England and Wales High Court (Administrative Court) Decisions

IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
DIVISIONAL COURT

		Royal Courts of Justice Strand, London, WC2A 2LL
		15/07/2016

MR JUSTICE OUSELEY :

1. This is an appeal against the decision of District Judge Blake on 19 November 2015, whereby he ordered the Appellant's extradition to Romania on a conviction EAW in relation to four offences.
2. This was not the first time the Appellant had faced extradition to Romania from England in respect of those offences. On 24 June 2014, District Judge McPhee had discharged him from three EAWs, covering those four offences. The district judge discharged him on the ground, in s20(7) Extradition Act 2003, that as the defendant had not been present at his trials and had not deliberately absented himself from them, extradition was barred unless he was entitled to a retrial in Romania. There was no evidence that he would be entitled to a retrial after extradition. Rather, the Administrative Court in Bohm v Romania Judicial Authority [2011] EWHC 2671 (Admin) and Bicioc v Baia Mare Local Court Romania [2014] EWHC 628 (Admin), 26 February 2014, had held that Romanian law did not provide the full rights to a retrial which the Framework Decision and s20 required, in order to prevent the bar to extradition from the absence of retrial rights. There was no appeal against that decision.
3. In fact, as District Judge Blake found, it was on 15 February 2014 that a change in Romanian law came into force, which provided fully for retrial rights. That was accepted by both sides in front of him. The problem was that either the Romanian judicial authority had failed to inform the CPS of the change, despite ample opportunity to do so, or it had done so, but the CPS had not passed it on to its advocate. Mr Henley, then as now for the Appellant, argued that it was an abuse of process for the Respondent to seek extradition, having failed to place all its arguments and evidence before District Judge McPhee, when it could and should have done so.
4. Cranston J, on paper, granted permission to argue this abuse of process ground. He refused permission to argue that extradition would be oppressive by reason of the passage of time, (s14), and a disproportionate interference with the Appellant's Article 8 ECHR rights, (s21). Mr Henley renewed his application before us, and we grant it, in order that all the issues, which have some inter-relationship, can be considered.

