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
		17th June 2009

1. MR JUSTICE COLLINS: Each appellant is appealing against orders of District Judge Purdy dated 26 January 2009 that they be surrendered to Cyprus to serve sentences of three years imprisonment for offences of manslaughter and causing grievous bodily harm with intent. The extradition falls within Part 1 of the Extradition Act 2003 and was based on European Arrest Warrants (EAWs), which referred to the offences as murder and acts intending to cause grievous bodily harm. Murder is stated because "murder, grievous bodily injury" is referred to in Article 2(2) of the Council Framework Decision, (which Part 1 of the 2003 Act implements) and the word "murder" covers unlawful killing. Thus no point is taken on behalf of the appellants against the accuracy of the EAW.
2. While the case for each appellant had to be considered separately, the factual background in each was identical. Thus their cases were heard together before the District Judge and their appeals have been heard together before this Court. Each was represented by the same solicitors and counsel.
3. The facts which give rise to the convictions can be stated shortly since these appeals concern the manner in which those convictions resulted, not the underlying circumstances of the offences. The appellants were holidaymakers. They were among a group who got involved in a brawl with some Cypriots outside a disco in Protaras which resulted in one of that group suffering injuries which necessitated hospital treatment. The appellants' uncle, named Harrington, went to see the injured man and was told that the Cypriots who had been responsible had escaped on motorcycles.
4. Shortly after, an independent witness, also English, saw a group including the appellants throwing stones at Cypriots riding motorcycles outside the hospital. The appellants together with another man, Goodman, who had a knife, got into a car driven by Harrington. The car then pursued one of the motorcycles at high speed. This was the first pursuit. The car returned and the witness asked the driver, Harrington, "Are you after the Greek boys?" Harrington replied "They hurt one of our boys, they will get it". When this was being said, Goodman was holding up his knife and the appellants were giggling. Thereupon a motorcycle with two Cypriots on it came by and the car set off after it. In due course, it collided with it and one of the riders was killed, the other was seriously injured. Neither had been involved in the brawl. The appellants chose not to give evidence but made unsworn statements, each stating he had had a great deal to drink and never had any intention of injuring anyone.
5. The appellants attended the hearing of the charges against them before the Assize Court. By a majority, that court acquitted them on 15 February 2007. The law of Cyprus permits the prosecution to appeal against an acquittal to the Supreme Court. Such an appeal was lodged on 28 February 2007. Unfortunately, there is no agreement as to the powers of the Supreme Court on such an appeal to receive or to act on fresh evidence. The Crown Prosecution Service has received a letter from the senior counsel in Cyprus who prosecuted the case against the appellants. She says that the Supreme Court has "extensive powers to hear or receive other evidence". The Court has power she says to "re-examine the admitted evidence, to come to its own conclusions, to hear and admit further evidence and, where the circumstances of the case so require to hear anew any witnesses already heard by the first instance court". Before the District Judge, Mr Alun Jones QC sought to rely on the website of the Supreme Court which stated that the Court "only hears evidence in exceptional and very rare circumstances". This was not agreed by the Crown Prosecution Service. Subsequently, the appellants have obtained a report from Mr Nicos Clerides, a barrister of the Middle Temple who practises in Cyprus. He says that the Supreme Court on appeal against an acquittal has no power to hear any fresh evidence or conduct a trial. Its powers are limited by the relevant statutory provision since appeals by the Attorney-General against acquittals can only be brought on the following grounds:-

"(i) That there was no evidence on which the Assize or District Court could reasonably find a fact or facts to support such judgment;

(ii) That evidence was wrongly admitted or excluded;

(iii) That the Law was wrongly applied to the facts;

(iv) That there has been some irregularity of procedure."

