Mr Watson submitted in writing that the Arrest Warrant proceeds on the footing that Mr Mohammed did not deliberately absent himself from his trial, and there is no basis for looking behind it or considering the recent Further Information to supplement it. He did not press that submission orally. In my view, the Arrest Warrant was not directed to the issue of deliberate absence under our domestic law. In any event, for reasons which I will explain in due course, the recent Further Information and fresh evidence is admissible in these circumstances.

Mr Watson’s primary submission, which he developed forcefully in oral argument in response to persistent questioning from the Court, was that the most that can be said against Mr Mohammed is that he acted with a lack of due diligence. There is no or insufficient evidence that Mr Mohammed unequivocally waived his rights with the requisite accompanying mental element: i.e. that he was knowing and intelligent, and appreciated the consequences of his behaviour. I will address the specific arguments he raised during the course of my analysis of the evidence.

In my judgment, the point of departure for a correct analysis of this case is to recall that the s. 20 issue was not raised by Mr Mohammed before the District Judge. Accordingly, section 27, sub-sections (2) and (4) of the 2003 Act apply:

As the issue was not raised below, I consider that (1) Romania is entitled to adduce further evidence to address it (as it has done) and (2) the principles laid down by this Court (Sir Anthony May P. and Silber J) in The Szombathely City Court and others v Fenyvesi [2009] EWHC 231 (Admin) apply. I do not accept that the approach followed by this Court in Hoholm v Government of Norway [2009] EWHC 1513 (Admin) is applicable, because that was a case which turned on a pure point of law. In short, this Court should only allow an appeal on the basis of an issue not raised below if on all the evidence it is in a position to assess that the new issue is “decisive”.

Mr Smith fairly conceded that the new issue is capable of being decisive and that we should therefore consider it. In light of our concerns about the difficulties that would arise in a case where Mr Mohammed had not been cross-examined before the District Judge on the issue of deliberate absence, towards the end of the first day of the hearing my Lord raised the possibility of Mr Mohammed giving oral evidence before us which could then be tested. Mr Smith favoured that proposal; Mr Watson did not. At the conclusion of proceedings on the first day, we ruled that there should not be an adjournment and that Mr Mohammed should be given the opportunity to testify, if so advised, at 2pm the following day.

At 2pm on the second day of the hearing Mr Watson invited us to reconsider that ruling. His primary submission was that in the circumstances of this case Mr Mohammed should not give evidence. It was not Mr Mohammed’s fault that he found himself in this position, and Mr Smith had made no such application in advance of the hearing. In the alternative, he advanced various submissions in support of the proposition that it would be unfair to put Mr Mohammed to his election without giving him a proper opportunity to take stock, ascertain whether relevant documents were available etc.

In the face of these arguments, the Court acceded to Mr Watson’s primary submission, and also indicated that no adverse inference would be drawn from Mr Mohammed not giving evidence. The circumstances of this case are unusual and our ruling was not intended to lay down a general principle. It follows that the Court will have to do the best it can on the available evidence, drawing inferences where appropriate.

In my judgment, it is clear that on 3 December 2018 Mr Mohammed was informed in English of his obligations under Article 108 of the Criminal Code. The fact that he was asked to provide his home address could only have been in the context of that provision and he must have appreciated the purpose of the request. He was then given a choice: either be held in custody for 2 weeks pending further investigations, or be given conditional bail for 2 months on the same premise. At the conclusion of the 2 month period, the couple’s passports were returned and Mr Mohammed and Ms Suneechur were permitted to leave Romania. I cannot begin to accept their evidence that they were told that the matter was concluded or “done” and/or that the 2 month period somehow represented a sentence predicated on a finding of guilt. The District Judge came to the same view as regards Mr Mohammed but not Ms Suneechur (in respect of whom he expressed no conclusion either way). Further, I accept Mr Smith’s submission that the evidence before this Court is more complete. It follows that Mr Mohammed must have known that the matter had not gone away and that Romania would likely be seeking to contact him in the UK. As he said in his proof of evidence, he just wanted to forget about it.