The facts

5. The first two of the four offences were committed in March 2007 in incidents in two bars, one best seen as equivalent to an offence under s5 Public Order Act 1986, using "threatening, abusive or insulting words or behaviour" or as the EAW puts it "acts and gestures…words and phrases by which he damaged morality, causing the outrage of the customers who [were] present in the two bars." The other was that in one of the bars, he "broke a vase and a few bottles and glasses." That is a criminal damage offence. The Appellant was initially sentenced to 1 year 6 months imprisonment for those two offences in 2009. The other two offences were committed in June 2008; on two separate occasions he drove a car without a driving licence. He was sentenced to 1 year 6 months imprisonment on each of those two offences, in 2009 for the first offence and in 2010 for the second offence. That made a total of 4 years 6 months imprisonment.
6. The principal issue before District Judge McPhee at the extradition hearing on 29 May 2014 had been whether the Appellant was convicted in his presence and, if not, whether he had deliberately absented himself from his trials. If he had either been present or had deliberately absented himself, then he would not have been entitled to a retrial under s20(3), and the issue which led to his discharge would not have availed him. The district judge found, in respect of each offence, that the Appellant had not been present at his trial and had not deliberately absented himself from them. There was no appeal by the prosecutor against the Appellant's discharge on the grounds that those findings were wrong. The district judge also found that the Appellant had spent 6 weeks in custody in Romania for the criminal damage offence.
7. It was conceded by the CPS that, if the Appellant was entitled to a retrial, no such right was guaranteed. Although such a concession is recorded by the district judge in respect of one offence only, it is obvious that the conclusion would apply to all. That concession was not arrived at without some consideration. The Appellant was first arrested on the original EAWs in August 2013.The initial hearing was in September 2013. The first extradition hearing in December 2013 was abortive because of a lack of court time, and a further hearing was set for 17 March 2014. On 5 February 2014, at a review hearing, a district judge granted the CPS' request for further time in which to serve its skeleton argument and further evidence. The CPS knew by then, if not earlier, that the retrial rights issue was to be raised. It had obviously been an issue in other cases. It was for the requesting judicial authority to prove the existence of the retrial rights and, in the absence of a proven change in the law, it was clear that district judges were going to apply the two Administrative Court decisions referred to above.
8. By 17 March 2014, no further information had been obtained, and an adjournment was granted to the CPS, so that it could obtain the further information about retrial rights in Romania. Mr Smith, for the requesting judicial authority on this appeal, accepted that, by March 2014, the CPS was aware that there had been a potentially relevant change in Romanian law, but said that it was not aware of the details. The further information for which the adjournment was granted was not forthcoming. On 29 May 2014, District Judge McPhee refused a further adjournment request from the CPS. It was already 9 months since the Appellant's arrest. According to Mr Henley, although this does not appear from the judgment, the district judge also was aware that there had been some change to retrial rights, but, like the CPS, did not know how the rights operated and whether they would apply to cases of the age or stage of this one. I accept what Mr Henley tells us. No further information was forthcoming later, such that it could be placed before the district judge in the time between the hearing on 29 May 2014, and the delivery of his judgment on 24 June 2014.
9. Accordingly, the Appellant was discharged, and his bail conditions ended. These had included daily reporting to a police station, tagging, and a curfew between midnight and 3am, and had lasted for ten months.
10. Mr Henley pointed out that the requesting judicial authority did not appeal against the decision on retrial rights, which is true, but, unless it had provided the necessary information to the CPS in time to meet the 7-day deadline for an appeal, it would have been wrong for an appeal to be lodged in the hope that something might turn up to justify an application for fresh evidence to be admitted on appeal.
11. On 18 December 2014, the Baia Mare Court replaced the separate sentences totalling 4 year 6 months with a single sentence of 1 year 10 months. This required the issue of an EAW to replace the earlier three which were still enforceable in other Member States. By this time, the Romanian authorities knew and communicated what the retrial position was. With effect from 15 February 2014, those retrial rights, the assumed absence of which had led to his discharge in June 2014 on the earlier EAWs, had come into force.
12. The Appellant was arrested again on 19 April 2015, and next day was released on conditional bail, on the same conditions as before. His response on arrest was to say that there must have been a mistake. His case came on before District Judge Blake on 30 October 2015, who delivered his decision on 19 November. He rejected the contention that the further proceedings were an abuse of process on the grounds that there had been no bad faith, but a mistake based on ignorance of the nature and detailed change in the Romanian Criminal Code. There had been no manipulation of the court's process. The effect of delay was a matter for consideration under s14 and Article 8. He rejected the Appellant's contentions under those heads.

Abuse of process

13. Although logically it is the statutory bars to extradition which should be considered before the residual jurisdiction to refuse extradition on the grounds of an abuse of process, it is convenient to take that issue first here.
14. The existence in English law of such a jurisdiction was established in R (Government of United States of America) v Bow Street Magistrates' Court and R (Central Examining Court, Criminal Court of the National Court, Madrid) v Same [2006] EWHC 2256 (Admin), [2007] 1 WLR 1157. When dealing with the Madrid case, the Divisional Court said this:

"80. The 2003 Act makes express provision for extradition to be refused when the request is motivated by "extraneous circumstances" that under English law would constitute an abuse of process and for these and human rights issues to be considered as part of the extradition hearing. Where extradition is challenged on grounds, such as abuse of process, which are not dealt with expressly under the Act they should none the less normally be considered within the extradition hearing. The 2003 Act lays down special rules in relation to extradition that are designed to ensure that extradition proceedings are concluded with expedition. This objective will be torpedoed if allegations of abuse of process are pursued outside the statutory regime."

