England and Wales High Court (Administrative Court) Decisions

IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
DIVISIONAL COURT

		Royal Courts of Justice Strand London WC2
		10th July 2006

1. LORD JUSTICE MAY: On 10th December 2003, George Wade was driving his lorry in the south-west of France when it was found to have 196 kilograms of cannabis resin on board. He was charged in France with drug offences. On 30th July 2004, a criminal court in Perpignan acquitted him. It seems likely, almost inevitable, judging by the amount of cannabis, that the court must have accepted evidence given by him that he did not know about this cannabis. On 19th January 2005, the Court of Appeal in Montpellier overturned the acquittal and directed a conviction. Mr Wade, who had been present in Perpignan when he was acquitted, was not present in Montpellier when he was convicted but he was represented by a French lawyer. I will come a little later in this judgment to the reason why Mr Wade was not there at the appeal in his case. He subsequently unsuccessfully appealed to the Court of Cassation. So the Montpellier decision stands and there is no question of a retrial.
2. He had been in custody before the trial in Montpellier but was released upon his acquittal. In Montpellier, the Court of Appeal now seeks his extradition pursuant to an European arrest warrant. On 1st June 2006, Senior District Judge Workman ordered his discharge. He decided, under section 20 of the Extradition Act 2003, that Mr Wade had not absented himself deliberately from his trial and that he would not be entitled to a retrial or a review amounting to a retrial. Alternatively, the Senior District Judge decided under section 21 that his extradition would not be compatible with his rights under the European Convention on Human Rights.
3. This is the Prosecutor's appeal against a decision of the Senior District Judge. The appeal is brought under section 28 of the 2003 Act. Under section 29, this court can reconsider questions of law and fact and allow the appeal if we think that the decision of the Senior District Judge was wrong, to put it compendiously and more shortly than does the statute.
4. The Senior District Judge considered section 20 of the 2003 Act, which it is necessary now to refer to. It applies, as its heading indicates, to a case where a person had been convicted. It provides as follows:

"(1) If the judge is required to proceed under this section (by virtue of section 11) 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 21.

(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 21.

(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 21.

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

Section 21 is concerned with human rights. The Senior District Judge, in the alternative, addressed himself to that section; as will appear, I do not think it is necessary to do so.