I have pondered long and hard on this issue, not least because the adverse finding I have made has obvious repercussions for Mr Mohammed’s credibility more generally. However, I see the force of Mr Watson’s submission that the Article 108 warning, which on any view did not cover the possibility of a trial proceeding in absentia, does not appear to have been repeated to Mr Mohammed on or shortly before his departure from Romania. That warning was given to Ms Suneechur on 28 January 2019 when she was formally interviewed, but in my judgment it is a step too far, in the context of the criminal standard of proof, to conclude that Mr Mohammed was aware of it. I am not ignoring the fact that in her evidence before the District Judge Ms Suneechur stated that she was interviewed on the same date as her husband (i.e. on 3 December 2018) and that her evidence below does not address the possibility that she was interviewed on 28 January 2019, whether for the first or the second time; but the court file gives only the latter date. An additional complicating factor is that it would make obvious sense for Romania to reiterate an accused’s obligations under Article 108 at the time he is about to leave the country. Even so, I cannot proceed on the basis that Romania did so: the available information (pace one submission made by Mr Smith to the effect that Mr Mohammed was re-interviewed on 28 January) does not indicate that this happened.

The inferences to be drawn as to Mr Mohammed’s state of mind at the time he left Romania are different from those that arose in Mr Maciuca’s case where a false address was given. Mr Mohammed had, it seems, provided his correct home address in the UK. Furthermore, it is unclear when he and his wife left that address or what his state of mind was at that point.

In order to conclude that Mr Mohammed was deliberately absent from his trial, it would be necessary to draw the inference that when he changed address his failure to notify Romania indicated an intention to evade prosecution rather than a lack of diligence or oversight. The previous history, including my adverse credibility finding, remains relevant but it is not determinative. Not without some hesitation, I have reached the conclusion that this inference cannot be drawn to the criminal standard.

It follows that Mr Mohammed’s s. 20(3) ground succeeds, and that is sufficient for his purposes for his appeal to be allowed.

Mr Perry’s submissions were, as ever, erudite, helpful and realistic.

Mr Perry placed considerable reliance on the fact that the jurisprudence of the ECtHR which formed the basis of the Supreme Court’s decision in Bertino was in its turn influenced by Lord Rodger’s dissenting opinion in R v Jones [2003] 1 AC 1, a case which went before the Strasbourg Court as Jones v UK [2003] 37 EHRR CD269. However, I do not consider that Lord Rodger’s opinion should bear that weight, not least because the cultural context was very different a generation ago.

Mr Perry was critical of the District Judge’s reasoning, in particular what he submitted to be key omissions. For example, he contended that it was highly relevant that Mr Oprea was tried in his absence after he had been discharged on the accusation warrant relating to the same offending. Mr Perry submitted that the critical date for these purposes was either the June or September 2017 date I have previously mentioned. It follows, he argued, either that everything that took place before then was irrelevant, or that the District Judge was wrong to draw the inference that Mr Oprea possessed the requisite degree of intention and/or apprehended that a trial in his absence was the only option.

Mr Smith contended that the correct starting point for a consideration of Mr Oprea’s conduct and the inferences to be drawn from it is the January 2015 date when Mr Oprea was formally charged. He submitted that the District Judge was entitled to conclude on all the evidence that Mr Oprea had evinced an intention to evade prosecution and not to attend any trial, come what may.

The issue for us is whether the decision of the District Judge was wrong on this issue: see the decision of this Court (Lord Thomas CJ, Ryder LJ and Ouseley J) in Polish Judicial Authorities v Celinski [2015] EWHC 1274 (Admin); [2016] 1 WLR 551, at para 24 in particular.

