APPEAL COURT, HIGH COURT OF JUSTICIARY
Lord Eassie Lord Wheatley Lady Paton	[2010] HCJAC 35 Appeal No: XC818/09 OPINION OF THE COURT delivered by LORD EASSIE in APPEAL UNDER SECTION 26 OF THE EXTRADITION ACT 2003 by IOAN IOSIF GHERHARDT Appellant; against THE LORD ADVOCATE Respondent: _______

Appellant: Govier; Adams Whyte

Respondent: Duncan; Crown Agent

16 April 2010

[1] This is an appeal under section 26 of the Extradition Act 2003 - "the Act" - in which the appellant appeals against a decision of the sheriff at Edinburgh ordering his extradition to the Republic of Romania in terms of a European arrest warrant issued by the Court of First Instance in Timisoara.

[2] The European arrest warrant in question was issued in respect of four offences of which the appellant was convicted on 21 November 2007. He was convicted in absence. On the same day he was sentenced, also in absence, to a term of imprisonment on each of the four charges.

[3] The circumstances of the offences as narrated in the English translation of the European arrest warrant are as follows:

"During the night of 4 to 5 January 2006, the accused, in state of inebriation, broke the window of the injured party's house (injured party JURJESCU SORIN) wherefrom he tried to purloin a TV, however without succeeding as he dropped it - offence provided by article 20 Criminal Code with reference to article 208, article 209 paragraph 1, letters g and i, Criminal Code applying article 37, letter b, Criminal Code, for the commission of which the penalty of 3 (three) years detention was imposed.

During the same night of 4 to 5 January 2006, the accused forced the gate and entered into the courtyard of the real estate of the injured parties Hapciuc Virgil and Hapciuc Viorica, refusing to leave the property until the arrival of the police officers, - offence stipulated by article 192, paragraph ? Criminal Code, applying article 37, letter b Criminal Code, for the committing of which the penalty of 4 (four) years detention was imposed.

During the evening of 10^th June 2006, the accused illegally entered into the residence of the injured parties Bocicor Andrei and Bocicor Valentina, refusing to leave at their request - offence provided by the article 192, paragraph 2 Criminal Code, applying article 37 letter b, Criminal Code, for the committing of which the penalty of 4 (four) years was imposed.

During the night of 31^st of March to 1^st of April 2006, the accused purloined 120 seedlings of apple trees and of other species from the Agricultural Sciences University of Banat which he took illegally, - offence provided by article 208, article 209 paragraph 1, letters g and i, Criminal Code applying article 37 letter b Criminal Code for the committing of which the penalty of 5 (five) years detention was imposed."

[4] The appellant has tabled two grounds of appeal. The first ground is concerned with the rule respecting double criminality. The second ground is concerned with establishing whether a person has "deliberately absented himself from his trial".

Double Criminality

[5] In terms of section 10(2) of the Act, a judge conducting an extradition hearing in respect of a Part 1 warrant (and a European arrest warrant is a Part 1 warrant) must decide whether the offence in the warrant constitutes an "extradition offence". In the circumstances of the present case (a conviction case) the definition of extradition offence is contained in section 65 of the Act and, in particular - since none of the offences constitute conduct catalogued in the European Framework List (see section 215 of and Schedule 2 to the Act and article 2(2) of the European Framework decision
[1]) - in the provisions of section 65(3) of the Act. The requirement of double criminality takes statutory form in the provisions of paragraph (b) of section 65(3) which sets out the condition that:

"(b) The conduct would constitute an offence under the relevant law of the relevant part of the United Kingdom if it occurred in that part of the United Kingdom;"

We would add that where, as in the present case, the European arrest warrant is issued for more than one offence, section 10 of the Act is modified by paragraph 2 of the Schedule to the Extradition Act 2003 (Multiple Offences) Order 2003 - S.I. 2003/3150 - to the practical effect that the judge must consider each offence separately and discharge the person arrested as respects any offence which is not an extradition offence.

[6] Before the sheriff it was argued on behalf of the appellant that charge 3 in the warrant did not meet this requirement of double criminality because the conduct there alleged did not constitute a crime or an offence under Scots law. For convenience we repeat the detail, such as it is, of the conduct in that charge:

"During the evening of 10^th of June 2006, the accused illegally entered into the residence of the injured parties ... refusing to leave at their request."

