings where his sentence for Offences 1 and 2 would be altered. The Judge found at paragraph 68 that there was no evidence that the Appellant had been summoned to any of the trials relating to Offences 3 to 8. He found that the Appellant was not a fugitive in respect of Offences 3 to 8 and not deliberately absent in respect of the hearings relating to those offences. It is implicit in paragraphs 59, 67 to 69 that the Judge found that the Appellant was not deliberately absent from the hearing on 11 April 2022, since he was considering the personal summons for that hearing dated 11 November 2021. It is implicit that in respect of those Offences 3 to 8, the relevant “trial” date was 11 April 2022. In my judgment the Appellant cannot be said to have been deliberately absent in respect of those very same hearings, but only in respect Offences 1 and 2. For example, if he did not know that there was a hearing in November 2018 for Offences 3 to 8, he equally did not know that that hearing was a hearing where the sentences for Offences 1 and 2 were modified. I do not consider that this is a case where the Appellant “must be taken to appreciate that trial in absence is the only option” (Bertino §58 and paragraph 13(3) above). That could not have applied to Offences 3 and 8 and equally could not apply to Offences 1 and 2.

I therefore conclude that the Appellant was not deliberately absent from the trial resulting in the decision – namely the hearing on 11 April 2022 and thus the answer to section 20(3) is in the negative. Further since no right to a retrial or appeal was endorsed on the AW, the Appellant falls to be discharged for Offences 1 and 2 pursuant to section 20(7).

Article 8 (Ground 2)

In the light of my conclusion on section 20, Ground 2 does not arise for determination. I address it briefly nonetheless.

Having properly concluded that the Appellant was a fugitive, the Judge directed himself correctly (at paragraph 84) as to the impact of that status upon the balancing exercise required under Article 8, namely that in such a case, very strong countervailing factors will ordinarily be required.

In my judgment, the only issue here is whether the Judge adequately took account of the period of delay between the commission of the offences and the instant extradition request. The Judge addressed this issue at paragraphs 86 and 88.

First, the Judge did not directly address the overall length of the delay – which was almost 10 years from the commission of the offence until the issue of the AW. Secondly, the Judge did consider the delay in the specific context of its impact upon the Appellant and his family (at paragraph 87 of the Judgment), and in my judgment his analysis of that aspect cannot be criticised. Thirdly, however, his assessment of the other aspect of the effect of delay was not adequate. That aspect is the effect of delay upon the public interest in extradition. The Judge addressed this very briefly at paragraph 88, suggesting that the delay did not weaken this aspect “to the same extent” (as it weakened the position as regards building a life). However, applying the principles set out at paragraph 21(3) and (4), the Judge did not directly consider either the overall length of the delay of almost 10 years nor the fact that almost 5 years of that delay was due to the Respondent’s failures to obtain assurances. In my judgment, the Judge did not give adequate weight to the impact of this culpable delay on the public interest in extradition. In particular, he failed to take account of the fact that, even in the case of a fugitive, long culpable delay is indicative of the requesting state’s own subjective view of the importance of the public interest in extradition: see paragraph 21(5) above. This was a crucial factor which should have weighed in the balance significantly differently such as to make the Judge’s decision on Article 8 wrong.

For this reason too this appeal should be allowed.

Finally, I add that, had I concluded that the Judge’s finding of fugitivity had been wrong (contrary to paragraph 106 above), I would have found that the Judge’s conclusion on Article 8 was wrong. His analysis is predicated on that finding of fugitivity and absent that finding, the balance of factors (and in particular the impact upon the Appellant’s family and of the delay) would have been weighed so differently as to make the overall decision on Article 8 wrong.

In the light of my conclusions at paragraphs 113 and 118 above, I am satisfied that the Judge ought to have decided the relevant questions under section 20 of the 2003 Act and under Article 8 differently; this appeal is therefore allowed. I will hear the parties on the appropriate form of order.

Finally I am grateful to counsel for their presentation of the case and the quality of the argument.

Since circulating the draft of this judgment to the parties, an earlier application by the Appellant to adduce further evidence was drawn to my attention. Following discussion with, and with the agreement of, the parties, I decided that this application did not need to be addressed.