5. The burden of section 20, which I have just read, is clearly as follows: that if a person was convicted in their absence and if they did not deliberately absent themselves from their trial and if they would not be entitled to a retrial or, on appeal, a review amounting to a retrial, then the court must discharge that person. Dealing with the last point shortly, it is agreed that, if Mr Wade were extradited to France, he would not be entitled to a retrial or a review amounting to a retrial. It is also clearly the fact, and not in dispute, that he was convicted in his absence. The issue therefore for this court to consider is whether he deliberately absented himself from his trial.
6. The Senior District Judge was not clear whether the Montpellier court heard evidence. This, in my view, is of considerable importance, for reasons which I shall shortly explain. We have the Montpellier court's decision in French. It looks, from its terms, as if they probably did hear evidence because they made a finding, which the Perpignan court may not have, on the basis of scientific evidence of traces of cannabis in the camion, which I take to be the driver's part of the lorry. Mr Hardy asked for instructions on the question of whether the Montpellier court heard evidence and whether the procedure was in the nature of a rehearing or, by contrast, simply a review. He did not unfortunately obtain those instructions and, being refused an adjournment, was constrained to proceed on the assumption that there was fresh evidence and that it was a rehearing. The court in Montpellier certainly found against Mr Wade on an adverse finding as to his credibility in circumstances, be it noted, where they had not heard him give evidence.
7. Mr Wade was given notice of the Montpellier hearing and he instructed a French lawyer. He received notice of the hearing both from the French lawyer but, importantly, also in translation from the Home Office. The Home Office letter of 16th November informed him that he was not obliged under UK law to comply with the summons but said that he might wish to seek legal advice as to the possible consequences of failing to comply with the decision under French law.
8. The summons itself, which was sent to him in English, gave due notice of the hearing and strongly encouraged him to attend but it did not give details of the nature of the hearing beyond that it was a prosecutor's appeal from the Perpignan decision and that the case would be tried, in the English version, by the court on the date given. It seems to me that no material information was given by that expression. Mr Wade did receive advice from his French lawyer. The critical sentence of that written advice was, "you can ignore this appeal with all its consequences." The letter actually says "his consequences" but no doubt "its" is meant.
9. The Senior District Judge heard Mr Wade give evidence and accepted his evidence on the point that he was not aware of the consequences of not attending. Although the Senior District Judge may have been concentrating here on the probability of a retrial, it is clear that Mr Wade was not aware of the nature of the Montpellier hearing; in particular of the fact that this appeal court would conduct a rehearing, at which it would or might hear fresh evidence. There was a question whether the Montpellier hearing was "the trial" for the purpose of section 20(3). The Senior District Judge found that it was not but, on the assumption we now make that it was a re-hearing with fresh evidence, in my view it plainly was "the trial" at which Mr Wade was convicted.
10. Mr Wade was not present. The question is whether he deliberately absented himself. The Senior District Judge found that he had not deliberately absented himself because he was not to be taken, in the circumstances, as having waived his right to attend. Mr Hardy, on behalf of appellant French court, submits that the word "deliberately" only requires that Mr Wade was given notice of the hearing and that he made a conscious decision not to attend it. He should also be able to understand the possible consequences of the hearing; that is to say that the decision of the Perpignan court might be overturned in favour of a conviction. Mr Hardy, as I understand him, submits that advice, even wrong advice, from a lawyer makes no difference to the question of whether he deliberately absented himself.
11. Mr Brandon, on behalf of Mr Wade, submits that in the context you do not deliberately absent yourself if you take a decision upon material misinformation of the relevant consideration and consequences. In the present case, Mr Wade was advised that there would be no consequences of his not attending but that was wrong. There was the very serious consequence that this was a retrial with fresh evidence and, if he were not there, he could not himself give evidence for the court to consider in opposition to any evidence called on behalf of the prosecution. After all, as I have supposed, he was acquitted in Perpignan because the Perpignan court must have believed his evidence as to what he knew or did not know about the cannabis.
12. Mr Brandon relies on the decision of the European Court of Human Rights in the case of Sejdovic v Italy 1st March 2006, which is reported at 42 EHRR 360. This involved Italian proceedings; where a defendant had been tried in his absence, his lawyer took part in the trial. It was a murder trial and a question arose as to whether he was or was not properly characterised as a fugitive. There was a provision of Italian law which provided that, in the event of a conviction in absentia, the time allowed for an appeal against the judgment should be reopened on an application by the defendant unless he had effective knowledge of the proceedings against him or of the judgment and had deliberately refused to appear or to appeal against the judgment. The judicial authorities had to carry out all necessary checks to that end.
13. On the issue of whether this alleged fugitive had deliberately refused to appear or to appeal, the court said in its judgment, under the heading of "General principles concerning trial in absentia":

"81. Although this is not expressly mentioned in paragraph 1 of Article 6, the object and purpose of the Article taken as a whole show that a person 'charged with a criminal offence' is entitled to take part in the hearing. Moreover, subparagraphs (c), (d) and (e) of paragraph 3 guarantee to 'everyone charged with a criminal offence' the right 'to defend himself in person', 'to examine or have examined witnesses' and 'to have the free assistance of an interpreter if he cannot understand or speak the language used in court', and it is difficult to see how he could exercise these rights without being present..."

and certain authorities are referred to. Paragraph 82 goes on:

"82. Although proceedings that take place in the accused's absence are not of themselves incompatible with Article 6 of the Convention, a denial of justice nevertheless undoubtedly occurs where a person convicted in absentia is unable subsequently to obtain from a court which has heard him a fresh determination of the merits of the charge, in respect of both law and fact, where it has not been established that he has waived his right to appear and to defend himself..."

At paragraph 84 we have this:

"84. The Court has further held that the duty to guarantee the right of a criminal defendant to be present in the courtroom -- either during the original proceedings or in a retrial -- ranks as one of the essential requirements of Article 6..."

and then, on the subject of waiver of the right to appear at the trial, paragraphs 86 and 87 are as follows:

"86. Neither the letter nor the spirit of Article 6 of the Convention prevents a person from waiving of his own free will, either expressly or tacitly, the entitlement to the guarantees of a fair trial. However, if it is to be effective for Convention purposes, a waiver of the right to take part in the trial must be established in an unequivocal manner and be attended by minimum safeguards commensurate to its importance. Furthermore, it must not run counter to any important public interest.