The District Judge referred in terms to para 58 of Bertino. He correctly understood that this was not a case where Romania could prove that Mr Oprea was warned that his trial might proceed in his absence. The District Judge concluded that Mr Oprea was not an honest witness, and in my view that was hardly a surprising finding. This was, frankly, an egregious case of a man seeking to play the system for as long as he could get away with it, harbouring at all material times no intention of attending his trial in Romania whenever that may happen to be. There was a plethora of bench warrants and several telephone calls, the existence of which Mr Oprea denied. In the circumstances of this case, which clearly do meet the threshold of extreme conduct, the entirety of his conduct after January 2015 is relevant even if, contrary to Mr Smith’s submissions and my finding, Mr Oprea was not in fact charged until 2017. Furthermore, I cannot accept Mr Perry’s submission that the failure of the accusation warrant is relevant to Mr Oprea’s intention. That was not a point that was taken below, and in any event I consider that it is no more than neutral.

There is some force in the contention that the District Judge’s reasons were relatively brief and that he did not cover the whole evidential terrain. However, the issue for us on this appeal is not whether Mr Oprea might have a reasons challenge but whether the outcome was wrong. In my judgment, the District Judge’s core conclusions were fair and reasonable in all the circumstances, and I would therefore reject Mr Oprea’s submissions on the s. 20 issue.

In light of my conclusion on the deliberate absence issue, it is unnecessary to address Mr Mohammed’s argument based on oppression/passage of time. It suffices to say that, had I reached a different conclusion on Mr Mohammed’s principal ground, I would not have upheld his s. 14 argument.

In the circumstances that have arisen, I will deal quite briefly with Mr Mohammed’s other grounds.

The District Judge set out in some detail the familiar case law on Article 3 in the context of prison conditions. Romania has lost the benefit of the presumption of ECHR compliance in relation to its prison estate. Romania gave an assurance issued by the National Administration of Penitentiaries (“the NPA”) on 24 May 2023 that Mr Mohammed would be guaranteed at least 3 square metres of personal space excluding toilet facilities. After the standard initial period of 21 days “in quarantine” at Bucureşti-Rahova, he will likely serve his sentence in Bucureşti-Jilava prison, in the first instance in the semi-open regime. Further, after serving one-fifth of his sentence he may be transferred to the open regime at the same institution where conditions are less restrictive.

The District Judge said that there was “little value or weight” to be accorded to the report of Mr George Tugushi filed on behalf of Mr Mohammed. This was because Mr Tugushi had not visited any prison within the Romanian prison estate and was reliant on no more than open source material. Further, as the District Judge put it, he was not an expert in Romanian prisons having no direct experience of them and not having inspected them for the purpose of this case: see Brazuks v Latvia [2014] EWHC 1021 (Admin).

The District Judge, having stated in terms that the presumption did not apply, gave the following reasons for rejecting Mr Mohammed’s Article 3 challenge:

Mr Watson advanced three submissions in support of his Article 3 ground. First, he argued that the District Judge adopted “too stringent” an approach to the issues given that the presumption does not apply and the assurance was provided by a non-judicial authority. Secondly, he submitted that the District Judge erred in principle in dismissing Mr Tugushi’s report in the way in which he did, particularly in circumstances where Mr Mohammed’s representatives had obtained prior authority for Mr Tugushi to inspect the relevant prison and the lower Court had directed the CPS to communicate that request to Romania. There had been no subsequent communication from the CPS. Thirdly, he argued that the District Judge was wrong to place uncritical reliance on the assurance having regard to Mr Tugushi’s report and other objective evidence bearing on material conditions in Romanian prisons generally. For example, there was evidence of overcrowding, seriously deficient material conditions, widespread violence and a severe shortage of medical and psychiatric staff. At the time of Mr Tugishi’s report, Bucuresti-Jilava had an occupancy rate of 138.5%.

The leading recent cases in this Court on Romanian prison conditions are Marinescu and others v Judecatoria Neamt, Romania [2022] EWHC 2317 (Admin) (Holroyde LJ and Saini J) and Gurău v Suceava District Court, Romania [2024] EWHC 1924 (Admin) (Holroyde LJ and Jay J). Gurău was not available to the District Judge but it did no more than summarise Marinescu. Only a brief encapsulation of the operative principles is required because this Court is extremely familiar with them and they are not in dispute:

I see no force in Mr Watson’s first submission. The District Judge directed himself accurately on the relevant case law and the principles to be derived from it, and was well aware that Romania had lost the benefit of the presumption – hence the need to consider the reliability of the assurances given. Further, the assurance given in this case was by the same individual who had provided it in Marinescu.

