Royal Courts of Justice
Strand, London, WC2A 2LL
Before :
MR JUSTICE LINDEN
Between :
ALEXANDRU-IONUȚ CATANĂ (also known as KATANĂ) | Appellant |
- and - | |
TRIBUNALUL GORJ, ROMANIA | Respondent |
Tihomir Mak (instructed by Coomber Rich Ltd) for the Appellant
Stefan Hyman (instructed by Crown Prosecution Service) for the Respondent
Hearing date: 28 January 2026
Approved Judgment
This judgment was handed down remotely at 10.30am on 4 February 2026 by circulation to the parties or their representatives by e-mail and by release to the National Archives.
.............................
MR JUSTICE LINDEN
Mr Justice Linden :
Introduction
This is an appeal from the decision of District Judge Briony Clarke, sitting at Westminster Magistrates’ Court on 24 February 2025, to order the extradition of the appellant. The reasons for her decision are set out in a judgment dated 24 March 2025.
Permission to appeal was granted by Ellenbogen J on 14 August 2025, after a hearing, having been refused on the papers by Cutts J on 20 May 2025. The issue in the appeal is whether the District Judge was wrong to reject the appellant’s argument that his extradition was barred by reason of “absence of prosecution decision”, under section 11(1)(aa), read with section 12A, of the Extradition Act 2003. In particular, the appellant contends that the District Judge should have held that there were reasonable grounds for believing that the competent authorities in Romania had not made a decision to charge him and to try him, that this was not because of his absence from Romania, that the Respondent had failed to prove the contrary and that his extradition was therefore barred.
Background
The appellant was born in Romania and is 37 years of age. He is sought pursuant to an accusation Arrest Warrant which was issued on 8 February 2022 and certified by the National Crime Agency on 23 March 2022. The Arrest Warrant refers to 14 offences related to people trafficking and membership of an organised criminal group but, before the District Judge, the Respondent accepted that it could not satisfy the requirements of section 2 of the 2003 Act as to particularisation in relation to 13 of them. The Respondent therefore invited her to discharge the appellant in respect of these alleged offences, which she did. This left offence 5, which is described in the Arrest Warrant as follows:
“In the summer of 2014, by misleading (promises of cohabitation) and taking advantage of her state of obvious vulnerability (precarious financial situation, family problems), the defendant CATANA ALEXANDRU IONUT recruited on Facebook the minor victim… (She had 15 years old), after that, in January 2017 he sheltered her with the help of PASMAC FLORIN-IONUT, called Uri in a hotel in Calafat trying to transport her to England for the purposes of Sexual exploitation.”
If proved, this is an offence under Article 211 of the Romanian Criminal Code for which the maximum sentence on conviction is 12 years’ imprisonment.
The appellant was arrested on 6 March 2024 and produced to the Westminster Magistrates’ Court on the following day. He did not consent to his extradition and was remanded into custody (he was released on conditional bail by District Judge Clarke on 24 September 2025 after permission to appeal had been granted). At the hearing before the District Judge he challenged his extradition under sections 2, 10, 12A, 14 and 21A (read with Article 8 ECHR) of the Extradition Act 2003 as well alleging abuse of process. All of these grounds were rejected by the District Judge. Whilst, on appeal, the appellant initially relied on a section 2 challenge as well as his challenge under section 12A, he did not pursue the argument under section 2 after permission was refused on the papers.
Legal framework
The relevant statutory provisions
Section 11(1)(aa) of the Extradition Act 2003 provides that:
If the judge is required to proceed under this section he must decide whether the person’s extradition to the category 1 territory is barred by reason of—
(a)…
absence of prosecution decision;…”
Section 12A provides, so far as material, that:
“12A Absence of prosecution decision
(1)A person's extradition to a category 1 territory is barred by reason of absence of prosecution decision if (and only if)—
(a)it appears to the appropriate judge that there are reasonable grounds for believing that—
(i)the competent authorities in the category 1 territory have not made a decision to charge or have not made a decision to try (or have made neither of those decisions), and
(ii)the person's absence from the category 1 territory is not the sole reason for that failure,
and
(b)those representing the category 1 territory do not prove that—
(i)the competent authorities in the category 1 territory have made a decision to charge and a decision to try, or
(ii)in a case where one of those decisions has not been made (or neither of them has been made), the person's absence from the category 1 territory is the sole reason for that failure.
(2)In this section “to charge” and “to try”, in relation to a person and an extradition offence, mean—
(a)to charge the person with the offence in the category 1 territory, and
(b)to try the person for the offence in the category 1 territory.”
