Ninedays v District Prosecutor's Office of Varna Bulgaria

J U D G M E N T

LORD JUSTICE AIKENS: This is an appeal by William Ninedeys ("the appellant") from the decision and order of District Judge McPhee ("the DJ") dated 21 August 2014, whereby he ordered the surrender of the appellant pursuant to an European Arrest Warrant ("EAW") issued by the Judicial Authority of Bulgaria ("the JA") on 6 February 2012. The EAW was certified by the Serious Organised Crime Agency of the UK on 28 June 2013. Bulgaria, being a member of the European Union, is a category 1 territory for the purpose of the Extradition Act 2003 ("the EA"), so that Part 1 of the EA applies to this case.

The EAW in this case is a "conviction" warrant requesting the surrender of the appellant to serve a sentence of five years for one offence. That offence is akin to those of obtaining money by deception and money laundering offences under the Proceeds of Crime Act 2002 . There is no dispute that the offence identified in the EAW, which I will have to examine in more detail shortly, constitutes an extradition offence for the purposes of the EA. In short, the appellant was convicted in his absence of receiving and using a sum totalling the equivalent of €636,301.76 in two bank accounts in Bulgaria where the money had been obtained through a "serious premeditated crime", viz document fraud, contrary to Article 212 of the Bulgarian penal code. There are two named victims.

At the Extradition Hearing before the DJ, the appellant challenged the EAW on six grounds. These were, in the order in which the DJ dealt with them in his judgment, that the surrender was barred because: (1) it would offend the rule against "double jeopardy" in relation to the sentence imposed: section 12 of the EA; (2) it would be unjust or oppressive to surrender the appellant because of the passage of time since he is alleged to have been unlawfully at large: section 14; (3) the appellant was not a fugitive from the Bulgarian proceedings but, under Bulgarian law, he would not be entitled to a retrial: section 20; (4) if surrendered, he would have to serve his five year sentence in appalling prison conditions that are such that surrender would be in breach of the appellant's rights under Article 3 of the European Convention on Human Rights ("the ECHR") not to be subjected to inhuman or degrading treatment or punishment; (5) if surrendered it would be a disproportionate interference with the appellant's and his ten year old daughter's family rights under Article 8 of the ECHR, both (4)