As for Mr Watson’s second argument, Mr Tugushi has given expert evidence in other cases of which the members of this Court are variously aware although these did not involve Romania. Mr Watson mentioned Ciorici and others v Government of Moldova [2024] EWHC 809 (Admin), where this Court (Coulson LJ and Jay J) had the following to say about Mr Tugushi’s evidence in that case (he had visited the prisons in issue):

On 24 October 2023 the CPS explained to Mr Mohammed’s solicitor that “my understanding is that [Romania] will refuse to allow your expert to inspect the Romania prison estate due to Romanian law”. Mr Watson did not seek to question this understanding. In my view, Mr Smith was right to submit that, given his lack of direct experience of Romanian prisons and law, Mr Tugushi could do no more than comment on the open source material. It may have contained a convincing analysis of that material, but it did not constitute independent evidence in its own right. I do not read the District Judge’s decision as amounting to a conclusion that the open source material should itself be given little weight because it has been mediated through Mr Tugushi.

Mr Watson’s third submission was based on the contents of Mr Tugushi’s report and/or the underlying open source material, including in particular CPT reports, to which Mr Tugushi referred. This submission was, in reality, a reprise of the arguments this Court has previously considered and ruled on in connection with overcrowding, material conditions, staff shortages and inter-prisoner violence across the Romanian prison estate. The only piece of additional information Mr Tugushi adds is that according to official data published by the NPA on 17 October 2023, Bucureşti-Jilava prison has 725 places which were being occupied by 1,004 inmates (this supports the 138.5% overcrowding figure to which I have already alluded, although it is based on the premise of 4 square metres per inmate rather than 3). The remainder of Mr Tugushi’s report does not address this particular institution.

I deal with just two of the specific points that Mr Watson advanced. First, he made limited criticisms of the regime at Bucureşti-Rahova prison based on the 2021 CPT report. However, the assurance in the present case is the same as those given in Marinescu and Gurău where this Court held that they were adequate. Secondly, Mr Watson submitted that a bland, generic assurance dealing with healthcare was insufficient to deal with Mr Mohammed’s PTSD and depression. According to Dr Paula Rothermel’s report dated 11 October 2023, Mr Mohammed at that stage met the diagnostic criteria for PTSD although he was not receiving treatment. Dr Rothermel’s opinion was that extradition to Romania would result in a significant deterioration in his mental health. Before the District Judge Mr Mohammed’s mental health was not raised in the context of Article 3. Romania’s assurance, although somewhat generic, indicates that psychiatric and/or psychological treatments would be available. Moreover, there is force in Mr Smith’s submission that the context is relevant both here and more generally, namely of incarceration in semi-open and then open conditions. Overall, I am unable to conclude that the District Judge’s decision was wrong on this aspect of the case.

The District Judge’s reasons on Article 3 were somewhat brief. I have therefore examined all the available evidence albeit in the context of being part of a constitution of this Court which has performed a similar exercise last year. This, combined with the fact that Mr Mohammed’s appeal is being allowed on another ground, has meant that a lengthy judgment on the Article 3 issue has not been required.

Overall, in my judgment the District Judge was correct to conclude that there is no reason to doubt the assurance given in this case. It follows that Mr Mohammed’s Article 3 challenge must fail.

Permission was refused on the papers by Hill J on 24 May 2024. Renewal grounds were lodged and the hearing was listed before me on 24 September 2024. No one attended on that occasion and so I refused the renewed application. On 22 January 2025 Mr Mohammed applied to re-open the Article 8 ground. It was submitted in writing that there had been an email from the Court listing the oral renewal but this had been overlooked. The Court had sent an email on 10 July listing the oral renewal on 24 September. It appears that Mr Mohammed’s solicitor either did not read the email or diarise its contents. The application to re-open was not made until January this year.

