Douglas Wotherspoon, part of 9BR Chambers’ extradition team, was successful before a divisional court comprised of Mr Justice Jay and Lord Justice Holroyde in an appeal against the order for his client’s surrender to Romania to serve a 2 year sentence of imprisonment.
The Divisional Court found that the evidence before the court did not show beyond reasonable doubt that Mr Mohammed had knowingly and intelligently waived his right to attend trial and he fell to be discharged from the warrant under s.20 of the Extradition Act 2003.
Mr Mohammed was originally sought alongside his wife who was convicted of the same offending in Romania. His wife was discharged at first instance. Mr Mohammed and his wife were both found by the District Judge not to be fugitives from justice. s.20 of the Act was not raised at first instance by Mr Mohammed or his wife owing to the law as it was then.
Mr Mohammed’s appeal was originally predicated on the absence of a right to a retrial in Romania under s.20(5) of the Act following the decision of Merticariu v Judecatoria Arad, Romania [2024] UKSC 10 which post-dated the District Judge’s finding at first instance. However, following further information served by Mr Mohammed and the Romanian authorities, it was accepted that Mr Mohammed did not have a right to a retrial. Instead, the Romanian authority contended that he was deliberately absent. The substance of the appeal, and the majority of the judgment, focuses on Bertino v Public Prosecutor’s Office, Italy [2024] UKSC 9 and s.20(3) of the Act in relation to the factual matrix of both appellants.
Notably, as s.20 of the Act was not raised at first instance, the Divisional Court ruled that Mr Mohammed should be given the opportunity to provide oral evidence on this point. Following submissions, the court resiled from this ruling. Owing to this, Lord Justice Holroyde at §104 - 105 invites early consideration by the parties on a fact-specific basis whether the appeal court should be invited to receive fresh oral evidence directed to a new issue being raised on appeal which was not raised at first instance.
Douglas acted for Mr Mohammed at first instance and appeal. Douglas was led on appeal by Ben Watson KC and was instructed by Frank Brazell of Sperrin Law throughout.
Read the Judgment here
