Alin-Ionut Stafi v Judecatoria Roman, Romania

For section 20(3) of the Extradition Act 2003, deliberate absence is a fact-sensitive question requiring consideration of whether the requested person’s own conduct caused the lack of awareness of the hearing and whether he thereby waived the right to attend. A breach of an obligation to notify a change of address may support that inference, but does not automatically establish deliberate absence. The respondent bears the burden of proving the issue to the criminal standard. If deliberate absence is not proved and no entitlement to a retrial exists under section 20(5), discharge is required under section 20(7).

The appellant appealed against an order made by District Judge Branston on 29 April 2021 extraditing him to Romania to serve a three-year sentence for fraud. The extradition request concerned a Romanian decision imposing a consolidated sentence in proceedings conducted in the appellant’s absence.

The District Judge accepted that the appellant had not attended the hearing resulting in that sentence, but proceeded on the basis that he had a right to a retrial. Following a later decision of the Romanian court, the respondent accepted that no such right existed. The appeal therefore required determination of whether the appellant had deliberately absented himself from the relevant hearing within section 20(3) of the Extradition Act 2003.

1. The appeal was allowed. The order for extradition was quashed and the appellant was discharged.
2. Under section 20(3) of the Extradition Act 2003, deliberate absence requires an assessment of the circumstances as a whole. The question is whether it is appropriate to infer that the requested person waived the right to be present. The concept concerns the person’s state of mind and involves a decision made in the light of all material information. It is distinct from being a fugitive.
3. The respondent bears the burden of proving deliberate absence to the criminal standard. Failure to notify relevant authorities of a change of address may, in principle, establish deliberate absence, but each case must be examined on its own facts. Such a breach does not automatically justify the inference.
4. The court accepted that the respondent’s further information could be considered, but found that it did not provide a sufficient evidential basis. The appellant had engaged with proceedings after leaving Romania, had informed the court that he lived and worked in England, and had notified the probation service, which appeared to have initiated the further proceedings. There was no evidence that he knew another hearing was likely or that he had acted evasively to avoid service.
5. Since deliberate absence was not proved, section 20(5) could not be satisfied. Given the accepted absence of any right to a retrial, the District Judge would have been required to order discharge under section 20(7).

• High Court (Administrative Court): allowed the appeal against the District Judge’s extradition order, quashed the order and ordered the appellant’s discharge.
• Magistrates’ Court: District Judge Branston ordered extradition on 29 April 2021, having concluded that section 20 was satisfied and that extradition was compatible with Convention rights.