Marius Ene v Alexandria District Court (Romania)

2 The arrest warrant is a conviction warrant. Box B states that it is based on the judgment of the respondent dated 20 December 2022, rendered final by non-appeal on 31 January 2023. Box C states that the appellant was sentenced to 1 year 8 months’ imprisonment, all of which is to be served. Box E confirms that the sentence relates to three driving offences, all committed on 7 September 2019. They were driving with excess blood alcohol, driving without a licence and driving an unregistered vehicle.

3 The appellant was arrested in this jurisdiction pursuant to the arrest warrant on 28 February 2024. He was compliant on arrest. He was produced before Westminster Magistrates’ Court on 29 February 2024, where he did not consent to his extradition and proceedings were opened and adjourned. He was granted conditional bail, (including, inter alia, an electronically monitored curfew requirement), which he has complied with throughout the proceedings.

4 The hearing before the District Judge took place on 22 November 2024. The District Judge heard oral evidence from the appellant and his partner. Amongst the evidence before the District Judge was a report of Dr Pauline Christmas dated 20 September 2024 concerning MME, then aged 13, who is one of the 9 children of the appellant and his partner.

5 Before the District Judge, the appellant advanced the following grounds for resisting extradition under the Extradition Act 2003. The arrest warrant was alleged to be insufficiently particularised (section 2); the offences were not extradition offences withing the meaning of sections 10 and 65; the appellant had not deliberately absented himself from the trial held in his absence and would not, if returned, be entitled to a retrial (section 20); and his extradition was incompatible with Article 8 of the ECHR (section 21).

6 Linden J granted permission on three grounds:

Ground 1: The District Judge was wrong to find that the requirements of section 20 of the 2003 Act were satisfied.

Ground 2: The District Judge was wrong to conclude that the extradition of the appellant would be compatible with his and his family’s rights under Article 8 of the ECHR.

Ground 3: The District Judge was wrong to find that the extradition proceedings did not amount to an abuse of process.

7 In the High Court, the appellant has made three applications to adduce fresh evidence. The evidence sought to be adduced concerns Ground 2. At the hearing on 20 January 2026, I admitted the evidence de bene esse.

Legal framework

The arrest warrant

Further information

12 There were three requests for further information. So far as relevant to this appeal, on 12 March 2024, the CPS asked if the appellant was under any obligation to notify the relevant authorities of a change of address; whether he would have known of the obligation; and whether he complied with it. It was also noted that box C.3.1a of the warrant stated that the appellant was heard during the criminal investigations and that he pleaded guilty. The CPS asked how the appellant was heard (in person, through a lawyer etc.) and whether he entered a guilty plea himself or through a lawyer.

13 On 28 March 2024, the Alexandria District Court replied. The reply stated that the appellant was officially aware of the existence of a criminal case against him through the statements he made before the criminal investigation body, when he was informed of his procedural rights provided for in Article 10 and Article 83 of the Code of Criminal Procedure. Mr Watson KC submits, correctly in my view, that the various rights set out in the response appear to be concerned with the criminal investigation; and that they do not suggest that the appellant was, at this point, someone who had been charged with the offences. Although he was told of the obligation to notify any change of address, the information certainly does not indicate that the appellant was, at this point, told that he might be tried in his absence.

14 In apparent answer to the question regarding the guilty plea, the District Court said that when the appellant was informed of his status as a suspect, “he admitted and regretted his acts [and] described the circumstances in which he committed them.” He subsequently “evaded investigation and was not found at his residence to be informed of his status as an accused.” Those last words underscore the fact that the appellant was not an accused at the relevant time.

15 At the trial of the appellant on 15 November 2022, the court ordered “the appointment of a public defender given his absence from the residence address as he had left for England.” At trial the appellant was, accordingly, “represented by a public defender.”

16 On 26 April 2024, the CPS asked for further information concerning two different case file references supplied by the District Court. It also asked whether in respect of case 3035/740/2022, the appellant was informed he was going to be prosecuted; whether he was required to provide an address, to which a summons would be sent, with the date and place of his trial and/or that he was expected to make enquiries as to date and place; and whether he was informed that if he did not attend his trial, he may be convicted in absence. The CPS also asked when the appellant was heard as a suspect and whether, at that point, there was any agreement between the prosecutor and the appellant, as to his punishment.

18 The third request for information, and the reply dated 3 July 2024, concern the blood alcohol level recorded in respect of the appellant at the time of the offence of driving with excess alcohol. It is not relevant to the present appeal.

The District Judge’s judgment on section 20

20 Both Bertino and Merticariu featured heavily in the parties’ submissions to me. In order to address those submissions, passages from the judgments in these cases need to be set out at some length.

Bertino

24 The Supreme Court had this to say about the Amended Framework Decision and the related Article 6 (right to fair trial) of the ECHR:

47.The Strasbourg Court has emphasised the “capital” importance of the right of defendants t to be present at their trials (Poitrimol v France (1993) 18 EHRR 130 para 35) and also that a fair hearing requires that defendants are notified of the proceedings against them (Colozza v Italy (1985) 7 EHRR 516, para 35). Moreover, as was reiterated in Sejdovic at para 89, the notification of the formal “accusation” to the defendant plays a crucial role because it is then that the defendant is put on notice of the factual and legal basis of the charges.

...

54.It is apparent from these cases that the standard imposed by the Strasbourg Court is that for a waiver to be unequivocal and effective, knowing and intelligent, ordinarily the accused must be shown to have appreciated the consequences of his or her behaviour. That will usually require the defendant to be warned in one way or another. A direct warning was expected from the judges in the exclusion cases. The Amended Framework Decision, reflecting an understanding of the obligations imposed by Article 6, requires the summons to warn the accused that a failure to attend might result in a trial in absence. In Sibgatullin there was no reason to conclude that the applicant should have been fully aware of the consequences of his actions.

...