As will become apparent, I do not think that the precise extent of the Court's powers (if any) to receive or consider fresh evidence is material. I am content to approach my decision on the basis that there is no power to consider fresh evidence so as to reach a finding of fact material to deciding guilt. I suspect that evidence which is relied on to establish a procedural irregularity may be admitted and a conclusion of fact reached, but that would not go to guilt. Further, as happened in these cases since both appellants were legally represented before the Supreme Court, material which went to mitigation was put forward and taken into account. It is common ground that there is no possibility of any further review or retrial.

6. The Assize Court attached no weight to the appellants' statements and found:-

"... the facts of the case point to a conduct over an extended period of time which included more than one pursuit of motorbikes and which provided the possibility to the accused to understand the actions which were taking place and to react irrespective of the form of this reaction might have taken."

It decided that there was a common purpose, namely to punish those who had injured their friend. But there was no common understanding as to the manner in which this punishment would be meted out. Thus there was, it decided, no positive encouragement of Harrington (who pleaded guilty) which could make the appellants guilty.

7. The Supreme Court decided that the facts found showed that the appellants were bent on vengeance against the motorcyclists for injuring their friend. The first pursuit was described by the independent witness as a "death race". This, coupled with the conversation with the witness just before the second pursuit which led to the death and injury, showed that the appellants were clearly party to a common intention to "get" the motorcyclists. This meant they were guilty together with Harrington. I have no doubt that that conclusion was inevitable and the same verdict would have resulted if the trial had been held in England.
8. It is to be noted that the appeals against the acquittals were brought on three grounds. The first was that the Assize Court had "applied wrongly the law to the real facts of the case". The second was that "there was no proof on the basis of which the Assize Court could reasonably establish a fact necessary for founding its judgment". This was an allegation that the two particular conclusions reached were unreasonable. The third was that the Assize Court had misconstrued the prosecution case as to the common illegal purpose of those involved in the offending behaviour. Thus the Supreme Court was not asked to nor did it consider any fresh evidence save in relation to mitigation. It was concerned only to determine whether on the facts found by the Assize Court the decision to acquit was wrong in law. It determined it was and so it substituted convictions.
9. Following the acquittals, the appellants left Cyprus. It is not suggested that there was any reason why they should not have done and no steps were taken by the prosecution in Cyprus to prevent them from so doing. The prosecution could have requested that arrest warrants were issued to ensure their presence at the Supreme Court, but did not do so. Thus they did not attend the hearing at the Supreme Court, but each was represented by counsel who were able to make submissions on their behalf and to mitigate in relation to the sentences to be imposed. It is clear that neither appellant was prejudiced by his absence from the Supreme Court and the convictions were fully justified.
10. The notices of appeal to the Supreme Court were sent to the Home Office for service on the appellants. Each was sent by recorded delivery with a covering letter in standard form which was singularly unhelpful inasmuch as it asserted that the documents enclosed constituted either a summons for a forthcoming court date or a judgment. No court date was given. Further, the letter stated:-

"You are not obliged under U.K. law to comply with the court's decision or to take any action."

However, it did indicate that the recipient might wish to seek independent legal advice. Mr Atkinson received his but Mr Binnington had moved from his address and did not. However, his lawyer contacted his mother by e-mail on 26 February 2007, since he had been notified of the intention to appeal. He said that the appeal notice had to be served personally on Mr Binnington and, if it was not "the appeal will be dismissed without a hearing". That was an incorrect statement. He said the appellant did not need to attend but could be represented by a lawyer but that, if the prosecution succeeded, the prosecution "may apply for extradition proceedings to bring the boys back in Cyprus to serve sentence." He said, again incorrectly, that the prosecution stood no chance of success and that there was no need to worry about any appeal. In a later e-mail he repeated his incorrect advice that failure by the prosecution to prove service would result in the appeal coming to an end. Thus, while he had not been formally served, it is clear that Mr Binnington was aware of the Supreme Court hearing. He told the District Judge that he was aware he could be convicted on the appeal but he wasn't too much concerned: he had to trust the lawyer.

