Diyan Robertov Igov v Pernik Prosecutor’s Office, Bulgaria

MRS JUSTICE EADY : Introduction

1. This is my judgment on appellant's appeal pursuant to section 26 of the Extradition Act 2003 (" the Act "). The appeal is against the reserved decision of District Judge Calloway, dated 6 August 2024, to order the appellant's extradition to Bulgaria. The appellant pursues his appeal on three grounds. ground 1, dual criminality, and ground 3, article 8 ECHR, were permitted to proceed by order of Heather Williams J, seal dated 6 February 2025. Permission on ground 2, deliberate absence and right to retrial, was granted by Mould J at a renewal hearing on 19 March 2025.

2. The extradition order was made in respect of a conviction arrest warrant ("AW") issued on 28 October 2022 and certified on 15 December 2022. The AW relates to two convictions concerning offences committed (1) in 2017 (“conviction 1”) and (2) in 2018 (“conviction 2”). The convictions

3. Conviction 1 relates to an offence committed by the appellant on 9 April 2017 when he was 18. The details provided in respect of this offence record that the appellant rode a motorcycle without "the necessary legal capacity", driving recklessly and in breach of the speed limit, thereby causing injuries to two other road users. One of those injured suffered an open craniocerebral injury, cerebral contusion and an epidural haematoma, resulting in a temporary life-threatening disorder, along with a fracture of the upper jaw, making chewing and speaking difficult, and a fracture of the left knee leading to difficulties in movement of that leg for some months. The second person injured suffered a fracture at the base of the first finger of his left hand, causing restricted movement for over a month. Although not stated in the AW, the appellant has explained that he also suffered serious injuries in this accident which resulted in a metal plate being inserted into his head to protect his brain.

4. The appellant was convicted of this offence on his entering a guilty plea on 23 January 2018. It is common ground that the appellant was present on this occasion and was legally represented. He had entered into an agreement with the prosecutor's office whereby he was then sentenced to a term of imprisonment of eight months, suspended for a period of three years. Under the terms of the sentence, the appellant was informed that he must not commit any further criminal offences during the operative period of the suspension or the sentence would be activated. The appellant signed the agreement concluded with the prosecutor's office, as well as the court record of 23 January 2018.

5. Conviction 2 relates to an offence committed on 14 September 2018, when it is stated that the appellant drove a car with THC in his blood. He was convicted of driving under the influence of a prescribed drug and, on 10 February 2022, was sentenced to one-year imprisonment for this offence.

6. As conviction 2 related to an offence committed during the currency of the appellant's suspended sentence, also on 10 February 2022, the eight-month custodial term for the earlier offence was activated. The proceedings below and the decision of the District Judge

7. The appellant was arrested in the UK on 13 November 2023 and brought before the Westminster Magistrates' Court the following day when the extradition hearing was set for 15 March 2024. He was released on conditional bail upon which he has remained.

8. Following an application by the respondent for additional time, the first listing of the extradition hearing was vacated and relisted for 26 June 2024 when it was effective. The appellant was represented by counsel (albeit not by Ms Westcott, who now appears), and both he and his partner gave evidence. Judgment was reserved and handed down on 6 August 2024.

9. At the hearing below, it had been common ground that the appellant should have been discharged on conviction 2. That was because the Bulgarian authorities could not provide the level of drugs in the appellant's blood relating to conviction 2 (which could have led to a section 5 A Road Traffic Act 1988 offence if over the limit in this jurisdiction), and they did not have information that the appellant's driving was impaired (which could have led to a section 4(1) driving while unfit through drugs offence). As dual criminality could not be established, the respondent had accepted that, in relation to conviction 2, pursuant to section 10 of the 2003 Act , the District Judge was bound to order the appellant's discharge. The District Judge proceeded, however, to order the appellant's extradition on both offences. It is not in dispute that this was an error and the respondent accepts that the appeal must be allowed on this ground (ground 1), such that this is to be treated as a single offence, eight-month penalty case.