Cretu and Merticariu

25 Merticariu was handed down at the same time as Bertino and is, like that case, a judgment written by Lord Stephens JSC and Lord Burnett of Maldon. Merticariu concerns the right to a re-trial, which arises if the judge in extradition proceedings finds that the requested person was not present at trial and did not unequivocally waive their rights to a trial in their presence. Before examining the judgment, it is necessary to consider the judgment of the Divisional Court in Cretu v Local Court of Suceava, Romania [2016] 1 WLR 3344, since it was cited with approval in Merticariu.

Cretu

26 In Cretu, one sees from paragraph 4 of the judgment of Burnett LJ that the requesting authority had marked boxes in the European Arrest Warrant, which stated that the appellant had not been present in person at the trial which led to the decision. He had been legally summoned on a number of specified occasions in 2009 and 2010 “and therefore was informed about the date and place settled for the trial whose decision was issued and was informed that a verdict can be issued even if he doesn’t come to the trial.” The appellant was stated to have authorised a defender “who was appointed either by himself or ex officio in order to defend him during the trial and indeed he was defended by that lawyer at the trial.”

27 Paragraph 4 of the judgment records that box 3.4 was marked. This said that the appellant was not given the decision personally but that when he will be given the decision, he “will be expressly informed about the right of case re-judgment or a means of appeal that he has the right to, where he could attend personally and that means the whole case, including the new proofs, to be re-examined and this could lead to the annulment of the previous decision”. The time limit for asking for case re-judgment or appeal was 10 days.

...

Merticariu

29 Merticariu concerned the right to a retrial; in particular, whether section 20(5) will be satisfied even if the right is conditional upon a finding by a court in the requesting state that the requested person was not deliberately absent from their trial (paragraph 6).

Trade and Cooperation Agreement

35 The appellant submits that the effect of leaving the EU nevertheless affects the way in which cases, including Cretu and Merticariu, should be applied in the case of arrest warrants to which the TCA applies. I shall address this submission in due course.

GROUNDS 1 AND 3

The appellant’s case under section 20

36 The appellant contends that the District Judge was wrong to find that the appellant was deliberately absent from his trial; and to find, in the alternative, that the appellant was entitled to a retrial. So far as concerns the first limb, the District Judge wrongly applied the “manifest lack of diligence” test, disapproved in Bertino. He was, in particular, wrong to rely on the appellant’s statement in the further information of 11 June 2024, that the appellant was informed of his trial date. The District Judge was also wrong to regard the evidence of the appellant, that he “thought that later on [he] would be prosecuted and [tried],” as demonstrating that he was deliberately absent.

Mandated lawyer

37 Before considering these submissions, and Mr Ball’s response to them, it is necessary to address an additional reason, not articulated by the District Judge, why the respondent now contends that the District Judge’s conclusion in respect of section 20(3) of the 2003 Act was correct. Box 3.2 of the arrest warrant has been ticked. This states that the appellant had given a mandate to a legal counsellor, who defended the appellant at his trial.

38 At paragraph 26(iii) of Cretu, Burnett LJ held that an accused who has mandated a lawyer is thereby not absent from his trial for the purposes of section 20. Mr Ball relies upon paragraph 35 of Cretu, approved by the Supreme Court at paragraph 27 of Merticariu, that “it will not be appropriate for the requesting judicial authorities to be pressed for further information relating to the statements made in an EAW pursuant to Article 4a [of the Framework decision] save in cases of ambiguity, confusion or possibly in connection with an argument that the warrant is an abuse of process...”. The ticking of box 3.2 is, therefore, determinative.

39 I do not accept this conclusion. Paragraph 37 of Cretu says that, where further information has been provided, there is no reason why that information should not be taken into account, in seeking to understand what has been stated in the EAW. Reading paragraph 37 together with the qualification in paragraph 35, concerning cases of ambiguity and confusion, it must be the case that where a box has been ticked in the warrant, so as to make a formal statement of the requesting authority’s position, the statement can be rendered ambiguous or confusing by the provision of further information.

40 That is precisely the position here. The further information supplied on 28 March 2024 contradicted the statement in the arrest warrant. The public defender was not appointed until the day of the trial, 15 November 2022. The appointment was due to the appellant’s “absence from the residence address, as he had left for England.” The defendant was then “represented by a public defender.” There is no suggestion that the appellant was in some way able to mandate the lawyer from England on 15 November. On the contrary, it would be absurd to draw such an inference.

Deliberate absence

41 I therefore return to address the submissions outlined above. The parties are in substance agreed as to the law, following Bertino. As stated in paragraph 45 of that case, the sole question for the District Judge was whether, in the words of section 20(3) of the 2003 Act, the appellant had “deliberately absented himself from his trial”; and that phrase is to be interpreted as being synonymous with the concept in the Strasbourg jurisprudence that the appellant had “unequivocally waived his right to be present at his trial.” In Bertino, the Supreme Court concluded that, on the facts, the appellant had not done so.

42 Mr Watson and Mr Ball draw attention to what they consider to be respectively points of factual similarity and difference between those of Bertino and the present appellant. Like Mr Bertino, the appellant was merely under investigation when he left the jurisdiction of the requesting state. Although both knew they were under investigation, they had not been charged with an offence. In neither case was there certainty that a prosecution would follow; and in both cases charges were not brought until some two years later. Both were under an obligation to notify the authorities of any change of address.

43 Unlike Mr Bertino, however, the appellant was questioned, during which, according to the first set of further information, he “admitted and regretted the acts [and] described the circumstances in which he committed them.” He also told the District Judge that he “thought that later on [he] would be prosecuted and [tried]” (paragraph 49 of the judgment). It is plain from paragraph 49 that the District Judge regarded these aspects as significant. So too was the second set of further information of 11 June 2024, in which the respondent stated that the appellant was “informed of the date and place set for the trial leading to the decision and was informed that a decision may be handed down if he does not appear for the trial.”