11. Mr Atkinson told the District Judge that he had received the Home Office letter and its contents. He had been in touch with his lawyer who had told him not to accept, receive or sign for anything, but he had signed for the letter because he was expecting another parcel. The prosecutor had provided information which the District Judge relied on and which has not been challenged by the appellants that their counsel had "left no doubt in the eyes of the court ... that although both ... would not be present during the procedure they were aware of the appeal against them as well as of the possible outcome".
12. The material provisions of the 2003 Act for the purposes of these appeals are in sections 20 and 21:-

"20-(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."

"21(1) If the judge is required to proceed under this section (by virtue of section 11 or 20) he must decide whether the person's extradition would be compatible with the Convention rights within the meaning of the Human Rights Act 1998 (c. 42).

(2) If the judge decides the question in subsection (1) in the negative he must order the person's discharge.

(3) If the judge decides that question in the affirmative he must order the person to be extradited to the category 1 territory in which the warrant was issued."

Section 20 seeks to implement Article 5(1) of the Framework Decision. This provides:-

"The execution of the European arrest warrant by the executing judicial authority may, by the law of the executing Member State, be subject to the following conditions:

1. where the European arrest warrant has been issued for the purposes of executing a sentence or a detention order imposed by a decision rendered in absentia and if the person concerned has not been summoned in person or otherwise informed of the date and place of the hearing which led to the decision rendered in absentia, surrender may be subject to the condition that the issuing judicial authority gives an assurance deemed adequate to guarantee the person who is the subject of the European arrest warrant that he or she will have an opportunity to apply for a retrial of the case in the issuing Member State and to be present at the judgment."

13. Article 5(1) is designed to deal with sentences imposed in absentia and enables but does not require the executing Member State to obtain satisfactory assurances to guarantee a right to apply for a retrial if the person concerned was unaware of the date and place of the hearing as a condition of executing the warrant. It is clear from the wording that formal service is not required provided that the person concerned was aware of the date and place of the hearing.
14. Mr Jones raises three grounds. First, he submits that the proceedings before the Supreme Court were not a trial. The appellants had been present at their trial before the Assize Court. Thus the answer to be given in section 20(4) should have been in the negative and, since there would be no right to a retrial or review, the appellants had to be discharged under section 20(7). He recognised that, if his submissions were correct, there could never be an extradition to Cyprus if an appellant did not attend the Supreme Court on an appeal against an acquittal and the court substituted a conviction and sentence of imprisonment.
15. Secondly and in the alternative he submitted that, if they had absented themselves from their trial, the appellants had not done so deliberately. They were not at fault in failing to attend and had been misled by the advice given by their lawyers. Further, they ought to have received some formal summons or notice of adverse consequences before it could be said that they had deliberately absented themselves.
16. Thirdly, he submitted that to return them would constitute a flagrant breach of their rights under Article 6 of the European Convention on Human Rights since they had no right to call evidence or cross examine witnesses at the Supreme Court. This submission followed the ruling of the District Judge on 5 September 2008 that the hearing before the Supreme Court did constitute a trial, since the arguments before him, based on the decision of this court in Deputy Public Prosecutor of the Court of Appeal of Montpelier v Wade EWHC 1909 (Admin) [2006] Extradition LR 204 meant that the District Judge concentrated on the hearing before the Supreme Court and considered it necessary to decide whether that hearing on its own constituted the appellants' trial within the meaning of section 20(3).
17. Before considering the submissions and the true construction of the material statutory provisions, I should remind myself of the approach indicated by a number of decisions of the House of Lords. Part 1 of the 2003 Act is the means whereby the UK has complied with Article 34(1) of the Framework Decision which required Member States to take the necessary measures to comply with its provisions by 31 December 2003. Recital (5) of the Preamble states that the objective of the Decision was to abolish extradition between Member States and to replace it with a system of surrender between judicial authorities which would be simplified so as to avoid the complexity and potential for delay in the existing procedures. Unfortunately, as this case demonstrates, delay and complexity still persist. The importance of judicial cooperation is identified - see Recital (6) - and the mechanism of the EAW is said to be based on a high level of confidence between Member States - see Recital (10).
18. Before the 2003 Act, the House of Lords had stated that in extradition cases the courts of this country should adopt a broad, generous and purposive construction of our statutory provisions. Re Ismail [1999] 1 AC 320 concerned the meaning of "accused" in the Extradition Act 1989. It was recognised that suspicion was not enough to justify extradition and so it was necessary to consider the relevant foreign procedure to see when it could properly be said that the person concerned was to be regarded as having been accused of a crime. In identifying the correct approach for the Courts of this country, Lord Steyn, with whose speech the other members of the Committee agreed, said this at p.327D of the report:-

