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You are here: BAILII >> Databases >> England and Wales High Court (Administrative Court) Decisions >> Radu v Ingoldstadt Local Court, Germany [2025] EWHC 1422 (Admin) (10 June 2025)
URL: http://www.bailii.org/ew/cases/EWHC/Admin/2025/1422.html
Cite as: [2025] EWHC 1422 (Admin)

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Neutral Citation Number: [2025] EWHC 1422 (Admin)
Case No: AC-2024-LON-001054

IN THE HIGH COURT OF JUSTICE
KING'S BENCH DIVISION
ADMINISTRATIVE COURT

Royal Courts of Justice
Strand, London, WC2A 2LL
10/06/2025

B e f o r e :

THE HONOURABLE MR JUSTICE SWEETING
____________________

Between:
Cristian RADU
Appellant
- and –

Ingoldstadt Local Court, GERMANY
Respondent

____________________

George Hepburne Scott (instructed by Sperrin Law) for the Appellant

Hearing dates: 05.06.2025

____________________

HTML VERSION OF APPROVED JUDGMENT
____________________

Crown Copyright ©

    This judgment was handed down remotely at 10.30am on [date] by circulation to the parties or their representatives by e-mail and by release to the National Archives.
    .............................
    THE HONOURABLE MR JUSTICE SWEETING

    Mr Justice Sweeting:

    Introduction

  1. This is a renewed application by Mr Cristian Radu ("the Applicant") for permission to appeal against the order for his extradition to Germany made by District Judge Callaway ("the Judge") on 21 March 2024. The Applicant appeals pursuant to section 26 of the Extradition Act 2003, as amended ("the Act"). His surrender is sought by the Ingolstadt Local Court, Germany ("the Respondent"), pursuant to a Trade and Cooperation Agreement Warrant ("AW") issued on 17 March 2022.
  2. The extradition request is based on an accusation warrant. The warrant relates to a total of seven offences. These are described as thefts. It is alleged that the Applicant, acting with three others, stole 7 mobile phones from various shops. The offences are said to have occurred between 13 January 2020 and 24 January 2020. The Applicant is alleged to have been acting as part of a gang. One alleged accomplice admitted committing the crimes as part of a gang including Cristian Radu. It is alleged that distraction techniques were employed in the thefts, and dummy phones were left in place of the real phones. On the face of the warrant, the maximum sentence is stated as "imprisonment of 10 years, total imprisonment up to 15 years". However, Box C of the warrant states the maximum sentence is 10 years. There was an earlier challenge raised regarding the clarity of the maximum sentence (10 or 15 years) which has not been raised in the renewed application.
  3. Procedural History

  4. The Applicant was arrested on 19 October 2023. He was initially remanded in custody but was granted bail at his second bail application on 13 November 2023. The Respondent's appeal to this Court against the grant of conditional bail was refused on 15 November 2023. The substantive extradition hearing took place on 15 February 2024 before the Judge at Westminster Magistrates' Court. The Judge handed down judgment and ordered extradition on 21 March 2024.
  5. An Applicant's Notice and "holding grounds" were lodged with this Court by the Applicant's previous solicitors on 27 March 2024. Perfected grounds of appeal were due by 11 April 2024, but despite the grant of an extension of time to 2 May 2024, no perfected grounds were served. The Applicant's previous solicitors subsequently withdrew from the case, their representation order being discharged on 28 August 2024.
  6. The application for permission to appeal was considered on the papers by Mr Justice Morris on 7 February 2025. He refused permission, noting the absence of perfected grounds and that the holding grounds failed to elaborate on why the Judge's assessment of Article 8 was wrong. He concluded that the Judge had conducted a careful analysis and that it was not arguable that his conclusions were wrong.
  7. The Applicant, now represented by new solicitors, applied to renew his application for permission at an oral hearing. Holding grounds in support of renewal were served on 17 February 2025. On 26 February 2025, an extension was granted to serve perfected grounds in support of the renewal application. Perfected grounds of renewal are dated 4 March 2025.
  8. Ground of Appeal

