LUCIAN FLORIN BADEA v ROMANIAN JUDICIAL AUTHORITY

In a conviction-warrant extradition case, conventional Article 8 proportionality is not displaced by the Trade and Cooperation Agreement. Article 597 requires an overall assessment of whether surrender is necessary and proportionate, taking account of the requested person’s rights, the interests of victims where relevant, and the seriousness of the act, likely penalty and less coercive measures.

Article 597 does not create a separate proportionality bar focused exclusively on seriousness, nor does it require a domestic sentencing exercise or give seriousness determinative weight. The conventional Article 8 balance addresses those matters consistently with Article 597. The statutory proportionality bar in section 21A of the Extradition Act 2003 applies only to accusation warrants.

The appellant challenged an order for his extradition to Romania to serve a merged 15-month custodial sentence for two convictions for driving without a licence. The extradition order had been made by a district judge on 23 September 2021. Permission to appeal was granted on the issue whether the Trade and Cooperation Agreement required a modified Article 8 approach.

The appellant advanced narrow and broader arguments that Article 597 required a distinct proportionality assessment, including particular weight being given to the seriousness of the offending and a putative domestic sentence. The central issue was whether conventional Article 8 proportionality sufficiently implemented Article 597 in a conviction-warrant case.

1. Appeal dismissed. The order for extradition to Romania to serve the 15-month sentence was upheld.
2. The conventional Article 8 balance-sheet exercise is distinct from the statutory proportionality bar in section 21A of the Extradition Act 2003. Section 21A applies only where the requested person has not been convicted. A conviction-warrant case is governed by section 21(1), requiring compatibility with Convention rights.
3. Article 597 of the Trade and Cooperation Agreement is a condition governing the executing judicial authority’s surrender decision under Article 613(1). It requires an overall assessment of whether surrender is necessary and proportionate, taking account of the requested person’s rights and, where relevant, victims’ interests, and having regard to seriousness, likely penalty and less coercive measures.
4. Article 597 is not an exhaustive or prescriptive proportionality bar. It does not require a separate inquiry confined to seriousness of the act, a putative sentencing exercise in the executing state, or determinative weight being given to seriousness. The identified considerations operate contextually and differently in accusation, retrial-conviction and conviction cases.
5. Conventional Article 8 proportionality already takes account of those matters. In a conviction case, the seriousness of the offending may be assessed by reference to the sentence imposed by the issuing state, subject to mutual respect between jurisdictions. No interpretative modification was therefore required.
6. The judge’s observation that he would have discharged the appellant under section 21A had the case been an accusation warrant was not a necessary finding and did not determine the appeal. In any event, the appellant’s multiple offences and previous offending history would have constituted exceptional circumstances under the Criminal Procedure Rules Practice Direction and would have defeated the proposed proportionality-bar argument.

• High Court (Administrative Court) [2022] EWHC 1025 (Admin): appeal dismissed and extradition order upheld.
• Westminster Magistrates’ Court: extradition to Romania ordered on 23 September 2021.