NICOLETTA PRUSIANU v BRAILA COURT OF LAW

Under section 13(b) of the Extradition Act 2003, “gender” can include the gender identity of a transgender person. The bar requires cogent evidence of a reasonable chance that a state authority will prejudice a retrial, or punish, detain or restrict liberty, by reason of a protected characteristic. General evidence of social discrimination is insufficient without a causal link. Genuine protective measures for a vulnerable prisoner are not themselves discriminatory restrictions. Assurance defects during an initial quarantine period can materially affect Article 8 proportionality. Extradition interests, fugitivity, sentence, ties, dignity and prison risks must be balanced cumulatively. On the special facts, the low seriousness of the offending and defects in the assurances made extradition disproportionate.

This was an appeal against District Judge Griffiths’s order for extradition to Romania. The appellant, a transgender woman of Roma ethnicity, had been convicted in her absence and sentenced to 12 months’ imprisonment for five shoplifting incidents. Romania provided assurances concerning her detention, vulnerability assessment and protection from discrimination.

The appeal raised issues under sections 13, 21, 25 and 27 of the Extradition Act 2003, including discrimination, physical or mental condition, fresh evidence and Article 8 proportionality. The Article 3 ground remained stayed. The central questions were whether the statutory bars applied and whether extradition would be a disproportionate interference with private life.

1. Disposition. The fresh evidence was admitted. The appeal was dismissed on the section 13 and section 25 grounds, but allowed under section 21 of the Extradition Act 2003 because extradition would disproportionately interfere with Article 8 rights. The stayed Article 3 ground therefore did not require determination.
2. Section 13. “Gender” in section 13(b) has an ordinary and natural meaning broad enough to include a transgender woman or man. The provision requires cogent evidence establishing a reasonable chance of prejudice at retrial, or of punishment, detention or restriction of liberty by a requesting-state authority, by reason of a protected characteristic. General evidence of societal discrimination did not establish the necessary causal link. Genuine protective measures designed to protect a vulnerable prisoner from discriminatory harm by other prisoners were not restrictions imposed by reason of the protected characteristic. The court also indicated, obiter, that custodial policies connected with the criminal process might fall within section 13(b), even if not imposed by the sentencing judge. The ground failed for lack of evidence.
3. Article 8. Applying the appellate approach in Love v USA [2018] EWHC 172 (Admin), the court reconsidered all the evidence, including the fresh evidence. The public interest in extradition, the appellant’s fugitivity, the sentence and her limited UK ties weighed strongly in favour of extradition. Against that were the low seriousness of the offending, the protection gap during the 21-day quarantine period, the absence of an initial vulnerability assessment, the assurances’ treatment of the appellant as male, and the impact on her dignity, identity and private life. The cumulative factors against extradition outweighed the public interest.
4. Section 25. “Physical or mental condition” might extend beyond health, but the boundary did not require decision. Even assuming the appellant’s physical condition fell within the provision, it did not meet the high threshold of oppression. Article 8 disproportionality did not itself establish section 25 oppression.

There was no order for costs, save for detailed assessment of the appellant’s publicly funded costs.

1. High Court (Administrative Court). On appeal from District Judge Griffiths’s extradition order dated 5 October 2021, the court dismissed the section 13 and section 25 grounds and allowed the Article 8 ground under section 21 of the Extradition Act 2003. The Article 3 ground was not determined.