England and Wales High Court (Administrative Court) Decisions

IN THE SUPREME COURT OF JUDICATURE
THE ADMINISTRATIVE COURT
ON APPEAL FROM SENIOR DISTRICT JUDGE WORKMAN

		Royal Courts of Justice Strand, London, WC2A 2LL
		23 March 2005

Lord Justice Pill:

1. This is an appeal by the Government of the Republic of Albania ("the Government") against a decision of Senior District Judge Workman given in a reserved judgment handed down on 28 October 2004, following a hearing on 12 October 2004 the Government seek the extradition of Fatmir Bleta ("the Respondent") in respect of conduct within their territory on 15 September 1998. The Respondent left Albania in late 1998, he says in November. He has been in the United Kingdom since then.
2. Following an extradition hearing, the judge exercised his power under Section 85(7) of the Extradition Act 2003 ("the 2003 Act") to discharge the Respondent. The Appeal is brought under Section 105 of the 2003 Act. Extension of time of 19 days within which to serve the notice of appeal is granted to the Government. The Second Respondent did not appear at the hearing.
3. Albania has been designated a category 2 territory pursuant to Section 69 of the 2003 Act (The Extradition Act 2003 (Designation of Part 2 Territories) Order 2003 (2003 No.3334)). Category 2 territories which are additionally designated under Section 84 by virtue of paragraph 3 of the Order (such as Albania), are not required to provide prima facie evidence to support a request for extradition. Part 2 of the 2003 Act, Sections 69 to 141, deals with extradition to category 2 territories. Two points arise; one on the wording of Section 85(3) and one on the wording of 85(5) of the Act.
4. On 19 August 2004 the Secretary of State issued a certificate under Section 70 of the 2003 Act that the request from Albania "being a territory designated for the purposes of Part 2 of that Act for the extradition of Fatmir Bleta is valid and has been made in the approved way". On 9 August 2004 Crane J had quashed an earlier certificate issued by the Secretary of State ([2005] 1 All ER 810). No challenge is made to the validity of the present certificate. The request for extradition is dated 11 May 2004.

The Facts

5. It is alleged that the Respondent had been charged with conduct which, had it occurred within the jurisdiction of the United Kingdom, would have constituted offences of murder, unlawful killing and firearms offences on 15 September 1998. The request included a narrative which, in translation, provided:

"This citizen, subject to extradition, on 15.09.1998, about 6.15 hrs, together with the citizen Abedin Zenuni were on duty during the night shift close to the drinkable water reservoir of Tirane, village of Selite. To the water reservoir went the victim Lulezim Duka, who knew the two guards. Since the witness Zenuni went to make a check round the building, the defendant and the victim stayed talking with each-other. At this moment there was heard a shot from the weapon in the possession of the defendant and due to this the victim Lulezim Duka got a lethal blow.

In reliance to the evidence submitted to the judicial hearing, First Instance Court, Tirane, through its decision no. 302 dated 19.05.1999, decided:

Convicting the citizen Fatmir Bleta and sentencing him to 13 years imprisonment for the criminal offence of "murder" and "illegal weapon possession" committed on 15.09.1998."

6. That summary was accompanied by a record of the hearing before the first instance court in Tirane on 19 May 1999. The Respondent was convicted in his absence. All relevant documents have been supplied in translation. The findings of the court were stated:

"That the defendant Fatmir Bleta was employed as a guard at the drinking reservoir in Tirane, located in the village of Selite. On 15.09.1998. the defendant was on his night shift together with the citizen Abedin Zenuni and the latter was employed as guard. About 6 15 hrs am, of the same day, at the check point came the victim Lulezim Duka who was homeless and knew both guards earlier. Referring to the explanation of the witness Abedin Zenuni, the victim stayed with them even at other occasions. As the moment for changing the shift was coming, Abedin Zenuni left for a moment to check the building leaving the defendant Fatmir Bleta and the victim alone. At this moment the witness Abedin saw the defendant playing with the victim, pointing the automatic weapon Kalashnikov at him, and said to him not to play with the weapon, since he could kill him. In the meantime, the defendant who was still pointing his weapon at the victim, pulled the trigger making a single shot. As a result of this shot, the victim got a bullet in his head and his death was caused immediately. The forensic expertise defines that the cause of the death of the citizen Lulezim Duka was the piercing wound he had in the head. In this way the defendant consumed the criminal offence of premeditated murder. Concerning the form of guilt, it was indirectly premeditated, since although the defendant did not wish the death of the citizen Lulezim, he saw the possibility of the criminal consequence, since making use of a military weapon and pointing it at the victim, the real [risk?] of causing the consequence was real."

7. The Respondent was convicted of premeditated murder and of illegal possession of military weapons and sentenced to a total of 13 years imprisonment.
8. The request was accompanied by a record of the decision of the court on 9 December 1998 to "impose the security measure of arrest in prison" and a document signed by the prosecutor dated 15 December 1998:

"There have been performed all the searches for him, but he is hiding from the police authorities and investigation. Under these circumstances, in order to continue with the procedures of prosecuting the defendant in absentia, we request to have his escape declared."

