Saptelei v Judecatoria Hunedoara, Romania

In a retrial-conviction extradition case, the statutory scheme treats the warrant as a conviction warrant and therefore excludes reliance on the proportionality bar in section 21A(1)(b) of the Extradition Act 2003. Nevertheless, it is reasonably arguable that excluding the appellant from protection available in an accusation-warrant case may create substantive unfairness. The Article 8 proportionality assessment may therefore require a modified approach which gives close regard to how the statutory bar would have operated if available. It remains open whether Article 8 requires replication of the statutory outcome or merely sufficient consideration of the statutory exercise. Permission to appeal was granted on that issue.

The appellant faced extradition to Romania under a conviction European Arrest Warrant issued after a conviction in his absence. The warrant stated that he would be entitled to a retrial if extradited. The District Judge treated the case as a conviction-warrant case and did not apply the section 21A(1)(b) proportionality bar.

The renewed application concerned whether the Article 8 assessment nevertheless had to accommodate the alleged substantive unfairness arising from the appellant’s exclusion from that statutory protection. The court also considered whether the appeal should be listed before a Divisional Court and whether any other grounds were reasonably arguable.

1. Permission granted. The appellant raised a reasonably arguable ground engaging an important point of principle.
2. A retrial-conviction case remains a conviction-warrant case for the purposes of the statutory scheme. The appellant was therefore precluded from relying directly on the proportionality bar in section 21A(1)(b) of the Extradition Act 2003.
3. Following Konecny [2019] 1 WLR 1586, it was reasonably arguable that the distinction between conviction-warrant and accusation-warrant cases could produce substantive unfairness. Although Konecny concerned section 14, the Supreme Court had recognised that similar issues might arise elsewhere in the statutory scheme.
4. It was reasonably arguable that the Article 8 assessment should take account of the section 21A proportionality-bar exercise. The “hard” version would require the court to replicate the result that would have followed if the bar applied. The “soft” version would require the court to have regard to that exercise without necessarily achieving absolute symmetry.
5. The appellant’s premise that the statutory bar would have resulted in discharge was itself reasonably arguable. The alleged offences were driving without a licence, and the respondent had not shown that the premise was unarguable.
6. A single High Court judge could, if appropriate, develop or qualify the approach in Celinski [2015] EWHC 1274 (Admin) through the Article 8 gateway identified in HH [2013] 1 AC 338. Listing before a Divisional Court was considered desirable but was not directed.
7. No other independent ground was reasonably arguable. The order granted permission to appeal, made no order as to costs, and directed detailed assessment of the appellant’s publicly funded costs.

The judgment concerned a renewed application for permission to appeal from a District Judge’s extradition decision. The substantive appeal had not yet been determined.