The charge was laid under article 192 of the Romanian Criminal Code which is translated in the warrant thus:

"The trespass in any form of a house, room, annex or any other enclosed area belonging to the former, without the consent of the person owning them, or the refuse (sic) to leave the property at the owner's request, shall be punished with detention from six months to four years."

[7] The sheriff rejected the submission that the requirement of double criminality was not met. In his report to this Court he writes:

"It was argued that both the translated Romanian description of the conduct in charge 3 and the terms of the country's Criminal Code, do not describe a crime known to the law of Scotland. I considered that argument to be flawed and found that I did not consider that this crime should be regarded in Scotland as simple trespass and therefore not unlawful conduct, as argued by the Appellant. I looked at the Romanian indictment as a whole and it is clear that it deals with a succession of thefts, attempted thefts and conduct preparatory to theft in four separate instances. The first charge in Scottish terms is housebreaking with intent to steal (possibly theft by housebreaking). The second charge in Scottish terms is either opening lockfast places with intent to steal or a contravention of section 57 of the Civic Government (Scotland) Act 1982 (being found in the curtilage of property in circumstances in which theftuous intent can reasonably be inferred) and charge 4 is simple theft. It seems to me perfectly clear that charge 3 is a breach of the same Article of the Criminal Code as charge 2, that it is a crime very similar to charge 2 and that the conduct which Article 192 covers and purports to punish is essentially theftuous. Charge 3 describes conduct which in Scottish terms could very properly be covered by the terms of section 57 of the Civic Government (Scotland) Act or alternatively by breach of the peace, where the private individuals who did not know the appellant found him to have entered their home during the evening of 10 June and required him to leave without achieving any success. That set of facts appears to describe a situation which could perfectly conceivably be described as a breach of the peace since it was likely to be a circumstance which they found alarming. Breach of the peace in Scotland does not require full specification in the charge and the proper and normal libel is 'Conduct yourself in a disorderly manner and commit a breach of the peace'. There is no requirement under our law to specify the effect of the refusal to leave, the means of entry, length of time that the person was there or his demeanour and these would all be dealt with in the evidence at trial. There is no reason to place a higher specification requirement on the libelling of the Romanian charge.

In the only Scottish appeal decision in this general area (Antonio La Torre v Italy (2006) HCJAC 56) it was observed at paragraph 124 that the proper approach was to look at the conduct for which extradition is sought rather than to any specific nomen juris. The court indicated that it was 'concerned to see whether the substance of the alleged Acts for which extradition is sought would amount to a crime in our law'. On looking at the substance of the acts alleged to have been performed by the Appellant in this case, I came to the view that these would amount to a crime in Scotland although I could not say with certainty which of the two crimes referred to above may more properly be described by that conduct. As I understand it, Section 65(3)(b) does not require me to say which crime, simply to be clear that the conduct 'would constitute an offence'. I was entirely satisfied that the conduct would constitute one or other of these crimes and I therefore decided that charge 3 was an extradition offence".

[8] Before us, counsel renewed the submission made to the sheriff. The terms of article 192 of the Romanian Criminal Code provided for a crime of trespass, which was not criminal in Scotland. The only conduct alleged in the charge was that of trespass. There was nothing alleged which would bring in section 57 of the Civic Government (Scotland) Act 1982 and nothing suggestive of a public order offence such as breach of the peace. Counsel also pointed out that charge 3 was separated by an interval of almost two and a half months from the earlier charge which appeared as charge 4 and in any event required to be viewed on its own terms. Charge 2 involved an allegation of damage to the gate, and on that view the double criminality point had not been taken before the sheriff as respects that charge.

[9] Counsel for the Lord Advocate submitted that it was clear that it was the conduct alleged in the charge which mattered, not the technical nomen juris. In that respect he also referred to La Torre v HM Advocate 2008 JC 23 at paragraph [124]. While giving some indication of appreciating possible difficulty with the terms of charge 3, counsel nonetheless submitted that it was open to the sheriff to consider that the conduct being alleged might be a breach of the peace. Counsel did not argue in support of the sheriff's invocation of section 57 of the Civic Government (Scotland) Act 1982.

[10] We did not understand it to be disputed by counsel for the appellant that in deciding whether the condition of double criminality was satisfied matters should be analysed in terms of the substance of the conduct alleged, rather than the nomen juris. However, proceeding on that basis we have nonetheless come to the conclusion that the condition of double criminality is not satisfied as respects charge 3 in the warrant in this case.