"87. The Court has held that where a person charged with a criminal offence had not been notified in person, it could not be inferred merely from his status as a 'fugitive', which was founded on a presumption with an insufficient factual basis, that he had waived his right to appear at the trial and defend himself. It has also had occasion to point out that before an accused can be said to have implicitly, through his conduct, waived an important right under Article 6 of the Convention it must be shown that he could reasonably have foreseen what the consequences of his conduct would be."

14. Mr Brandon submits that one of the important consequences of not attending this trial in Montpellier was that Mr Wade was not there and able to give contradicting evidence if evidence were called against him. He had been told that, if he was not there, there would be no consequences and, as I have said, that was wrong. Mr Hardy submits that a more restrictive meaning should be given not only to the expression "deliberately absented himself" but also to this passage in the court's judgment in Sejdovic. The sentence that I have just read refers to the case of Jones v United Kingdom App.No 30900/02. Jones, as an admissibility decision is before us and that decision on admissibility quotes from the decision of the House of Lords in that particular case, R v Jones [2002] UKHL page 5, and Mr Hardy refers us to the judgment of Lord Rodger of Earlsferry, who is recorded as having said this:

"Doubtless, the appellant would have been aware that, if eventually brought to justice, he would be punished for absconding to avoid trial. But I see no proper basis for going further and assuming that he would actually have known that he was liable to be tried and sentenced in his absence. I am accordingly unable to draw the conclusion that the appellant had unequivocally waived his right to be present at any trial."

Mr Hardy points out that in the present case Mr Wade had been given notice that he would be tried on a particular date and knew or must have known that, if he did not turn up, the trial or the appeal would proceed and that he was in danger of the appeal being allowed and the consequences of that inevitably being that he would be convicted.

