Ceausescu v Secretary of State for the Home Department & Ors

An appeal against the Secretary of State’s extradition decision must remain within the limited powers conferred by section 93 of the Extradition Act 2003. A challenge which is in substance an appeal against the appropriate judge’s decision must comply with the statutory time limit and cannot be recast as an appeal against the Secretary of State. A trial in the accused’s absence does not necessarily breach Article 6. Where the person will receive a retrial on return, the proceedings must be considered as a whole; in such circumstances an Article 6 breach will not be material or flagrant on the facts found.

The claimant challenged the Secretary of State’s order directing his extradition to Romania following an order by District Judge Tubbs. The district judge had initially discharged the extradition order on Article 5.1(c) grounds, but the High Court allowed Romania’s appeal and remitted the matter. No Article 6 argument was advanced before the district judge on either occasion. The claimant then sought to challenge the Secretary of State’s decision under section 108 of the Extradition Act 2003, arguing that his conviction in absentia breached Article 6 and that the district judge’s decision should be reviewed. The issues were whether the Secretary of State’s decision was open to challenge and, alternatively, whether the Article 6 argument could succeed.

1. The appeal was against the Secretary of State’s decision, not the district judge’s decision. Under section 93 of the Extradition Act 2003, the Secretary of State’s functions were confined to deciding the specified statutory questions and making the consequent order. None of those questions arose. The appeal therefore failed.

2. The claimant could not avoid the statutory time limit by recasting the proceedings as an appeal against the district judge. Such an appeal had to be entered within 14 days, and there was no power to extend time. No appeal had been brought within that period.

3. Even if the Article 6 issue had been properly before the court, it would have been rejected. The issue had not been raised before the district judge, who had therefore made no relevant findings of fact. More importantly, the claimant would be entitled to request a retrial on return to Romania. The proceedings had to be considered as a whole. There was no real question of an Article 6 breach of materiality, still less a flagrant breach.

4. The court noted that a trial in the absence of the accused does not invariably breach Article 6, referring to Regina v Jones [2002] UKHL 5. The appeal was dismissed.

• High Court (Administrative Court): an earlier appeal by the Government of Romania was allowed and the matter remitted to District Judge Tubbs: [2006] EWHC Admin 2615.
• High Court (Administrative Court): the present appeal against the Secretary of State’s decision was dismissed.