[11] In our view it is useful to start with the legislative provisions said to have been contravened. In our opinion, and on the face of matters, what is made criminal by the terms of article 192 of the Code is trespass on property of the kind specified in the article. Counsel for the Lord Advocate accepted that trespass was not a crime in Scotland and we did not understand him to suggest that article 192 went beyond criminalising trespass, and a refusal to leave at the request of the proprietor. When one turns to the terms of the charge, apart from supplying the obvious need to specify the locus, the occupiers and the date, it essentially repeats the wording of the article in the code. What is alleged as conduct thus does not amount to more than trespass and a refusal to leave at the proprietor's request. We do not agree with the sheriff's view that such conduct constitutes a breach of the peace. That view appears to involve the proposition that any trespass on private property accompanied by a refusal to leave when requested to do so constitutes a breach of the peace. In our opinion it is clear that the crime of breach of the peace requires the presence of an element of disturbance to the public peace - see Harris v HM Advocate 2009 SLT 1078; 2010 SCCR 15. Nor do we consider the act of trespass on property accompanied by a refusal to leave can be said to constitute the offence under section 57 of the Civic Government (Scotland) Act 1982. That offence requires other additional circumstances and we do not consider it appropriate to speculate on the existence of additional conduct or other additional circumstances which might bring trespass, which our law does not treat as a criminal offence, into a field of criminal conduct according to that law.

[12] There is one further observation to be made in respect of this ground of appeal. At page 3 of his report the sheriff effectively expresses the view that the argument advanced in respect of charge 3 in the warrant is entirely academic because the appellant will require to serve the greater sentence of five years imposed on charge 4. But in our view that is to assume that on the re-trial in Romania, to which the sheriff later refers, the appellant must inevitably be again convicted of charge 4. One cannot exclude the possibility that on re-trial the appellant might be acquitted of all but charge 3. It therefore cannot be said that the point is academic and without any possible practical consequence.

Deliberate Absence

[13] It being plain from the terms of the European arrest warrant before the sheriff that the appellant had been convicted in absence, the sheriff was required to, and duly did, answer the question posed by section 20(1) of the Act in the negative. Having done so the sheriff was required by section 20(3) of the Act to consider whether the appellant "deliberately absented himself from his trial".

[14] The appellant gave evidence before the sheriff in respect of this matter, the tenor of which is narrated by the sheriff in his report as follows:

"... he said that he had left Romania in ignorance of any requirement to return. In his evidence the appellant said that he had been arrested in respect of charges 1 and 2 of the indictment and had been released from court in early January 2006. He says that he was told that the police had to gather further evidence and he said that no return date was given to him. When released he had to give the court his address so that he could be contacted. He indicated that he knew nothing about the later charges from March and June but that he had left Romania around June without advising the criminal authorities and that he had not returned home since. He appears to have made no arrangements at all for mail to be received but later, (date uncertain), he was told by his brother that a letter had been handed to his brother who lives just two or three doors away from the appellant's address. This letter was from the Romanian Court informing the appellant that he had been sentenced in his absence to five years detention, as is the practice in that country. On receipt of that letter which was forwarded to him in Spain by his brother, the appellant again took no action and he came to the UK thereafter, and continued to do nothing about his case in Romania, until he was arrested on this EAW."

[15] It appears that before the sheriff it was contended that the sheriff required to be satisfied beyond reasonable doubt that the appellant's absence from the hearing at which he was convicted and sentenced on 21 November 2007 was deliberate. The sheriff rejected that argument. The basis upon which he did so took as a starting point the terms of section (D)
[2] of the warrant in which the first alternative in the pro forma (ie. the pro forma warrant annexed to the Framework Decision) had been marked with an "X". That alternative reads:

"The person concerned has been summoned in person or otherwise informed of the date and place of the hearing which led to the decision rendered in absentia."

(The second alternative in the pro forma deals with a case of a person not summoned or otherwise informed of the hearing and invites the issuing authority to specify the legal guarantees which he will have were he to be surrendered - cf. article 5(1) of the Framework Decision). The sheriff considered that in accordance with the principle of mutual confidence and recognition of decisions, which underlies the European arrest warrant procedures, he was entitled to rely on the certificate in the warrant and proceed on the view that the appellant had been properly summoned in accordance with Romanian law. The sheriff then explains his further reasoning thus:

"I am entirely satisfied on the basis of the judge's certificate and the fact that a second letter personally notifying the sentence was (quite by chance) later communicated to the appellant that the appellant left Romania without making any proper arrangements for his outstanding case to be dealt with. When the original two charges were supplemented by two more and service of court documents was carried out in accordance with Romanian law, the appellant was no longer in the country to deal with the summons of the court. Even when he did later receive notification of the sentence by the roundabout route described above he took no action, and the cumulative effect of all these circumstances simply underlines the fact that the case required to proceed in his absence on account of his decision to leave rather than remain to deal with the matter.