The power to re-open a decision of the High Court in these circumstances is set out in CPR r. 50.27 which provides:

In Rexha v Serious Organised Crime Agency [2012] EWHC 3397 (Admin), Ouseley J stated that the jurisdiction to re-open was only to be exercised “very sparingly and … in cases which truly warrant it”. A similar point was made by Burnett LJ (as he then was) sitting in this Court in USA v Bowen [2015] EWHC 1873 (Admin).

Mr Watson relied on his skeleton argument. He submitted that this is an exceptional case where the Court should re-open my decision refusing permission to appeal in the interests of justice. Mr Watson relied on the further delay that has accrued since the refusal of permission, the development and strength of the relationship between father and son, the possibility that the period of remand on conditional bail will be deducted from the sentence to be served if he is surrendered, Mr Mohammed’s eligibility for discretionary early release after serving two-thirds of a custodial sentence, and the relative lack of gravity of the index offence.

I tend to agree with Mr David Ball (whose submissions were succinct, clear and helpful) that Mr Mohammed cannot bring his case within the terms of r. 50.27. However, I have considered the merits of his Article 8 case in light of all Mr Watson’s submissions and the careful balancing exercise conducted by the District Judge. The latter considered all relevant factors placed before him and in my view came to a conclusion that he was fully entitled to reach. In particular, the District Judge considered the seriousness of the index offence and Mr Mohammed’s role in it, as well as the expert evidence relating to his own mental health and the position of his young son. Further, the District Judge expressly addressed the fact that Mr Mohammed has been on conditional bail in this country for an extended period.

The District Judge did not deal in terms with the consideration that Mr Mohammed would be eligible for discretionary early release after serving two-thirds of a custodial sentence. That issue has very recently been considered by the Supreme Court, Lords Lloyd-Jones and Stephens JJSC giving the joint judgment of the Court, in Andrysiewicz v Circuit Court in Lodz, Poland [2025] UKSC 23. In short, the bare possibility of early release in a case such as the present should be considered but only in rare cases would the Court be in a position to make any useful prediction as to the likelihood of the outcome of any such application being made in Romania in due course. That is dispositive of the point but in my judgment, even if Mr Mohammed should have a good chance of being released at the two-thirds point, it is very difficult to see what difference that might make to the Article 8 balance. Mr Watson, having drawn Andrysiewicz to our attention, did not press this point in oral argument.

It should also be noted that at para 43 of its judgment in Andrysiewicz the Supreme Court added this:

For all these reasons, I would decline to re-open my decision to refuse permission to appeal on the Article 8 ground.

Mr Perry relies on the following considerations fully set out in his written argument. Mr Oprea is in regular employment; he has a wife and two young children in this country; his wife suffers from depression and her immediate family have moved to Canada; there have been significant delays in the extradition proceedings; the index offences are stale and nothing happened between 2018 and 2024; and, Mr Oprea has been subject to restrictive bail conditions including in particular an electronically monitored curfew since May 2024. As Pabian v Poland [2024] EWHC 2431 (Admin) makes clear, delay is salient in the following circumstances:

In this regard, Mr Perry submitted that circumstances have changed since the date of the District Judge’s decision. The birth of the second child and the family’s move to Canada post-dated it. It follows, he contended, that the Court should conduct the balancing exercise for itself.

In my judgment, the correct approach is somewhat different. The first question to address is whether Mr Oprea can demonstrate that the balancing exercise carried out by the District Judge on the material available to him was wrong in the Celinski sense. If that burden of persuasion cannot be discharged the second question is whether the fresh evidence – in other words, the change in circumstances since the date of the District Judge’s decision – is “decisive” in the Fenyvesi sense.