The background to these provisions is helpfully set out in the decision of the Divisional Court (Aikens LJ and Nicol J) in Kandola & Ors v Generalstaatwaltschaft Frankfurt, Germany & Others [2015] EWHC 619 (Admin); [2015] 1 WLR 5097 at [17]-[25] (“Kandola”). Section 12A was added to the 2003 Act by section 156 of the Anti-social Behaviour, Crime and Policing Act 2014. Provision to this effect was not specifically required by the Council of the European Union Framework Decision of 13 June 2002 on the European arrest warrant and the surrender procedures between Member States (“the Framework Decision”), Article 1(1) of which defined a European arrest warrant as including a judicial decision issued with a view to the surrender of a requested person “for the purposes of conducting a criminal prosecution”. However, it became apparent, in Assange v Swedish Authority [2011] EWHC 2849 (Admin) at [140] and [150]-[151], that it was possible, on certain facts and in some judicial systems of the EU Member States, for a person whose surrender is requested under an accusation warrant to be required for the “purpose of being prosecuted” (section 2(3)(b) of the Extradition Act 2003) although they were wanted for the purposes of a continuing criminal investigation and no decision either to charge or to try them had been made.
The Explanatory Notes to section 12A say, at [462], that the legislative aim was:
“…to ensure that a case is sufficiently advanced in the issuing State (that is there is a clear intention to bring the person to trial) before extradition can occur, so that people do not spend potentially long periods in pre-trial detention following their extradition, whilst the issuing State continues to investigate the offence…” (emphasis added)
Similar provision is made under, for example, section 21A(1) of the European Arrest Warrants Act 2003 in Ireland. In Puceviciene & Ors v Lithuania & Ors [2016] EWHC 1862 (Admin); [2016] 1 WLR 4937 at [11] (“Puceviciene”) the Divisional Court (Lord Thomas CJ, Burnett LJ and Ouseley J) said that:
“the concepts of “decision to charge” and “decision to try” in section 12A need a “cosmopolitan” interpretation, that is to say one which accommodates and reflects the criminal procedures of other countries, rather than those in the UK. Such an interpretation would avoid emplacing significant but unintended barriers to extradition on a speedy basis, while still respecting the purpose of section12A [stated in the Explanatory Notes]”.
At [73] Lord Thomas CJ said that:
“The mischief at which the section is directed is the possibility of a person being surrendered and then languishing in custody whilst the alleged crime continued to be the subject of lengthy investigation without decision to charge and try having been made.”
The applicable principles in relation to section 12A of the Extradition Act 2003
The key principles for present purposes can be drawn from the Divisional Court decisions in Kandola (supra) and Puceviciene (supra). In summary, as to the overall approach to applying section 12A:
The section should be applied to the position at the time of the extradition hearing: [65] Puceviciene.
The application of the section is “highly fact sensitive” [57] Puceviciene.
Section 12A requires consideration in two stages: first, the reasonable grounds question; second, if there are reasonable grounds, the burden then shifts to the requesting judicial authority to prove the matters specified in section 12A(1)(b): [28] Kandola, [13]-[18] Puceviciene.
At the first stage, there must be reasonable grounds for believing that one or both of two decisions have not been made – i.e. that there has not been a decision to charge and to try the requested person - and that the absence of the requested person from the category 1 territory is not the only reason why the decisions have not been taken: [28]-[29] Kandola.
The default position is that the decisions to charge and to try the requested person have been taken. It is for the requested person to raise an issue as to whether this is in fact the case and, in this event, for the appropriate judge to decide whether, in their objective view, there are reasonable grounds for believing that the required decisions have not been made. The standard of proof is “something less than proof on a balance of probabilities, but more than a simple assertion, or a fanciful view or feeling”: [30] Kandola.
If the position as to whether the requisite decisions have been taken is clear from the arrest warrant, read as whole, unless there is clear evidence of bad faith or impropriety the District Judge should look no further because they are entitled to rely on statements made by a fellow judicial authority. If, however, the position is unclear the District Judge is entitled to consider extraneous evidence. Extraneous evidence is not admissible to throw doubt on clear statements in the arrest warrant that the two decisions have both been made, and the production at this stage of elaborate expert evidence on what, under the relevant domestic law, might constitute a decision to charge or to try a suspect is not to be encouraged: [32] Kandola; [13]-[18], [58], [62] Puceviciene.
As to what would amount to a “decision” to charge or to try a person, in Puceviciene the Divisional Court noted that section 12A does not require that the person has been charged: “This plainly implies that the focus should be on the word “decision”, not any formal step” [50(iii)]. The section “plainly does not imply that the case must be trial ready” (see also Killoran v Antwerp Court of First Instance, Belgium [2021] EWHC 2290 (Admin)) (“Killoran”)). Decisions to charge and to try a person may be taken at a very early stage of the proceedings and whilst the investigation is still underway, and the principle of mutual confidence means that the responsibility of Member States to bring cases to trial as expeditiously as possible should be respected ([50(ii)]).