44 I also take account of the point made by Mr Ball, that in Bertino the EAW was silent as to all the exceptions provided by Article 4a(i) of the Framework Decision, which led the Supreme Court at paragraph 44 to describe the warrant as “unusual”.

45 Comparison of the facts of cases is, however, of limited usefulness and is in any event no substitute for an analysis that keeps the legal questions firmly in mind and applies them to the specifics of the case in hand. Those specifics, relied on by the District Judge, include the further information of March and June 2024. On proper analysis, I agree with Mr Watson that this information is so contradictory and otherwise problematic as to be incapable of satisfying the legal requirements for a finding of deliberate absence.

46 As foreshadowed in paragraph 13 above, the further information of March 2024 puts beyond doubt the fact that what was said in box 3.1a of the arrest warrant cannot be correct. The appellant did not “plead guilty”. In order to plead, he needed to be charged (or indicted) with the offences. What the appellant said at the investigation stage cannot be conflated with a plea to a charge. This seems to be impliedly acknowledged in the June 2024 response where, in bold type, the respondent confirmed that no guilty plea agreement was concluded in July 2020. Read as a whole, the further information of June 2024 lays bare the difference between the investigatory proceedings and the trial phase, some two years later, which followed the bringing of charges on indictment in May 2022.

47 It may, of course, be possible at an investigation stage unequivocally to waive one’s right to a trial in one’s presence; such as, to use an example mentioned by the Supreme Court, by stating that one will ignore any summonses that might be forthcoming. The appellant’s statement that he thought later on he would be prosecuted is, however, far removed from the extreme position needed to demonstrate a knowing and intelligent decision on the part of the appellant to put himself beyond the law.

48 The District Judge placed weight on the statement in the further information of June 2024 that the appellant was “informed of the date and place set for the trial leading to the decision and was informed that the decision may be handed down if he does not appear at the trial.” The quoted words are a synthesis of the wording in box 3.1a of the arrest warrant, which is repeated almost verbatim in the further information of June 2024. Both box 3.1a and the further information are confusing, in that they are inherently contradictory.

49 Being summoned “personally”, as the arrest warrant has it, or “in person”, as in the further information, has to be understood in the extradition context by reference to Article 4a(1)(a) or, now, Article 601(1)(i) of the Trade and Cooperation Agreement. It cannot be read as including cases where, under the domestic law of the requesting state, the summons was not, in fact, personally served but was deemed to be effectively served, such as by being placed on a “courthouse door and on the web portal of the law courts.” If the position were otherwise, then no matter what the circumstances, an individual would be at great risk of being found to have been deliberately absent from their trial. On the facts set out in paragraph 5 of the judgment in Bertino (where the summons was served on court-appointed counsel), Mr Bertino would have been “summoned in person”. There would have been no need to go further.

50 Since the words “personally” and “in person” fall to be read in accordance with the Framework/TCA, the statements about the summons being posted on the courthouse door and on the web portal are contradictory of the assertion of personal service. Box 3.1a cannot be taken as authoritative. The problematic status of the summons directly impacts upon the findings at paragraph 49 of the District Judge’s judgment because of the relationship between the summons and the assertion that the appellant was heard at the investigation stage in 2020 when he “admitted the charges” and was “therefore" informed of the date and place of the trial and that a decision may be handed down if the appellant failed to appear at the trial. For the reason I have given, there can be no question of the appellant in 2020 admitting any charges. This cannot therefore be any part of the reason for saying that the appellant was informed of the date and place for trial or that he was warned about the possible consequence of non-attendance. In any event, there is nothing in the first two pages of the arrest warrant, which sets out the nature of the rights and obligations at the investigation stage, as contained in Articles 10, 83 and 108 of the Romanian Code of Criminal Procedure, which suggests the appellant was at that point given any warning about the consequences of not attending any trial.

51 This leaves the linkage between the summons of 4 October 2022 and the information about the date/place of trial and the warning as to non-attendance. It is highly likely that the summons included both information and warning. Indeed, it is axiomatic that the summons would tell the summonsed person where and when to attend. But, for the reasons already given, the appellant was not actually informed and warned. Instead of asking whether, in all the circumstances, the appellant had by his actions in 2020, unequivocally waived his right to a trial in his presence, the District Judge took the last part of the further information of June 2024 as showing that the appellant had, in 2024, be informed and warned, despite its being inherently confused. Had the District Judge approached the issue correctly, he could not have been satisfied that the respondent had discharged the burden of showing beyond a reasonable doubt that the appellant had deliberately absented himself from his trial.

Right to retrial

52 The issue under section 20 therefore becomes whether the District Judge was wrong in his alternative finding at paragraph 50 of the judgment that the appellant “would be entitled to a retrial or (on appeal) to a review amounting to a retrial” (section 20(5)).

53 The District Judge noted that box 3.4(d) had been endorsed to indicate, inter alia, that on return, the appellant will be informed of his right to a retrial or appeal, which allows for the merits of the case, including fresh evidence, to be re-examined, and which may lead to the original decision being reversed. The time limit for making the request is 10 days. The District Judge described this as in effect “an assurance that the Requested Person will receive a re-trial: Merticariu v Judecatoria Arad, Romania [2024] UKSC 10.” The District Judge said that he had no evidence “that Romania breaches assurances relating to retrial rights or more generally.” He was therefore sure that the appellant would, if extradited, be entitled to a retrial or an appeal that amounted to a retrial.

The parties’ submissions on right to retrial

54 The respondent submits that the District Judge was right in his application of Merticariu. Box 3.4(d) had been ticked. There was no ambiguity, confusion or abuse of process: Merticariu, paragraphs 26 and 27, applying Cretu, paragraphs 34, 35, 37 and 41. Not only was the District Judge right, he was, says Mr Ball, required to follow Merticariu.

55 The appellant’s submissions under this heading may be summarised as follows, albeit that the order I adopt is not that of the appellant’s skeleton argument. First, the arrest warrant in the present case is ambiguous etc. Second, the right to a retrial in Romania is founded on Articles 466-470 of the Criminal Code. The Supreme Court in Merticariu found that Article 466 empowers the domestic courts of Romania to decide whether someone convicted in absence is entitled to a retrial; and that this is insufficient to satisfy the requirements of section 20(5).