This entire history of events is important standing the decision of the House of Lords in Caldarelli v Italy, 2008 UKHL 51, where the opinion of the Court was that in interpreting the reference to 'trial' in section 20 of the 2003 Act, UK judges should understand that:

'The trial in international terms is not the occasion upon which he was convicted, but the whole process of the case through the court system'.

In that case, following the earlier decision in La Torre v HM Advocate, the House of Lords accepted that courts in the UK should not treat criminal procedure of the member States as if it were ours, that we are required to recognise different procedures, and that in some Member States (particularly Italy) 'a criminal trial was not an event but a continuing process'. On that basis the failure of the accused to respond to the intimation by his brother that he had been sentenced was simply a further indication of the fact that he was absenting himself from the whole process of his prosecution and sentence, and thus from his 'trial'".

[16] Counsel for the appellant submitted that the sheriff had erred. What was required to be demonstrated was that the appellant had absented himself from the trial and that, he said, required to be demonstrated beyond reasonable doubt. What was meant by "deliberately" was explained by Lord Nimmo Smith in paragraph [25] of his Opinion in Campbell v HM Advocate 2008 JC 265. Possession of the necessary relevant information was required before an absence could be said to be deliberate and it was there observed that the relevant information included the knowledge of the date and place of the trial. It was not enough that the warrant simply certified that the appellant had been summoned. Intimation by post was notoriously uncertain. There was no evidence that the appellant had received the summons or had knowledge of the hearing and such would require to be established beyond reasonable doubt. Reference was made to the discussion of the burden and standard of proof at paragraph 14ff of the judgment of Mitting J in Mitoi v Government of Romania [2006] EWHC 1977 (Admin).

[17] In a carefully presented submission counsel for the Lord Advocate made clear at the outset that while the sheriff was entitled to rely on the certificate in section (D) of the warrant, there were other aspects of the sheriff's approach which he did not seek to support. In particular, the Crown did not place any reliance on Caldarelli v Italy; while what was said in the opinions in that case was intelligible in the context of a first instance decision which was thereafter appealed, counsel indicated that in his submission nothing more could be taken from it and the notion of "trial" did not extend to the whole of the criminal process. Nor could any reliance be placed on the appellant's reaction to the letter forwarded by the appellant's brother after the conviction as indicating deliberate absence from the trial; or to what counsel termed the "holistic" approach which the sheriff appeared to adopt. Counsel accepted that there was an onus on the Crown to show deliberate absence and he accepted in general terms the test set out in Campbell v HM Advocate. However, counsel did not accept that matters had to be established beyond reasonable doubt. The sheriff was entitled to rely on the certificate in the warrant as instructing citation because one was not in the area of what one might be described as a "beyond reasonable doubt question".

[18] In amplification of that submission counsel referred first to s. 206 of the Act, the first three sub-sections of which provide:

"(1) This section applies if, in proceedings under this Act, a question arises as to burden or standard of proof.

(2) The question must be decided by applying any enactment or rule of law that would apply if the proceedings were proceedings for an offence.

(3) Any enactment or rule of law applied under sub-section (2) to proceedings under this Act must be applied as if -

(a) the person whose extradition is sought (or who has been extradited) were accused of an offence;

(b) the category 1 or category 2 territory concerned were the prosecution."

From section 9(2) of the Act, it was evident that any proceedings under contemplation would be summary criminal proceedings. If in summary proceedings an issue arose respecting the absence of an accused, a rule which would be applicable would be that applicable to trial in absence. Section 150 of the Criminal Procedure (Scotland) Act 1995 -" the 1995 Act" - applied where an accused failed to appear; and section 150(3C) envisaged, as an alternative to the grant of warrant to apprehend the accused, the making of an order under section 150A for proceedings in absence of the accused if the court were "satisfied" inter alia "that citation of the accused has been effected or the accused had received other intimation of the diet" (see section 150A(1) and (2)). In order for the court to be so satisfied, it would be sufficient to have an execution of citation. It would not be necessary for the prosecutor to prove beyond reasonable doubt that the accused had actually received and taken cognisance of the citation. The analogy of proceedings in absence of an accused was suggested by the Court in Mitoi (see paragraph 24 of the judgment of Mitting J.) and while the rule in England and Wales may be different, in Scotland a certificate of execution of citation would be sufficient. Another analogy might be criminal proceedings taken against an accused for failure to appear in answer to his citation.

