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 WC2A 2LL
		21 May 2009

1. LORD JUSTICE MAURICE KAY: This is a statutory appeal arising under Part 1 of the Extradition Act 2003. The appellant is from Poland. He is the subject of a European Arrest Warrant. The extradition request from the appropriate judicial authority in Poland covered three separate matters. They are described in our papers as being the subject of three separate files. The first one is in respect of an accusation matter, the allegations being of drug offences. The second one is a conviction matter, the appellant having been convicted of offences of robbery and having been sentenced to five years and ten months' custody for those offences. The third matter is also a conviction case, in that the appellant presently stands convicted of having beaten a man with a baseball bat thereby causing his death. For that, he received a sentence of seven years.
2. The execution of the European Arrest Warrant resulted in an extradition hearing, at the conclusion of which the District Judge ordered the appellant's extradition. There is no continuing issue about the first two files, the drugs and robbery matters. The appellant accepts his extradition in relation to them. The issue before us is limited to the third file.
3. The proceedings in Poland had a somewhat tortuous history. The offence was committed on 1 February 1999. A trial began on 21 March 2001 and was concluded on 3 September 2002. Whatever the outcome of that trial was, there was a subsequent appeal, which was heard in Poland on 3 April 2003. The outcome of that was the revocation of the order made at the conclusion of the previous trial, and an order for a retrial.
4. The second trial began on 25 August 2003. That did not proceed to a normal completion apparently because of the ill-health of the co-defendant. In January 2004 the appellant was released from the sentence in relation to the second file. The retrial in relation to the third file began again on 2 March 2005. It concluded on 21 September 2006 when the appellant was convicted and sentenced. Although he had attended the earlier stages of that final retrial, he was absent on 18 July 2006, 22 August 2006, and the final day, 21 September 2006.
5. His case is that he absented himself by reason of threats amounting to duress. He gave evidence about this before the District Judge. His case was that, during the original trial, he had been the subject of threats in prison, because at that time he was still serving the sentence for the robbery matters. However, as I have related, he was released from custody in January 2004. Thereafter, he maintained that he received threatening phone calls and was being followed and watched by associates of the deceased, who were said to have been members of a criminal organisation. He said that he received phone calls from men whose voices he did not recognise. On each occasion, he was threatened with death. He said that the harassment was persistent, and in the course of a weekend he might receive as many as 12 threatening phone calls in a day. He had seen a car registered in another town parked outside his house with four men inside it. He thought that a man with his criminal past would obtain little protection from the police, and that whilst he had attended during part of his final retrial, he had eventually decided to attend no more and had come to this country.
6. I should add, in relation to the Polish proceedings, that although he had absented himself from the later stages of his trial, his legal representative continued to participate in it, and indeed pursued an appeal to the Court of Appeal in Poland. But the appeal was dismissed on 28 February 2007.
7. At the extradition hearing, the question arose as to whether the appellant had deliberately absented himself from his trial in Poland. In this regard, it is necessary to consider section 20 of the Extradition Act 2003. It is headed "Case where person has been convicted", and it includes the following provisions:

"(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 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.

(8) ... "

8. Section 21 is concerned with human rights reasons for refusing to extradite.
9. The District Judge heard the appellant's account of the threats and duress. In his judgment, he dealt with that aspect of the case quite briefly. We have an agreed note provided by counsel. The District Judge identified two issues in the case, namely section 20 and section 21. His judgment was in these words:

"It is accepted the defendant knew of his obligation to attend trial and he did not attend. He says 'I did not deliberately' absent myself because my intention was overborne by the duress ... that I was suffering in the sense that he felt if he went and attended the trial he would expose himself to threats to his life and the risk (he would say the real risk) of in fact being eliminated by those who wish him harm. The contrary argument is that even if that were true he still deliberately absented himself from trial. It is a short point and I am against the defendant because (i) there is quite an insufficient basis for him to assert or he has failed to convince me he had this fear of going to trial and being attacked and killed. (ii) Even were he to establish that I conclude that under sub-section 3 he deliberately absented himself. The reason why a person chooses not to go may be mixed reasons. Having determined that he did deliberately absent himself I move to section 21."

