Shazim Nicholas Mohammed & Anor v Law Court of Arad, Romania & Anor

For deliberate absence under section 20(3) of the Extradition Act 2003, the requesting authority must prove, to the criminal standard, a knowing and intelligent awareness of the criminal proceedings and charges, together with an unequivocal intention not to participate in the trial or to escape prosecution. Placing oneself outside the jurisdiction, or failing to notify a change of address, is insufficient by itself.

Where those two elements are proved, the court may infer that the requested person appreciated that a trial in his absence was the only practical option. The timing of the conduct does not of itself make deliberate absence harder to establish. On appeal, a new issue may be considered where it is decisive on the available evidence.

These were conjoined appeals under section 26 of the Extradition Act 2003 against extradition decisions made by District Judge Zani on 20 November 2023 and 7 October 2024.

Both appellants had been convicted in Romania in their absence. The common issue was whether each had deliberately absented himself from his trial under section 20(3). Mohammed raised the issue for the first time on appeal. Oprea challenged the District Judge’s finding that he had deliberately absented himself. Additional grounds concerned prison conditions, oppression, reopening an Article 8 permission decision, and Article 8 proportionality.

1. Mohammed’s appeal allowed. The court could consider the section 20(3) issue although it had not been raised below. Under section 27(2) and (4) of the Extradition Act 2003, the new issue and evidence were admissible because they were capable of being decisive. No adverse inference was drawn from Mohammed’s decision not to give oral evidence.
2. Applying Bertino, deliberate absence requires proof of:
   1. knowing and intelligent awareness of the criminal proceedings and the charges; and
   2. an unequivocal intention, usually proved inferentially, not to participate in the trial or to escape prosecution.
   Merely leaving the country or failing to notify a change of address does not suffice. Once both limbs are established, the court may infer appreciation that a trial in the person’s presence was impracticable or that trial in absentia was the only practical option.
3. Mohammed knew that criminal proceedings had not concluded and that Romania might seek to contact him. However, the evidence did not establish to the criminal standard that his later failure to notify Romania of his changed address reflected an intention to evade prosecution rather than lack of diligence or oversight. His section 20(3) ground therefore succeeded and he was discharged.
4. Oprea’s appeal dismissed. The District Judge was entitled to find deliberate absence. Oprea had been charged, repeatedly informed of his obligation to attend and notify changes of address, contacted about bench warrants, and nevertheless remained outside Romania. His conduct was extreme and demonstrated an intention to evade prosecution and not attend any trial. The fact that the trial date was fixed later, or that an earlier accusation warrant had failed, did not alter that conclusion.
5. The Article 3 challenge failed. The Romanian assurance concerning personal space and prison conditions was adequate on the evidence. The Article 8 grounds also failed. Reopening the earlier refusal of permission was not justified under CPR rule 50.27, and the fresh circumstances in Oprea’s case were not decisive.

• High Court, Administrative Court: District Judge Zani ordered Mohammed’s extradition on 30 November 2023 and ordered Oprea’s extradition following his ruling of 7 October 2024.
• High Court (King’s Bench Division), Divisional Court: Mohammed’s appeal allowed on section 20(3) and he was discharged. Oprea’s appeal dismissed.