56 In Chicea v Romania [2024] EWHC 1479 (Admin), Swift J examined further information concerning the Code, concluding that it “confirms the conclusion of the Supreme Court that under s. 466 there is not a right to a retrial of the sort envisaged by s. 20(5) of the Extradition Act 2003.” (paragraph 10). In Mohammed v Law Court of Arad, Romania; Oprea vBucharest Regional Court, Romania [2025] EWHC 1671 (Admin) (“Mohammed”), box 3.4(d) had been ticked in both cases (paragraphs 34 and 37 of the judgments). Nevertheless, counsel for the respondent conceded before the Divisional Court “in the light of the further material that has been filed on this topic that the issue under subsection (5) does not arise because neither Mr Mohammed nor Mr Oprea would be entitled to a retrial. In these circumstances, it is unnecessary for me to examine the decision of the Supreme Court in Merticariu ...” (Jay J; paragraph 37).

57 Mr Watson made reference to the existence of expert evidence, filed in other cases, regarding retrial rights under the Criminal Code. I have not seen any such evidence. Nevertheless, Mr Watson submits that this Court and Westminster Magistrates’ Court can and do take account of factual findings by the High Court regarding the position in requesting states (such as prison conditions); and that it is unnecessary and undesirable for repeat, bespoke expert reports to be obtained in subsequent cases concerning the same issue. Dobrowolski v District Court in Bydgosszcz, Poland [2023] EWHC 763 at 18. It is my understanding that there may have been such evidence in Mohammed, although the judgments do not mention it (understandably, in the light of the concession).

58 Following the judgments in Mohammed, those instructed by the present appellant made a formal request to the CPS, pursuant to the duty of candour, asking for an explanation as to why the concession was made. This was with a view to understanding the basis on which the High Court would be invited by the respondent to take what was said to be a different approach in the present appeal. The CPS relied that such disclosure was not required pursuant to the duty, in that the Divisional Court did not examine Article 466. It was not accepted that Mohammed had wider implications for Romanian re-trial rights cases.

59 The appellant does not accept this explanation. The concession was the reason why the Divisional Court did not need to consider Article 466. The appellant contends that the duty of candour has been breached. This alleged abuse of process forms the basis of Ground 3. It is a further reason why the ticking of box 3.4(d) in the present case cannot have the consequences that the respondent contends.

60 Finally, the appellant submits there is another reason why the ticking of box 3.4(d) does not have those consequences. The present case concerns an arrest warrant, not an EAW. Irrespective of the materially identical wording of Article 4a of the Framework Decision and Article 601 of the TCA, the “conforming interpretation obligation,” which drove the decision in Cretu, does not apply. The appellant draws attention to the recent judgment of the Grand Chamber of the CJEU in the case of MA (C-202/24); ECLI:EU:C:2024:649) [2025] 1 CMLR 35.

Right to retrial: discussion

61 I do not consider that the problems I have identified with box 3.1(a) infect box 3.4. As Cretu makes clear at paragraphs 4 and 41, a requesting authority may legitimately tick more than one box, such as, in that case and this, 3.1a and 3.4, so that, in this jurisdiction, both section 25(3) and (5) may be advanced before the District Judge as discrete alternatives. Any ambiguity or other problem regarding 3.1a is not, therefore, to be treated as infecting box 3.4. In so finding, I have taken account of the judgment of Eyre J in Maciuca v District Court of Bacau [2025] EWHC 766 (Admin).in which he found at paragraph 70 that, “in the circumstances of that case, the ticking of both box 3.1a and box 3.4 and the fact that no date had been inserted in box 3.1a was just sufficient to create ambiguity such as to warrant consideration of whether the appellant had a right to a retrial.” The circumstances of that case were markedly different from the present. At paragraph 16 of the judgment, we see that box 3.1a was purely the uncompleted pro forma (including the words “was summoned in person on ... (day/month/year)”), whereas in the present case the dates and circumstances of the summons were set out. Even so, Eyre J considered that the ambiguity was only “just sufficient”. His finding on section 20(5) was, in any event, obiter, since the District Judge was found to have committed no error on the section 20(3) issue: paragraph 67 of the judgment.

62 The appellant contends, however, that there is a conflict between box 3.3 and 3.4. This concerns service of the decision (ie the conviction in absence). The appellant says that because a mark was placed against the second alternative (“he ... did not request a retrial or appeal or appeal within the applicable timeframe”), the respondent was, in fact, relying upon box 3.3 (“the person was expressly served with the decision ...and was expressly informed about the right to a retrial or appeal...”). The appellant cannot, however, both have been served with the decision and yet not have been personally served with the decision, which is what the ticking of box 3.4 avers.

63 I do not accept the appellant’s submission. Box 3.3 is not ticked. The marking of the second alternative was, as Mr Ball submits, mere untidiness. Far from assisting the appellant, as Mr Watson KC asserts, box 4 and the information contained under it, are coherent. The respondent’s case was that the relevant condition was met because the appellant had given a mandate to his lawyer and the decision was sent to the appellant’s home address, where it was received by the appellant’s wife. Just as the ticking of boxes 3.1a and 3.4 is not inconsistent, it was permissible for the respondent to contend that the appellant had a mandated lawyer, making him present at the trial; but that if this was not found to be the position by the court in England and Wales (which it was not: see above), the appellant would have a right to a retrial.

64 Subject to the appellant’s other arguments, this means that the District Judge was right to invoke Merticariu. The Supreme Court had before it the text of Article 466 of the Criminal Code. The effect of the judgment is that, where box 3.4 is not ticked in the warrant, the Code alone is insufficient to show that, if a person is extradited to Romania in circumstances where the extraditing court is relying upon a right to retrial, the judicial authorities in Romania will afford the person that right, subject only to purely procedural requirements. Where, however, box 3.4 is ticked, the position is wholly different. At paragraph 50, the Supreme Court held that “If it had been ticked, then subject to the appellant’s extradition being compatible with the Convention rights within the meaning of the Human Rights Act 1998, it would have been mandatory for the executing judicial authority to extradite the appellant.”