9. Also submitted was a much later document dated 28 April 2004, signed by a district deputy prosecutor, in which the events of 14 September 1998 are again described though with the damning additional allegation that the Respondent said to Lulezim "I am going to get rid of you." In the 2004 document, it was also stated that a case had on 21 September 1998 been registered as "criminal prosecution case no.2122" by the prosecution office at the Tirane Court.
10. A substantial bundle of further documents was submitted to the Secretary of State by the Government with a letter dated 12 October 2004, that is the date of the hearing before the judge. The witness statement on behalf of the Government states that the documents were before the judge. He did not refer to them in his judgment. The bundle included a document bearing the date 1 October 1998 from the Office of Judicial Police in which it was stated:

"…there have been before many searches in the house, as well as in other places where it is said he [the Respondent] was staying and at his workplace, but his apprehension has not been made possible. Since the searches were comprehensive and the person cannot be found, this protocol is sent to the competent court to decide the escape of the person."

11. A further document dated 15 December 1998, and signed by a judge at the Tirane district court declared "the escape of defendant Fatmir Bleta in accordance with Article 247 of the Criminal Procedure Code". The court's findings included, a finding that:

"After committing this criminal offence, the defendant Fatmir Bleta escaped to an unknown direction hiding from the investigation. Under these circumstances, we think that the request of the Prosecution Office of Tirane for declaring the escape of this person is fair and paves the way for the investigation and adjudication procedure in absentia".

The decision of 15 December 1998 is stated to be "in reliance on Articles 245 and 247 of the Criminal Procedure Code". These Articles are not with the papers supplied to me.

12. The judge also considered whether the appellant would be entitled to a re-trial (Section 85(5) of the 2003 Act). The judge stated:

"It is clear from the judgment of the court and it is conceded by the government that the time limits for the appeal have expired and that the defendant would not be entitled to a re-trial (or a review amounting to a re-trial) in respect of these charges".

Following the discharge of the Respondent, the Government have provided further information in relation to re-trial. No objection has been made on behalf of the Respondent to the court considering it. A letter from the Government's Minister of Justice, dated 10 November 2004 stated:

"Ministry of Justice of the Republic of Albania in response to your request provides official guarantee for the re-trial of the citizen Fatmir Bleta upon the occasion of the extradition of this citizen to Albania with reference to the present Albanian criminal legislation…"

Articles of the criminal code are then cited.

13. The letter of 10 November 2004 continues:

"It comes out of the interpretation of Article 48, 141 and 410/2 of the Republic of Albania that the defence can be realized by the lawyer appointed by the person facing the charge, or by his relatives through power of attorney. If the person cannot be found, his representation shall be made by the lawyer appointed ex officio by the court.

In reliance to Article 410/2 and to Article 147 of the Criminal Procedure Code, the powers of this defence lawyer are limited only at the First Instance Court. So he cannot represent the defendant at higher instances without being provided with a representation act issued in the forms provided for by law.

In these cases, even if the decisions has become final, because of the missing appeal within the ten day period, in accordance with Article 147, the entitlement to file an appeal can be restored with this legal provision.

In accordance with this legal provision:

1. The prosecutor, defendant, private parties and defence lawyers can be restored in the former legal position as long as they prove that they were not capable of observing the time period because of the accident or major forces.

2. If the decision has been announced in absentia, the defendant can request the restoration in the original legal position for filing an appeal if he proves that he was not informed about the decision.

3. The request for restoration in the former legal position shall be filed within 10 days since the disappearance of the fact which consisted an accident or major force, while in the cases provided for in paragraph 2, from the day when the defendant is informed effectively about the act."

Thus, interpreting the above provisions, there is foreseen the possibility that the law recognises to the citizens for requesting the restoration in the original legal position of the right to file an appeal, as long as the conditions foreseen by law have been met. We highlight that the right to file a complaint is a right foreseen also in the European Convention "For the protection of fundamental human rights and freedoms", and the Republic of Albania is a party to it, and as such this can be denied to no one. At the same time, in accordance with Article 122 of the Constitution of the Republic of Albania, the ratified international acts are part of the domestic legal system and are applied directly.

In reliance to Article 3, part 1 of the Second Additional Protocol to European Convention on Extradition, you are kindly asked to take in consideration the request for the extradition of the Albanian citizen Fatmir Bleta, upon the presentation of the legal guarantee mentioned above."

14. Further clarification was sought by the Home Office and the Government supplied yet further information on 10 December 2004:

"Ministry of Justice forwards, in response to your request for confirmation on the four points made by your authority relating to the extradition of the Albanian citizen Fatmir Bleta from the United Kingdom to Albania, as follows:

Regarding Point 1, concerning the start of time periods provided for in Article 147/3 of the Criminal Procedure Code, we provide the following explanation:

Considering Article 3, par 2 of the Second Additional Protocol of European Convention on Extradition, under which "if the requested party notifies the person whose extradition is requested for the proceedings held at his absence, the requesting party is not going to consider this communication as an official notification for the purposes of the criminal procedure in this state", the notification done by your authorities is not going to be considered within the time period.