10. Returning to the hearing before the District Judge, to the extent that conviction 2 was in issue, it was the appellant's case that he had been convicted in his absence; he had been unaware that he was ever to be charged and had not deliberately absented himself from trial. Pursuant to section 20 of the Act , it was, therefore, contended that the District Judge must order his discharge. The District Judge did not accept that case, finding that the appellant had been aware that he was the subject of an investigation for a drug-driving offence and, having provided a blood sample knew that any future prosecution would be predicated upon receipt of the laboratory analysis.

11. The District Judge further found that the appellant was also aware that any positive finding would place him in breach of the suspended sentence in respect of the first offence. The District Judge noted that the appellant had provided the police with a temporary address in Bulgaria, not his settled address in the UK, where he had been living since February 2018. He had also provided a telephone number but, when that was used, it was not answered. The District Judge recorded that the appellant had left Bulgaria within two days of being questioned by police and had travelled to the UK and remained uncontactable.

12. Considering the appellant's case, under section 20 , the District Judge was satisfied to the criminal standard that the respondent had established that the appellant was deliberately absent from his trial for the second offence. Although strictly unnecessary to decide, the District Judge was also satisfied, from further information provided by the respondent, by letter of 10 May 2024, that he would be entitled fully to exercise his defence on a request for a retrial.

13. By his second ground of appeal, the appellant contends that the District Judge was wrong to conclude there was no bar to extradition on the basis of his absence from trial and/or right to a retrial.

14. The appellant also argued before the District Judge that his extradition would be incompatible with his article 8 ECHR right to a private and family life and he should thus be discharged pursuant to section 21 of the Act . In this regard, it was the appellant's case that he had an established life in the UK; his convictions related to offences committed when he was a young adult, ages 18 and 19, whereas he was now in a stable relationship with his partner who was expecting their child. The District Judge referred to the appellant's relatively young age when convicted and to the established life he had made for himself in the UK; he had regard to the character references provided, to the evidence of the appellant's medical condition – he had himself suffered a head injury during the course of the first offence – and to the evidence given by the appellant's partner. The District Judge accepted that the appellant had established himself in the UK, both in employment terms and socially, and that he was in a settled relationship with a partner who was expecting their child. He did not, however, consider the appellant's medical condition gave rise to any particular difficulty for extradition purposes.

15. The District Judge also took account, however, of the serious nature of the offences in issue and that the appellant was, as he had found, a fugitive from justice. Carrying out the requisite Celinski (that is Poland Judicial Authorities v Celinski and Others [2015] EWHC 1274) balancing exercise, the District Judge concluded that the balance in this case was in favour of the appellant's extradition.

16. By his third ground of appeal, the appellant contends that the District Judge erred in concluding that extradition would be a proportionate interference with the family life of the appellant, his partner and their children. In support of this ground, the appellant further applies to adduce fresh evidence, updating the court's understanding of the current position of his family. Ground 1

17. As I have already recorded, it is common ground that the District Judge erred in ordering extradition on conviction 2, which did not meet the requirements of dual criminality such that the appellant was properly to be discharged in respect of this offence.

18. Accepting that the District Judge ought, thus, to have decided this issue differently, the question is whether, had he dealt with this correctly, he would have been required to order the appellant's discharge more generally (see section 7 of the Act ) . To answer that question, it is necessary for me to go on to consider the other two grounds of appeal.

19. In considering the remaining grounds, I must now approach this as a single offence, an eight-month penalty case. Accepting this, it is the respondent's position that the order for extradition should, nevertheless, be upheld. The appellant, on the other hand, contends that his appeal should be allowed and that the present position is such that the public interest in extending does not justify the exceptionally severe consequences that would follow.