[19] Counsel for the Lord Advocate went on to point out that section 7(3) of the Act provided for the application of a standard of proof of balance of probabilities in establishing that the person arrested was the person to whom the warrant related. In relation to category 2 countries, section 77(2)(b) dispensed with any need for corroboration. Similar dispensation was found in sections 84(8) and 86(8) as respects deciding whether there was a case to answer. It would be counter-intuitive, said counsel, to have a standard of proof beyond reasonable doubt in respect of establishing deliberate absence from a trial in a category 1 territory. The intention of the underlying Framework Decision and of Part 1 of the Act was greater co-operation, comity and mutual recognition of decisions and should thus be interpreted in favour of facilitating, rather than impeding, extradition. Finally, as respects the onus and standard of proof counsel tendered extracts from Hansard on the debates on this matter; however, he said, frankly, that they did not really assist either way in resolution of this particular issue.

[20] We find the analysis presented by counsel for the Lord Advocate to have attraction. In any issue involving the absence of an accused - or indeed a witness - a court in Scotland would rely on a certificate of execution of citation as prima facie evidence that the person concerned had been duly cited or summoned. Thus, as counsel for the Lord Advocate pointed out, as respects proceedings in absence of an accused, section 150A(2) refers as a condition for so proceeding, "that citation of the accused has been effected". In the case of prosecution of an accused, in terms of section 150(8) of the 1995 Act for failure to appear at a diet, the presumption that citation has been duly effected is further reinforced by the provisions of sub-section (9C) of section 150. Likewise the court is entitled to grant warrant for the arrest of a witness on the basis that he was duly cited (cf. section 90A(4) of the 1995 Act). The methods of citation include postal citation - and also electronic citation (see section 141 of the 1995 Act). It appears to us that the presumption upon which the law proceeds in such matters is that if citation has been effected in a manner for which the legislature has provided, the person cited is treated as having received, at least prima facie, due notice. And, at least in Scotland, the means of establishing the act of citation is by the lodging or production of a duly authenticated certificate of execution of citation. But neither in the case of a motion to proceed in the absence of the accused, nor in the prosecution of an accused or a witness for failure to attend at a diet, is there any initial onus on the prosecutor to prove beyond reasonable doubt that the person cited actually received the citation and had actual knowledge of the diet for the hearing in question. In the presence of a duly authenticated certificate of execution of citation, matters then move to the person cited, be he accused or a witness, to persuade the court that he did not in fact receive the citation and thus had no actual knowledge of the date of the court hearing at which he was supposed to attend. The ease with which he may effect that persuasion will often depend on the manner of citation selected by the person citing him the diet. For an example, an execution certificate of actual personal citation may be much more challenging for the person concerned than a citation which simply bears to have left the summons in the hands of another resident for him to pass to the person cited, or indeed postal citation, which has certain inherent possible uncertainties.

[21] Applying that analysis of the domestic law to a sheriff conducting an extradition hearing and having to address the question under section 20(3) of the Act, we have come to the view that where the issuing judicial authority has certified in terms of the first alternative in section (d) of the pro forma arrest warrant annexed to the Framework Decision that the person concerned has been summoned in person or otherwise informed of the date and place of the hearing which led to the decision rendered in absentia, the sheriff is entitled to accept that certificate and proceed upon the assumption of prima facie notification. But it is then open to the person whose extradition is sought to persuade the sheriff that he did not receive the citation and was therefore unaware of the date and time of the hearing and did not absent himself deliberately. In that respect it appears to us that the provisions of the law of the issuing State respecting citation may become relevant. As with our domestic law and rules on citation, some methods of citation authorised by the law of the issuing State may much more readily allow for technical citation, without actual, personal receipt of the necessary knowledge. Where the person concerned has left the territory of the issuing State well before the date of the hearing it may often be that the judge conducting the extradition hearing will have a little difficulty in accepting that he did not have, or may not have had, actual knowledge of the date of the hearing and was therefore not deliberately absent; or at least that there is some reasonable doubt about that matter. Of course, where such a doubt is raised, the issuing State may be able to provide further evidence that the citation was effected in a manner involving actual personal service and receipt of the citation by the person arrested.