At [55] and [56] of Puceviciene Lord Thomas CJ defined decisions to charge and to try, respectively, as follows:
“…a decision to charge is the decision which is made when there is sufficient evidence under the relevant procedural system to make an allegation that the defendant has committed the crime alleged. As the decision can be conditional upon hearing what the defendant has to say, such a decision can have been made even if it is necessary to put the allegation to the defendant and hear what he has to say before confirming the decision and proceeding to make the charge.” [55]
“A decision to try is simply a decision where the relevant decision maker (who may be a police authority, prosecutor or judge under the relevant procedural system) has decided to go ahead with the process of taking to trial the defendant against whom the allegation is made...” (emphasis added)
At [50(vi)] he said:
“It is also important to emphasise that the real focus of section 12A is always on whether there has been a decision to try. If there has been no decision to try, the question of whether there has been a decision to charge is irrelevant. If there has been a decision to try, a decision to charge will inevitably have been taken either earlier or at the same time as the decision to try. The words “decision to charge” in reality add nothing to the achievement of the purpose, actual or supposed, of the Act or to its effect.”
And at [54] he added:
“….We see no reason why any formality is required in relation to the making of a decision, as a prosecutor is entitled to make a decision to try a defendant before implementing any formal steps necessary, unless the procedural law of the requesting state prevents informality. Furthermore, in our view, a decision to try is nonetheless a decision to try even if it is conditional or subject to review. We find the judgment of the Irish Supreme Court in Olsson very persuasive in these respects, as we have stated at paragraph 45 above. There will, for example, be a decision to try, even if it is taken subject to the completion, after extradition, of formal stages, such as an interview and subject to those stages not causing a reversal of the decision already made even informally, to charge and try.” (emphasis added)
In Minister for Justice, Equality and Law Reform v Olsson [2011] IESC 1, [2011] 1 IR 384 O’Donnell J had said the following in relation to section 21A of the European Arrest Warrant Act 2003 which provided that “the High Court shall refuse to surrender the person if it is satisfied that a decision has not been made to charge the person with, and try him or her for, that offence in the issuing state”:
“33. When s.21A speaks of “a decision” it does not describe such decision as final or irrevocable, nor can it be so interpreted in the light of the Framework Decision. The fact that a further decision might be made eventually not to proceed, would not therefore mean that the statute had not been complied with… ... A court is only to refuse to surrender a requested person when it is satisfied that no decision has been made to charge or try that person. This would be so where there is no intention to try the requested person on the charges ....
34…… A warrant issued for the purposes of investigation of an offence alone, in circumstances where that investigation might or might not result in a prosecution, would be insufficient..
35 … What is impermissible is that a decision to prosecute should be dependent on such further investigation producing sufficient evidence to put a person on trial. In such a situation there is in truth no present “decision” to prosecute, and no present “intention” to bring proceedings. Such a decision and intention would only crystallise if the investigation reached a certain point in the future. …”
At [45] Lord Thomas said:
“45. Although the terms of the Irish Act are significantly different in some respects, there are two aspects of the judgment that support the general approach we have adopted – see paragraph 54…. First, a decision to try is not required to be final or irrevocable and second that no particular formality is required.” (emphasis added)
Mr Hyman also referred, in his skeleton argument, to Killoran (supra) and Fox v Public Prosecutor’s Office of Frankfurt [2017] EWHC 3396 (Admin) (“Fox”) as useful illustrations of these principles. In both cases it was held by the Divisional Court that the decision of the public prosecutor to take the matter for trial was sufficient even though the case could, notwithstanding this, be dismissed by a court on the basis of its assessment of the sufficiency or otherwise of the evidence. As Dingemans LJ put it in Killoran at [50] “What is required is a decision to try, and not a decision to convict…”. In Fox, Hamblen LJ (as he then was) described the preferring of an indictment as “clear evidence that a decision to try has been made” ([48(8)]) and at [48(14)] he said that:
“A decision to try may be made even though it has not been formalised, even if it is conditional and even though investigations may be continuing…”
However, I note that the issue in those cases was as to who had the power, under the system of law of the requesting state, to make the decision to try the case. I return to this issue below.
The jurisdiction of the High Court on appeal
Mr Hyman referred to the decision of the Divisional Court in Love v Government of the United States of America [2018] EWHC 172 (Admin) [2018] 1 WLR 2889 (Lord Burnett CJ and Ouseley J) at [25] and [26]. Referring to the Part 2 equivalent of section 27(3)(a) of the Extradition Act 2003 the Court said:
“25….The words “ ought to have decided a question … differently” …give a clear indication of the degree of error which has to be shown. The appeal must focus on error: what the judge ought to have decided differently, so as to mean that the appeal should be allowed. Extradition appeals are not re-hearings of evidence or mere repeats of submissions as to how factors should be weighed; courts normally have to respect the findings of fact made by the district judge, especially if he has heard oral evidence. The true focus is not on establishing a judicial review type of error, as a key to opening up a decision so that the appellate court can undertake the whole evaluation afresh…..
26. The true approach is more simply expressed by requiring the appellate court to decide whether the decision of the district judge was wrong.”
The evidence before the District Judge
The Arrest Warrant and Further Information
The Arrest Warrant was issued by the criminal division of the Gorj County Court. It stated at the beginning that:
“This warrant was issued by Trlbunalul Gorj (Gorj County Court) - competent judicial authority,
I request that the person mentioned below to be arrested and surrendered to the ·Romanian judicial authority in order to execute the warrant of remand custody no. 2 of 10.05.2021 issued by Tribunalul Gorj (Gorj County Court) in file no. 2340/6)/2021/al. l 7.”
