Marinescu Fourth District Court in Bucharest

An extradition appeal is concerned with whether the district judge was wrong in the legally recognised sense. It is not a rehearing or an opportunity to rebalance the evidence.

For decision in absentia, deliberate absence requires a voluntary, unequivocal, knowing and intelligent waiver of the right to attend. Mere fugitivity or lack of diligence is insufficient, but informed conduct showing that the defendant knowingly placed himself beyond the authorities may establish waiver.

Fresh evidence is admissible only under a strict test: it must have been unavailable or unobtainable with reasonable diligence at the hearing, and must be capable of requiring the person’s discharge. Relitigation arising from a reissued warrant requires a broad, merits-based assessment of all relevant public and private interests.

Mr Marinescu appealed a District Judge’s order for his extradition to Romania to serve a four-year sentence for fraud. The sentence followed Romanian proceedings in which he had pleaded guilty, failed to attend the sentencing hearing, and later failed to maintain contact with the authorities. A prosecution appeal removed the suspension of the sentence.

An earlier extradition warrant had been discharged for lack of particularity. Romania then issued a reissued warrant containing further details. The District Judge ordered extradition on the reissued warrant and rejected challenges based on decision in absentia, Article 8, and abuse of process.

The High Court considered whether the District Judge had been wrong, whether later family and health evidence should be admitted, and whether the second extradition proceedings constituted impermissible relitigation.

1. Appeal dismissed. The appeal court’s task was to decide whether the District Judge had been wrong, not to rehear the case or recalibrate the weight given to competing factors. The District Judge’s factual findings were entitled to respect unless they were not properly open to him.
2. Under Extradition Act 2003, section 20, deliberate absence requires a voluntary, unequivocal, knowing and intelligent waiver of the right to attend. Mere fugitivity or a failure to act diligently is insufficient. The relevant circumstances may nevertheless establish waiver without proof of actual knowledge of the precise hearing where the defendant knowingly disengaged from proceedings, understood that conviction and sentence would follow, and deliberately placed himself beyond the authorities.
3. On the findings, Mr Marinescu had attended proceedings, pleaded guilty, made submissions on sentence, understood that conviction and sentence remained outstanding, and left Romania without maintaining contact. His conduct was not mere or ignorant fugitivity. It established deliberate absence from the later sentencing procedure for section 20 purposes.
4. For an Article 8 challenge, the appellate question remained whether the District Judge’s proportionality conclusion was wrong. The District Judge had identified and balanced the public interest in extradition, the seriousness of the offending and the appellant’s fugitivity against the interests of his child, wife and parents. His conclusion was within the range of conclusions properly open to him.
5. Fresh evidence was subject to the strict test in Fenyvesi. The updated family evidence did not show a sufficiently definitive or determinative change capable of requiring discharge. It was therefore refused admission.
6. Relitigation following a reissued warrant required a broad, merits-based assessment. A warrant reissued to remedy a defect was not intrinsically an abuse or a collateral attack. The expression collateral attack should be reserved for avoidance devices or backdoor attempts to obtain a different result from an existing order or appeal route. The reissued warrant here was a proper front-door procedure, and the District Judge’s conclusion disclosed no error.

• High Court (Administrative Court): appeal against the District Judge’s extradition order dismissed. The court upheld the findings on deliberate absence, Article 8, fresh evidence and abuse of process.
• District Judge: extradition ordered on 25 October 2023 following the reissued warrant.
• Earlier District Judge decision: the original warrant was discharged on 18 July 2022 for lack of particularity; permission to appeal was refused on 7 October 2022.