Consequently, considering Article 147/3 of the Albanian Criminal Procedure Code, that the request for the restoration in the former legal position shall be filed within ten days from the day when the defendant has effectively been notified about the act, and Article 464, par 3 of the Albanian Criminal Procedure Code, according to which if the convicted person is in remand imprisonment, the order for the enforcement of the imprisonment sentence shall be sent to the state authority which administers the prisons and shall be notified to the interested person, while if the defendant is not in remand imprisonment, there shall be ordered his imprisonment, we explain that the time periods start when the convicted person has received official notification from the competent authorities in accordance with Article 464/3 of the Albanian Criminal Procedure Code.

With regard to point 2, through which there was requested confirmation whether the restored right for appeal has to do with a full retrial, we explain as follows:

In reliance to Article 425 of the Albanian Criminal Procedure Code, "Appeal Court hears the case in its entirety and it is not restricted only within the grounds contained in the complaint".

In addition to this, Article 427 of the Albanian Criminal Procedure Code provides for:

1. "If a party requests the re-hearing of the evidence administered in the judicial proceedings of first instance or hearing of other evidence, the court, if it is of the opinion that such thing is necessary, decides to hold partial or complete judicial proceedings".

2. "Concerning the evidence disclosed after the first instance proceedings or those which are disclosed on the spot, the court decides, as appropriate, whether they should be taken or not."

3. "Repetition of judicial proceedings shall be decided even ex officio, if the court thinks it is reasonable."

4. "The court decides repetition of judicial proceedings if it is proven that the defendant has not attended the first instance, because he was not informed or he could not attend for legal reasons".

In reliance to Article 428 of the Albanian Criminal Procedure Code, the Appeal Court decides:

a) upholding the decision

b) changing the decision

c) overruling the decision and termination of the proceedings, if it is the case that does not allow the institution and continuation of the proceedings, or if the guilt of the defendant is not proven.

d) Overruling the decision and sending the acts back to the first instance, if the provisions regulating the conditions for being a judge or lay-judge in the said case, the number of judges or lay-judges which is indispensable for making up the panels foreseen in this code, performance of the criminal prosecution by the prosecutor and his participation in the proceedings, participation of the representative of the accusing injured party and of the representative of the defendant, violation of the provisions for raising new charges have not been observed, as well as in every case when invalidity of the decision has been provided for in separate provisions.

With regard to point 3, we explain that Albania has signed the European Convention for Human Rights and Fundamental Freedoms as well as the International Pact for Civil and Political rights, and in reliance to Article 122 of the Constitution of the Republic of Albania "international acts are part of the domestic legal system and are implemented directly", and consequently Article 6/3 (e) and (d) of European Convention of Human Rights and Fundamental Freedoms are applied directly.

Confirming the implementation of the Albanian criminal legislation as well as of the international acts in which Albania is a party, we forward the above information in response to your request and we remain expecting your answer regarding the extradition of Fatmir Bleta from United Kingdom to Albania."

References are made in this letter to several articles in the Albanian Criminal Procedure Code which had not been mentioned in the earlier letter.

15. The Respondent was arrested in Derby on 21 April 2004. The court has not been told how he was traced. At interview on that day, Constable Couzens says that the Respondent told him, through an interpreter, that he worked as a security man at the factory and that the gun went off accidentally. In a statement made much later, the Respondent denied that he made that admission and claimed that he did not work at the factory. He now seeks to produce supporting evidence that he did not work at the factory and that he was at work away from Tirane on the relevant day. He claims that he left Albania in November 1998. No one from the Albanian authorities had visited his home or told him that he was wanted in connection with murder. Permission to introduce that evidence at the present hearing was refused.

The statute

16. The appeal turns on the construction of Section 85 of the 2003 Act which has the sub-heading "Case where person has been convicted":

(1) If the judge is required to proceed under this section he must decide whether the person was convicted in his presence.

(2) If the judge decides the question in subsection (1) in the affirmative he must proceed under section 87.

(3) If the judge decides that question in the negative he must decide whether the person deliberately absented himself from his trial.

(4) If the judge decides the question in subsection (3) in the affirmative he must proceed under section 87.

(5) If the judge decides that question in the negative he must decide whether the person would be entitled to a retrial or (on appeal) to a review amounting to a retrial.

(6) If the judge decides the question in subsection (5) in the affirmative he must proceed under section 86.

(7) If the judge decides that question in the negative he must order the person's discharge.

(8) The judge must not decide the question in subsection (5) in the affirmative unless, in any proceedings that it is alleged would constitute a retrial or a review amounting to a retrial, the person would have these rights –

(a) the right to defend himself in person or through legal assistance of his own choosing or, if he had not sufficient means to pay for legal assistance, to be given it free when the interests of justice so required;

(b) the right to examine or have examined witnesses against him and to obtain the attendance and examination of witnesses on his behalf under the same conditions as witnesses against him.

17. Section 86 is headed "Conviction in person's absence" but its operative sub-sections do not apply in this case because of the designation of Albania mentioned above. By virtue of Section 86(7), the requirement in Section 85(6) to proceed under Section 86 would become in this case a requirement to proceed under 87. The judge's duty under Section 87, which did not arise on his decision to discharge under Section 85, is "to decide whether the person's extradition would be compatible with the Convention rights within the meaning of the Human Rights Act 1998".