As Mr Mak points out, the second paragraph was not the standard wording for an accusation warrant in the template at Annex 43 to the Trade and Cooperation Agreement, which is:
“….I request that the person mentioned below be arrested and surrendered for the purposes of conducting a criminal prosecution…”
In Box (b) the Arrest Warrant went on to say in relation to the decision on which it was founded that the relevant arrest warrant, or judicial decision having the same effect, was a warrant of 10 May 2021 and that the final and enforceable judgment was:
“Decision no, 24 of I0.05.2021. passed by the Judge of the preliminary chamber….remained final by decision no. 272 of l7.05.2021 passed by the judges of the preliminary chamber of… Craiova Court of Appeal..”
Later, in Box (e), the Arrest Warrant set out the 14 offences which the appellant and others were alleged to have committed.
The Criminal Division of Sibiu County Court then provided Further Information dated 1 July 2024 (“FI1”). This stated that:
“By the indictment of the Directorate for the Investigation of Organized Crime and Terrorism - Craiova Territorial Department dated 19.10.2022, issued in the criminal case no. 251 D/P/2015, registered with the Sibiu Court under the file no. 2648/85/2022 dated 11.11.2022, it was ordered to indict several defendants, including the Defendant/requested person CATANA ALEXANDRU-IONUT, …for having committed 14 offences, as follows:….” (emphasis added)
Having listed the alleged offences, FI1 said:
“The criminal trial in which the Defendant CATANA ALEXANDRU-IONUT, …is being tried, is at the pre-trial stage, at the SIBIU COURT – Criminal Division, and the preliminary chamber judge is also the judge of the trial in the same case. For this reason, at this stage of the proceedings, the only answers that can be formulated are those that are derived from the document instituting the proceedings (indictment) and that do not affect the judge's impartiality in the performance of his professional duties, since he will decide objectively in the judgment in which he will settle the case.
At this stage of the trial, the preliminary chamber judge cannot express a point of view on the phase of criminal prosecution (investigation), which was carried out by the prosecutor of the Directorate for Investigation of Organized Crime and Terrorism - Craiova Territorial Service, a prosecutor who was disqualified once the indictment was drawn up and registered with the court (Sibiu Court).
In the indictment, the following facts were found, of which the Defendant – the requested person … is accused of having committed…” (emphasis added)
The facts of the alleged offences were then set out.
There was then a second Further Information from the Sibiu Court dated 15 October 2024 (“FI2”). This dealt, amongst other things, with an issue of limitation which had arisen in relation to the alleged offences. FI2 stated that:
“The requested person…was investigated in the criminal prosecution file no. 251D/P/2015 of the Directorate for the Investigation of Organized Crime and Terrorism - Craiova Territorial Service, and the prosecution phase ended with the indictment of the defendant/requested person, along with other defendants. --- (emphasis in the original)
In this situation, the prosecutor can no longer decide on the 14 offences mentioned in the proceedings (the indictment), nor can he determine whether the legal provisions on the statute of limitations of criminal liability for the offence of which Mr. CATANĂ is accused are applicable in this case…”
Issues of limitation could only be decided upon “by the judge in charge of the case.” who could not comment further on these issues given the need for impartiality. The questions on limitation therefore could not be answered by the Sibiu Court.
FI2 went on to say:
“The incidence of all provisions regarding the statute of limitations of criminal liability will be analyzed and decided upon by the criminal judgment that will be issued, after the stages of the trial governed by the Criminal Procedure Code have been completed. --- (emphasis added)
With regard to the content of the arrest warrant, the judge cannot provide information in addition to that contained in the warrant and in the judgment ordering Mr. CATANĂ’s pre-trial detention. --- (emphasis added)
All the aspects mentioned in the Request for Supplementary Information II (concerning the content of the arrest warrant) are to be analyzed during the judicial investigation phase, and the judge will decide on them in the criminal judgment that he/she will render in the case. ---
We underline that the criminal trial in which the Defendant.. is being tried, is at the pre-trial stage, at the SIBIU COURT - Criminal Division, and the preliminary chamber judge is also the judge of the trial in the same case.