20. For completeness, I note that it is accepted that the respondent will comply with speciality arrangements and can, thus, be assumed will disaggregate the punishment (see Mihailov v Bulgaria [2022] EWHC 908 (Admin) at [17 to 28]). Ground 2

21. Ground 2 is pursued pursuant to section 20 of the Act , the appellant contending that the District Judge was wrong to conclude there was no bar to extradition on the basis of his absence from trial and/or right to a retrial. In this regard, it is the appellant's case that the District Judge answered the statutory questions regarding a deliberate absence and retrial incorrectly: (1) the appellant was not deliberately absent from 2018 onwards and the arrest warrant was ambiguous as to which decision it relates, which was not clarified by the further information provided: (2) the alternative analysis regarding the availability of retrial was also wrong, the respondent's evidence being equivocal in this regard. I note that this point is put somewhat differently on appeal as to how it seems the section 20 case was argued below.

22. Returning then to ground 2, as it has been put on the appeal, in this regard it is not in dispute: given that the AW merely stated that the appellant had not appeared personally at the hearing to which the warrant related, there was an apparent ambiguity as to which sentence was being referred. By the further information provided by letter of 7 December 2023, however, it was made clear that the appellant had been present at the hearing relating to conviction 1; his absence was in relation to conviction 2. In respect of conviction 2, it was stated that this related to an offence committed on 14 September 2018 and that the appellant had been detained by police as a result.

23. Following his release from police custody, however, the appellant had left Bulgaria on 18 September 2018 and had not returned. Although aware that any further offence would result in the activation of his suspended sentence, the appellant did not answer the phone when attempts were made to contact him.

24. As for the availability of a retrial, in the AW itself it was stated that option 3.4 applied such that: "upon delivery of the decision, the person will be explicitly notified of his right to appeal or second hearing of the case by his personal participation, where the case might be heard again, including consideration of further evidence and which might lead to cancellation of the initial decision and the person will be notified of the time within which he has to request appeal or second hearing and which is … after he has known of the effective judgment".

25. On 10 May 2024, further information was provided stating that: "[The appellant] would have a 6-month period to make a request to reopen the case, as this period … begins to run from the actual surrender of the person, when extradition is allowed in case of conviction in absentia. As a procedural guarantee for this right of convicted persons, to whom extradition in case of conviction in absentia was allowed, an obligation for the Chief Prosecutor … to make a request for the reopening of the criminal case within one week of the knowledge of the granted extradition, is also provided for in … of the Criminal Code". And confirming "… upon resumption of the criminal case, [the appellant] could fully exercise his right of defense himself or be defended by an attorney authorized by him, or by an ex officio appointed one, if he does not have the means and if the interests of justice so require, and he could also participate in the interviewing of witnesses whose testimony incriminates him, as well as to request the interviewing of witnesses who would testify in his defense. As a procedural [safeguard] for this … the Criminal Procedure Code …when a person is convicted in absentia, the court is obliged to resume the case, returning it from the stage when the absentee proceedings began".

26. By section 20 of the Act , it is provided that, in cases where a person has been convicted, "(1) if the judge is required to proceed under this section … he must decide whether the person was convicted in his presence; (2) if the judge decides the question in subsection (1) in the affirmative, he must proceed under section 21 ; (3) if the judge decides that question in the negative, he must decide whether the person deliberately absented himself from his trial; (4) if the judge decides the question in subsection (3) in the affirmative, he must proceed under section 21 ; (5) if the judge decides that question in the negative, he must decide whether the person would be entitled to a retrial or (on appeal) to a review amounting to a retrial; (6) if the judge decides the question in sub section (5 ) in the affirmative, he must proceed under section 21 ; (7) if the judge decides the question in the negative, he must order the person's discharge; (8) the judge must not decide the question in sub section (5 ) in the affirmative unless in any proceedings that is alleged would constitute a retrial or a review amounting to a retrial, the person would have these rights –– (a) the right to defend himself in person or through legal assistance of his own choosing or, if had not sufficient means to pay for legal assistance, to be given it free when the interests of justice so required; (b) the right to examine or have examined witnesses against him and to obtain the attendance and examination of witnesses on his behalf under the same conditions as witnesses against him".

27. For the appellant it is argued that, (1) the only reason for the activation of the suspended sentence was the conviction for the second offence; (2) the warrant purports to impose a combined penalty of one year eight months, which infers a fresh sentence was imposed with the one-year penalty on 10 February 2022; (3) the penalty imposed on 10 February 2022 constitutes a hearing caught by section 20 relating to both offences; (4) the appellant's absence from the hearing of 10 February 2022 could not properly be found to be deliberate for section 20 purposes (see Bertino v Italy [2024] 1 WLR 1483 Supreme Court).