"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 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 emphasize 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."

In Office of the King's Prosecutor, Brussels v Cando Armas [2006] 2 AC 1 Lord Bingham referred to Article 1 of the Framework Decision, which provides:-

"Definition of the European arrest warrant and obligation to execute it

1. The European arrest warrant is a judicial decision issued by a Member State with a view to the arrest and surrender by another Member State of a requested person, for the purposes of conducting a criminal prosecution or executing a custodial sentence or detention order.

2. Member States shall execute any European arrest warrant on the basis of the principle of mutual recognition and in accordance with the provisions of this Framework Decision.

3. This Framework Decision shall not have the effect of modifying the obligation to respect fundamental rights and fundamental legal principles as enshrined in Article 6 of the Treaty on European Union."

In Paragraph 8 of his speech at p.10D of the report, Lord Bingham said:-

"Part 1 of the 2003 Act did not effect a simple or straightforward transposition, and it did not on the whole use the language of the Framework Decision. But its interpretation must be approached on the twin assumptions that Parliament did not intend the provisions of Part 1 to be inconsistent with the Framework Decision and that, while Parliament might properly provide for a greater measure of cooperation by the United Kingdom than the Decision required, it did not intend to provide for less."

In Dabas v High Court of Justice in Madrid, Spain [2007] 2 AC 31, Lord Bingham repeated the importance of recognising and applying the purpose of the Framework Decision: see Paragraph 4 on p.39G-40B. Lord Hope made the same point, emphasising the requirement that courts in this country must construe the provisions of the 2003 Act in conformity with Community Law. He cited the decision of the ECJ in Criminal Proceedings against Pupino [2006] QB 83, in particular Paragraphs 34, 42 and 43 of the Courts' judgment in that case. In paragraph 40 of his speech, page 49 of the report, Lord Hope cites the relevant passages from Pupino, and it is convenient to take them from that:-

"In its judgment in the Pupino case the Court of Justice said, at paras 34 and 42-43:

'34. The binding character of framework decisions, formulated in terms identical to those of the third paragraph of article 249EC, places on national authorities, and particularly national courts, an obligation to interpret national law in conformity with Community law.'

'42. It would be difficult for the Union to carry out its task effectively if the principle of loyal co-operation, requiring in particular that member states take all appropriate measures, whether general or particular, to ensure fulfilment of their obligations under European Union law, were not also binding in the area of police and judicial co-operation in criminal matters, which is moreover entirely based on co-operation between the member states and the institutions, as the Advocate-General has rightly pointed out in para 26 of her opinion.

'43. In the light of all the above considerations, the court concludes that the principle of interpretation in conformity with Community law is binding in relation to framework decisions adopted in the context of Title VI of the Treaty on European Union. When applying national law, the national court that is called on to interpret it must do so as far as possible in the light of the wording and purpose of the framework decision in order to attain the result which it pursues and thus comply with article 34(2)(b) EU.'"

