Romanian grandmother wins appeal against extradition for shoplifting
A Romanian national has succeeded in appealing an extradition order that would have seen her returned to Romania to serve a 13-month prison sentence for a conviction of aggravated theft.
The appellant, referred to as DV, argued that her rights under article 8 of the ECHR would be breached by extradition, due to the fact that her youngest child had given birth to a baby daughter, to whom DV was in effect the primary carer, in the middle of extradition proceedings.
The appeal was heard in the Appeal Court of the High Court of Justiciary by Lord Brodie, Lord Glennie, and Lord Turnbull.
Failed to attach sufficient weight
The appellant was convicted of aggravated theft in a court in Bucharest in 2017. The theft was committed in November 2014 when she stole several food products from a mall store in Napoca, Romania. The appellant had a criminal record in several different countries for analogous offending, including in Scotland.
She had travelled to Romania from Scotland to attend the trial but had returned to Scotland following her conviction. Following her sentencing in December 2017, the Romanian authorities sought to extradite her by means of a European Arrest Warrant issued in January 2018.
The appellant was arrested and appeared at Edinburgh Sheriff Court on 19 April 2018. She opposed extradition, with a hearing taking place in May 2019 after a series of adjournments. At the hearing, the sheriff ordered that the appellant be extradited.
The appellant’s youngest child, CV, born in 2006, resided with her mother and father in Scotland. In June 2019, Glasgow City Council social workers were made aware that CV was pregnant. Following the birth of the child, the appellant and CV shared parenting duties and the appellant remained the main carer for both of them to allow CV to continue to attend school.
Following the birth of the appellant’s granddaughter, AV, the application was amended to include an article 8 challenge, which was accepted by the respondent as competent despite its lateness in proceedings. It was therefore submitted that new evidence had come to light which would have resulted in the sheriff deciding the question differently in that he would have been required to order the appellant’s discharge.
The appellant submitted that there was a strong public interest in ensuring that children are properly brought up, and that the meeting of both CV and AV’s practical and emotional needs would be significantly affected by the removal of their primary caregiver. Further, the nature of the offending behaviour was at the lower end of the spectrum of criminal behaviour, which would be a significant factor in weighing up the public interest in extradition.
The opinion of the court was delivered by Lord Brodie. After being satisfied that the court was required to determine the issue de novo, he said: “We have regard to all the factors referred to by [the respondent] as favouring extradition but, with one exception, we have not given them much weight.”
He continued: “A requested person may be extradited even where, in the opinion of the requested court, the offence for which that person has been convicted does not appear to be very serious. The seriousness of the extraditable offence is nevertheless relevant; where the offence is serious that weighs the balance in favour of extradition, where it is not serious it does not.”
Examining the offence for which the appellant was to be extradited, he said: “What we have in the present case is a conviction for shoplifting of some items from a food store a number of years ago which attracted a custodial sentence of 13 months. If anything, the trivial nature of this offence points away from extradition, albeit we noted and have had regard to the point made by the solicitor advocate for the respondent that were the appellant to be extradited her absence from her home in Scotland should not be for more than 13 months.”
On the appellant’s arguments regarding her children, he said: “The crisis which arose when the thirteen-year-old CV gave birth to AV, would appear to have been satisfactorily managed by the appellant taking on the role of principal carer of AV while continuing to look after CV. To withdraw the childcare provided by the appellant would amount to an interference with the children’s article 8 rights in a way which will inevitably be damaging and probably very damaging.”
Of the case as a whole, he said: “We can see that there may be cases where because of the seriousness of the offence of which the requested person has been convicted, damage to dependent children’s welfare may have to be accepted, but this does not appear to us to be such a case. The appellant’s conduct may not have been exemplary but one cannot avoid the fact that the conviction in respect of which extradition is sought was in respect of shoplifting in circumstances which attracted a 13 month sentence. “
He concluded: “To imperil the chances of two children growing up into well-functioning adults by extraditing their primary carer at what are critical stages in their respective lives because of a conviction for shoplifting is, in our opinion, clearly disproportionate.”
For these reasons, the appeal against extradition was allowed.
© Scottish Legal News Ltd 2020