Ion Aileni v Suceava Court of Law

In assessing reasonable arguability in an extradition appeal, the court must test the proposed substantive appeal on the most favourable assumptions reasonably available at the hearing. It should not project forward to assume that a later change in law or circumstances will improve the case, unless there is already a well-founded basis for permission or a stay. Article 8 factors must be assessed cumulatively, including the likely custodial period, early-release prospects, delay, family impact, health and conduct. Where the offence is serious and public-interest factors strongly favour extradition, those matters may remain incapable of outweighing the extradition interest, even cumulatively.

The appellant challenged an order for his extradition to Romania following a conviction for causing death by dangerous driving and driving over the legal alcohol limit. He renewed an application for permission to appeal on Article 8 grounds after permission had been refused on paper by Garnham J.

He relied on late evidence concerning the effect of Romanian law on a tagged curfew and eligibility for early release. He also sought a stay pending developments in related extradition litigation. The central issue was whether, even adopting the assumptions most favourable to him, the proposed Article 8 appeal was reasonably arguable.

1. Applications refused. The renewed application for permission to appeal, the application based on putative fresh evidence and the application for a stay were refused.
2. For the purpose of assessing reasonable arguability, the court assumed that the appellant would serve only 4½ months in custody in Romania and would then be likely, or entitled, to obtain early release. That favourable assumption did not make the appeal reasonably arguable.
3. The court rejected a bootstraps approach based on projecting forward to a later hearing after a possible Supreme Court decision. Before such future implications can properly be considered, there must be a well-founded basis for permission to appeal or for a stay. The court relied on the reasoning in Molik v Poland [2020] EWHC 2836 (Admin).
4. Article 8 considerations had to be examined in combination. Relevant matters included the passage of time, the appellant’s failure to notify the Romanian authorities of his change of address, his lack of further offending, his physical health, his long marriage, the impact on his wife and the resulting hardship.
5. Those matters could not reasonably be regarded as capable of outweighing the strong public-interest considerations supporting extradition, having regard particularly to the seriousness of the index offending and the circumstances explaining the passage of time. The fresh evidence was therefore incapable of being decisive, and there was no basis for a stay.

• District Judge: District Judge Snow ordered the appellant’s extradition in a judgment containing 55 paragraphs.
• High Court: Garnham J refused permission to appeal on the papers, while treating the challenge to the finding of fugitivity as arguable and concluding that the appeal would nevertheless inevitably fail on Article 8 grounds.
• High Court (Administrative Court): Fordham J refused the renewed application for permission to appeal and the applications for a stay and reliance on putative fresh evidence.