19. It is accordingly clear that words used in the 2003 Act must not only be construed in a purposive fashion - that after all is a normal approach adopted by the courts to domestic legislation - but must be in conformity with Union law. Thus the imposition of additional formalities, not to be found in the Framework Decision, by one Member State to suit its own purpose would tend to frustrate these objectives; see per Lord Hope at Paragraph 43 on p.50H, where he said this:

"There is no doubt that the imposition of additional formalities, not to be found in the Framework Decision itself, by one Member State to suit its own purposes would tend to frustrate these objectives. As my noble and learned friend Lord Bingham of Cornhill said in Office of the King's Prosecutor, Brussels v Cando Armas [2006] 2 AC 1, [2005] UKHL 67 para 8, the interpretation of Part 1 of the 2003 Act must be approached on the assumption that Parliament did not intend the provisions of Part 1 to be inconsistent with the Framework Decision or to provide for a lesser degree of cooperation by the United Kingdom than the Framework Decision requires. I can find nothing in the wording of section 64(2), read as a whole and in the light of the other provisions of Part 1, to indicate that it was the intention of Parliament that a Part 1 warrant which clearly set out all the relevant information had to be accompanied by a separate document certifying the matters referred to in section 64(2)(b) and (c)."

That was the issue in the Dabas case. So also would a construction which, though perhaps appropriate if looking through domestic eyes, raised a barrier to surrender which was not authorised by the Framework Decision. If possible, a construction should be applied (unless it does violence to the language of the statute) which ensures that the necessary cooperation and so speedy surrender takes place.

20. It must be recognised that other countries, particularly those whose systems are based on civil law, do not have the same procedures as does this country in the processes whereby criminal charges are dealt with. In particular, appeals by the prosecution against acquittals are not uncommon. Wade's case (supra) was an example. Some such appeals can effectively be a rehearing with the calling of evidence to determine whether guilt has been proved. Others, as in Cyprus, are more limited and may amount to a review rather than any sort of rehearing. A trial is the legal process whereby guilt or innocence is to be decided. In my judgment, that must mean the process which results in a final determination. So long as there is a possibility of an appeal against the decision of the first instance court acquitting a person, there is no finality and the trial process has not come to an end. Thus "trial" in section 20(3) of the Act should be construed accordingly and it will be necessary to investigate the system in the requesting State.
21. This approach seems to me to be entirely consistent with the recent decision of the House of Lords in Caldarelli v Court of Naples [2008] 1 WLR 1724. The issue in that case was whether, having been convicted in Italy and sentenced to a period of imprisonment, the appellant should have faced an accusation rather than a conviction warrant. The Italian system provided that such a conviction and sentence was not final. The trial was a continuing process and so the appellant could not be regarded as unlawfully at large after conviction because the sentence was not yet enforceable. Thus an accusation warrant had properly been preferred.
22. Having recorded the history of the domestic approach to extradition culminating in the 2003 Act, Lord Bingham set out what should be the court's approach at paragraphs 22 to 24 of his speech (pp 1731H of the report):

"22. While a national court may not interpret a national law contra legem, it must 'do so as far as possible in the light of the wording and purpose of the Framework Decision in order to attain the result which it pursues and thus comply with article 34(2)(b) EU' (Criminal proceedings against Pupino (Case C-105/03) [2006] QB 83, paras 43, 47: see Dabas v High Court of Justice in Madrid, Spain [2007] UKHL 6, [2007] 2 AC 31, paras 5, 39-40, 75-77). As I suggested in Cando Armas, above, para 8, the interpretation of the 2003 Act must be approached on 'the twin assumptions that Parliament did not intend the provisions of Part 1 to be inconsistent with the Framework Decision and that, while Parliament might properly provide for a greater measure of cooperation by the United Kingdom than the Decision required, it did not intend to provide for less'.