28. Drawing on CJEU Guidance as to what hearings should be caught by section 20 , mirroring article 4A of the EAW Framework Decision and article 601(1)(i) Trade and Co-operation Agreement 2020, the appellant observes that the CJEU has consistently held that the term "the trial resulting in the decision" means "proceedings leading to determination of guilt and imposition of a penalty". Thus, an appeal process is caught (see Tupikas [2017] 4WLR 188, C-270/17PPU at [74] to [78]) as is a re-sentencing exercise where the overall term is reduced, where there is any discretion (see Criminal Proceedings against Zdziaszek [2017] 4 WLR 189 C-271/17PPU, 10 August 2017) .

29. Accepting that a simple activation of a previously imposed suspended sentence will not be a hearing caught by section 20 (see Ardic C-571/17, 22 December 2017), it is, however, the appellant's submission that the District Judge ought to have seen that the totality of the one year eight months was bound up with both offences, such that, on the facts of this case, even if the appellant were not extradited for the 2018 offence (conviction 2), it would not be a remedy for the second conviction activating the suspended sentence.

30. In this regard, the appellant places particular reliance on the wording of the AW where, under "Length of the custodial sentence or detention order imposed", it is stated: "Entered into force on 10 th February 2022. Sentence in Criminal case of a general nature … according to which [the appellant] was imposed custodial sentence for a period of 1 /one/ year, which period is to be effectively served under initial general imprisonment". Then, in a separate paragraph, " On the basis of Article 68 para. 1 of the Criminal Code, the custodial sentence for a period of 8 /eight/ months, imposed on [the appellant] by effective enforced Court Ruling for approval of an agreement in Criminal case of a general nature …" Ending: " Remaining sentence to be served: The length of time for serving the sentences is equal to 1 (ONE) YEAR and 8 /EIGHT/ MONTHS"

31. It is the appellant's submission that this demonstrates an understanding that the 10 February 2022 sentencing hearing was not merely the occasion of the activation of the eight-month suspended sentence but was also the combination of that penalty with a new one-year penalty to make the operative one-year, eight-month sentence in relation to which the District Judge ordered extradition.

32. I do not accept the premise of the appellant's submission in this regard. Notwithstanding any ambiguity in the AW, the further information makes plain that the appellant was present at the first instance when he received a suspended sentence. That sentence was later activated because of the commission of a further offence. Section 20 requirements do not apply in relation to the subsequent activation of a suspended sentence (see Ardic ) . Ardic specifically entailed the activation of a suspended sentence: the CJEU ruling that this did not qualify, differentiating (see paragraph 40) between cases which "modified the quantum of the penalty imposed" and those which relate to the "method for execution of such a penalty". At paragraph 41, the court concluded that revocation hearings did not modify the quantum and, thus, did not qualify (see also Foster Taylor v Italy [2019] EWHC 2938 applying the CJEU decision of Zdziaszek C-271/17 . At [74] and [77] therein, the Divisional Court confirmed that a trial resulting in a decision within the meaning of section 20 may also include sentencing hearings but only "where those proceedings are not a purely formal and arithmetic exercise".

33. That I am satisfied is the case here. The sentence was activated in its entirety as a result of a straightforward commission of a further offence; there were no other requirements to the suspension. Contrary to the appellant's submissions, there is nothing to suggest any merging of the sentences. That is not a natural reading of the AW, which expressly separates out the two convictions and sentences, merely adding them together for the purposes of requesting extradition and answering the question "remaining sentence to be served" at box C2, where it is then clearly stated that the total time remaining to be served, one year, eight months, relates to two sentence s (plural) not one combined sentence. It is, thus, clear that the response within the AW does not serve to change the nature of what took place on 10 February 2022, where it is apparent, as stated within the AW, that the quantum of the sentence imposed on conviction 1 was not modified. The suspended sentence of eight months was merely activated. This was simply the method of execution of that earlier penalty which had expressly provided, as the appellant was aware having himself signed the agreement, that the suspended term would be automatically activated if he committed a crime within the three-year period.