65 The reason for this is made pellucid in paragraph 29 of the judgment. Where box 3.4 is ticked “and the requested person is surrendered on the basis of Article 4a(1)(d) [of the Framework Decision] the only scope for the courts in the requesting state to decide that the requested person is not entitled to a retrial or on appeal to a review amounting to a retrial, would be on procedural grounds.” The paragraph goes on to say that if the person complies with the procedural steps, “then there is an obligation to begin the retrial or appeal. In this way the issuing judicial authority binds the court in the requesting state to begin the retrial or the appeal.”

66 The Supreme Court reiterated this point at paragraph 59 of the judgment: “... there is an obligation on the requesting member state to begin the retrial or appeal if the issuing judicial authority, whether a judge, a court or a prosecuting authority, ticks box 3.4 in point (d) of the EAW and thereby secures the surrender of the requested person under Article 4a(1)(d): see para 29 above.”

67 At paragraph 60 of its judgment, the Supreme Court pointed out that the requesting state participates in the decisions reached by the UK courts in extradition proceedings, including “the decision whether the requested person was entitled to a retrial”. It would therefore “be in accordance with the principle of mutual trust and confidence, and also in accordance with the objective in Article 1 of the FD 2009 of improving mutual recognition of judicial decisions, if the courts in the requesting state recognised the decisions of the executing judicial authority that the requested person was not convicted in his presence, had not deliberately absented himself from his trial and was entitled to a retrial in the requesting member state, subject only to completion of procedural steps.”

68 Thus, whatever may be the position of the Romanian judicial authorities under Article 466 where box 3.4 is not ticked, where it is ticked, the Supreme Court was clear. Those authorities can be expected to respect and give effect to the basis upon which the court in this jurisdiction has resolved that it may extradite the person concerned.

69 The Supreme Court would not have made these findings if there had been evidence before it that, even if box 3.4 is ticked, the Romanian judicial authorities routinely refuse to accept the juridical basis upon which the person is being extradited. Whilst I accept that this Court will, in accordance with judicial comity, be expected to follow the conclusion of, for example, the Divisional Court on a factual issue such as prison conditions in the requesting state, without demanding that the evidence underpinning those conclusions is adduced afresh, that is very far from being the position here. My attention was not drawn to any case in which the Court has found that the passages in the judgment in Merticariu, which I have cited, can no longer be relied upon because the authorities in Romania are routinely disregarding their responsibilities under the Framework Agreement and/or the TCA. Nor was any expert evidence adduced on this matter. I observe that in Maciuca, the District Judge had heard expert evidence from Dr Mures, a Romanian lawyer, who opined that, on the facts of Mr Maciuca’s case, he might not be afforded a retrial because he had known of the investigation in the criminal proceedings. No such evidence was adduced before the District Judge in the present case. It is entirely unclear whether Dr Mures was asked whether, as a general matter, the judicial authorities in Romania routinely act contrary to what the Supreme Court supposed in Merticariu, when those authorities have ticked box 3.4 of an arrest warrant. In the circumstances, his evidence cannot be read across to the present case.

70 The appellant relies heavily upon the judgments in Mohammed. Mr Mohammed had actually been denied a retrial when he applied for it in May 2024, despite (it seems) having being ordered to be extradited in 2023 by the District Judge on the basis that he would have a right to retrial and despite box 3.4 being ticked (paragraphs 8, 10 and 13). At the time of the application for a retrial, it would seem that the extradition had not crystallised because the District Judge’s decision was being appealed. Mr Oprea was ordered to be extradited by reference to section 20(5) of the 2003 Act, despite box 3.4 being ticked. There is no indication that he sought and was refused a retrial.

71 At paragraph 37, Jay J recorded “in light of further material that has been filed on this topic that the issue under subsection (5) does not arise because neither Mr Mohammed nor Mr Oprea would be entitled to a retrial. In these circumstances, it is unnecessary for me to examine the decision of the Supreme Court in Merticariu...” It is no criticism of the judgment to observe that it does not describe the nature of the further material. It does, however, mean that I am not in a position to infer that the material comprised evidence to the effect that, quite apart from the particular circumstances of Messrs. Mohammed and Oprea, Romania routinely acts contrary to how the Supreme Court considered it could be expected to act, where extradition is ordered on the basis of a right to retrial.

72 The appellant submits there has been a breach of the duty of candour by the respondent, in that it has refused to explain the reason why the concessions were made in Mohammed. I accept the duty would be breached if the respondent refused to disclose information that could, objectively, undermine the case for extradition. I have no reason to assume that the respondent, acting through the CPS, is unaware of its duty of candour. In refusing to provide the explanation, the respondent must therefore be taken to say that the explanation for the concessions does not undermine its case in the present proceedings. Indeed, the respondent’s email of 16 July 2025 states in terms that “It is not accepted that those cases have wider implications for other Romanian re-trial rights cases.” The appellant’s submission under Ground 3 therefore assumes what it seeks to establish; namely, that the explanation is undermining of the present case.

73 The appellant criticises the respondent’s email of 16 July 2025, in which it said that the Divisional Court in Mohammed “did not look at or indeed deal with Art 466 in any way.” The appellant points out that this was because of the concessions. The appellant’s email of 15 July had, however, mentioned Article 466 as the provision on which the right to retrial was said to be based. It was therefore unproblematic for the response to say what it did about Article 466. Concentration on that Article is, in any event, beside the point in the light of Merticariu. Article 466 plainly is the mechanism through which the judicial authorities of Romania act in connection with retrial rights for those tried in absence who are being returned through extradition. Article 466 is, on its own, insufficient to secure the right to retrial. But, when coupled with the formal statement in box 3.4 of the arrest warrant, it is effective for the reasons given by the Supreme Court at paragraphs 29, 59 and 60 of its judgment. The appellant’s duty of candour submission is an attempt to circumvent the need to show this court, by expert evidence, that, contrary to the assumptions of the Supreme Court, there is on the ground a generalised failure to comply with Romania’s international obligations in the field of extradition, as regards retrial rights.