  9. The sole ground upon which the Applicant seeks permission to appeal is that the Judge was wrong to conclude that extradition represents a proportionate interference with his Article 8 rights. This ground was raised at the extradition hearing.
  10. Relevant Legal Principles

  11. The law requires this Court to examine the compatibility of extradition with the Human Rights Act 1998 under section 21 of the Act. This involves weighing the proportionality of extradition against the interference with an individual's Article 8 rights.
  12. The Supreme Court has provided guidance on the application of Article 8 in extradition cases. In Norris v Government of United States of America [2010] UKSC 9, Lord Phillips stated that:
  13. "only if some quite exceptionally compelling feature, or combination of features, is present that interference with family life consequent upon extradition will be other than proportionate."
  14. However, the court in HH and Others v Deputy Prosecutor of Genoa Italy and Others [2012] UKSC 25 stressed that "exceptionality is not a legal test", although the term "exceptional circumstances" may still be used without constituting such a test. Lady Hale in HH outlined that the question is always whether the interference with private and family lives is outweighed by the public interest in extradition. She noted that the public interest is a "constant factor" and a "powerful consideration to which great weight must be attached".
  15. In considering an Article 8 challenge, the family unit must be considered as a whole. The public interest in extradition includes bringing those accused of crimes to trial, ensuring convicted individuals serve sentences, honouring treaty obligations, and preventing "safe havens".
  16. The Applicant has applied to adduce fresh evidence. The evidence in question relates primarily to the birth of the Applicant's fifth child on 12 February 2025. The Applicant seeks to rely on addendum statements from himself and his partner detailing the impact of this birth on their family life.
  17. The legal principles governing the admission of fresh evidence on appeal in extradition cases are well-established. In RT v Poland [2017] EWHC 1978 (Admin), the Divisional Court held that in a fresh evidence case, the court hearing an extradition appeal "must make its own determination on the relevant questions on the basis of all the material then available". While the general test from Ladd v Marshall [1954] 1 WLR 1489; [1954] 3 AII ER 745, requiring evidence to be unavailable at first instance with reasonable diligence and to be determinative, is relevant (Hungary v Fenyvesi [2009] EWHC 231 (Admin)), latitude may be required in the context of Article 8, allowing fresh evidence where a strict application of the rule might otherwise lead to a breach of the European Convention on Human Rights.
  18. In this case, the birth of the fifth child post-dates the hearing before the District Judge, and therefore the evidence concerning this event and its immediate impact did not exist at the time of the extradition hearing. It is now available.
  19. The Applicant contends that this fresh evidence is "highly relevant to and possibly determinative of the Article 8 issue" and constitutes a "significant new factor that must impact on the Article 8 balancing exercise". The Respondent accepts that the birth post-dates the hearing but argues the evidence is not decisive. However, the test under RT v Poland requires me to consider all material available at the time of the appeal. The impact of extradition upon a family unit, particularly where there are young children, is a crucial element in the Article 8 proportionality assessment. The addition of a fifth child, particularly a newborn with four other children aged 10 or under, is a factor that is clearly relevant to that balancing exercise.
  20. Accordingly, applying the principles from RT v Poland and Fenyvesi, I find that the fresh evidence concerning the birth of the fifth child and the claimed impact on the family unit is admissible for the purposes of this appeal. I must consider the Article 8 proportionality assessment on the basis of the material available to me now.
  21. The Single Judge's Refusal

  22. Mr Justice Morris refused permission on the papers because the holding grounds of appeal did not elaborate on why the Judge's assessment and conclusions on Article 8 were wrong. He found that the Judge had conducted a careful analysis, and his conclusions were not arguably wrong.
  23. Applicant's Submissions on Renewal