34. Even if I was wrong about this, I am not persuaded that the District Judge erred in his alternative finding that the appellant would have a right to a retrial. Where the right to retrial has been unambiguously stated, extradition cannot be barred under section 20 (see Cretu v Romania [2016] EWHC 353 (Admin) at [35]. In the present case, that is stated in the AW in the pro forma language used and, where box 3.4 of box E has been ticked, it should be concluded that there is a right to retrial ( Merticariu v Romania [2024] UKSC 10 at [26]).

35. In any event, the guarantee to such a retrial and rights on retrial is made clear in the further information provided in the letter of 10 May 2024, and there is no reason why that information should not be taken into account in determining this question: Merticariu at [27]. A right to a retrial can exist even if the domestic law of the requesting state requires that the requested person takes procedural steps to invoke the right: Merticariu at [28]. The guarantee provided in this case is not subject to the caveated language as was under consideration in Merticariu (see paragraph 65) . The appellant says that it cannot be assumed that any right to retrial will apply to the activation of the suspended sentence, but that submission is misconceived. If, on the appellant's request for retrial on conviction 2, the second conviction is overturned; the activation of his suspended sentence would also fall away.

36. For the reasons provided, therefore, the appeal is dismissed on ground 2. Ground 3

37. Further/ alternatively, by ground 3, pursuant to section 21 of the Act and article 8 ECHR, the appellant says that the District Judge erred in concluding that extradition would be a proportionate interference with the family life of the appellant, his partner and their children.

38. Developing the appellant's case, it is emphasised, per ground 1, that the District Judge should have treated this as a single-offence case with an eight-month penalty not a one-year, eight-month penalty. This was not a case where the appellant should be seen as having escaped penalty; he had also suffered very serious injuries in the 2017 motorcycle crash, leaving him with a lifelong vulnerability due to the damage to his skull. Moreover, but for the 2018 non-offence, the appellant complied with the terms of his suspended sentence and did not re-offend before 2021 or at all.

39. The restricted bail conditions and risk of further arrest in place for over one and a half years during these extradition proceedings also constitute a form of punishment. The appellant further argues that the District Judge was wrong to treat the offences as serious, albeit the District Judge had himself seen conviction 2 as the more serious matter. The court was entitled to use a crosscheck of a hypothetical UK sentence in order fairly to assess the seriousness (see Fordham J's summary in Prusianu v Braila Court of Law, Romania [2023] 1 WLR 495 at [48], endorsing Yip J in Swiercz v Poland [2019] EWHC 1387 (Admin) at [35] notwithstanding Celinski ).

40. The first offence justified a suspended sentence in Bulgaria and, on similar facts, it is submitted that the second offence would not even be a criminal offence in this country.

41. The appellant also argues that that District Judge was wrong to find that it was proved beyond reasonable doubt that he was a fugitive. He maintains his genuine ignorance of his conviction for the 2018 offence, which was the only trigger for the suspended sentence activation, and his open life and travel, including his application for settled status in 2020, were inconsistent with his being a fugitive from justice.

42. Even if the fugitive finding remains, the appellant contends that the District Judge was wrong to reason that his young age – 18 and 19 at the time of the offences – was not relevant. In this jurisdiction, there would be an entirely different approach to sentencing because it was categorically wrong to treat young people as mini-adults (see ZA v The Cown [2023] EWCA Crim 596 at [52] to [62]. It shows no disrespect to the Bulgarian court to acknowledge that, as with our courts, this enlightened approach would not have applied when the suspended sentence was imposed.