15. S11 provides a bar to extradition where the issue of an EAW has been motivated by "extraneous circumstances", as defined in s13. These are not applicable on the facts here; they cover prosecution or punishment on the grounds of race, religion, nationality and so on.
16. The Divisional Court did not mean that all allegations of abuse had to be considered in a Part 1 case under either s11 or s21, human rights; there was a residual jurisdiction which required to be considered but within the extradition process itself, and not in some other jurisdiction. That is clear from the conclusion reached in Belbin v Regional Court of Lille, France [2015] EWHC 149 (Admin). All I note at this stage is the acceptance that considerations which go to an abuse of process may find their resolution in a human rights bar.
17. The residual abuse of process jurisdiction arose where there was cause "to suspect that a prosecutor may be manipulating or using the procedures of the court in order to oppress or unfairly to prejudice a defendant before the court." See [82], above, citing R v Liverpool Stipendiary Magistrate ex p Ellison [1990] RTR 220, and applying it to extradition cases. What Belbin also added, in addition to holding that an abuse of process by a judicial authority as well as a prosecutor came with the residual jurisdiction, [43], was that the "usurpation" by bad faith of the statutory regime or its deliberate manipulation had to result in unfair prejudice to the defendant either in the extradition proceedings or in the requesting state if surrendered; [44].
18. This is not a case of bad faith or deliberate manipulation or "usurpation". The facts here do not come close to falling within the residual jurisdiction. There was a clear error by the issuing authority. There is no conceivable reason why the Romanian judicial authorities would have chosen not to put the up to date position before the district judge; it could not have assisted them one whit to fail to do so. This is a case of considerable incompetence but incompetence alone. Mr Smith said that incompetence is not accepted, but provided no evidence for any alternative cause; he may have meant that it was oversight. It is not necessary to find out precisely where the error lay, though I hope and believe that the CPS would have owned up if the fault had lain there, but may feel that it cannot point the finger at its principal. That, though, is where I infer the problem lay. There was a failure to respond to questions at all, or accurately or with modest speed, or to take advantage of the opportunities given by the adjournments and timetable of the proceedings before the district judge. Had the issuing authority provided the further information when it had ample opportunity to do so, the district judge would have ordered extradition, subject to an appeal on the question of Article 8, including delay and wholly disproportionate punishment.
19. The further EAW is based on the "aggregation" of the four sentences into one of 1 year 10 months in December 2014. The issuing authority then had to issue a further EAW to replace the three earlier ones since they no longer correctly stated the sentence to be enforced. The Appellant's discharge on the earlier three did not discharge him from them in all countries, or put some end to them. The new one was properly certified. He was properly arrested on it. His retrial rights were clear now. Had the change in Romanian law occurred after discharge, he would have no argument related to the district judge's finding on retrial rights. The fact that the change had occurred earlier, but by incompetence the district judge had not been told, cannot turn this case into one which comes within that limited residual jurisdiction.
20. The circumstances here give rise to a different sort of issue, which in English legal parlance may be described as an abuse of process, but is not the sort of abuse of process at which the language of the cases on the residual abuse jurisdiction is directed. This case involves a breach of the rule of public policy embodied in the principle in Henderson v Henderson (1843) 3 Hare 100. This principle requires parties to litigation to bring their whole case before the court so that all aspects of it may be finally decided. They cannot, absent special circumstances, return to the court to put forward arguments or claims which they could have raised on the first occasion but did not do so, whether through negligence or accident. If that principle applied without qualification to extradition cases, this appeal would be bound to succeed.
21. Mr Henley argued that it applied sufficiently for him to succeed. It had been applied in the criminal and extradition contexts. He referred to Connolly v DPP [1964] AC 1264, in which Lord Devlin concluded that a courts had an inherent power to ensure that its process was used fairly and conveniently by both sides. Lord Devlin drew parallels between on the one hand res iudicata and autrefois acquit, both absolute rules, and other parallels between the more flexible principle in Henderson v Henderson and what he saw as a general rule that a prosecution must join in the indictment charges founded on the same facts or which form or are part of a series of offences of the same or similar character; p1347. The principle behind this was to prevent unfairness to defendants, and vexatious prosecutions. Mr Henley also referred to Szombathely City Court v Fenyvesi [2009] EWHC 231 (Admin), in which the judgment of the Divisional Court opens with Sir Thomas Bingham MR's statement of the principle of Henderson v Henderson in Barrow v Bankside Agency Ltd [1996] 1 WLR 257. This principle, not one unyielding to circumstance, guided the approach to the admissibility of further evidence on an extradition appeal.
