VICTOR – MARIAN BANICA v POGOANELE DISTRICT COURT, ROMANIA

Under the Trade and Cooperation Agreement, proportionality in extradition remains part of the overall Article 8 balancing exercise. Article 597 does not create a separate or stricter proportionality bar for conviction warrants, nor does it require an English court to reassess a foreign sentence by substituting its own sentencing view.

Each state is entitled to determine its own sentencing regime. A sentence will justify refusing extradition only in rare and extreme circumstances, where it is clearly or grossly disproportionate. Mutual trust, confidence and good faith remain relevant features of extradition relations. A person who knowingly leaves a country beyond the reach of its legal process may be a fugitive, even if the person did not leave specifically to avoid a sentence.

The appellant appealed, with permission, against a District Judge’s order dated 20 September 2021 directing his extradition to Romania. Romania sought his surrender to serve two years and 10 months’ imprisonment after revocation of a suspended sentence imposed for driving without a licence and failing to provide a specimen.

The appeal concerned whether the proportionality provisions in Title VII of Part 3 of the Trade and Cooperation Agreement required a stricter approach than had applied under the European arrest warrant regime. It also challenged the finding that the appellant was a fugitive and contended that extradition would disproportionately interfere with his and his family’s Article 8 rights.

1. Appeal dismissed. The District Judge had not erred in concluding that extradition was proportionate or in finding that the appellant was a fugitive.
2. Article 597 of the Trade and Cooperation Agreement requires surrender to be necessary and proportionate, taking into account the requested person’s rights and the interests of victims, and having regard to the specified matters. Read with Article 613(1), it establishes a general and contextual evaluation. It does not impose a distinct proportionality bar for conviction warrants based solely on the seriousness of the act, nor does it require the court to conduct a hypothetical English sentencing exercise. The reasoning in Badea v Romanian Judicial Authority was adopted.
3. Article 597 is congruent with the conventional Article 8 balancing exercise. The established authorities, including H(H) v Deputy Public Prosecutor, Norris v Government of the United States (No 2) and Polish Judicial Authority v Celinski, therefore remained applicable. The public interest in extradition will ordinarily outweigh family-life rights unless the consequences are exceptionally severe.
4. A foreign state is entitled to set its own sentencing policy. The United Kingdom court should not second-guess the foreign sentence or substitute its own view. Only rare and extreme cases, involving a sentence that is clearly or grossly disproportionate, could justify looking behind the sentence. This case did not approach that threshold.
5. Mutual trust and confidence, and the presumption that a requesting state acts in good faith, remain established features of extradition relations. The appellant’s departure from Romania, with knowledge that he was being prosecuted and that the trial would proceed without him, deliberately placed him beyond the reach of the Romanian legal process. That satisfied the subjective test for fugitive status. The District Judge’s factual findings were virtually unchallengeable on appeal.

• High Court (Administrative Court): The appeal against the District Judge’s extradition order dated 20 September 2021 was dismissed.