15. In my judgment, deliberately absenting yourself does not necessarily have overtones of deliberately evading justice but the word "deliberately" does involve inquiring into the person's state of mind and it connotes a decision taken in the light of all material information. Here, Mr Wade was materially misinformed. That is no fault of the French court but it does, in my judgment, mean that he did not deliberately absent himself within the terms of section 20(3) of the 2003 Act. In my judgment, Mr Hardy's construction of that subsection is overly narrow in light of the European authorities to which I have referred and, in particular, it seems to me that, foreseeing the consequences of your conduct should not on the facts of the present case be limited only to the possible outcome of the Montpellier appeal.
16. For these reasons, I would uphold the Senior District Judge's decision on this, although for rather different reasons from those which he gave. The statutory consequence of that, since it is agreed that if Mr Wade were extradited to France he would not be entitled to a retrial or to a review amounting to a retrial, is that given in section 20(7) of the 2003 Act; that is to say that he should be discharged. That was the Senior District Judge's decision and I would dismiss this appeal.
17. MR JUSTICE AIKENS: I agree.
18. MR HARDY: My Lord, I do not propose to weary the court or trespass upon its patience. There is, as your Lordships know, a right of appeal to the House of Lords in the event (a) under the Act, that a point of law is certified -- I have section 32 in mind, my Lord -- and (b), that leave to appeal is granted either by this court or by their Lordships.
19. LORD JUSTICE MAY: It is as if we are the CACD.
20. MR HARDY: Indeed so. Quite what Parliament was thinking when it dealt with this particular process is unclear but ordinarily, and under the AJA of 1960, the Administration of Justice Act, there was a power vested in this court to remand a person in custody or on bail in the event that the prosecution notified the court of its intention to seek leave to appeal to the House of Lords.
21. LORD JUSTICE MAY: Is the certificate procedure new?
22. MR HARDY: The certificate procedure is new, my Lord, in the sense that, under habeas corpus applications under previous legislation, a certificate was not necessary for habeas corpus. It is not new in the sense that it mirrors the procedure under judicial review applications.
23. My Lords, I am not in a position to invite your Lordships to consider certification today and we welcome the opportunity for a few days reflection. But the point that I make at this juncture is that this court has no power to remand Mr Wade on bail or in custody pending a decision as to whether or not an appeal is going to be pursued and that is plainly an oversight on the part of Parliament. I understand that it is an oversight that is intended to be corrected by schedule 12, as it presently is, of the Police and Justice Bill presently going through Parliament.
24. LORD JUSTICE MAY: If we have no power to do it, there is not much point in your asking us to do it.
25. MR HARDY: I am not going to ask your Lordships to do it. I am merely explaining what I am not going to do. So the position is that Mr Wade has no obligation to any court. We, for our part, have to make an application, if we do so at all, for certification and for leave within 14 days. May we seek your Lordship's approval to make that application in writing, should we choose to make it?
26. LORD JUSTICE MAY: Where does the 14 days come from?
27. MR HARDY: It is under section --
28. LORD JUSTICE MAY: 32(5). That is for leave to appeal.
29. MR HARDY: Well, it is for leave to appeal, my Lord, but, with great respect, we would say that your Lordships are not entitled to curtail the period of time in which we would have to make applications --
30. LORD JUSTICE MAY: Well, it is 14 days -- no, an application to us for leave to appeal has to be made within 14 days. An application to the House of Lords has to be made within 14 days from when we have refused leave. That all presupposes that we can give a certificate.
31. MR HARDY: It does indeed, my Lord, but your Lordships -- if your Lordships were, for example, to contemplate this in a direction that we make an application for certification in seven days, the effect of that, were your Lordships to refuse a certificate, is to prevent us from exercising our statutory right to make an application for leave within 14 days and therefore we would submit that the two must be read in tandem. I should -- I think I am entitled to say at that this --
32. LORD JUSTICE MAY: Well, you cannot make an application for leave to appeal if he we do not grant a certificate.
33. MR HARDY: Precisely so.
34. MR JUSTICE AIKENS: It is rather unclear, is it not, what time you have for making your application for a certificate?
35. MR HARDY: It is unfortunate but it would be somewhat illogical if a court were equipped with the power to shut a party out from exercising a statutory right within a statutory timetable.
36. LORD JUSTICE MAY: But I am not getting this. Subsection (5) says you have to apply to the High Court for leave within 14 days of today.
37. MR HARDY: Yes.
38. LORD JUSTICE MAY: There is no problem about that. Subsection (6) -- and that embraces the application for a certificate?
39. MR HARDY: Yes.
40. LORD JUSTICE MAY: Subsection (6) says that the application for leave to appeal to the House of Lords must be made within 14 days of when this court refuses leave to appeal. So you have 14 days to apply to us and then you have 14 days, if we were to refuse you leave to appeal, if we give you a certificate.
41. MR HARDY: Yes, subsection (6) is presumptive upon certification. But my only submission to your Lordships is that we seek your Lordships' leave to make an application within 14 days.
42. LORD JUSTICE MAY: I see, you want the 14 days because that is what subsection (5) says?
43. MR HARDY: Indeed so. As my Lord Mr Justice Aikens observes, it does not actually expressly say that one has 14 days within which to apply for a certificate. But plainly --
44. MR JUSTICE AIKENS: I think that must be essential.
45. LORD JUSTICE MAY: Well, that will be all right. That will take us to 24th July.
46. MR HARDY: I can inform your Lordships, if I may, cryptically, if I may use a word which has come up before, that I doubt that it is a procedure in which we will engage but, out of an abundance of caution, we seek your Lordships' leave.
47. LORD JUSTICE MAY: You can have that opportunity. Thank you very much. If you want to do that, will you make your application in writing, give Mr Brandon a copy of the writing and he can have a short period like three or four days in which to put in some more writing? Is that all right?
48. MR BRANDON: My Lord, it will have to be a short period because I am away on holiday from the end of July.
49. LORD JUSTICE MAY: There we are, you see. Right, everything we need, if we are going to do anything, has to be with us by 26th July because at least one of us will not be here after the 27th.
50. MR HARDY: My Lord, if I am not going to make an application, I will give your Lordships formal notice that I am not going to do so and I hear what my Lord says about 26th July. I acknowledge that we should not use the full statutory allowance because that would place unfair pressure on my learned friend to put in any full coherent response. Thus, although I do not think your Lordships are empowered to curtail the period by direction, would your Lordships accept from me that we understand the pressures on the court and on the parties?
51. LORD JUSTICE MAY: If we do not get it in time to be able to deal with it, it may have to go and that can be encompassed by the statute anyway.
52. We are grateful to everyone who has contributed. Thank you.