The hearing below

18. Three points were taken on behalf of the Respondent before the judge. The judge rejected the first submission which was that the second proceedings following the discharge of the first Section 70 certificate amounted to an abuse of process. The second point, which did not in the event arise, was that the Respondent was entitled to discharge under Section 87. The third point was that the Respondent was convicted in his absence and had not "deliberately absented himself from his trial" within the meaning of Section 85(3). The judge also considered whether Section 85(5) applied.
19. The judge dealt with the facts briefly stating:

"The Government's case is that the Defendant was in possession of an unauthorised automatic rifle and shot a man once in the head. The Defendant left the scene and in due course made his way to England. He was never arrested. The Government maintains that he must have known that the shot was fatal and that a trial was inevitable. In leaving the country in those circumstances he was waiving his right to be present at the trial and was deliberately absenting himself from that trial."

20. The judge's conclusions were:

"In the present case I am satisfied that the Defendant was never arrested and that he was never the subject of the equivalent of our charging process. There is no material before me to show that he knew of the existence of the proceedings, and certainly no material to show that he knew, or should have known, of the date and place of his trial and that the trial might proceed in his absence.

It seems to me that on a proper construction of Section 85(3) it cannot be said that the Defendant deliberately absented himself from his trial where he was unaware of the commencement or existence of the proceedings, or of the date and place of his trial.

Having concluded that the Defendant did not deliberately absent himself from his trial, I then have to consider whether under Section 85(5) he would be entitled to a re-trial. It is clear from the Judgment of the court and it is conceded by the Government that the time limits for the appeal have expired and that the Defendant would not be entitled to a retrial (or a review amounting to a retrial) in respect of these changes.

On these grounds I am obliged under Section 85(7) to discharge the Defendant."

Section 85(5)

21. The first point taken by Mr Summers on behalf of the Government is the point under Section 85(5) which was conceded before the judge. Reliance is placed on the material submitted by the Government after the hearing with the letter of 10 November 2004. Somewhat to my surprise, no objection was made to the point being taken before this court. If the point was to be taken, it should have been taken before the judge and the material now relied on submitted to him.
22. The Government rely on the "official guarantee for the re-trial of the citizen Fatmir Bleta upon the occasion of the extradition of this citizen to Albania…" contained in the first paragraph of the Minster of Justice's letter of 10 November 2004. The court is permitted to act upon an assurance (Peci v Governor of Brixton Prison and Government of Switzerland, The Times January 12 2000 DC). The court should not go behind the guarantee given, it is submitted. There was a right to legal representation just as the Respondent had been legally represented, in his absence, by a court appointed lawyer, at the hearings on 15 December 1998 and 19 May 1999. The Government's reliance on Article 3(1) of the Second Additional Protocol to the European Convention on Extradition with its reference to "an assurance considered sufficient to guarantee to the person the right to a re-trial which safeguards the rights of the defence" demonstrates the Government's awareness of what is involved. The fact that Article 3 has not been accepted by the United Kingdom is immaterial for the purpose of assessing what has been offered. The court should accept the guarantee given, it is submitted. As Moses J put in it Peci, extradition law is founded upon the principles of international comity between those nations who are signatories to the treaties in question.
23. For the Respondent, Mr Pearse Wheatley submits that it is open to the court, as recognised in Peci, to test the assertion contained the letter against the constitutional provisions produced to support the assertion made. There is a lack of clarity and certainty about the provisions, it is submitted, which is not cured by the explanations in the letters.
24. The court has not been supplied with information as to when the Constitution and Criminal Procedure Code were adopted, the relationship between them, decisions of the Albanian courts applying their provisions or expert evidence. Counsel submits that the effect of Article 147 is far from clear and the attempt in the letter to explain it is not reassuring. In Article 147 it is stated, "there is foreseen the possibility that the law recognises to the citizens for requesting the restoration of the original legal position of the right to file an appeal, as long as the conditions foreseen by law have been met". Only the possibility of an appeal is mentioned. That itself is conditional and is short of the required entitlement to a review amounting to a re-trial. Similarly, Article 427 of the new Code, set out in the December letter, falls far short of providing an entitlement to a re-trial. Partial or complete legal proceedings may be held if the court is "of the opinion that such a thing is necessary" and there a may be "a repetition of judicial proceedings" "if the court thinks it is reasonable".

Conclusion on Section 85(5)

25. It is important to make full allowance for difficulties in translation of the relevant provisions into English. It is also important to give sympathetic consideration to the concepts stated in Albanian law and not to find an entitlement absent because it is not expressed in terms familiar in English law. Moreover, provisions which are unlikely to have been drafted with circumstances such as the present in mind could, on a proper construction, be held to cover them.
26. However, having made all allowances I properly can, I am unable to conclude that, upon examination of the Albanian provisions and the explanations given for them, I am satisfied that the Respondent would be entitled to the required re-trial or (on appeal) review amounting to a re-trial in Albania. I do not doubt the good faith in which the "guarantee" was given but I see considerable force in the submissions of Mr Pearse Wheatley. There are in my judgment too many open ends and insufficient clarity to be able to conclude that the information supplied belatedly and by instalments, following the concession before the judge, provides a sufficient assurance that the Respondent would receive in Albania the re-trial, or review amounting to re-trial, which the 2003 Act requires if extradition is to be ordered. I do not find signatures of the European Convention on Human Rights, or the UN Covenants, in themselves amount to sufficient assurance in the circumstances.