74 The appellant also seeks to rely upon the judgment of Swift J in Chicea. I can see no reference to box 3.4 having been ticked in that case. The further information supplied by the respondent merely relied upon the existence of Article 466. The judgment does no more than record that Article 466, on its own, does not confer a right to retrial of the kind demanded by section 20(5) of the 203 Act (paragraph 10).

75 I therefore turn to the appellant’s submissions on the “conforming interpretation obligation.” In summary, the appellant says that the considerations which underlay the Divisional Court’s emphasis in Cretu upon Article 4a of the Framework Decision, relied upon by the Supreme Court in Merticariu, no longer apply, following the UK’s departure from the EU. Reliance is placed on the CJEU judgment in MA. In that case, the Court considered the position of an individual whom the UK wished to see extradited from Ireland. The Court held that the Framework Decision of 2002 did not govern execution of warrants issued by the UK after the expiry of the transition period on 31 December 2020. Article 1 of the TCA provided that the TCA established the basis for a broad relationship between the EU and the UK within an area of prosperity and good neighbourliness characterised by close and peaceful relations based on cooperation, respectful of the parties’ autonomy and sovereignty. Recital 23 referred to enhancing the security of the EU and the UK by allowing cooperation relating to, interalia, the execution of criminal penalties, including safeguarding and preventing threats to public security.

76 At paragraph 46 of the judgment, the Court held that, although the TCA did not expressly require a Member State to act upon a UK arrest warrant issued on the basis of the TCA, “it follows from ... in particular ... the respective functions of Articles 600 to 604 of that agreement that ... a Member State may refuse to execute such an arrest warrant only for the reasons arising from the TCA.” At paragraph 48, the Court noted that Article 524(2) provides that nothing in Part Three of the TCA alters the rights and principles set out in the ECHR and the EU Charter.

77 At paragraphs 56 to 76, the Court explained that the principle of mutual trust, which underlies the Framework Decision, applies as between Member States, who may only exceptionally check whether another Member State has actually, in a specific case, observed the fundamental rights guaranteed by the EU. This limitation is based on the intrinsic nature of the EU.

80 Mr Ball drew attention to the judgment of Julian Knowles J Banica v PogoaneleDistrict Court, Romania [2023] EWHC 405 (Admin). The appellant in that case submitted that mutual trust and confidence in extradition arose only under the Framework Decision. At paragraphs 47 to 53, Julian Knowles J explained why he did not consider the submission had force. Even in the case of countries outside the EU, such as the USA and Trinidad and Tobago, there was high judicial authority that there is a fundamental presumption that states with which the UK has extradition treaties will act in good faith, recognising that the arrangements are founded on mutual trust and respect and that there is a strong public interest in respecting such treaty obligations: Ahmad v USA [2006] EWHC 2927 (Admin); Gomes v Republic of Trinidad andTobago [2009] 1 WLR 1038; Khan v USA [2010] EWHC 1127 (Admin).

81 It is common ground that MA is not binding on this court: section 6(1) of the European Union Withdrawal Act 2018. I can, however, have regard to the judgment, if I consider it appropriate: section 6(2).

82 I agree with Mr Ball that the non-EU cases mentioned in the judgment of Julian Knowles J are of significance. They show that extradition is in all cases rooted in the trust and confidence that exists between signatories to an international treaty and in the implicit belief of each signatory that the other will respect its obligations arising under the treaty. The same must be true of the parties to the TCA.

83 Not being bound by MA, the courts of this jurisdiction are entitled to have full regard to the fact that EU Member States are, like the UK, signatories to the ECHR. In the present case, this means that Article 6, guaranteeing the right to a fair trial, continues to be part of the rationale for Article 601(1) of the TCA, just as it is for Article 4a of the Framework Decision. What the Supreme Court had to say about the significance of Article 6 ECHR in Bertino (eg. paragraph 45) therefore continues to hold good, irrespective of the EU principle of mutual trust. The same is true of Cretu, and its approval in Merticariu.

84 Furthermore, in deciding the extent to which confidence can be placed in statements of EU Member States contained in arrent warrants issued pursuant to the TCA, the courts of this jurisdiction are entitled to have regard to the fact that the Framework Decision continues to govern extradition between EU Member States and that it is frankly fanciful to think such a state would adopt a different attitude towards the importance of statements made in an arrest warrant conveyed to the authorities of the UK, compared with statements made in an EAW conveyed to the authorities of another Member State.

85 Finally, the conclusion reached by the CJEU in MA does not, on careful reading, constitute a change that is likely to produce, on the ground, any drastic difference in outcome. Paragraph 82 tells us that the two-stage Aranyosi test is, in effect, collapsed into a single exercise. It is, however, apparent from paragraph 85 that a Member State may refuse to extradite someone to the UK only if the Member State has, having regard to the individual situation of the requested person, objective, reliable, specific and properly updated information establishing substantial grounds for believing that there is a real risk of a breach of fundamental rights, such as, in that case, the right not to be subjected to retrospective criminal law.

86 Transposing this to the present case, there is a dearth of objective, reliable, specific and up to date evidence that the respondent, having ticked box 3.4, would not afford the appellant a right to a retrial, subject only to the satisfaction of purely procedural requirements. The District Judge was, accordingly, not wrong to find that the respondent had shown to the criminal standard that section 20(5) was satisfied.