Indeed, by the final resolution of the pre-trial chamber no. 100/CP/2024 of 11 July 2024, rendered in the file no. 2648/85/2022/a1, the preliminary chamber judge of the Sibiu Court established that the indictment issued on 19.10.2022 …is drawn up against the rules and he ordered, pursuant to the provisions of Article 346 paragraph 3 point a of the Criminal Procedure Code (CPP), to return the case to the Public Prosecutor’s Office. This judgment is not final and is being appealed, following the procedure for the resolution of the appeal by the preliminary chamber judges of the court of judicial review, the Alba Iulia Court of Appeal. --- (first emphasis in the original, second added)
Please note that, in the criminal file no. 2648/85/2022 pending before the Sibiu Court, Mr. CATANĂ is assisted/represented by the chosen/employed lawyer Bobașu Camelia Mihaela from the Mehedinți District Bar Association. ---"
The evidence of Dr Chirita
Before the District Judge, the appellant relied on reports by Dr Radu Chirita, a Professor of law at the Babes-Bolyai University of Cluj-Napoca Romania, dated 28 June and 26 August 2024. Dr Chirita dealt with the issues of limitation, as well as the role of the preliminary chamber procedure which follows what he described as the referring of an indictment to the court. In relation to the latter, he explained that:
“26. In the case file no. 251/D/P/2015 of DIICOT - Craiova Territorial Service, it was ordered to bring to trial a number of 30 defendants, including the RP. On 03.04.2021, the case was registered before the Gorj County Court, Criminal Section, under no. 2340/95/2021/Al. This marked the commencement of what, in Romanian criminal procedural law, is called the 'preliminary chamber phase' of the criminal proceedings. (emphasis added)
27. The preliminary chamber procedure is an intermediate procedure between the criminal investigation phase and the merits, its subject matter is regulated by the provisions of Art. 342 Criminal Procedure Code and analyses the manner in which the indictment is drawn up, namely the legality of the document instituting the proceedings, the lawfulness of the taking of evidence during the criminal investigation. (emphasis added)
…..
29. The purpose of the pre-trial phase is to determine the jurisdiction of the court as well as the lawfulness of: the referral of the indictment to the court; the indictment itself; and the evidence relied upon (and thus its admissibility). The latter includes an assessment of the lawfulness of the means by which the evidence was obtained.
…..
32. At the conclusion of the pre-trial phase, the court will either confirm the lawfulness and regularity of the indictment and prosecution material and permit the case to proceed to trial, or else it can 'nullify' the prosecution in which case it may not proceed and the case is at an end and the defendant is discharged, or as a third option it may refer the matter back to the prosecutor who may then conduct further investigations.
33. In addition, if the court permits the case to proceed, it may nevertheless exclude some of the evidence relied on by the prosecution as inadmissible.
34. During the preliminary chamber phase, the court may also rule on certain other preliminary matters, such as whether measures such as arrest warrants can be maintained or should be discharged. Both prosecution and defence may also make ad hoe applications to the court, concerning for example the admissibility of evidence as well as the general conduct of proceedings.”
Dr Chirita’s evidence was that on 1 March 2022, the Gorj County Court (which was conducting the preliminary chamber procedure) ordered the return of the case to the prosecutor's office because the indictment was not properly drawn up. He had not seen the file but he inferred that this was due to insufficient particularisation. The Court also found surveillance warrants used during the criminal investigation to be nullities and, as a consequence, the evidence thus obtained was held to be inadmissible. The decision of the Gorj Court had been upheld by the Craiova Court of Appeal on 5 July 2022.
In Dr Chirita’s second report he drew attention to the 11 July 2024 decision of the Sibiu Court, referred to in FI2 (see [31], above), and said:
“17. ……From its contents it appears that …..the public prosecutor's office decided to order the case in which RP is being investigated to be sent to trial again, this time before the Sibiu Court. (emphasis added)
18. … the case went through the preliminary chamber procedure again, … the court again found the indictment to be unlawful on the same grounds: the inadequate description of some of the charges contained in the indictment and the retention in the indictment and in the case file of evidence excluded in the previous pre-trial procedure, namely the evidence resulting from the execution of the warrants of technical surveillance.
19. In other words, the Sibiu County Court found that the prosecutor did not comply with the decision of the Gorj County Court in the preliminary chamber procedure….did not remedy all the irregularities found, and did not exclude from the file and the indictment the evidence found to be inadmissible. Consequently, the case was once again returned to the prosecutor's office.”
Dr Chirita did not mention (presumably because he was unaware of it) that the decision of the Sibiu Court had been appealed by the public prosecutor (“the Prosecutor”).
The District Judge’s judgment
At [5] to [10(h)] of her Judgment the District Judge summarised the information which could be derived from the Arrest Warrant and the Further Information provided by the Sibiu Court and, at [26]-[36], she summarised the reports of Dr Chirita. He had not been required to give oral evidence. She then summarised the arguments of the parties at [58]-[61]. She set out the terms of section 12A of the 2003 Act at [62] and clearly and accurately summarised the principles in Puceviciene and Kandola at [63]-[66]. Mr Mak made no specific criticisms of her self-directions of law or, indeed, of any of these aspects of her Judgment, and rightly so.
The District Judge then set out her analysis of the section 12A issue at [67]-[73]. Her conclusion was that the position was clear on the face of the Arrest Warrant and the Further Information, and that the appellant’s case under this section failed. Her reasons are encapsulated in the following passages from [68] and [70] of the Judgment:
“68. The further information in this case states that this case is at the pre-trial stage and that an indictment has been preferred and the RP has been indicted. In fact, FI2 makes it clear that the prosecutor cannot offer an opinion on the matter (regards limitation when asked) because the RP has been indicted. The case is now with the court…..