Section 85(3)

27. On the second point, Mr Summers submits that the judge erred in law in his construction of the expression "deliberately absented himself from his trial" in Section 85(3) of the 2003 Act. The Respondent had the means of knowledge as to when and where his trial was to take place and voluntarily absented himself.
28. The Government submit that the Respondent "deliberately absented himself from his trial" within the meaning of Section 85(3) of the 2003 Act. The Government accept that the Respondent was not informed of the trial process but submit that he had shot someone in the head and no one in his position could have thought other than that he would be the subject of criminal trial. With that knowledge, the Respondent fled the scene and, more importantly, left the country, thus evading arrest in Albania. The inference should be drawn that he was evading arrest. The Respondent deliberately absented himself from the criminal process and thus his trial. The judge erred in his reliance on procedural criteria such as the formal charge and the moment of fixing date and place of trial.
29. Mr Summers submits that the approach adopted by the courts of England and Wales as to when a defendant may be tried in his absence supports the Government's construction of the sub-section. He also submits that, even if trial in the absence of the defendant would not be permissible on the present facts in England and Wales, the expression "deliberately absented himself from his trial" requires a broad construction in an extradition statute. The more flexible approach to trials in the absence of a defendant in civil law jurisdictions should be taken into consideration along with the need to give extradition treaties and extradition statutes "a broad and generous construction so far as the text permits it in order to facilitate extradition" (per Lord Steyn in R v Ismail [1991] 1 AC 320 at 327). There will be a large gap in extradition arrangements, it is submitted, if a person leaving a jurisdiction immediately after the commission of a crime and before proceedings against him have commenced can escape extradition.
30. It is also submitted that Albania is a civil law jurisdiction and in such jurisdictions trial in the absence of a defendant is permissible in circumstances where the accused is deemed to be evading arrest. For this proposition reliance is placed, not on expert evidence, but on a review of procedures in West European jurisdictions in the Federal Court of Australia in Hellenic Republic v Tzatzimakis [2003] FCAFC 4, at paragraphs 83 to 86 (per Finkelstein J).
31. As to what the position would have been had the alleged offences been committed in this jurisdiction, Mr Summers refers to the decision of the Court of Appeal Criminal Division in R v Hayward [2001] EWCA Crim 168. The Court considered the extent of a judge's discretion to conduct a trial in the absence of a defendant. Three cases were considered. In H, a re-trial had been ordered and a trial date fixed before the defendant absconded. In J, a trial date had been fixed and the defendant did not appear. In P, trial dates were adjourned because of the defendant's ill-health. When he was discharged from hospital, he disappeared. The appeal of H was allowed, that of J was dismissed, and P's application for leave to appeal was refused.
32. Giving the judgment of the court, Rose LJ referred to the decision of the European Court of Human Rights ("ECtHR") in Colozza v Italy [1985] EHRR 516, 524. It had not been shown in Colozza that the defendant had waived his right to appear and defend himself or that he was seeking to evade justice. The court accepted that "the impossibility of holding a trial by default may paralyse the conduct of criminal proceedings". The court's conclusion, at paragraph 30, was:

"The contracting states enjoy a wide discretion as regards the choice of the means calculated to ensure that their legal systems are in compliance with the requirements of article 6(1) in this field. The court's task is not to indicate those means to the states, but to determine whether the result called for by the Convention has been achieved."

33. Rose LJ, at paragraph 22 in Hayward,set out the principles which would guide the English courts in relation to the trial of a defendant in his absence:

" (1) A defendant has, in general, a right to be present at his trial and a right to be legally represented.

(2) Those rights can be waived, separately or together, wholly or in part, by the defendant himself. They may be wholly waived if, knowing, or having the means of knowledge as to, when and where his trial is to take place, he deliberately and voluntarily absents himself and/or withdraws instructions from those representing him. They may be waived in part if, being present and represented at the outset, the defendant, during the course of the trial behaves in such a way as to obstruct the proper course of the proceedings and/or withdraws his instructions from those representing him.

(3) The trial judge has a discretion as to whether a trial should take place or continue in the absence of a defendant and/or legal representatives.

(4) That discretion must be exercised with great care and it is only in rare and exceptional cases that it should be exercised in favour of a trial taking place or continuing, particularly if the defendant is unrepresented.

(5) In exercising that discretion, fairness to the defence is of prime importance but fairness to the prosecution must also be taken into account…"

Rose LJ then set out as a checklist of circumstances which should be considered. He added that at a trial in the absence of an unrepresented defendant the judge must ensure that the trial is as fair as the circumstances permit.

34. Hayward was applied in this court in the context of the differently worded Extradition Act 1989 in Spinnato v Governor of HM Prison Brixton and the Government of Italy [2001] EWHC Admin 1124. Citing principles (1) and (2) stated by Rose LJ, Kennedy LJ stated that it seemed clear that "had the trial taken place in England the Court of Appeal Criminal Division would not now interfere". The circumstances were, however, very different from those now under consideration:

"In the present case the conviction was undoubtedly obtained in the absence of the applicant, so the requirement of section 6(2)(a) of the 1989 Act is satisfied, and the only question therefore is whether it can be said that it would not be in the interests of justice to return him. I would not so find for three main reasons:

(1) in my judgment it is clear that when the applicant left Sicily he knew that a criminal trial was imminent, and having been seen by the investigating magistrate he knew what the charges were going to be. Having regard to the time scale the probability is that he had received the relevant documentation, and information as to the date of trail, whether or not he personally signed the receipt of 10 November 1990. Similarly, whether or not he actually signed the application for an abbreviated trial on 4 January 1991 it seems to me overwhelming likely that he agreed to that application being made on his behalf. So, as it seems to me, the applicant simply chose to leave Sicily a matter of days before his trial in full knowledge of what was about to take place.