22. This sort of issue has been considered in relation to extradition most recently in Auzins v Prosecutor General's Office of the Republic of Latvia [2016] EWHC 802 (Admin). A Scottish Court had discharged Auzins from an EAW on the grounds that the absence of treatment for his medical conditions in Latvian prisons created a real risk of a breach of Article 3. Three years later a second EAW was issued, which differed from the first only in that one offence had become time barred. By now, Auzins had gone to England, where he was arrested. The Latvian authorities contended that they now had the means to provide the necessary health care. His extradition was ordered. He contended on appeal that there was a form of res iudicata or issue estoppel which prevented extradition. That was rejected in principle.
23. Auzins also argued that extradition was an abuse of process. The Divisional Court accepted that that was the correct way of guaranteeing in the appropriate case that a requested person was not subject to oppressive conduct; [37]. The abuse of process which the Court had in mind was not the principle in Henderson v Henderson, sometimes so labelled, but the residual jurisdiction in Belbin, and the earlier cases. It was looking for unfair conduct oppressive to a defendant. The residual jurisdiction did not apply because there was now a change in circumstance, and Auzins' Article 3 rights would not be put at risk. It is plain that, in the present appeal, if the change in Romanian law had occurred after the Appellant's discharge, the enforcement of the most recent EAW would not be an abuse, and would not warrant the application of some extradition variant of the principle in Henderson v Henderson.
24. The Court in Auzins made a number of observations which are apposite here. It was not the issuing of a further EAW which can be regarded as an abuse of process of the English courts; that was a matter for the courts of the issuing state. It is seeking to enforce it in the English courts which created the potential abuse. There was a distinction between cases where an EAW had been discharged on grounds which were inherently capable of change, such as the availability of medical treatment, and cases where there was a simple failure to put forward all the available evidence. There are also circumstances in which discharge may reflect deficiencies in an EAW; that does not prevent the enforcement of a further EAW.
25. Mr Henley submitted that where the EAW was invalid, say for want of particulars, Henderson v Henderson "abuse" would not arise because, being invalid, the individual had not been in peril on it. This may be so but the possibility of a technical distinction does not really address the public interests behind the principle in its potential application here. The root principle is to enable extradition warrants to be enforced, subject to the statutory bars, and a residual jurisdiction to be exercised only when the actions of the requesting judicial authority undermine the statutory regime, or oppress and unfairly prejudice the individual. There might be cases in which the number of invalid attempts could itself engage the principle.
26. The nearest case to the present is Hamburg Public Prosecutor's Office v Altun [2011] EWHC 397 (Admin), Divisional Court, in which the German prosecutor appealed unsuccessfully against the discharge of Altun on an accusation EAW for robbery. He was discharged on the grounds of double jeopardy, and the appeal against that decision was dismissed. He had however already been discharged on that same ground on an earlier EAW. The requesting authority recognised that it had not obtained the evidence it needed to contest the issue of double jeopardy on the first occasion, but did not withdraw the warrant and the issue was ruled on by the district judge. Warning at the time of its intentions, it did later issue a further EAW when it had what it thought would suffice to contest the double jeopardy issue. I made some obiter and provisional observations, but with the benefit of some argument, to the effect that it was an abuse of process for the second EAW to have been issued and enforced. I feel no particular loyalty towards my observations, nor do I read Auzins as an endorsement of them; Auzins simply concerned a different point, where there was a change of circumstance, so no further consideration of what I said in Altun was necessary, nor is it now.
27. I am in fact satisfied that it is neither principled nor practical to apply the principle in Henderson v Henderson in a straightforward manner to extradition warrant decisions. Extradition involves the issuing of a warrant by a foreign authority which engages the UK's international obligations as well as its domestic legislation. Statutory bars have been enacted which reflect those arrangements, whether Treaty or Framework Decision. There is no scope for more than a residual jurisdiction to preclude the extradition of someone who falls outside the scope of the statutory bars. That is the residual jurisdiction envisaged in the line of cases leading to Belbin, where the contention is that the prosecutor or judicial authority has acted in bad faith, deliberately manipulating proceedings, undermining the statutory regime to the unfair prejudice of the defendant. Such a jurisdiction is consistent with those international obligations only because it is obvious that no prosecutor or issuing authority should behave in the manner described in Belbin as an abuse of the court's process; it is necessarily implicit in the arrangements, and accepted by all participants, that they would not be allowed to do so.