70. …..On the face of the AW and the further information the only thing which would have any possibility to cast any doubt on the fact that the decision may or may not have been taken is the fact that there is not the usual preamble at the start of the warrant however the Divisional Court in Kandola was clear that the default position will be that the two decisions have been taken. In place of that standard preamble is reference to the fact that the RP is wanted to be surrendered to a remand warrant, that remand warrant being issued by the court who are considering the pre-trial phase.”
The District Judge went on to consider the position in the light of Dr Chirita’s evidence, in case she was wrong on her primary conclusion. She found that, even on this evidence, there still were not reasonable grounds for believing that the requisite decisions had not been taken. At [71] she noted that the Gorj Court had not declared the proceedings a nullity and had, instead, sent the case back to the Prosecutor’s office:
“In my view at this stage the indictment was not being permitted to proceed to trial and some of the evidence in the case had been excluded but that does not mean that there had not been a decision to charge and try particularly when one considers the cosmopolitan approach that the court is encouraged to take…”
At [72] she noted the evidence about what had happened when the Prosecutor then sent the case to the Sibiu Court:
“The case was.. sent back to the prosecutor's office once again. Again, this was one of the three options Dr Chirita explained is open to the court, the court did not declare a nullity…..in my view this second return for the prosecutor's office again does not mean that no decision to charge and try has been taken. Indeed, it is quite clear that the prosecutor has the intention to try the RP as having had the file return for the second time from the preliminary chamber the prosecutor instead of conducting further investigations which may be indicative of the fact that a decision has not been taken, the prosecutor has instead decided to appeal that decision of the preliminary chamber and the decision is awaited”
The appellant’s argument
Mr Mak argued in the pleadings for the appeal and his skeleton argument that the District Judge was wrong to find that the absence of the standard accusation warrant wording at the beginning of the Arrest Warrant, together with the other evidence in the case, did not satisfy the test at the first stage of section 12A. The preamble to the Arrest Warrant had been tailored for a reason.
He also pointed out that the District Judge had wrongly said that the Gorj Court had issued the Arrest Warrant and was seized of the criminal proceedings against the appellant (at [67] and then [70] of the Judgment: see the latter cited at [37] above). In fact, the Sibiu Court was now seized of the prosecution.
He submitted that the District Judge had failed to consider the totality of the evidence relied on by the Respondent, and she failed to consider the matter as at the time of the extradition hearing. Instead, she confined her consideration to the contents of the Arrest Warrant, ignoring the Further Information provided by the Respondent and, in particular, the evidence in FI2. As a result, she was also wrong to say that an indictment had been preferred and/or to rely on the registration of the indictment when the evidence in the Further Information showed that the Sibiu Court had held that the indictment was invalid and had sent the matter back to the prosecutor’s office. Contrary to the District Judge’s view, the case was no longer “with the court”. Moreover, the Arrest Warrant is based on the content of the indictment, which has been found to be invalid. The evidence which came from the Respondent was sufficient to cast doubt on whether the requisite decisions had been made and the District Judge should therefore have considered Dr Chirita’s evidence.
Mr Mak submitted that the District Judge was wrong to decline to consider Dr Chirita’s evidence and, to the extent that she did, her analysis of this evidence was wrong. Mr Mak relied on the decision of the Gorj Court on 1 March 2022 (confirmed by the Court of Appeal) that the indictment was unlawful which, he submitted, amounted to reasonable grounds to believe that no decision to charge or try the appellant had been made. He made the same submission in relation to the 11 July 2024 decision of the Sibiu Court. He argued that District Judge was wrong to consider that mere intention to pursue prosecution, as demonstrated by the proceedings in the Sibiu Court and the appeal, was sufficient. The fact that there was an ongoing appeal did not demonstrate that there was in existence a lawful decision to charge and try the appellant.
In his oral submissions, Mr Mak developed the arguments set out above. He also submitted that it was unclear, on the face of the Arrest Warrant and the Further Information, whether the requisite decisions had been taken and that Dr Chirita’s evidence was therefore admissible. That evidence made clear that it was the preliminary chamber which made the decision to try or not to try and that in this case the decision had been to refuse to allow the matter to proceed. When I suggested that, on the evidence, it was clear that the Prosecutor had decided to charge the appellant and to take the matter to trial, so that the real issue may be whether the preliminary chamber of the Sibiu Court is the only “competent authority” for the purposes of section 12A and the decision to try, in effect Mr Mak said that his case was that the Sibiu Court was the only competent authority for the purposes of this decision. This stage of the proceedings was compulsory – the preliminary chamber phase resulted in a determination by the court “as to whether and how the trial should proceed” ([35] of Dr Chirita’s first report) - and the matter could only proceed to trial with the say so of the court. When I asked, he said that he did not wish to refer me to any authority on this issue.