(2) At the trial he was legally represented by a lawyer who was clearly active on his behalf, and as to whose competence no complaint is made. The evidence against him was, it seems, confined to the evidence of accomplices, but he chose not to be present to contest that evidence.

(3) He was aware of his conviction, and could if he chose to have returned to Sicily and taken an active part in his appeal. He chose not to do so, whoever signed the notice of appeal."

35. The decision in relation to J in Hayward was affirmed in R v Jones (Anthony) [2003] 1AC1,HL. The appeal was based on the proposition that the commencement of a trial in the voluntary absence of the accused contravened Article 6 of the Convention. Lord Bingham of Cornhill, at paragraph 8, considered the jurisprudence of the ECtHR which had "repeatedly made clear that it regards the appearance of a criminal defendant at his trial as a matter of capital importance" and that "a fair hearing requires a defendant to be notified of proceedings against him". He stated, at paragraph 9, that:

"But the European Court of Human Rights have never found a breach of the Convention where a defendant, fully informed of a forthcoming trial, has voluntarily chosen not to attend and the trial has continued."

Lord Bingham concluded, (paragraph 9), that "there is nothing in the Strasbourg jurisprudence to suggest that a trial of a criminal defendant held in his absence is inconsistent with the Convention."

36. Lord Bingham's conclusion, at paragraph 10, was:

"The law of England and Wales, while conferring a right and imposing an obligation on the defendant to be present at a trial on indictment, has never been held to include any comparable rule. If a criminal defendant of full age and sound mind, with full knowledge of a forthcoming trial, voluntarily absents himself, there is no reason in principle why his decision to violate his obligation to appear and not to exercise his right to appear should have the automatic effect of suspending the criminal proceedings against him until such time, if ever, as he chooses to surrender himself or is apprehended."

Lord Bingham added, at paragraph 13: "the discretion to commence a trial in the absence of a defendant should be exercised with the utmost care and caution". He approved, with reservations on points which for present purposes need not be considered, the Court of Appeal's checklist in Hayward.

37. The other members of the Appeal Committee agreed with Lord Bingham's conclusion although they were divided as to whether there had been an unequivocal waiver of the right to be present at any trial. Lord Hutton stated, at paragraph 23:

"I consider that the authorities make it clear that a court has power to proceed with a trial when the defendant has deliberately absconded before the commencement of the proceedings to avoid trial, although it is clear that the power to proceed in such circumstances should be exercised by the trial judge with great care."

38. The question whether a trial in the absence of defendant involves a breach of Article 6 is of course a different question from whether a defendant has deliberately absented himself from his trial, the statutory expression which is to be construed in this case. A purposive construction is required, submits Mr Summers, and not one based solely on English concepts of criminal procedure. Construing the statutory expression "convicted in the person's absence" in the Federal Court of Australia, (Section 10(1) Extradition Act 1988, an Australian statute), in Hellenik Republic v Tzatzimakis [2003] FCAFC 4, Black CJ stated, at paragraph 24:

"The diverse circumstances in which s10(1) might have effect, as regulations are made applying the Act in relation to the many countries with which Australia has concluded, or may conclude, treaties on extradition – countries with widely differing legal systems – suggests that s10(1) has a broad general object of removing previously relevant distinctions between different types of convictions in a person's absence. No object emerges that would suggest that a special or technical meaning was intended. Rather, the potentially diverse circumstances under which s10(1) might operate point the other way, to an intention that the expression in question should be interpreted according to ordinary English usage."

39. In In re Ismail [1999] 1 AC 320, the House of Lords construed the expression "accused of an extradition crime" in Section 1(1) of the Extradition Act 1989. The relevance of the case is in the analysis of the approach to be adopted to the construction of statutes dealing with extradition.
40. No criminal charge had been made against the defendant in Germany. He was merely a suspect and wanted for pre-trial investigations. It was held that, since the warrant of arrest stated at length the criminal conduct of which the applicant was accused and the statutory provisions under which the charges were brought and the German judge who had issued it and the public prosecutor who had applied for it had been satisfied that there was sufficient evidence to justify criminal proceedings against him, the defendant was an "accused" person for the purposes of the section and not merely a suspect.
41. The principles to be applied were stated in the opinion of Lord Steyn, at pages 326 – 327, with which the other members of the Appeal Committee agreed:

"The meaning of "accused" person

It is common ground that mere suspicion that an individual has committed offences is insufficient to place him in the category of "accused" persons. It is also common ground that it is not enough that he is in the traditional phrase "wanted by the police to help them with their inquiries." Something more is required. What more is needed to make a suspect an "accused" person? There is no statutory definition. Given the divergent systems of law involved, and notably the difference between criminal procedures in the United Kingdom and in civil law jurisdictions, it is not surprising that the legislature has not attempted a definition. For the same reason it would be unwise for the House to attempt to define the word "accused" within the meaning of the Act of 1989. It is, however, possible to state in outline the approach to be adopted. The starting point is that "accused" in Section 1 of the Act of 1989 is not a term of art. It is a question of fact in each case whether the person passes the threshold test of being an "accused" person. Next there is the reality that one is concerned with the contextual meaning of "accused" in a statute intended to serve the purpose of bringing to justice those accused of serious crimes. There is a transnational interest in the achievement of this aim. Extradition treaties and extradition statutes, ought, therefore, to be accorded a broad and generous construction so far as the texts permits it in order to facilitate extradition: R v. Governor of Ashford Remand Centre, Ex parte Postlethwaite [1988] A.C. 924, 946-947. That approach has been applied by the Privy Council to the meaning of "accused" in an extradition treaty: Rey v Government of Switzerland [1999] AC 54, 62G. It follows that it would be wrong to approach the problem of construction solely from the perspective of English criminal procedure, and in particular from the point of view of the formal acts of the laying of an information or the preferring an indictment. Moreover, it is important to note that in England a prosecution may also be commenced if a custody officer decides that there is sufficient evidence to charge an arrested person and then proceeds to charge him: section 37(7) of the Police and Criminal Evidence Act 1984; and see generally as to the commencement of prosecution Card, Cross and Jones, Criminal Law, 13 ed. (1995), ch. 4. Despite the fact that the prosecuting authorities and the court are not involved at that stage, the charging of an arrested person marks the beginning of a prosecution and the suspect becomes an "accused" person. And that is so even if the police continue to investigate afterwards.

It is not always easy for an English court to decide when in a civil law jurisdiction a suspect becomes an "accused" person. All one can say with confidence is that a purposive interpretation of "accused" ought to be adopted in order to accommodate the differences between legal systems. In other words, it is necessary for our courts to adopt a cosmopolitan approach to the question whether as a matter of substance rather than form the requirement of there being an "accused" person is satisfied. That such a broad approach to the interpretation of section 1 of the Act of 1989 is permissible is reinforced by the provisions of section 20. This provision deals with the reverse position of an extradition of a person "accused" in the United Kingdom and contemplates that "proceedings" against him may not be commenced ("begun") for six months after his return. This provides contextual support for a correspondingly broad approach to "accused" in section 1. For my part I am satisfied that the Divisional Court in this case posed the right test by addressing the broad question whether the competent authorities in the foreign jurisdiction had taken a step which can fairly be described as the commencement of a prosecution. But in the light of the diversity of cases which may come before the courts it is right to emphasise that ultimately the question whether a person is "accused" within the meaning of section 1 of the Act of 1989 will require an intense focus on the particular facts of each case."

42. In giving the judgment of the majority of the Privy Council in Cartwright v Superintendent of Her Majesty's Prison & Anr [2004] 1 WLR 902, Lord Steyn, at paragraph 15, affirmed the principle that extradition treaties "should be purposively and liberally construed". He added:

"But he [Counsel] argued that a different approach is necessary in regard to domestic extradition legislation. He made a comparison with criminal statutes and submitted that an approach of strict construction is necessary. The Board would reject this submission. Even in regard to criminal statutes the presumption in favour of strict construction is nowadays rarely applied. There has been a shift to purposive construction of penal statues: see Cross, Statutory Interpretation, 3^rd ed (1995), pp 172-175. In any event, it is a well settled principle "that a domestic statute designed to give effect to an international convention should, in general, be given a broad and liberal construction": The Antonis P Lemos [1985] AC 711, 731."

43. The minority opinion of Lord Hoffmann and Lord Rodger of Earlsferry in Cartwright is also important, in my view, as a general guide to statutory construction:

"42. We repeat that in our opinion the requesting state made out a strong case for extradition and it is therefore with genuine regret that we find ourselves unable to agree with the majority in thinking that the judge's error can be corrected. The "war on drugs" is important, although not everyone would agree with the means employed towards it or even with the military metaphor. But equally, if not more important, is the rule of law. People facing extradition, however unmeritorious they may be, are entitled to the law. If Parliament has made no provision for appeal against an erroneous order for their release, they are entitled to the benefit of that order. It is not the function of judges to become legislators and remedy what they perceive as a defect in the law by giving a far-fetched construction to what we are bound to say are the extremely plain and simple words of section 17(3) [of the Bahamas Court of Appeal Act, as amended]."

