QUEEN'S BENCH DIVISION
THE ADMINISTRATIVE COURT
B e f o r e :
(Vice President of the Court of Appeal, Criminal Division)
MR JUSTICE HENRIQUES
|THE QUEEN ON THE APPLICATION OF MILAN BIKAR AND JAN BIKAR||(CLAIMANT)|
|THE GOVERNOR OF HM PRISON BRIXTON||(DEFENDANT)|
Smith Bernal Wordwave Limited
190 Fleet Street London EC4A 2AG
Tel No: 020 7404 1400 Fax No: 020 7831 8838
(Official Shorthand Writers to the Court)
MS A DHIR appeared on behalf of the DEFENDANT
Friday, 14th February 2003
Crown Copyright ©
"Without prejudice to any jurisdiction of the High Court apart from this section, the court shall order the applicant's discharge if it appears to the court in relation to the offence in respect of which the applicant's return is sought that --
(a) by reason of the trivial nature of the offence . . . .
It would, having regard to all the circumstances, be unjust or oppressive to return him".
"We are of the opinion that", stated LJ Shaw, "whilst the maximum penalty may sometimes offer guidance as to whether an offence is of a trivial nature, it does not generally in itself provide an apt test. In the present instance, substantial fines might be imposed on conviction. Moreover, company accounts are not required solely for the information of the shareholders. The investigating public is concerned to rely upon them as providing a true and fair picture of the financial state of a company in which members of the public might be interested to invest. That such a picture is provided is of the utmost commercial importance. As to the applicant's involvement, this court has considered all the points advanced on his behalf, that his visit to Singapore was brief, and of course there was the fact of his reliance upon others, in particular lawyers and accountants, but after all, the applicant was Chairman of the company. He presented the accounts and he cannot in the view of this court properly cast responsibility onto the shoulders of his ultimate Director, Mr Booker, or those of other Directors. The fact that the applicant has no accountancy qualification does not mean that he is lacking in business acumen. This court can find no justification for regarding the offences charged as being of a trivial nature, nor can it come to the view that Mr Tarling's responsibility in relation to them was necessarily minimal. That must be a matter to be dealt with and considered when he comes to be tried".
"A person accused of an offence shall not be returned, or committed or kept in custody for the purposes of return, if it appears to an appropriate authority that if charged with that offence in the United Kingdom he would be entitled to be discharged under any rule of law relating to previous acquittal or conviction".
"A person who is alleged to be unlawfully at large after conviction of an extradition crime shall not be returned to a foreign state . . . or committed or kept in custody for the purposes of a return to a foreign state . . . if it appears to an appropriate authority --
(a) that the conviction was obtained in his absence; or
(b) that it would not be in the interests of justice to return him on the grounds of that conviction".
"As Mr Hardy submits, the 1989 Act was intended to simplify the procedure where the request for extradition emanated from another Convention state, and so, he submits, the hybrid category of someone convicted in contumacy was swept away. If a person was convicted in his absence his return should be sought as a person convicted, and he can then if he wishes pray in aid section 6(2). But, as Mr Hardy recognises, section 6(2) was never intended to give additional relief to a convicted fugitive who if extradited would be entitled to have his conviction set aside. Such a person did not need further protection".
"It is possible to appeal against this judgment within eight days from the day of delivery to the Regional Court . . . in writing, it is necessary to submit nine copies of it".
"I would like to point out that, according to paragraph 306a of the Criminal Code, if the criminal case against the escapee finished by the final judgment of conviction and then the reasons for the case against the escapee passed, the first degree court cancels this judgment on the condition the convict submits the proposition within the period of eight days after the delivery of the judgment".
"Pursuant to section 306a of the Czech Criminal Procedure, the proceedings against the fugitives ended with final judgment".
"After . . . the reasons for which the proceedings against fugitives will pass over, this Court shall, on the basis of a request of the sentenced person filed within eight days from the date of delivering the judgment, overrule this judgment to the extent set forth in section 306 paragraph 2 of the Czech Criminal Procedure, and the main hearing will take place again".
"A person convicted and sentenced upon final judgment resulting from the proceedings in absentia has [the] right to request a new trial. It is important to point out that under Czech law a court delivers only one decision -- judgment -- in which it must at the same time make both a statement determining guilty and a statement specifying punishment.
If such a person requests a new trial a court must revoke (cancel) a whole judgment, for example, both a statement determining guilty and a statement specifying punishment, and hold the main hearing once again under request of the defendant".