It is undoubtedly the case that extradition will bring considerable hardship to Mr Oprea’s wife and young family. There are other factors militating against extradition which the District Judge enumerated. However, the District Judge found that Mr Oprea is a fugitive and that finding is not appealed. Mr Smith addresses the period of delay between 2018 and 2024 by observing that between those dates “it is not clear where the Appellant was”. That submission is not particularly convincing inasmuch as it was known where Mr Oprea was between 2016 and 2018, he is unlikely to have travelled elsewhere, and any steps taken to attempt to find him in the UK have not been identified beyond asserting that “constant enquiries” were made with the Centre for International Police Co-Operation on the Status of EAW Enforcement. That having been said, any delay by a Respondent in circumstances where an Appellant is found to be a fugitive carries very little weight. Mr Oprea evaded justice and deliberately absented himself from his trial in circumstances which in my view, which the District Judge no doubt shared, were egregious. Furthermore, although now stale, this was serious offending carrying with it a strong public interest in favour of extradition. In my judgment, there is no basis for holding that the District Judge’s decision was wrong, still less so in light of para 43 of the Supreme Court’s decision in Andrysiewicz.

The compassionate circumstances of this case have moved slightly in Mr Oprea’s favour since October 2024 but not significantly so. In my opinion, it cannot be said that the change of circumstances in a case such as this should be envisaged as being “decisive”.

For all these reasons, Mr Oprea’s Article 8 ground must be rejected.

If my Lord agrees, I would allow Mr Mohammed’s appeal but only on his ground under s. 20(3) of the 2003 Act. It follows that he is discharged.

Mr Oprea’s appeal fails.

I am very grateful to Mr Justice Jay for his clear and comprehensive judgment. I agree with his reasoning and conclusions, and therefore agree with him as to the disposal of these appeals. I wish only to add the following observations.

First, I agree with Mr Justice Jay’s rejection (at [41] above) of the submission that the further away one is from a specific trial date, the harder it will be for a requesting state to prove deliberate absence. As time passes before a specific trial date is fixed, the requested person may of course act in ways which may be said to be inconsistent with an unequivocal waiver of his right to be present at his trial; and in that sense, it may become harder for the requesting state to discharge the burden of proof of deliberate absence to the criminal standard. But that is a different point. If the submission made in this case were correct, it would confer a wholly undeserved advantage on those who make an earlier, rather than a later, decision that they will in no circumstances attend a trial, wherever and whenever it may be, and will do all they can to avoid prosecution.

It follows that, if the evidence compels the inference that a requested person has “put [himself] beyond the jurisdiction of the prosecuting and judicial authorities in a knowing and intelligent way with the result that for practical purposes a trial with [him] present would not be possible” (Bertino at [58]), he cannot profit from the fact that he did so at an early stage.

Secondly, I endorse the principle stated by Mr Justice Jay at [53] above as to the approach to be taken by this court when an issue is raised which was not raised below.

Thirdly, at [54] to [56] above Mr Justice Jay has recorded the circumstances in which Mr Mohammed was given an opportunity to give oral evidence if he wished, but in the event did not do so. The point had arisen at a late stage, and I make no criticism of any of the parties. The consequence was, however, as Mr Justice Jay has noted: the court had to do the best it could on the available evidence. That was unsatisfactory, because none of the available evidence had specifically been addressed to a s. 20(3) point which had not then arisen, and there had been no cross-examination specifically directed to that point.

I therefore give the following guidance for future cases. In most cases, of course, no question arises of this court hearing oral evidence on an appeal in an extradition case. But if an issue is permissibly raised on appeal which had not been raised in the magistrates’ court, it may – exceptionally – be necessary for the court to hear oral evidence specifically directed to that issue. The danger, otherwise, is that one or other party will be unfairly disadvantaged by the court being left to consider what inferences about the new issue can safely be drawn from evidence addressed to other issues.

The parties should therefore consider, on a fact-specific basis, whether in a particular case this court should be invited to receive fresh oral evidence specifically directed to the new issue. Early consideration of that question will enable the parties, and the court, to consider whether the existing evidence – untested by cross-examination on the specific point – provides a safe basis for a fair resolution of an issue which was not before the lower court when that evidence was given.

Lastly, I wish to add my own thanks to counsel for their submissions, all of which were of a high quality.