Georgeta Ghinea v Gaesti Law Court, Romania

For extradition based on a conviction, the requesting judicial authority must establish to the criminal standard that Extradition Act 2003, section 20 does not require discharge. Where the requested person exercised an appeal or retrial involving a reconsideration of the merits, that process may constitute the relevant trial resulting in the decision. The arrest warrant must therefore address presence, representation or deliberate absence at the material appeal hearings, not merely at first instance. Mutual trust does not permit the court to treat an ambiguous warrant as proving the statutory requirements. If the warrant fails to do so, the requested person must be discharged under section 20(7).

The appellants appealed separately from District Judge Pilling’s decision of 20 June 2023 ordering their extradition from the United Kingdom to Romania to serve custodial sentences. Permission to appeal was granted by Cavanagh J on 17 April 2024.

The appeal was confined to whether the requesting judicial authority had satisfied section 20 of the Extradition Act 2003. The arrest warrants stated that the appellants had attended the first-instance trial and had exercised an appeal or retrial, but did not state whether they attended or were represented at the material appeal hearings. The central issue was whether the warrants nevertheless proved that section 20(7) was inapplicable.

1. Appeals allowed. The appellants were discharged under section 20(7) and section 27(3)(b) of the Extradition Act 2003.
2. Section 20 implements Article 4a(1) of Council Framework Decision 2002/584/JHA and must be interpreted consistently with that provision and Article 6 ECHR. The requesting judicial authority bore the burden of proving the relevant section 20 questions to the criminal standard.
3. The concept of the trial resulting in the decision includes the final merits-based appeal or retrial where the criminal procedure has several levels of jurisdiction. The first-instance hearing was therefore insufficient because the appellants had exercised an appeal which involved a retrial.
4. The warrants clearly established attendance at the first-instance trial and showed that an appeal or retrial had been exercised. They did not establish what hearings occurred during that process, or whether the appellants attended, were represented, or deliberately absented themselves from those hearings. Deliberate absence had to be understood in accordance with Bertino, as an unequivocal, knowing and intelligent waiver of the right to attend.
5. The principle in Cretu that further information is generally unnecessary where the warrant clearly states that an exception applies did not assist the respondent. The warrants were ambiguous and did not clearly prove that section 20(7) was inapplicable. A cosmopolitan approach to translation and drafting did not justify treating an unclear warrant as conclusive.
6. Under section 27(3)(a) and (b), the District Judge ought to have reached a different conclusion and ordered discharge.

• High Court (Administrative Court): Appeals from the Westminster Magistrates’ Court decision were allowed. The appellants were discharged.
• Westminster Magistrates’ Court: District Judge Pilling ordered extradition on 20 June 2023 following the hearing on 24 May 2023.
• High Court: Permission to appeal was granted by Cavanagh J on 17 April 2024.