43. More generally, the appellant argues that, while the District Judge came to the correct conclusion that extradition "would result in huge disruption" (see [30]) beyond a few "bland lines" per King J, as she then was, in Judkowiak v Poland [2015] EWHC 2524 (Admin) at [22], the District Judge largely overlooked the impact of extradition on the appellant, on his partner's young son (effectively the appellant's stepson, who has no maintenance payments from his biological father), and the appellant's partner, and did not mention at all the consequences for the appellant's concerned mother. The District Judge's decision simply reduced the impact on the family as “commonplace” (see [23]), when what was required was an assessment of severity. This was the striking and unusual trap which had been sought to address in HH, and Andrysiewicz v Poland [2025] UKSC 23 did not alter the fundamental principles to be applied.

44. Adopting that focus, it was clear that the consequence of extradition for the appellant's partner, young son and new baby would be so severe that extradition should be refused. They were the primary considerations (see HH v Italy [2012] UKSC 25 at [15]. As underlined by the fresh evidence, the court was invited to consider that all rely on the appellant, financially, practically and emotionally. Specifically the appellant's partner has very limited support beyond the appellant; she is on maternity leave from her modest factory job and suffers panic attacks linked to worry about this case. She predicts she will be drowning in debt trying to manage with two young children on her own, having already used a debt consolidation company after her older child's father left her. Her older child's biological father would prevent her travelling with him, so she is unable to go to Bulgaria. She will be unable to work while caring for two children alone, leaving aside her clinical anxiety, described by her GP in November 2024 as an acute stress reaction for which she has been prescribed anxiety medication. As she has stated, "I have no way to cope". Although there were extended family locally, they variously have their own health problems and dependants. The appellant's partner's older child (now aged eight) depends on the love and support the appellant offers him daily and there is a closer bond since the family moved in together a year ago. The appellant's mother relies on him as opposed to being a support if he were extradited. She works in a factory when her poor health allows. The appellant helps her with daily chores and navigating medical appointments and liaison with her employment agency. Neither family has significant ties remaining in Bulgaria.

45. Yet further, the appellant's extradition would also now seriously impact on his new baby at a specially crucial time for her attachment to him. The baby did not ask to be born (see HH at [78]), and the first-instance debate about the circumstances of her birth was largely irrelevant. As Kerr J observed in Prisacariu v Romania [2022] EWHC 538 (Admin) at [106]; conception under a cloud of the extradition proceedings should not count against a family, "a young person of child-bearing age cannot be expected to put her life on hold for year on year to await the outcome".

46. The appellant also draws my attention to the difficulties caused by the extradition bail conditions for over one and a half years against an eight-month penalty and the stress of the case for the whole family, which has been significant. The tag curfew is not qualifying but has interfered with family life and hospital appointments and has been a form of punishment. Thus, during the entirety of his partner's pregnancy, the appellant was in jeopardy of not being able to accompany her to hospital when needed.

47. The appellant invites me to conclude that extradition represents a disproportionate interference with article 8 in this case on a fair assessment of the exceptionally-severe impact on an innocent partner and two children and, to a lesser extent, the appellant's mother, with limited support and limited ties in Bulgaria.

48. It is further submitted that the ordinary public interest in favour of extradition is reduced in this case considering: (1) the Bulgarian sentencing court was not in a position to consider the appellant's family life; (2) the unusual facts behind the remaining eight-month penalty imposed for as driving offence when the appellant was 18; and (3) the seven-to-eight year delay since the offences, during which time the appellant has matured into a responsible working father with dependants firmly rooted in this country and, more generally, the significant impact of extradition proceedings on family life so far, including the restrictive bail conditions since 15 November 2023 and the appellant's inability to pay for a lawyer in Bulgaria in order to bring the current circumstances to the attention of those authorities.

49. The approach I am required to adopt to an appeal on article 8 grounds is the subject of clear guidance, thus in Belbin v Regional Court of Lille, France [2015] EWHC 149 (Admin) , Aikens LJ said as follows: "If, as we believe, the correct approach on appeal is one of review, then we think this court should not interfere simply because it takes a different view overall of the value-judgment that the District Judge has made or even the weight that he has attached to one or more individual factors which he took into account in reaching that overall value-judgment. In our judgment, generally speaking and in cases where no question of 'fresh evidence' arises on an appeal on 'proportionality', a successful challenge can only be mounted if it is demonstrated, on review, that the judge below; (i) misapplied the well-established legal principles, or (ii) made a relevant finding of fact that no reasonable judge could have reached on the evidence, which had a material effect on the value-judgment, or (iii) failed to take into account a relevant fact or factor, or took into account an irrelevant fact or factor, or (iv) reached a conclusion overall that was irrational or perverse".