87 Before leaving this topic, I should say for completeness, that there is nothing in the appellant’s criticism of the District Judge’s comment in paragraph 50 of his judgment, that ticking box 3.4 was, in effect, an assurance. Mr Watson says that ticking this box is not to be equated with an assurance given regarding, for example, the conditions in which someone will be held in detention, in the event of extradition. I see no difficulty, even if this was the analogy the District Judge was seeking to draw. The District Judge did not, however, say that the assurance was of this nature. He meant only to convey that, in the light of Merticariu, ticking the box represented a formal statement of what would happen if the appellant were extradited. In this, he was entirely correct.

88 For all these reasons, the District Judge was not wrong to find that the respondent had shown to the criminal standard that section 20(5) was satisfied.

GROUND 2

The District Judge’s judgment on Article 8 ECHR

89 The District Judge’s consideration of Article 8 was as follows:

66.The factors I have identified relating to the Requested Person and the adult members of his family, which tend to militate against extradition, also carry weight. The weight to be attached to those factors is, in my judgment, diminished for a number of reasons. Nothing I write should be seen to diminish the weight to be attributed to best interests of the children. They are not to be blamed for the Requested Person’s conduct.

The appellant’s criticisms of the District Judge’s Article 8 findings

90 The appellant submits that the District Judge committed the following errors in his Article 8 analysis and findings. He failed to appreciate the impact of the appellant’s extradition on the appellant’s wife and children. He should have given greater weight to the fact that the offences were not serious. He did not consider what is said to be the culpable delay in the case. He gave inappropriate weight to the appellant’s previous convictions. He did not consider that the appellant had been subject to a deprivation of his liberty in the form of an electronically monitored curfew. Standing back, the District Judge’s overall decision was wrong.

Fresh evidence applications

91 The first application to adduce fresh evidence is dated 9 July 2025. It concerns a witness statement dated 2 July 2025 from the appellant’s brother, Gheorge. It deposes that the brother has lived in the Netherlands since January 2025. Gheorge’s family (including six children) are in Romania and he visits them every few months. Gheorge could come to help with the appellant’s children in the UK in an emergency but only for a few days. He has no right to work here. The first application also seeks to adduce a witness statement dated 30 June 2025 from the appellant’s sister, Cristina. She has the right to live and work in the UK and comes here every couple of months, before returning to Romania to stay with her daughters, aged 11 and 13. She works as a delivery driver. She never intended to give the appellant the impression that she could live with his family for longer than a week. Although she could help out financially, she would be unable to be with the appellant’s family physically for “too long.” The application also seeks to adduce a witness statement of the appellant dated 30 June 2025. In this, he says he was mistaken in his live evidence when he said that his siblings would be able to move to the UK to help his wife raise the children. His children are well and go to school as normal. He still has issues with his knee. MME is likely to have foot surgery in 2025.

92 The second application to adduce fresh evidence is dated 9 January 2026. It concerns a further witness statement of the appellant. Dated 9 January 2026, with exhibits. As well as continuing to take MME to hospital appointments, the appellant took a son, G, to an appointment in November 2025 regarding a veinous malformation. His son, S, has a follow-up appointment in January 2026, after earlier hand surgery. MME is in need of surgery to correct the straightness of her eyes. There needs to be three additional appointments to check her eyes are stable, before the surgery can occur. The appellant says in addition that the couple’s daughter, B, is due to give birth on 28 January 2026. The appellant says that social services are concerned that B and her partner will not be able to look after the child and have advised her that she should move back in with the appellant and his partner. However, B does not wish to move back as “we do not accept her partner coming into our house, due to his habits that we do not agree with. He is 16 years old.” The appellant says B has been told she is welcome to move back, but the partner is not. B has still not decided what to do.

93 The third application to adduce fresh evidence is dated 16 January 2026. It concerns an NHS letter dated 12 January 2026. This states that MME has been listed for a left femoral extension and derotation osteotomy, patella pulldown, and possibly a right-sided femoral derotation osteotomy. MME is considered to require some orthotic support to mobilise. The writer states that children with cerebral palsy may experience a gradual loss of mobility as they grow, and this is also the case with MME. She has been referred for gait analysis in order to assess her functional status and to finalise the surgical procedures she will require.

Article 8: discussion

94 The appellant must show that the overall evaluative assessment of the District Judge was wrong, in the sense articulated in Love: paragraph 10 above. In Andrysiewicz vCircuit Court in Lodz, Poland [2025] 1 WLR 2733, the Supreme Court emphasised that the public interest in extradition will outweigh the rights of the family under Article 8 unless the consequences of interference with family life are exceptionally severe: paragraph 81.

95 I do not consider that the District Judge erred with regard to the interests of the children. At paragraph 62, he expressly treated their best interests as a primary consideration. He had before him the report on MME of Dr Christmas, which detailed the role played by the appellant in her care, such as lifting her and liaising with outside agencies, matters also detailed in the appellant’s witness statement that was before the District Judge. The evidence regarding the help that would be forthcoming from the appellant’s brother and sister, if he were extradited and the family remained in the UK, came from the appellant: paragraph 55 of the judgment. In particular, the sister had told the appellant only a few days before the extradition hearing that she would move in with the children. The District Judge also noted the existence of a support worker for the family and that she “attends with an interpreter”, thus ameliorating any issues regarding the partner’s lack of English. The belated evidence from the sister and the appellant on the subject of her alleged limited ability to help fails both limbs of the Fenyvesi test. It could and should have been produced before the District Judge. It also fails the second limb of that test. Far from capable of being decisive, its belated production bears the hallmarks of self-serving evidence, concocted to deal with what was a weakness in the appellant’s case which was entirely of his own making, as was evident when the appellant received the judgment of the District Judge. The same is true of the brother’s belated evidence. The further evidence regarding MME does not constitute a difference in kind, compared with that presented to the District Judge. She awaits further medical interventions that flow directly from her underlying condition. There is nothing to show that these interventions will be denied her in the UK, if the appellant were extradited. The evidence regarding treatment for the two sons means that the demands on the parents are modestly increased, but to nothing like the extent needed to show that, had this evidence been before the District Judge, his overall conclusion on Article 8 would have been different. In this regard, I would add that, at the end of paragraph 67, the District Judge noted that there was nothing to suggest social services and local authority support would be anything other than available “on the same basis as any other family where one parent is absent serving a custodial sentence.” Such support would no doubt be tailored to the family’s circumstances, including that of MME.