28. Any extension of that jurisdiction however would undermine the statutory process itself and the international arrangements to which they give effect. I do not consider that the residual jurisdiction should be expanded to embrace the Henderson v Henderson principle. If no bar is made out, it is difficult to see why a person who faces no bars to extradition should then not be extradited, other than as a sanction imposed on the requesting authority for not complying with directions or not getting its case in order. Such an approach, which may run contrary to the overall public interest in any given case, and which may be inconsistent with the primary purpose of extradition arrangements, cannot be extracted from the Framework Decision nor the Act. It must also be remembered that the discharge of a defendant on an EAW in one country does not necessarily mean that he would be discharged if arrested on the same EAW in another country. As Mr Henley accepted, this "abuse" argument might well not be accepted in other states where, were the Appellant present, the Romanian authorities might try to enforce this EAW. After all, the new EAW here is for service of a different term of imprisonment, and the EAW needed to be revised and re-issued if it were to be enforced in another state, as it could be.
29. I am not concerned with cases where there has been a change of circumstances between one EAW and another, comprehensively disposed of in Auzins. I am concerned with those where the issuing authority or CPS did not deal with an issue as best it might, whether in breach of a court order or not, and seeks or would be enabled by a further EAW, as here, to re-open an issue and try again. I cannot hold that the fact that such an error, whether through negligence or accident, could be rectified by the enforcement of a further EAW, should always preclude extradition of a defendant from the UK, regardless of its effect on him or on the public interest in his extradition.
30. The sort of problem faced here, and in Altun, is not of itself akin to Belbin abuse. But that does not mean that the issue simply falls outside the Act. It means that it must be dealt with under one of the statutory bars, if, properly interpreted and applied, they accommodate the facts.
31. The principle in Henderson v Henderson represents an aspect of the public interest in giving effect to international extradition arrangements. As Fenyvesi points out, the broad public interest in the finality of proceedings and fairness to both sides, requires further evidence generally not to be admitted on appeal unless the specific conditions are satisfied. The Magistrates' Court also has to manage its cases with a view to enabling the issues to be disposed of fairly but also with the sort of expedition required by the Framework Decision and the 2003 Act, and this also involves making effective use of judge time. A Court has to make orders for the delineation of the issues, for the production of evidence, and directions for the hearing, including the grant or refusal of adjournments, all to that end.
32. It would be neither fair nor consonant with that public interest for the issuing judicial authority, failing to comply with the district judge's directions, or unable to produce the further evidence it wanted, simply to issue a further EAW, to reverse the effect of its non-compliance with court orders, or its failure to put its case forward. This is not an option open to defendants, though they have some more constricted routes to the same end. A court must be able to give effect to its own procedural directions, and to prevent their being circumvented on appeal or by a further EAW. That furthers rather than undermines the statutory scheme. Whether the attempted enforcement of a further EAW, in circumstances falling short of Belbin abuse of process, so undermines the interest of the statutory scheme in speedy finality, and in upholding the decisions and orders of the courts, that enforcement should be denied, cannot be answered without consideration of all the circumstances.
33. In my judgment, the right approach must be a balance reflecting the extent of the public interests at stake, as well as any unfair prejudice caused to the individual in all the circumstances of the case. These will involve the gravity of the actual or alleged offending, the nature and cause of the failure of the issuing authority or CPS which has led to the further EAW, the effect which that might have in consequence on the public interest in that particular extradition, the effect which that has had on the defendant both in his family and private life, and on his trial, retrial, and punishment, whether through change in circumstance or passage of time.
34. In reality, this involves consideration of s14, s21 or s21A oppression and human rights, which is where those balances can be struck. Such an approach, placing this issue within the context of the statutory bars to extradition, avoids extending the residual jurisdiction to areas where its language shows it was not intended to venture. It permits the court to weigh the competing interests raised by the sort of circumstances in which the application of the public policy in Henderson v Henderson in extradition may arise. The issues cannot in such circumstances and on this analysis be neatly compartmentalised.
35. In my judgment, therefore, the abuse argument as a free-standing argument must fail. I turn to the arguments in relation to the statutory bars, and first to s14 oppression.