50. In relation to the evidence as it was before the District Judge, I am unable to say that the appellant has identified anything that meets this criteria. First, I am satisfied that the District Judge was entitled to consider the offence resulting in conviction 1 as serious. As the respondent has observed, in this case an analysis of the question of the seriousness of the offence was largely irrelevant, given that the sentence had already been imposed and, evidently, the assessment of the Bulgarian court in relation to gravity and the appropriate sentence must be respected. To the extent relevant, however, the seriousness of the offence in terms of harm is apparent from the injury sustained by the appellant and the others involved and the sentence appears to have taken into account the relevant mitigating features, including the appellant's youth and previous lack of convictions and his then acceptance of guilt. I do not consider the District Judge erred in considering this to have been a serious offence.

51. Acknowledging these points, the appellant emphasises the District Judge's reference to the seriousness of the offence relevant to conviction 2, saying that, given dual criminality could not be established, regard ought properly to have been had to the fact that this might not even have amounted to an offence in this jurisdiction and/or warrant the activation of the previous suspended sentence.

52. I do not agree. First, it cannot be said that the activating offence would not even be a criminal offence in this country. There are obvious analogous offences in this jurisdiction – drug driving, driving whilst unfit through drugs – and (accepting that evidential gaps between what the two jurisdictions require to prove either offence has meant that section 10 cannot be satisfied) it simply cannot be said whether the relevant UK limit was crossed or whether the appellant's driving was below standard.

53. In any event, the suspended sentence imposed in respect of conviction one was subject to the condition that the appellant did not commit another offence. Although conviction 2 did not relate to an offence that could be established to meet the requirement of dual criminality for the purposes of the Act , it amounted to an offence in Bulgaria sufficient to lead to the activation of the suspended sentence in respect of conviction one, which was of itself serious.

54. In respect of the fugitivity finding, I am equally satisfied the this was a finding that was open to the District Judge on the evidence and should not be disturbed. The District Judge had the advantage of having heard the appellant give evidence and he reached findings of fact that were clearly available on the evidence and information before him. On his own account, within the term of his suspended sentence and during a visit to Bulgaria, the appellant had smoked cannabis and had then driven a car later on the same day. As was common ground, he had been arrested and the delay obtaining further blood test results was because the appellant had required a further test because he did not accept the roadside result. He then left the country within four days, leaving only an address in Bulgaria at which he did not reside and, as the District Judge found, without telling the authorities that he, in fact, lived in the UK. Thereafter he did not answer his ‘phone when attempts were made to contact him. In these circumstances, accepting there was no prohibition on the appellant leaving Bulgaria and no condition that he reside at a particular address, and even, if his absence from the hearing on 10 February 2022 would not meet section 20 requirements, per Bertino , the appellant cannot rely on the delay that has occurred, given that he would have been aware that he was being investigated for criminal conduct when in Bulgaria in breach of his suspended sentence and took steps that he would have known placed him beyond the reach of the Bulgarian justice system.

55. As the Divisional Court held in Wisniewski v Regional Court of Wroclaw, Poland [2016] EWHC 386 (Admin) , the appellant became unlawfully at large at the point when his suspended sentence was activated. The fact that he was unaware that this had occurred does not alter that fact (see in particular [52]-[57] and [60]-[62]; specifically see paragraph [62]: where a person has, as a matter of choice, placed himself beyond the reach of the criminal justice system concerned, he is properly to be regarded as a fugitive for these purposes.