23. providing as they do for international cooperation between states with differing procedural regimes, the Framework Decision and the 2003 Act cannot be interpreted on the assumption that procedures which obtain in this country obtain elsewhere. The evidence may show that they do not. Such was the case in In re Coppin [1866] LR 2 ChApp 47, where the Lord Chancellor considered a form of judgment unknown in this country, and in R v Governor of Brixton Prison ex parte Caborn-Waterfield [1960] 2 QB 498, where the court examined and contrasted the legal effect, in France, of on the one hand a jugement par défaut and an arrêt de contumace and on the other a jugement itératif défaut: the latter was final, the former were not. The need for a broad internationalist approach signalled by Lord Steyn in Re Ismail is reinforced by the need to pay close attention to whatever evidence there is of the legal procedure in the requesting state.

24. Under article 1 of the Framework Decision the EAW is a judicial decision issued by the requesting state which by article 2 this country (subject to the provisions of the Decision) must execute on the basis of the principle of mutual recognition. It might in some circumstances be necessary to question statements made in the EAW by the foreign judge who issues it, even where the judge is duly authorised to issue such warrants in his category 1 territory, but ordinarily statements made by the foreign judge in the EAW, being a judicial decision, will be taken as accurately describing the procedures under the system of law he or she is appointed to administer. Here, as is common ground, the foreign judge has treated the appellant as an accused and not a convicted person. This seems strange to an English lawyer, familiar with a procedure by which a defendant sentenced to imprisonment at the end of a jury trial goes down the steps from the dock to the cells. But such is not the practice in Italy where the trial is indeed a continuing process, not yet finally completed in this case, and not an event. On the evidence the appellant falls within section 11(5) of the Act as a person accused of the commission of an extradition offence but not alleged to be unlawfully at large after conviction of it, not within section 11(4) as a person alleged to be unlawfully at large after conviction of it. In terms of recital (1) of the Framework Decision he has not been 'finally sentenced' and (article 8(f)) no 'final judgment' has been given as to the penalty imposed.

It is apparent that it is not only possible but appropriate to construe "trial" as a continuing process which only comes to an end when a final decision is made.

23. In Wade's case, the court regarded it of importance to ascertain whether the appeal court in Montpelier heard evidence. In Paragraph 9, May LJ said this:-

"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 Montpelier 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 Montpelier 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."

I am satisfied, for the reasons I have given, that it was unnecessary and not in accordance with the correct approach to focus on the appeal hearing in isolation. It is clear that the acquittal at first instance was not final so that the trial, which in France as in Italy, albeit in different circumstances, was a continuing process, comprehended both the first instance and the appeal hearings. Wade's case led the District Judge to determine whether the hearing before the Supreme Court was a trial within the meaning of section 20(3). He decided because there was power (whether used or not) to hear fresh evidence, that it was. That was an unnecessary exercise. The Supreme Court hearing was part of the trial process in Cyprus since the acquittal at the Assize Court was not final.

24. While in this country there is no appeal against an acquittal in the Crown Court, there is the possibility of referring an unduly lenient sentence to the Court of Appeal. A conviction may lead to a non-custodial sentence. The Court of Appeal may substitute a custodial sentence. If the defendant has absented himself from the appeal hearing and gone to another Member State, I doubt that the court here would regard a refusal to return the fugitive to serve his sentence as being in accordance with the Framework Decision. In Virciglio v The Judicial Authority of the Graz High Court, Austria [2006] EWHC 3197 (Admin), this court had to consider a similar provision in Austria which had resulted in an increased sentence of imprisonment. The appellant did not attend the appeal hearing in person but instructed a lawyer to represent him. It was contended on his behalf that the appeal hearing "was part of the main hearing or was a hearing in its own right constituting part of the conviction process". This was in order to try to persuade this court that he had been convicted in his absence. But the conviction at first instance was final; the appeal hearing was concerned only with sentence. Nevertheless, albeit the court did not have to decide whether the appeal hearing should be regarded as part of the trial, in Paragraph 20 Auld LJ said this:-