Oppression and s14 Extradition Act

36. This bar arises where extradition is oppressive or unjust by reason of the passage of time, in a conviction case, since the defendant became unlawfully at large. It is a conviction case even though the Appellant would return with retrial rights, and contends that he is not guilty. Mr Henley did not contend that it would be unjust even though the Appellant would be entitled to a retrial. This is a case of oppression or nothing.
37. The issuing judicial authority, before District Judge Blake, did not seek to go behind the finding of District Judge McPhee that the Appellant was not a fugitive, that is to say he was not someone who was unlawfully at large. This is not surprising as it had not appealed the decision on that ground, which was available to them. The CPS Respondent's Notice in December 2015 responded to the grounds of appeal but did not suggest that District Judge Blake was in error in not finding the Appellant to have become unlawfully at large, and that his decision should be upheld on that ground. (The Criminal Procedure Rules, Rule 50.21, may not explicitly require notice to be given where a party seeks to uphold a decision on grounds other than those of the judge. A clarification to the Rules would be beneficial in that respect.)
38. However, in his skeleton argument for the appeal, 12 days before the hearing, Mr Smith did argue that, in the light of the decision of the Divisional Court in Wisniewski and Others v Poland [2016] EWHC 386 (Admin) delivered on 2 March 2016, the Appellant had become a fugitive, unlawfully at large, and on the findings of District Judge McPhee, on various dates between 2009 and 2010. Mr Smith did not press this point orally. After all, if good, it was a good ground of appeal against District Judge McPhee's decision, whether it had been decided in Wisniewski or not. I do not know if any further evidence would actually have been given if the issue had been raised below. This is not a case for any indulgence to be shown. It would be unfair for the issuing judicial authority to go behind an issue which it lost once and did not appeal and which it conceded below. I do not propose to deal with it further, be it right or wrong. I shall not treat the Appellant as a fugitive.
39. However, the authorities on oppression by passage of time, make it clear that oppression is a hard test to satisfy. Mere hardship is not enough. It is not essentially the cause of or responsibility for the delay which matters, where the defendant is not a fugitive, but the changes of circumstance which have arisen as a result of the delay; see Kakis v Government of the Republic of Cyprus [1978] 1 WLR 779, HoL.
40. The district judge directed himself correctly on this issue, saying this:

"… I took into account that the offence in respect of which his return was sought were not the most serious. I had regard to the need to respect the decision of a treaty state when I considered the effect upon the RP. I recognised that to order his return would cause the RP and his partner considerable hardship. I did not however consider that the hardship had been made significantly worse by the delay which had happened in this case. He stood to be returned for a much shorter sentence, resulting from the sentences having been consolidated since the time of the first application. Whenever the court was to order the return of the RP it would cause hardship. That was no greater than the personal hardship suffered by any person settled in a committed relation when subject to extradition. I was satisfied that the delay which had occurred had not made it either "unjust" or "oppressive" to order the extradition of the RP."

I agree and would reject this ground of appeal.

Article 8

41. The district judge conducted the requisite balancing exercise. Favouring extradition were the public interest in honouring the international arrangements, the need to respect the request of the judicial authority of an EU Member State, (which seems to be much the same point), and the substantial period of imprisonment to serve. The factors which militated against extradition were the Article 8 rights of the Appellant and his partner who hoped to start a family by IVF treatment, the children from his former marriage who relied on his financial support in Romania, the lengthy sentence for relatively minor offences, and he said this on the effect of the previous EAWs:

"3. The offences had occurred in 2008 and 2009. The RP had moved his life on since the time of these offences. After the discharge of the case in 2014 he had formed an expectation that the matter would not now proceed and that he was free to stay in the UK and get on with his life. He had spent many months on conditional bail and had lived his life with the uncertainty of whether he would have to return to Romania. Both the RP and his partner had suffered the stress of two sets of proceedings with regard to his application."