[22] Accordingly, we agree that the sheriff was entitled to accept the certificate in the arrest warrant as establishing that the appellant had been summoned in accordance with Romanian law to the hearing on 27 November 2007. But that only takes one so far, since the appellant gave evidence that he did not receive or have knowledge of that summons. While it is not entirely clear from the sheriff's report whether the sheriff accepted that the appellant may not actually have received the summons to the hearing on 27 November 2007, we infer from the sheriff's other reasoning that he proceeds upon the basis that the appellant did not receive, or may not have received, the citation to the hearing. In that respect we note in particular the sheriff's references to the appellant's "no longer [being] in the country to deal with the summons of the court" and the appellant's having "left Romania without making any proper arrangements for his outstanding case to be dealt with".

[23] On the assumption that the appellant did not in fact receive intimation of the date of the hearing, the question then becomes whether he can be said nonetheless to have deliberately absented himself from his trial. We observe that so far as the Framework Decision is concerned, both article 5(1) and section (d) of the pro forma warrant refer to "the hearing which led to the decision rendered in absentia". (Other language versions similarly refer to the "hearing" rather than the prosecution more generally
[3]) As already mentioned, Lord Nimmo Smith in his Opinion in Campbell v HM Advocate stated as respects the knowledge involved in a deliberate absence from trial that "the relevant information may be taken to extend to the nature of the charges, and the date and place of the trial (cf. the Framework Decision, Article 5 ...)". We readily accept that possession of that information will generally be necessary. But for our part we would not wish to be taken as laying down an inflexible rule that knowledge of that relevant information was essential. There may be cases in which the accused has taken steps designed by him to frustrate his acquiring knowledge of the relevant information. For example, one could conceive of an accused who has provided an address for service of documents, but who then instructs the occupier not to forward any of them or to inform him of their contents.

[24] In the present case the sheriff reports that the appellant appeared in the court in Timisoara in January 2006 in respect of the first of the two charges mentioned in the warrant and that on his release from the court he provided the court with an address at which he could be contacted. The sheriff further reports that "he appeared to have made no arrangements at all for mail to be received". It thus appears that judicial criminal proceedings had been commenced against the appellant; that he had been required to provide an address at which he could be notified of further hearings in that process; and that the appellant had left Romania without making any arrangements for such notification to be forwarded or communicated to him. As was observed by May L.J. at paragraph 15 of his judgment in Deputy Public Prosecutor of the Court of Appeal of Montpellier v Wade [2006] ENHC 1909; [2006] Extradition LR 204, deliberately absenting oneself does not necessarily have overtones of deliberately evading justice. Accordingly, while it may be that the appellant did not leave Romania deliberately to evade justice, we consider that, in the circumstances just described of his having left the country in the course of criminal proceedings without making arrangements for him to be advised of notifications from the court sent to him at the address which he provided for that purpose, the appellant may be said to have deliberately absented himself from his trial. We therefore conclude that in those particular circumstances it was open to the sheriff to answer the question posed by s.20(2) of the Act in the positive.

[25] However, be that as it may, and as the sheriff observes, the question of deliberate absence is without practical outcome if, on his being surrendered, the appellant would be entitled to a "re-trial or (on appeal) to a review amounting to a re-trial" - see section 20(5) of the Act.

[26] The sheriff was apparently informed that the appellant had in fact instructed lawyers in Romania to commence review proceedings and before us counsel indicated that he had no information otherwise than that such review procedures were underway . The sheriff states in his report that "it can be held to be within judicial knowledge that all Member States who are signatories to the Framework Decision ... have guaranteed rights of re-trial for any person convicted in absence in a Member State". For our part we have doubts as to whether this can properly be described as a matter of judicial knowledge, but in the event counsel for the Lord Advocate was able to satisfy us that re-trial would be available in terms of article 522 of the Code of Criminal Procedure in Romania. He had this information not only from the appropriate official in Eurojust; there was also confirmation of that in the decision in the unreported case of Da An Chen v The Government of Romania [2006] EWHC 1752 (Admin).

The Result

[27] In the result we shall allow the appeal to the limited extent of discharging the appellant from any liability to be surrendered in respect of charge 3 in the arrest warrant (the charge respecting alleged events on 10 June 2006) which we do not consider to be an extradition offence. For the rest we shall affirm the sheriff's decision to order extradition.