Popa v President of the Tulcea Court, Romania

In an extradition appeal under Article 8 of the European Convention on Human Rights, the appellate court must identify an error of law or approach in the first-instance proportionality assessment; it must not simply conduct the balancing exercise afresh. Delay is not readily treated as culpable where the chronology shows continuing procedural activity and the period is not inordinately long. A person becomes a fugitive from justice when, after conviction, he knowingly remains beyond the reach of sentence implementation. The court should avoid comparing the seriousness of offending in the requesting state with how the conduct might have been dealt with domestically, particularly where the factual material is limited. The appeal was dismissed.

The appellant challenged an order made by District Judge Zani at Westminster Magistrates’ Court on 4 April 2019 directing his extradition to Romania. He was wanted to serve a sentence of one year, 11 months and 10 days for driving without a licence and refusing to provide a breath or blood specimen.

The appeal raised Article 8 issues concerning delay, the appellant’s alleged fugitive status, the seriousness of the offences and his family circumstances. The appellant also sought to adduce fresh evidence about his young son. The central question was whether the District Judge’s decision was wrong.

1. Appeal dismissed. The court found no error of law or approach in the District Judge’s decision and no separate defect in the proportionality balancing exercise.
2. The fresh evidence about the appellant’s son was refused. The child was too young for the evidence to carry significant weight in the balancing exercise, and the appellant was not the child’s main carer.
3. The court declined to determine whether the delay was culpable. The period between the offending and conviction was several years but was not inordinately long, and the chronology showed regular developments in the Romanian criminal process. The court therefore found no error in the District Judge’s treatment of delay.
4. The appellant knowingly left Romania without performing his obligation to notify the Romanian authorities of a change of residence. The finding that he was aware of the proceedings was open to the District Judge. He became a fugitive from justice from conviction, not from his earlier arrival in the United Kingdom, and remained outside the reach of sentence implementation after the conviction was upheld on appeal.
5. The court rejected comparison between the Romanian treatment of the offences and the treatment which might have occurred before a domestic magistrates’ court. The factual information about the offending was limited, but it included a collision, driving without a licence, suspected alcohol consumption, refusal to provide a specimen and two previous convictions. The sentence was not trivial, although it was not of great length.

• Westminster Magistrates’ Court: District Judge Zani ordered extradition after an Article 8 proportionality assessment on 4 April 2019.
• High Court (Administrative Court): Permission to appeal was granted and the appeal was dismissed. The court held that the District Judge’s decision was not wrong.