96 The appellant contends that the District Judge was wrong to find at paragraph 69 of the judgment that the family could relocate to Romania. The District Judge is also said to have failed to acknowledge the “hugely disruptive effect on the children’s education that such a move would engender.” Far from exposing an error in the judgment, this submission draws attention to a further weakness in the Article 8 case. The appellant’s family life, and that of the other family members, has a decidedly international character. It has been pursued in a number of different countries, with children being born in Spain, Romania and the UK. The appellant’s first witness statement tells us that he came to the UK from Spain in 2014 with the rest of the family following in 2015. He therefore left his partner with four children, including MME and her twin brother (they were born on 3 November 2011), despite MME’s condition: paragraphs 8, 19 and 20 of the appellant’s first witness statement. It is also noteworthy that the arrest warrant records that the appellant’s partner was in Romania on 26 August 2023, as she is said to have received the decision in the appellant’s case at the appellant’s “home address” in Romania on 26 August 2023. The “whole family” has in any event been able to travel to Romania on holiday: paragraph 68 of the judgment. The appellant is recorded at paragraph 53 of the judgment as telling the District Judge that “he intends to return to Romania to live at some point in the future.”

97 There was no evidence to show that, if MME were to be taken to Romania along with the rest of the family, appropriate treatment would not be available, building on the work done by the NHS, whose records could be transmitted to the appropriate agencies in that country. Whilst there would be an impact on the education of the children who are at school, it has not been shown that this, either alone or in combination with MME’s medical circumstances, would be anywhere near so grave as to make a successful Article 8 case, applying the Andrysiewicz criteria.

98 The new evidence regarding the daughter, B, who was about to give birth, takes the appellant’s case no further. It is speculative to assume that she will decide to go to live with the appellant and the rest of the family, taking the baby with her.

99 The criticism of the District Judge’s assessment of seriousness is unfounded. The sentence of imprisonment was indicative of the view taken in Romania of the seriousness of the offending: paragraph 63b of the judgment. It might not, however, be offending that would be regarded as seriously in the UK: paragraph 64d. There is nothing wrong with those findings. Furthermore and in any event, there is no evidence that Romania’s attitude towards these kinds of driving offences is so out of line with international thinking (not just the UK’s) as to have required the District Judge to disregard or give materially less weight to that attitude.

100 I do not consider the District Judge erred on the issue of delay. Some two years elapsed between the investigation in October 2020 and the summons being issued in 2022. The delay is unexplained. It is not, however, in its own terms so gross as to have required the District Judge to regard it as manifestly culpable and to have accordingly reduced the weight to be given to the public interest in ensuring extradition requests are honoured. It has not been shown that the delay has materially strengthened Article 8 rights. MME’s underlying condition remains as it was, although as she grows, medical interventions are increasing. Those interventions will be materially unaffected by the appellant’s extradition, for the reasons I have given.

101 The District Judge did not err on the issue of according weight to the appellant’s previous convictions. At paragraph 63f of the judgment, he ascribed them limited weight because the appellant was only 19 at the time. The appellant submits that no weight should be given to the convictions. I do not accept this. The appellant was convicted in 2003 of three offences of robbery and one of aggravated larceny, for which he received a combined sentence of three years and six months’ imprisonment. Despite his young age, the offences were serious, as the sentence makes plain. The District Judge was not wrong to ascribe them the weight he did.

102 Finally, the appellant submits that the District Judge should have had regard to the restriction on liberty caused by the imposition, as a condition of bail, of an electronically monitored curfew, confining the appellant to his residence between midnight and 4am. (The reference in the appellant’s skeleton argument to 10pm –4am appears to be an error, as Linden J recognised at paragraph 10 of his order dated 17 July 2025.) The appellant refers to Hodjen v Poland [2022] EWHC 2725 (Admin), in which I pointed out that the significance of a curfew will vary, depending on the circumstances; and that even if the effect has merely been to prevent late-evening socialising, “a long-standing set of restrictions may make a difference, if the case would otherwise be finely balanced.” (paragraph 50).

103 At the time of the hearing before the District Judge, the appellant had been on bail, subject to the curfew condition, for a little less than 9 months. That can hardly be described as long-standing. The appellant has now been subject to the curfew for almost two years. As I understand the appellant, he asserts that this is now of such a length that, had he been deciding the case today, the District Judge would have been required to give the curfew a weight which, given the other factors tending against extradition, would have at least have tipped the proportionality balance in the appellant’s favour.

104 There are two problems with this. First, there is no evidence that the appellant has expressed a wish to engage in late-night socialising or otherwise complained that the curfew has prevented him from doing something he wished to undertake. There is nothing to suggest that, but for the curfew, he would have wished to be away from the children in the early hours. Without some evidential underpinning, curfew cases become merely notional, lacking any actual interference with the kind of family life the person concerned has been leading and/or would wish to lead. Second, a curfew issue of this kind comes into focus only where the Article 8 case is otherwise finely balanced. I do not find this is such a case.

105 I have stood back and considered all the Article 8 matters in the round. Having done so, I cannot accede to the appellant’s submission that the District Judge’s conclusion on Article 8 was wrong. This is so, taking account of the fresh evidence which was not capable of being placed before the District Judge because it relates to events that had not taken place prior to the hearing; namely, the evolving NHS plans regarding MME, the medical matters concerning two of her brothers; and the situation of B and her baby. None of this evidence, alone or cumulatively, would be decisive, taken together with the rest of the evidence. It is therefore not admissible.

Decisions

106 The applications to adduce fresh evidence are refused.

107 The appeal is dismissed.