  24. The Applicant submits that, notwithstanding the refusal by Mr Justice Morris, the Article 8 ground remains reasonably arguable. The perfected grounds of renewal grapple with the reasons given by the single judge, as required by Crim PR 50.22(3).
  25. The Applicant highlights several points in his perfected grounds. He refers to the fact that he and his partner now have five children, the youngest having been born on 12 February 2025. This birth occurred after the extradition hearing but before the single judge's decision. He submits that this is a significant new factor that must impact on the Article 8 balancing exercise.
  26. The Applicant also submits that the Judge's reasoning was flawed in several respects, including his assessment of the level of interference with family life and the weight to be attached to the public interest in extradition. He points to the fact that the District Judge concluded that extradition would be a "devastating blow" to the family unit, language, which Mr Hepburne Scott submitted, was only consistent with an effect that would be exceptionally severe.
  27. The Applicant relies on the principle that the position should be considered as it is now, at the time of the appeal, as opposed to the time of the extradition hearing. The Applicant invites the Court to 'stand back' and reconsider the overall evaluation of Article 8 proportionality. The Applicant submits that the overall evaluation was arguably wrong because crucial factors, specifically the profoundly deleterious impact of extradition upon the Applicant's partner and their children, should have been weighed significantly differently.
  28. Alternatively, or in addition, the Applicant submits that the position has fundamentally moved on since the District Judge's decision, such that the balance has now shifted in the Applicant's favour.
  29. Respondent's Submissions on Renewal

  30. The Respondent did not appear at the renewal hearing but had submitted an updated skeleton argument. The Respondent maintains that the Judge made a thorough and proper assessment of Article 8 arguing that the birth of an additional child does not materially change the outcome of the proportionality exercise. The Respondent argues that the Judge was entitled to conclude that extradition would not amount to a disproportionate interference with the Applicant's rights under Article 8. The Respondent submits that the District Judge's reference at paragraph 20 to extradition representing a "devastating blow" is a reference to the subjective impact it would have upon the Applicant's partner, not that the overall impact was necessarily exceptional. The Respondent submits that there are no reasonably arguable grounds of appeal.
  31. Discussion

  32. The test for granting permission to appeal is whether the ground is "reasonably arguable". I must assess whether the Applicant has met this threshold.
  33. The birth of a fifth child is undoubtedly a new circumstance arising after the extradition hearing. However, the question is whether this new factor, either alone or in combination with other factors, renders a challenge to the Judge's conclusion that extradition is proportionate reasonably arguable.
  34. The Judge conducted the required proportionality exercise, balancing the interference with Article 8 rights against the public interest in extradition. This exercise necessarily involves considering the impact on the Applicant's family, identifying the interests of the children as a primary factor. The Respondent correctly observes that the mere existence of children and a partner does not automatically outweigh the public interest. Whilst I must consider the specific facts of the case, it is sadly the position that in every case where a requested person has young children and a partner, the family will suffer.
  35. While the birth of a child is a relevant circumstance to be considered in the overall proportionality exercise, the Respondent's position, that it does not materially change the outcome, reflects the high threshold required to successfully challenge extradition on Article 8 grounds, even if "exceptionality" is not a strict legal test. The public interest in extradition remains constant and weighty.
  36. Having considered the perfected grounds of and the arguments advanced, I conclude that they do not demonstrate that the Judge's careful analysis of Article 8 was arguably wrong. Whilst the birth of the fifth child is a new factor, the submissions do not persuade me that this event, within the context of the established legal principles and the Judge's initial balancing exercise, renders the ground of appeal reasonably arguable. The Judge clearly considered the Applicant's family circumstances in his original judgment. The addition of one more child, whilst undoubtedly impacting the family, does not, on the material before me, provide a reasonably arguable basis for concluding that the Judge's ultimate proportionality assessment was wrong.
  37. Conclusion

  38. For the reasons set out above, I conclude that the Applicant's ground of appeal is not reasonably arguable.
  39. END

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