Enasoaie v Court of Bacau, Romania

For conduct to satisfy dual criminality where the foreign offence lacks a mental element required by English law, the warrant and admissible further information must make that element the only reasonable inference. The court must consider the conduct and its full context, rather than isolate particular words in the warrant.

A requesting state has effective speciality arrangements where its law implements the speciality principle and provides a procedure capable of preventing punishment for non-extradition offences. Compelling evidence is required to displace the presumption that the state will honour its international obligations. Partial extradition does not make an otherwise valid conviction warrant unenforceable merely because a merged sentence must be adjusted in the requesting state.

The appellant had been convicted in Romania of 12 embezzlement and forgery offences and received a resulting sentence of five years’ imprisonment. A district judge ordered extradition on nine offences but discharged him on three embezzlement offences because their descriptions did not compel an inference of dishonesty.

The appellant challenged the finding that three other embezzlement offences satisfied dual criminality. The Romanian judicial authority cross-appealed against the discharge on the remaining three. Further information about the appellant’s knowledge and use of his employers’ money was admitted on appeal.

Further grounds concerning speciality under section 17 and the adequacy of the sentence particulars under section 2 of the Extradition Act 2003 were contingent upon at least one offence being non-extraditable.

1. The appeal was dismissed and the cross-appeal allowed. All six disputed embezzlement offences were extradition offences. The further grounds concerning speciality and the validity of the warrant therefore did not arise.

2. Because the Romanian offence did not require proof of dishonesty, dual criminality depended upon whether dishonesty was the inevitable or only reasonable inference from the warrant and further information. Applying Assange v Sweden [2011] EWHC 2849 (Admin) and Cleveland v USA [2019] EWHC 619, the court found that the appellant knowingly took money belonging to his employers and used it for personal gain. His conduct was dishonest under the two-stage test confirmed in R v Barton and Booth [2020] EWCA Crim 575.

   The district judge had no sufficient basis for distinguishing offences which expressly referred to an employer’s loss from those which described the collection or appropriation of money. The descriptions, admissions, rejected innocent explanation, related forgeries and further information had to be considered together. They made dishonesty the only reasonable inference.

3. Obiter: Romania had effective speciality arrangements for the purposes of section 17 of the Extradition Act 2003. Romanian law implemented article 27(2) of the Framework Decision and provided a challenge to enforcement where speciality prevented execution of a resulting sentence. There was no compelling evidence capable of displacing the strong presumption that Romania would comply with its international obligations. Brodziak v Poland [2013] EWHC 3394 (Admin) was followed, while Edutanu v Romania [2016] EWHC 124 (Admin) was distinguished as turning upon the information in that case.

4. Obiter: the warrant satisfied section 2 of the Extradition Act 2003 because it stated the sentence imposed under Romanian law. A warrant which was valid and enforceable at the commencement of the extradition hearing did not become unenforceable merely because extradition might be refused for one or more offences within a merged sentence.

5. The appellant was to be returned to Romania to serve the resulting sentence for all offences.

1. High Court (Administrative Court): The appeal was dismissed and the Romanian judicial authority’s cross-appeal was allowed. The court held that all disputed offences satisfied dual criminality and ordered the appellant’s return to Romania.

2. Westminster Magistrates’ Court: District Judge Zani ordered extradition on nine offences but discharged the appellant on three offences because their descriptions did not compel an inference of dishonesty.