The response to the appeal
Mr Hyman refuted each of Mr Mak’s arguments as to whether a decision to try had been made. His essential submission was that this was a question of fact for the District Judge. She had considered all of the evidence and her conclusion was amply justified.
Mr Hyman pointed out that the case had not previously been put by the appellant on the basis that the Prosecutor had made decisions to charge and to try the appellant but that it was not a “competent authority” for the purposes of section 12A. The Respondent therefore had not adduced evidence which went specifically to this point and, indeed, nor did Dr Chirita’s evidence specifically address the powers of the Prosecutor. Mr Hyman’s contention was that, nevertheless, the evidence before the District Judge did not establish reasonable grounds for believing that the Prosecutor was not a competent authority for these purposes. He referred to Killoran (supra) and Fox (supra) as analogous cases albeit acknowledging that they were based on the position under different legal systems.
Very fairly, Mr Hyman confirmed that he was content for me to consider Dr Chirita’s evidence. Although his submission was that the position is clear under the Arrest Warrant and the Further Information he was not submitting, for example, that therefore I should not take Dr Chirita’s evidence into consideration.
Discussion
First, as I have explained at [36] above, the District Judge plainly did take all of the relevant material into consideration and she made her decision by reference to the position at the time of the extradition hearing. She expressly took into account the fact that the Arrest Warrant did not include the usual preamble indicating that extradition was sought in order to prosecute the appellant. She summarised and considered the Arrest Warrant and the Further Information. She also summarised and considered the evidence of Dr Chirita in case her conclusion on the basis of the evidence which came from the Respondent was wrong.
Second, as Puceviciene confirms, the focus of the inquiry under section 12A in relation to the reasonable grounds question is whether the required decisions have been made “by the competent authorities in the category 1 territories”. It is not on whether, once the prosecution decision has been made, the requisite procedural steps have been taken to institute proceedings and/or whether they have been taken correctly. Section 12A may be satisfied, subject to the procedural law of the requesting state, where the decision has been taken even if the requested person has not yet been charged or brought to trial. Nor is the question whether the prosecution is or is not likely to succeed. And, in any event, although the evidence shows that the indictment in the present case was held by the Sibiu Court to be defective, and some of the evidence relied on by the prosecution inadmissible, there is no evidence that the decisions of the Prosecutor to charge the appellant and institute criminal proceedings against him were unlawful. Indeed, as the District Judge noted, although the Sibiu Court had a power to declare the prosecution a nullity, and thereby prevent it from proceeding, that was not what the Court decided in the present case.
Third, I agree with the District Judge that the position was clear on the face of the Arrest Warrant and the Further Information as far as the decisions of the Prosecutor were concerned. But, whether or not she was right, there was no inconsistency between that material and the evidence of Dr Chirita. As at the time of the extradition hearing on 24 February 2025, the sequence revealed by the evidence as a whole was that criminal proceedings were commenced in the Gorj Court on 3 April 2021. On 10 May 2021, that court issued a warrant to remand the appellant in custody. The Arrest Warrant was then issued on 8 February 2022 shortly before the Gorj Court ruled, on 1 March 2022, that the indictment was defective and some of the evidence relied on by the Prosecutor was inadmissible.
After the decision of the Gorj Court became final, on 19 November 2022 an indictment was registered at the Sibiu Court by the Prosecutor. That indictment accused the appellant and several others of 14 offences including offence 5, which is the subject of these extradition proceedings. Its purpose was to initiate court proceedings in which the appellant and others would be tried for these offences. Applying the definitions at [55] and [56] Puceviciene (see [14], above) it is obvious that by this stage the Prosecutor had decided to charge the appellant and “to go ahead with the process of taking [him] to trial”.
It is true that, on 11 July 2024, the indictment was found by the Sibiu Court to be defective, but that decision was under appeal. There was no evidence before the District Judge (or before me) as to the outcome of the appeal, or to suggest that the appeal or the prosecution of the appellant were not being pursued, or that the decision to proceed had been reversed. As the District Judge noted, the position was quite the opposite given that the decision of the Sibiu Court had been appealed. Moreover, as Puceviciene confirms, the possibility that the Prosecutor’s appeal might be dismissed and/or that, if it was, the Prosecutor might decide not to pursue the matter, was nothing to the point given that the requisite decisions had been made and were, on the evidence, maintained at the time of the extradition hearing.
Fourth, in the light of these considerations, although the District Judge was mistaken in suggesting that the Gorj Court was seized of the prosecution of the appellant at the time of the extradition hearing, this is immaterial in the context of the evidence as a whole. Her conclusion that the Prosecutor had made a prosecution decision was plainly right. Similarly, she took into account the absence of the usual preamble from the Arrest Warrant, but that was only one aspect of the evidence. The omission was to state that the appellant’s surrender was sought “for the purposes of conducting a criminal prosecution” but there was no real doubt that a criminal prosecution was underway as at 8 February 2022 when the Arrest Warrant was issued. Mr Mak did not submit that this particular omission rendered the Arrest Warrant anything other than a valid accusation warrant. Moreover, Mr Mak’s reliance on the decisions of the Gorj and the Sibiu Courts that the indictment was defective does not assist him on this point given that, at the time when the Arrest Warrant was issued, there had been no determination that the indictment which had been registered was invalid. These decisions therefore do not appear to have had a bearing on the drafting of the Arrest Warrant.