56. Otherwise, in relation to the District Judge's decision in respect of article 8 in this case, I do not accept the appellant's characterisation of the reasoning provided. It is apparent that the consequences of extradition on the appellant's family and on his own enjoyment of his family life, in particular given the impending birth of his child, were very much at the forefront of the District Judge's mind, but he was entitled to find that these did not amount to the kind of exceptional circumstances as would outweigh the very weighty public interest attaching to the factors that pointed in favour of extradition.

57. As the Supreme Court has recently and clearly started in Andrysiewicz v Poland [2025] UKSC 23 at paragraph 43: "Cases in which a submission founded on article 8 ECHR may defeat the public interest in extradition will be rare. It is most unlikely that extradition will be held to be disproportionate on the ground of interference with private life. Even in cases where interference with family life is relied upon, it will only be in cases of exceptionally severe impact on family life that an article 8 ECHR 'defence' will have any prospect of success".

58. The appellant applies to introduce fresh evidence which updates the position. It is open to this court to admit fresh evidence and allow an appeal where the evidence was not available at the extradition hearing and would have resulted in a question being decided differently, such that the judge at first instance would have been required to order the person's discharge.

59. In this case, I am unable to find that the fresh evidence meets the relevant test. Although it updates the court's awareness of what has taken place since the District Judge's decision, these are not matters that the District Judge failed to take into account. In particular, the District Judge was aware of the impending birth of the defendant's child, and, as I have observed, had this very much in mind when making his decision. That said, when carrying out the required balancing exercise below, the District Judge had wrongly considered both convictions instead of limiting his assessment to conviction 1. As Heather Williams J observed, when permitting this matter to proceed on grounds 1 and 3, that is arguably a relevant consideration when reviewing the District Judge's decision and, when, thus, reviewing the balancing exercise that was undertaken, I have done so de bene esse, with the fresh updating evidence in mind.

60. Undertaking that exercise, I am, however, led to the same conclusion as the District Judge: taking full account of the fresh evidence, the impact is the very sad, but equally not uncommon, consequence of extradition and, indeed, domestic imprisonment. The two children will be left with their mother, the appellant's partner. The family, including the appellant's mother, will lose the main breadwinner, albeit that this will be for a relatively limited period of eight months. I accept the children may well find this very difficult, particularly the appellant's partner's son, who will be old enough to appreciate the loss of someone who has, no doubt, become a father figure to him.

61. I also accept that the appellant will be denied precious time with his young baby and that may impact on the building of bonds between them. Although the appellant's fugitivity counts against him, I have also, as the District Judge did, taken into account the stable life he has built in the UK, of the references he has provided, and of the impact that the extradition proceedings and the conditions of his bail have already had on him and his family. I have had regard to the letters from the appellant's mother and acknowledge her concerns. I have had particular regard to the position of the appellant's partner, who already suffers anxiety, and will, I have no doubt, find this immensely difficult. In particular, I accept that the appellant's partner has very real concerns about her financial position, given her existing debts and the difficulties she will undoubtedly face when seeking to support herself and her family during the appellant's absence. Sadly, however, none of this is uncommon and it does not detract from the fact that the appellant's partner is evidently capable of caring for her children with the emotional support of her own family, and that of the appellant, who also live in this country. Giving primary focus to the needs of the children involved, as is required, this is not a case where they risk being left without loving parental and family support. Furthermore, while appreciating the difficulties that she will face, the appellant's partner and their children will be entitled to state support if she is unable to return to work.

62. I know that from the perspective of his appellant and his partner, it will be difficult to see how the balance could possibly fall on the side of extradition in this case, but, having regard to the very weighty public interest in the UK adhering to its treaty obligations and ensuring that it is not seen as a safe haven for foreign criminals, I am unable to say that this is a case where there is such an exceptionally-severe impact on family life as to outweigh those factors.

63. While I, therefore, allow this appeal on ground 1, I do not allow the appeal on grounds 2 and 3 and I do not, therefore, find that the District Judge would have been required to order the appellant's discharge on conviction 1. _________ Epiq Europe Ltd hereby certify that the above is an accurate and complete record of the proceedings or part thereof. Lower Ground, 46 Chancery Lane, London WC2A 1JE Email: [email protected]