44. Mr Pearse Wheatley seeks to uphold the approach, already cited, of the Learned District Judge to the expression "deliberately absented himself from his trial" in Section 85(3). In order to have absented himself deliberately from his trial, he must have been informed of the essential facts of the legal proceedings. He must know that a trial is going to take place. He must be told, it is submitted, what he is accused of, that he is to be tried, when and where he is to be tried and also that he had the right to attend and represented. While different jurisdictions will have different means by which a defendant is made aware of the essential facts of criminal procedure, some form of official notification is required, it is submitted.
45. The right to a fair and public hearing, provided by Article 6, is fundamental, it is submitted. In relation to a criminal offence, it includes the right to be informed promptly, in a language which the defendant understands and in detail, of the nature and cause of the accusation against him (Article 6(3)(a)). The wording of Article 6 and the nature of the right protected throws light on the construction to be given to Section 85(3). Mr Pearse Wheatley refers to paragraph 51 of the judgment of the ECtHR in Pelissier & Sassi v France (Application No. 25444/94)

"The court observes that the provision of paragraph 3(a) of Article 6 point to the need for special attention to be paid to the notification of the "accusation" to the defendant. Particulars of the offence play a crucial role in the criminal process, in that it is from the moment of their service that the suspect is formally put on notice of the factual and legal basis of the charges against him. (See Kamasinki v Austria judgment of 19 December 1989, series A No.168, PP36-37, 79)."

46. Counsel draws attention to the differences between the facts in all the cases cited and those in the present case. I have summarised the facts in Hayward and Spinnato. Lord Bingham summarised the facts in Jones in this way, at paragraph 5:

"The certified question raises a question of principle, but it falls to be answered in the factual context of this case. It is particularly important to note that the appellant was arraigned and pleaded not guilty in January 1998, but that his trial did not then commence: R v Tonner [1985] 1 WLR 344. He was bailed to appear at his trial on 1 June 1998. He had the benefit of legal aid to instruct, and did instruct, solicitors and counsel to represent him at his trial. He knew the date of the trial and of his obligation to attend and deliberately decided to absent himself for reasons of his own. He had no reason to believe that the trial would not proceed in his absence or that his legal representative would be able to represent him if he did not appear."

None of the cases cited from this jurisdiction have permitted a trial in the absence of the defendant in circumstances such as the present.

Conclusions on Article 85(5)

47. The following propositions emerge from the authorities and the evidence:

(a) None of the domestic cases cited have permitted a trial of a defendant in his absence in circumstances such as the present. They have all involved a deliberate absence much later in the legal process.

(b) I accept that when construing words in a United Kingdom extradition statute, it may be necessary to look beyond technical English law concepts. Lord Steyn's strongly expressed opinions in Ismail and in Cartwright require a broader approach. That is reflected in the approach to the word "accused" in Ismail. The approach should have regard to substance rather than form.

(c) There is no evidence that the word "trial" is given a broader meaning in other jurisdictions than it is in England and Wales.

(d) While Albania is not a common law jurisdiction, there is no evidence to suggest that it should be classified, for any relevant purpose, as a civil jurisdiction. We have no evidence as to the origin or classification of the present Albanian legal system. It is not doubted that it seeks to achieve the rule of law.

(e) However, I am prepared to assume, for the purpose of deciding the present issue, that the Albanian system has much in common with civil law jurisdictions. I also assume that some civil jurisdictions take a more relaxed view of trials in the absence of defendants, though there is no substantial evidence to that effect before the court.

(f) In this jurisdiction, the appearance of a criminal defendant at his trial remains a matter of "capital importance" as does the requirement that a defendant be notified of the proceedings against him (Jones, paragraph 8).

(g) Statutes must be construed in the context of the existence of Article 6 rights, as stated in the ECtHR and domestic courts.

48. I reach the following conclusions:

(a) In Section 85(3) Parliament has adopted the expression "deliberately absented himself from his trial". Consideration must be given to the concept of deliberate absence and to the concept of a trial. The Respondent has deliberately absented himself from Albania but there is no evidence that he knew of the existence of a trial or of any proceedings which might lead to a trial.

(b) The word "trial" was adopted by Parliament in the context of the presence of Article 6 with its use of the word "hearing" and its reference to a right to a hearing and a right to be informed of the nature and cause of the accusation. Article 6 confers the right to a fair trial and the word "trial" would not have been used by Parliament in Section 85(3) if a wider view of absence had been intended.

(c) The sub-section must be construed in a context in which capital importance is attached to the appearance of a defendant at his trial. The focus is on a specific event at which the Respondent could expect to be present. Other factors, as well as the need to facilitate extradition, are at work.

(d) Parliament could have used an expression such as "deliberately absenting himself from legal process" which could, on appropriate findings of fact, include leaving a jurisdiction to avoid arrest but Parliament has not done so and the sub-section cannot be construed as if it had. The expression "his trial" contemplates a specific event and not the entire legal process.

(e) In the result, I am unable to construe the words of Section 85(3) as covering the present circumstances. While the absence from the jurisdiction of Albania is established, it is not established that the Respondent left that jurisdiction, or remained in the United Kingdom, with the intention expressed in the sub-section.

49. Had I reached a different conclusion on this issue, I would have remitted the case to the judge under Section 106(6)(b) of the 2003 Act for further consideration of the events which followed 15 September 1998 and of the circumstances in which the Respondent left Albania. The judge did not consider these matters in his judgment and it appears that detailed submissions on the facts were not addressed to him. There is no reference in his decision to the bundle of documents supplied with the letter dated 12 October 2004, which was the date of the hearing before the judge. The Government relied, as they did in this court, on the general submissions summarised at paragraphs 27 and 28 above. On the judge's view of Section 85(3), further scrutiny of the facts was not required. If the Government's view were to be correct there was insufficient factual inquiry before the judge.
50. I would dismiss this appeal.

Mrs Justice Cox:

51. I agree.