Alexandru Maciuca v District Court of Bacau, Romania

For Extradition Act 2003 section 20(3), deliberate absence from trial requires proof to the criminal standard that the requested person unequivocally waived the right to attend, knowingly and intelligently. An express warning of trial in absence is not invariably required, but considerable caution is necessary and extreme conduct may be needed before waiver can be inferred. Mere fault in remaining unaware of the trial date is insufficient.

Where section 20(5) is engaged, a retrial right is not established if it depends on a future finding by the requesting state that the person was not deliberately absent. On an appeal against a proportionality decision, post-hearing events normally cannot show that a decision was wrong when made.

The appellant appealed against a District Judge’s order for his extradition to Romania to serve a sentence imposed following conviction in his absence for theft of a motor vehicle and driving without a licence.

The appeal concerned the application of Extradition Act 2003 sections 20 and 21. The appellant challenged the finding that he had deliberately absented himself from trial, the alternative conclusion concerning entitlement to a retrial, and the proportionality assessment under his Convention rights. He also relied on later evidence concerning changes in his family circumstances.

1. Appeal dismissed. The District Judge had been entitled to find that the appellant deliberately absented himself from his trial for section 20(3). The applicable question, following Bertino v Public Prosecutor’s Office, Italy [2024] UKSC 9, was whether the requesting authority had proved that the appellant unequivocally waived his right to attend trial in a knowing and intelligent way.

2. The distinction between avoiding custody and waiving the right to attend trial was real, but the former could, depending on the facts, evidence the latter. Relevant circumstances included the advanced stage of the proceedings, the appellant’s formal status as defendant, his knowledge of the charges, his departure shortly after reporting obligations ended, his dishonest account of his understanding, his admitted offending, and his use of an address at which he could not be contacted. Taken together, those matters justified the inference of deliberate absence.

3. The alternative section 20(5) conclusion was wrong, although the issue did not arise because deliberate absence had been established. A right to retrial is not present where entitlement depends on the requesting court later accepting that the person was not deliberately absent. The warrant’s completed box 3.4 would ordinarily be conclusive. Here, the inconsistent completion of boxes 3.1a and 3.4 created sufficient ambiguity to permit examination of the evidence, which showed that no retrial right existed.

4. The proportionality conclusion under section 21 was not wrong. The District Judge was entitled to attach substantial weight to the public interest in extradition, the seriousness of the offending, respect for Romanian sentencing policy, the appellant’s continuing offending, and the absence of culpable delay by Romania. The impact on the appellant’s partner and children, and the possibility that he would need leave to re-enter the United Kingdom, did not outweigh those factors.

5. The appellate court ordinarily assesses whether the lower court was wrong by reference to circumstances existing at the time of its decision. Post-hearing events will not normally assist under section 27(4)(a), absent an unusual circumstance or reliance on section 25. The later evidence did not alter the outcome in any event.

• High Court (Administrative Court): appeal against the District Judge’s extradition order dismissed. The judgment under appeal was delivered on 29 June 2023.