Toma v Moreni Court (Romania)

On an appeal against an extradition order, the appellate court asks whether the first-instance decision was wrong. Intervention is justified where the judge misapplied legal principles, made a material unreasonable finding, failed to consider a relevant factor, or reached an irrational conclusion. In an Article 8 proportionality assessment, exceptionally serious consequences for an innocent and highly dependent family member may outweigh the public interest in extradition, particularly where the offence is of limited gravity and there has been significant delay. The court must address the material evidence in the balancing exercise and reflect the true seriousness of the consequences. A vulnerable young adult may properly be treated as akin to a child for this purpose.

The appellant challenged an order made by District Judge Curtis at Westminster Magistrates’ Court on 6 June 2023 requiring his extradition to Romania to serve 10 months’ imprisonment for refusing or evading the taking of biological samples. The appeal under section 26 of the Extradition Act 2003 relied on Article 8, principally the effect of extradition on the appellant’s 22-year-old son, who suffered from serious mental health and substance-use disorders and depended extensively on his father. Permission to appeal was granted on the basis that the son’s mental health and dependency might not have been properly considered. The central issue was whether the District Judge had made the wrong decision in finding extradition proportionate.

1. The appeal was allowed. The question under section 26 of the Extradition Act 2003 was whether the District Judge had made the wrong decision. The appellate approach identified in Belbin v Regional Court of Lille, France [2015] EWHC 149 (Admin), endorsed in Polish Judicial Authority v Celinski [2015] EWHC 1274 (Admin), and informed by In Re B (A Child) (Care Proceedings: Threshold Criteria) [2013] UKSC 33, required consideration of whether the conclusion was wrong, rather than merely whether another conclusion was possible.
2. The District Judge had not improperly discounted the son’s mental illness because it was connected with cannabis use, nor had he speculated about NHS support. The evidence did not clearly establish that the son’s deterioration was caused by the appellant’s earlier imprisonment.
3. However, the District Judge failed adequately to reflect in the proportionality balance the unchallenged psychiatric evidence that, without his father, the son was highly likely to stop taking medication and faced a high risk of fatal misadventure. The son’s vulnerabilities justified treating him as akin to a child.
4. The circumstances engaged the principle identified in Norris v Government of the United States of America [2010] UKSC, namely that exceptionally serious interference with Article 8 rights, especially where the extraditee has sole responsibility for an incapacitated family member, may outweigh extradition.
5. The offence was not trivial but was of limited gravity, involved no injury, loss or property damage, and would unlikely have crossed the custody threshold applying domestic sentencing guidance. Significant delay, prior compliance with probation, the period spent on tagged curfew and the appellant’s strong UK ties further reduced the public interest in extradition, consistently with Prusianu v Braila Court of Law (Romania) [2022] EWHC 192 (Admin) and HH v Deputy Prosecutor of the Italian Republic, Genoa [2022] UKSC 25. Reconsidering the matters in the round, extradition was disproportionate.

• High Court (Administrative Court): District Judge Curtis ordered extradition at Westminster Magistrates’ Court on 6 June 2023. The High Court allowed the section 26 appeal on 24 January 2024.