Marian v Regional Prosecutor's Office of Ruse, Bulgaria

In an extradition appeal, proportionality under article 8 ECHR requires assessment of the particular combination of circumstances. Relevant factors include the alleged offences, delay, trafficking history, mental health, vulnerability, likely effects of return and available support. Fresh evidence must be admitted where it was unavailable, or not reasonably obtainable, at the extradition hearing and would have led to a different decision. Where that evidence establishes disproportionate interference with private life, the High Court must allow the appeal and order discharge under sections 27(4) and (5) of the Extradition Act 2003.

The appellant appealed against a Westminster Magistrates’ Court decision ordering his extradition to Bulgaria under a European Arrest Warrant concerning alleged trade mark offences. The district judge rejected challenges based on sections 25 and 21 of the Extradition Act 2003, article 4 ECHR and proportionality under article 8 ECHR.

On appeal, the appellant relied on fresh psychiatric, medical and factual evidence concerning severe depression, vulnerability, trafficking history and his circumstances after the district judge’s decision. The issues were whether the evidence was admissible, whether extradition would disproportionately interfere with private life, and whether the article 4 and oppression challenges succeeded.

1. Fresh evidence. The requirements in section 27(4) of the Extradition Act 2003 were satisfied. The additional evidence was unavailable at the extradition hearing, or could not reasonably have been obtained then, and was material because it would have led the district judge to decide the relevant question differently. The evidence was admitted.
2. Article 8 and proportionality. The public interest in bringing persons accused of crime to trial was weighty. The alleged trade mark offences were serious, but not the gravest offences. Against extradition stood the passage of almost five and a half years, the appellant’s trafficking history, low intelligence, severe depressive illness, vulnerability, lack of ties or support in Bulgaria, and the likely adverse effects of imprisonment or return.
3. The court could take account of the United Kingdom finding that the appellant had been trafficked, although Bulgarian authorities remained entitled to make their own assessment and decide whether the alleged offences were linked to trafficking.
4. The fresh evidence would have caused the district judge to reach a different conclusion on article 8 proportionality. Extradition was therefore incompatible with section 21 of the Extradition Act 2003. The appeal was allowed, the extradition order quashed and the appellant discharged under sections 27(4) and (5).
5. The article 4 ECHR challenge failed. Bulgaria was presumed to comply with its Convention and anti-trafficking obligations, and the evidence did not establish a real risk of inadequate protection. The section 25 challenge also failed because return was not shown to be unjust or oppressive.

• High Court (Administrative Court): appeal from the decision of Deputy Senior District Judge Ikram in Westminster Magistrates’ Court on 31 August 2018. The district judge ordered extradition to Bulgaria. The High Court allowed the appeal, quashed the order and ordered discharge.