10. The section 21 issue concerned an allegation of Article 3 ill-treatment at the hands of other prisoners in the light of the experience which the appellant had had during his prison sentence. In the event, the District Judge did not find Article 3 rights to be infringed, and in the result the appeal was dismissed. The section 21/Article 3 point is not raised in this court. Our concern is simply with section 20, and the question whether the appellant deliberately absented himself from the later stages of his trial.
11. So far as that is concerned, Miss Powell, on behalf of the appellant makes a number of submissions. One of those submissions is that the District Judge erred in relation to the burden and standard of proof as to whether the appellant had deliberately absented himself. There is no issue between the parties as to the burden and standard of proof. It is for the judicial authority to establish deliberate absence to the criminal standard.
12. The final submission of Miss Powell relates to the relevance of duress. However, before we get to that, it is important to establish precisely what the District Judge decided. Where duress is raised, it is again common ground that if it has any relevance there is an initial evidential burden on the defendant at the extradition hearing, but once he has discharged that, it is for the judicial authority to disprove duress to the criminal standard. I have expressed that in the form "if duress has any relevance" because Miss Wilkes, on behalf of the judicial authority, continues to submit that it has no relevance.
13. When we look closely at the judge's decision, it seems to me that, although not expressed with the utmost clarity, it was expressed with sufficient clarity for us to be sure that the judge concluded that the appellant had not discharged the evidential burden in relation to duress. That is the only sensible construction of his words "There is quite an insufficient basis for him to assert duress". It is true that he added disjunctively "or he has failed to convince me", but I do not read that sentence as a whole, as Miss Powell invites us to read it, as amounting to a reversal of the burden of proof. It seems to me that it was a decision that the appellant had not discharged the evidential burden.
14. There was sufficient material for such a conclusion. According to the appellant, he had been the victim of constant harassment from his release. However, it had not prevented him from attending all previous stages of the retrial. We know from material supplied from Poland that he did not vouchsafe to his advocate his reason for not attending the retrial in its final stages.
15. Although the District Judge had accepted the appellant's evidence about threats during the time when he was in prison prior to January 2004, he was quite entitled to take a different view of the evidence of threats and harassment once the appellant regained his liberty. I have no doubt that what the District Judge was saying in his judgment was that, as to that period of time, the evidential burden had not been discharged. On that basis, quite clearly this appeal cannot succeed.
16. There is, as I have said, another issue that was sought to be raised, which is whether duress can ever prevent an absence from a trial from being deliberate. The point Miss Wilkes advanced before the District Judge, and which he appears to have accepted, is that if you decide to absent yourself from trial because of matters amounting to duress, you nevertheless deliberately absent yourself from that trial. Miss Wilkes' suggestion is that, if there are any issues calling for consideration in this regard, they do not arise under section 20; they arise (or may arise) under section 21.
17. Although it is not strictly necessary to decide this point having come to the conclusion that the appellant has failed at the first hurdle, I am bound to say that I do not think that Miss Wilkes is correct about duress. It seems to me that there must be a possibility in an extreme case of a person who absents himself on fear of death were he to attend being able to say "I did not deliberately absent myself", just as someone who is physically restrained from attending would not deliberately be absenting himself. So in an extreme case it seems to me that a person whose will was overborne by duress would also be a person who was not deliberately absenting himself.
18. In Deputy Public Prosecutor of the Court of Appeal of Montpellier v Wade [2006] EWHC 1909 Admin, May LJ said at paragraph 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."

19. I agree with that. Whether or not a person has deliberately absented himself from a trial is ultimately a question of fact, as I observed in the case of Falanga [2007] EWHC 268 Admin at paragraph 6. However, if the evidential burden in relation to duress is discharged, it seems to me that it would be necessary for the judicial authority to disprove duress, because unless and until disproved, it might negative deliberate absence.
20. These are difficult questions which, as I have indicated, could only conceivably arise in an extreme case. But were that extreme case to present itself, it seems to me that the appellant ought to be able to advance that argument and require disproof of the effect of duress on his decision not to attend. Whether in those circumstances duress is to be given precisely the same meaning that it has in the general criminal law of this country is a matter for future consideration. But it does seem to me it is a potential issue in the sort of extreme case to which I have referred, of which this emphatically was not one.
21. For the reasons given earlier in the judgment, I would dismiss the appeal.
22. MR JUSTICE COLLINS: I agree.
23. LORD JUSTICE MAURICE KAY: Thank you both very much.
24. MISS POWELL: I am very grateful, my Lords. May I ask for a detailed assessment of legal aid costs?
25. LORD JUSTICE MAURICE KAY: Yes, certainly.