Mitoi v Government of Romania

Under Extradition Act 2003, where the issue is whether a person deliberately absented himself from trial, the requesting state bears the burden of proof. By section 206, the question must be determined as it would be in proceedings for an offence. The applicable standard is therefore the criminal standard: the court must be sure of both the person’s awareness of the trial and his deliberate failure to attend. The burden and standard do not shift merely because the defence raises the issue. A decision based on an erroneous factual assumption may be remitted for reconsideration, particularly where further evidence materially affects the assessment.

The appellant had been convicted in Romania in his absence and sentenced to three years’ immediate imprisonment after appellate proceedings. Romania sought his extradition under Part 2 of the Extradition Act 2003. The District Judge found that he had been aware of the Romanian trial and had deliberately absented himself, applying section 85(3).

On appeal, the appellant relied on further evidence suggesting that the District Judge may have misunderstood the status of the Romanian lawyer who represented him. The appeal also raised, for the first time, the burden and standard of proof applicable to deliberate absence under section 85(3), and the equivalent provision in Part 1, section 20(3).

1. The appeal was allowed to the extent that the issue of deliberate absence was remitted to the District Judge under section 104(1)(b) of the Extradition Act 2003. Further documentary and oral evidence might show that the conclusion that the appellant had chosen counsel to represent him at trial was erroneous.
2. Section 85(3) requires the District Judge to decide whether the person deliberately absented himself from the trial. The issue involves two factual questions: whether he was aware of the trial and, if so, whether he deliberately failed to attend.
3. Sections 85(3) and 20(3) replace the former interests-of-justice inquiry under section 6(2) of the Extradition Act 1989 with a specific factual question. Section 206(1) and (2) requires any question about burden or standard of proof to be determined as it would be in proceedings for an offence.
4. The requesting state bears the burden of proving deliberate absence. The applicable standard is the criminal standard. The proposed approach, under which the burden and standard would shift after the issue was raised, was inconsistent with section 206 and had no proper domestic analogy.
5. The analogy with abuse of process was inapposite because, in that context, the burden is placed on the defence. The closer analogy was proceeding with a criminal trial in the defendant’s absence. R v Jones [2003] 1 AC 1 established that such a course requires great care and ordinarily deliberate absence. The District Judge was directed to apply the criminal standard on reconsideration.

Lord Justice Maurice Kay agreed. The matter was sent back to District Judge Tubbs, and legal aid assessment for costs was permitted.

1. High Court (Administrative Court): In [2006] EWHC 1977 (Admin), the court remitted the section 85(3) issue to the District Judge for reconsideration and directed that the criminal standard of proof be applied.
2. District Judge, Bow Street: The District Judge had found that the appellant knew of the Romanian trial and had deliberately absented himself. That finding was not finally determined because further evidence might undermine the factual basis for it.