Fifth, I therefore suggested to Mr Mak that the only path left to him was to submit that the Prosecutor was not a “competent authority” for the purposes of section 12A i.e. that under the Romanian criminal procedure the decisions to charge and/or try a suspect are not decisions for the Prosecutor or are exclusively for the courts. This resulted in what was in effect a submission that, based on Dr Chirita’s evidence, the only competent authority for the purposes of section 12A in relation to the decision to try was the preliminary chamber of the Romanian court. As I have said, Mr Mak did not seek to support this argument by reference to authority.
I did not accept this submission. As noted above, on 3 April 2021 the Prosecutor “ordered to bring to trial…30 defendants including the RP” and the case was registered before the Gorj Court ([26] of Dr Chirita’s first report) i.e. the appellant was indicted. FI1 also refers to the (2022) indictment of the “defendants” as having been “ordered” by the Prosecutor. On 10 May 2021, the preliminary chamber of the Gorj Court issued a warrant for the appellant to be remanded in custody and that decision was made final by the preliminary chamber of the Court of Appeal on 17 May 2021. In FI2 this was referred to as “pre-trial detention”. It was after this that the same Court issued the Arrest Warrant on 8 February 2022. I also note that, notwithstanding the subsequent decisions that the indictment was defective, there is no evidence that the warrant for the remand of the appellant in custody has been discharged. All of this is consistent with the Respondent considering that a decision to prosecute the appellant had been taken by a competent authority, albeit not necessarily decisive.
The Further Information provided by the Sibiu Court demonstrates that criminal proceedings had been commenced by the registering of the indictment. Although the Sibiu Court refers to the matter being “at the pre trial stage” it also refers to the appellant “being tried” and to him as “the Defendant” and states that he is “accused” of having committed the stated offences. He is also represented in the proceedings. Dr Chirita refers to the preliminary chamber procedure as “an intermediate procedure between the criminal investigation stage and the merits” ([27] of his first report). It is clear, from the Further Information provided by Sibiu Court and Dr Chritia’s evidence, that the pre-trial stage involves the determination of issues in the case which the Prosecutor has decided to bring, rather than it being the exclusive role of the court to decide whether a person will be the subject of a criminal prosecution or trial. There is no suggestion in the evidence that the Prosecutor in the present case was not competent, under Romanian law, to decide to initiate the proceedings.
The conclusion that the appellant had not established “reasonable grounds to believe” that the Prosecutor was not a competent authority for the purposes of section 12A is, in my view, consistent with the language of the section. This is concerned with whether there has been a “prosecution decision” (emphasis added) and the section raises the broad question whether “the competent authorities in the category 1 territory” have made the specified decisions.
My application of section 12A is also consistent with the rationale for the section which, as noted above, is that the requested person is not extradited when the matter is still at the investigation stage and no decision to charge and take the matter to trial has been made by the authorities in the requesting State. Dr Chirita himself indicates that the pre-trial phase comes after the “criminal investigation phase”. That stage has therefore been completed. Here, it may be that the Prosecutor is able to continue to investigate the matter and proffer additional evidence (as is the position under our system after a defendant has been indicted) but it is clear that a decision to proceed has been taken and the matter is before the Romanian courts. I appreciate that the issues with the indictment will have caused delay, during which the appellant would likely have been in custody if he had been extradited, but no doubt there will be many cases where my application of section 12A to the Romanian criminal procedure does not lead to any delay because there are no issues with the indictment etc. And, in any event, the purpose of section 12A is not to require that the case is “court ready” or to eliminate all delay between extradition and trial. It is to ensure that extradition is not ordered unless there is “a clear intention to bring the person to trial” ([462] of the Explanatory Notes to section 12A).
My conclusion is also consistent with the decisions in Killoran and Fox, as Mr Hyman submitted. In both cases the continuation of the prosecution was subject to consideration by a court with a power to refuse to accept the matter for trial and/or dismiss the charges before the matter proceeded to trial. Killoran and Fox, and the authorities which the Divisional Courts considered in both cases, were not concerned with the Romanian legal system, and the facts were therefore different. They therefore cannot simply be “read across” to the present case. But they illustrate the point that it does not follow from the fact that, before it proceeds to the trial, the prosecution case is required to be scrutinised by a court with a power to dismiss the case, that that court is the only competent authority for the purposes of section 12A of the 2003 Act.
Conclusion
I therefore dismiss the appeal. As it happens, the change in the focus of the appellant’s case has not affected the outcome. If I had considered that it did so, I would have had considerable misgivings about the fairness of allowing the appeal on the basis that the Sibiu Court was the only competent authority for the purposes of section 12A and the decision whether to try the appellant.