42. The district judge recognised the personal sadness for the Appellant and his partner which extradition would create, the delay, and the relatively long sentence, which he said was a matter for the Romanian Court, which had to be respected, but this did not make extradition disproportionate.
43. If this had been a conventional case, without the earlier EAWs, and the erroneous view of retrial rights which the omission of the issuing judicial authority caused the district judge to form, I would probably not have regarded the decision as wrong, though quite tough. However, in all the circumstances, I have come to the conclusion that it is wrong, when all the factors are weighed. Essentially, I regard the previous discharge, and all the circumstances associated with that, when considered with the lapse of time and the minor nature of the offences, in particular, as making extradition a disproportionate interference with his Article 8 rights. I regard the previous discharge as much more significant than did the district judge.
44. I deal first with the factors favouring extradition. The only factor here is the constant and weighty public interest always present in upholding extradition arrangements, enabling the accused to be tried and, if guilty, punished. There is no additional interest in preventing the UK becoming a safe haven in this case as the Appellant is not a fugitive.
45. The first factor against extradition which I deal with is the nature of the offences. If this had been an accusation warrant, the question of the disproportion of extradition under s21A(1)(b) would have arisen. Although this is not an accusation warrant, it is closer to it than in most conviction cases because the Appellant has a right to a retrial and intends, it appears, to exercise that right, which will turn him in effect into an accused. The seriousness of the conduct is one of three specified matters in relation to disproportion, outside the scope of the ECHR; s21A(3)(a). The likely penalty in the event of conviction is another, but that is known here. I have considered the guidance in Miraszewski and Others v Poland [2014] EWHC 4261 (Admin) at [31-32 and 36]. The Lord Chief Justice's Guidance, and the table in the Criminal Practice Direction, are at [19]. Pitchford LJ said that, within the boundaries set, the scope for judgment was comparatively broad, a judgment though to be made against a background of mutual respect; [31]. The test itself was not one of triviality. "An offence outside the categories listed in the guidance may also be identified as non-serious (or trivial) but that finding will not necessarily be conclusive." But if it were so identified, other factors such as likely sentence may become determinative; [32]. The seriousness of the offence should be judged in the first instance against domestic standards, though the court will respect the known views of the requesting state. Seriousness should be judged by the nature and quality of the act, culpability and harm to victims.
46. The two driving licence offences are triable only summarily, and could not attract a sentence of imprisonment in the UK, nor could a s5 Public Order Act offence. A s4 offence could do so. The value of the items in the related criminal damage offence appears to be well within the level for a summary only trial, and though it can carry a prison sentence, on the Magistrates' Courts Sentencing Guidelines, a prison sentence would be unlikely.
47. The Criminal Practice Direction to Part 50 guidance as to what is disproportionate, states that it depends on the facts alleged in each warrant. If the offence falls into the category of those tabulated, extradition should generally be regarded as disproportionate. Minor road traffic offences, where there was no loss or damage or injury, are exemplified by driving while using a mobile phone and cycling while intoxicated. Driving without a licence is not mentioned but is probably more serious as it takes with it the problems of competence to drive and insurance. Minor criminal damage is exemplified by breaking a window. I suspect that a vase and a few glasses may come into that category though the circumstances, linked with the disorder, probably take it out of what the guidelines contemplate. The public order offence probably goes beyond those exemplified; the suggestion appears to be that he started it, it was in licensed premises, and may have been threatening. So I would not treat these as offences for which extradition for trial would have been disproportionate, if this were an accusation EAW. Romania plainly regards them as more serious than the UK appears to, in view of the sentences, but it is the country where they were committed and it is entitled to adopt that approach. But for all that, they are quite minor offences.
48. Second, the Romanian sentence, though much reduced, remains very considerably more severe than would have been imposed in the UK. That is not of itself of any great significance. But it is not irrelevant that the Appellant faces a severe punishment for quite minor offences, with the lapse of time and the earlier discharge.
