Appeal under section 26 of the Extradition Act 2003 by Ghorghe Marcoci against the Lord Advocate (High Court of Justiciary)

Factual and Procedural Background

The Appellant, a national of The State, moved to the United Kingdom on 14 May 2018. He is subject to two custodial sentences imposed by The District Court: an original sentence dated 15 February 2018 (initially 3 years, increased on appeal to 8 years with finality on 14 May 2018) and a sentence dated 16 December 2020 (finalised at 2 years on 16 February 2021). Both sentences followed convictions for tax offences. European Arrest Warrants were issued on 15 June 2018 and 9 May 2022. The Appellant was arrested in the UK and first appeared at the Sheriff Court on 25 July 2022. On 21 March 2025 the Sheriff ordered extradition to The State. The Appellant appealed under section 26 of the Extradition Act 2003 advancing three grounds: (i) adjournment pending an asylum claim; (ii) incompatibility with Articles 5 and 6 ECHR; and (iii) new information not before the Sheriff (ongoing proceedings in The State).

Legal Issues Presented

1. Whether the appeal should be adjourned pending determination of the Appellant's asylum claim.
2. Whether extradition would be incompatible with the Appellant's rights under Articles 5 and 6 ECHR (including whether there is a real risk of flagrant denial of a fair trial).
3. Whether new information (ongoing extraordinary remedies in The State) that was not before the Sheriff would have required discharge under section 27(4) of the Extradition Act 2003.

Arguments of the Parties

Appellant's Arguments

• The appeal should be adjourned until his asylum claim is determined because, under section 39(3) of the Extradition Act 2003, he cannot be returned while the asylum claim remains outstanding.
• The prosecutions in The State were politically motivated and he had been subject to state pressure (including contact from Agency A), so extradition would breach Articles 5 and 6 ECHR.
• New information: there were ongoing extraordinary proceedings (revision and annulment) in The State that could result in retrials; extradition before their determination would be premature and oppressive and this information was not available to the Sheriff.
• The Appellant had established family and private life in the UK (Article 8), and a lengthy period had elapsed since the convictions.

Respondent's Arguments

• An asylum claim does not prevent disposal of the extradition appeal; section 39(3) prevents return until the asylum claim is finally decided but does not bar the appeal proceeding.
• Articles 5 and 6 set a high threshold; the onus is on the requested person to establish a real risk of flagrant denial of rights and the Sheriff correctly found the evidence insufficient.
• Ongoing proceedings in The State do not suspend enforcement of the sentences; extraordinary remedies are limited and are not listed as bars to extradition under section 11 of the 2003 Act.
• Previous authorities cited by the Appellant were fact-specific and not analogous; no specific reason was advanced to believe the Appellant's appeals will not be dealt with in line with Convention rights.

Table of Precedents Cited

Court's Reasoning and Analysis

The Court first refused the Appellant's request to adjourn the appeal pending resolution of his asylum claim, observing that section 39(3) prevents removal until asylum determination and that adjournments for late-made asylum claims are rarely appropriate. The Court emphasised the need for expeditious extradition proceedings and noted the lateness of the asylum claim (made more than three months after the Sheriff's decision and seven years after arrival).

On the merits under Articles 5 and 6 ECHR, the Court applied the high evidential threshold set out in the authorities: the Appellant bore the onus of proving a real risk of flagrant denial of fair trial rights. The Sheriff had heard detailed evidence and found the Appellant's allegations of politically motivated prosecutions unpersuasive, making adverse credibility findings which this Court would not disturb. The Court concluded that the evidence did not meet the high test required to establish Convention breaches.

Regarding the new information (ongoing extraordinary remedies in The State), the Court noted these remedies (revision and annulment) are limited, were initiated after ordinary appeals were exhausted, and did not suspend enforcement of the sentences; the EAWs remained valid and enforceable. The additional information did not meet the conditions of section 27(4) of the Extradition Act 2003 and would not have led the Sheriff to decide differently.

The Court also considered Article 8 ECHR (private and family life) but found only ordinary hardships of extradition present and concluded public interest in extradition outweighed those considerations under Article 8(2).

Holding and Implications

APPLICATION FOR LEAVE TO APPEAL REFUSED

Direct effect: The Sheriff's order for extradition is upheld and the Appellant's application for leave to appeal is refused. Removal remains prevented only insofar as section 39(3) applies pending final determination of the Appellant's asylum claim; the extradition order otherwise stands and the European Arrest Warrants remain valid and enforceable.

Implications: The decision affirms that (i) adjournments for late asylum claims will rarely be granted, (ii) the high evidential threshold for Articles 5 and 6 claims in extradition cases must be met, and (iii) extraordinary remedies in the requesting state that do not suspend enforcement will not, by themselves, bar extradition. The opinion does not purport to establish a novel precedent beyond application of established principles to these facts.