Done v Petrosani Court of Law Romania

In extradition proceedings, fugitive status is assessed objectively, with a subjective element: whether the requested person knowingly and deliberately placed himself beyond the reach of the requesting state’s legal process. The status is not necessarily displaced by a later arrest on an extradition warrant.

Even where the requested person is a fugitive and the passage-of-time bar under Extradition Act 2003 section 14 is unavailable, delay remains relevant to the Article 8 proportionality balance. Long, unexplained or culpable delays, particularly where defective warrants have caused repeated proceedings and the requested person’s family life has materially developed, may make extradition disproportionate.

An appellate court must decide whether the district judge’s decision was wrong, respecting factual findings but standing back to assess whether the overall evaluation was erroneous.

The appellant challenged an extradition order made by District Judge Coleman on 5 September 2019, following an order dated 9 September 2019. Romania sought his return under a European arrest warrant to enforce sentences arising from Romanian offending in 2002 and 2005.

The appeal concerned whether the appellant was a fugitive for the purposes of section 14 of the Extradition Act 2003, whether the repeated issue of deficient warrants constituted an abuse of process, and whether extradition was disproportionate under Article 8. Two earlier warrants had been discharged for want of sufficient particularity. The appellant had lived openly in the United Kingdom since 2007, with his wife and children, but had not been arrested on the third warrant until 2019.

1. Abuse of process. The repeated discharge and re-issue of deficient European arrest warrants did not, of itself, make enforcement of the third warrant an abuse of process. The circumstances were more appropriately addressed through the statutory bars and Article 8. The residual abuse jurisdiction remains available, but is fact-specific and rare.
2. Fugitive status. The applicable question was whether the appellant knowingly and deliberately placed himself beyond the reach of the Romanian legal process. Although he was not subject to an express reporting, supervision or notification condition, he knew that he had been charged with further offences, knew that the Romanian authorities had an address for him, left shortly after attending court, and did not inform them that he was leaving or provide a forwarding address. Taken together, those facts established fugitive status. His lack of knowledge that the earlier suspended sentence could be activated did not alter that conclusion.
3. The appellant’s fugitive status did not end when he was arrested on the first warrant in 2013. He remained outside the reach of the Romanian domestic process while living in the United Kingdom.
4. Article 8. Fugitive status prevented reliance on section 14, but it did not make the passage of time irrelevant to proportionality. The unexplained delays after the appellant’s whereabouts became known, the defective earlier warrants, the repeated uncertainty caused by the extradition proceedings, the age of the offending, the appellant’s settled family life and employment, and his lack of offending in the United Kingdom substantially reduced the weight of the public interest in extradition and increased the impact on private and family life.
5. Applying the appellate approach in Love v Government of the United States of America [2018] 1 WLR 2889, the district judge’s overall evaluation was wrong. Extradition on the third warrant would be disproportionate on the particular facts.

• High Court (Administrative Court): Appeal against the extradition order was allowed. The court held that the district judge’s proportionality decision was wrong and that extradition on the third European arrest warrant would be disproportionate.
• District Judge Coleman: An extradition order was made on 5 September 2019, following the hearing on 28 August 2019. The district judge found that the appellant was a fugitive, rejected the statutory and abuse-of-process challenges, and concluded that extradition was proportionate.