49. Third, there has been considerable lapse of time, which is not the Appellant's fault, since the commission of the offences, or his convictions. The offences are 8-9 years old. The convictions are not less than 6 -7 years old, and he is entitled to a retrial. I accept though that he knew of some of the proceedings. He was arrested in the UK in August 2013. The lapse of time between the discharge on the first three EAWs in June 2014 and his arrest on the new EAW in April 2015 was only some ten months, but it was a further six months before his extradition was ordered. This was a lapse of over two years between his arrest and the first decision that he should be extradited. Although it can be said that the time awaiting this appeal is down to his decision to appeal, it was the omission of the Romanian judicial authority which provided a perfectly proper ground of appeal. From June 2014 and continuing, the delay is in substance caused by the failure of the Romanian judicial authority to put its case forward properly to the district judge on the first three EAWs. It is now nearly three years since he was first arrested. This is where the lack of gravity in the offending has real force.
50. This delay has had consequences for the Appellant. He gave evidence to District Judge Blake as follows. His first arrest meant that he sent his children, who were living here with him after his divorce, back to Romania to live with his ex-wife, because of the stress they faced. He sends money to Romania to support them there. He described his life and that of his new partner as being put on hold, and they had to begin all over again after his discharge. His children were not to join him until he was financially stable again. He was shocked by his re-arrest. Once he had been discharged, he believed quite reasonably that that was the end of the matter, in the UK at all events. His partner had put off joining the waiting list for IVF treatment until after his discharge because of the uncertainty. He regarded it as unfair for them to be put through all of that again; this included, as I come to, the fact that he was bailed once more on quite onerous bail conditions, which continue. He is a self-employed worker in the construction industry. He has no convictions in this country to which he came in 2009.
51. Fourth, the consequences of the discharge and re-arrest cannot be treated merely as aspects of delay. The Appellant felt a sense of relief that the proceedings were over; he was released from his bail conditions. He was not released on some technicality, in which a further EAW was a real possibility. He then faced re-arrest and a further long period on quite onerous bail conditions; and he and his family had to go through the whole process all over again, having believed it to be over in the UK at least. Life was again on hold. The Appellant was entitled to feel a real sense of unfairness. These problems were caused by the failure of the issuing judicial authority to put its case together properly. For some offences and with some errors, all this may have to be accepted in the public interest. But, whether diminishing the weight to be given to the public interest in extradition, or, probably more appropriately, increasing the weight to be given to the impacts on Article 8 rights, the conduct of the issuing authority itself in causing those impacts has to be taken into account as a factor weighing against the proportionality of extradition. Here, the issuing judicial authority was made aware early on in the proceedings, if it had not already alerted itself to this as a possible issue, that retrial rights would be an issue. It had ample opportunity to provide the evidence about those rights, before the March and then May hearings, and then again before the June 2014 decision. An adjournment was granted for that very purpose. It did nothing. It might have tried to appeal, after urgent discussions, though there would have been admissibility difficulties. It has not explained the reason for the inaction or apologised for it to court and Appellant. It has in effect used the necessity for a new EAW as the vehicle to do what it should have done nearly two years ago. Such conduct by the issuing judicial authority diminishes the proportionality of extradition though it does not of itself bar it.
52. Fifth, it is not irrelevant that he spent 6 weeks in custody in Romania in relation to the public order/criminal damage offences. He has also spent, so far, some two years on bail conditions; ten months on the first three EAWs, and fourteen months on the new EAW, and continuing. These conditions have included reporting every day of the week to the police station, and wearing a tag all the time to support a curfew between 12 midnight and 3am. Over time these are burdensome obligations, with the additional stress of having them replaced, after they had been removed seemingly for good. He has not been without punishment and tribulation for these offences alleged against him, though not as severe as the Romanian authorities wish for.
53. However, for those reasons overall, but giving particular weight to the reasons for the discharge, in the context of quite minor offending and delay, I have come to the conclusion that his extradition now would be a disproportionate interference with his Article 8 rights. The appeal should be allowed, because the district judge's decision on Article 8 was wrong in this very unusual combination of circumstances.

Lord Justice McCombe

54. I agree.