"In any event, the Austrian court made clear, in supplementary information provided on 12 April 2006, the respective natures of the two proceedings, and that the appellant was only present at the first. But perhaps more importantly, the Austrian criminal trial process and its language may not make the same clear distinction as is made in English statutes so as to separate the form of criminal disposal between conviction and sentence. In other words, the word "trial" may embrace both procedural notions in Austria for determination of guilt, that is to say conviction and also determination of sentence. The references to "trial" in the Regional High Court of Graz's judgment on the sentence appeal do not assist on that, nor does the word "trial" in other contexts in the 2003 Act, in particular section 85(3), or as to it constituting a specific event for that purpose as held by this court in Government of Albania v Bleta and Another [2005] 1 WLR 3576 assist."

This is consistent with the approach endorsed by the House of Lords in Caldarelli.

25. Mr Jones sought to persuade us to refuse to permit the respondent to argue that the trial was a continuing process since that argument had been raised for the first time in the skeleton argument of 18 May 2009. He relied on CPR 52.5 and submitted that a respondent's notice should have been served much earlier. However, I am satisfied that the court must be able to have regard to all arguments in deciding what is the proper construction of a statutory provision. If a party is prejudiced by a lately presented fresh argument, an adjournment with an appropriate costs order can be granted. However, Mr Jones had not as he had to accept been prejudiced.
26. In considering how to construe "trial" I should finally deal with Mr Jones' submissions based on the decision of this court in Government of Albania v Bleta [2005] 1 WLR 3576. The respondent had allegedly committed a murder in Albania on 15 September 1998. He had, he said, left Albania some time in November 1998. It appeared that on 21 September 1998 a case had been registered as a criminal prosecution by the office in Tirana, but the respondent was unaware of any proceedings against him when he left the country. Pill LJ referred to the domestic approach to trials in absentia, which is very restrictive, and to the importance of compliance with Article 6 of the ECHR. Those concerns seem to me to be more relevant to section 21 of the 2003 Act than to section 20(3). In paragraph 48 on p.3593 he said this:-

"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 Defendant 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 Defendant 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 Defendant left that jurisdiction, or remained in the United Kingdom, with the intention expressed in the sub-section."

Mr Jones picks out the words at (d), in particular the reference to the word "trial" contemplating a specific event and not the entire legal process.

27. Bleta has been followed in two subsequent cases. In The District Court in Martin, the Slovak Republic v Zigmund [2009] EWHC 922 (Admin) the court did not need to disapprove it since on the facts it was distinguishable. In Mucelli v Government of Albania [2007] EWHC 2632 (Admin) 1 WLR 2437 the court did apply the construction of "trial", because the district judge had found as a fact that the appellant had left Albania because he knew that he would in due course be arrested and tried for murder, albeit he was unaware of the actual proceedings and of the hearing held in his absence. In neither case did the court (Richards LJ presiding in both) express enthusiastic support for the construction applied in Bleta.

27. In my view, the approach of the court in Bleta relies too much on the domestic approach. It must be recognised that trials in absentia are more acceptable in some other countries than in the UK. If there are objections in an individual case on the basis of a breach of Article 6 of the ECHR, that should be dealt with under section 21 and, even if absence from the trial was deliberate, guarantees of a retrial may be appropriate. That would be in accordance with Article 5(1) of the Framework Decision which is concerned with whether the requested person was aware of the proceedings in which he was tried. No doubt to exercise the discretion granted by Article 5(1) so as not to require guarantees of a retrial if the absence was deliberate may be appropriate, but section 21 requires that even in such a case surrender cannot take place if there would be a breach of the person's human rights.
28. In Sejdovic v Italy, a decision of 1 March 2006, the European Court of Human Rights considered the circumstances in which a trial in absentia could be compatible with Article 6. The Court in Paragraph 81 emphasised, by reference to Article 6(1)(c), (d) and (e), the impossibility of compliance in a trial in absentia. In Paragraph 82, it said this:-

"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 (see Colozza, cited above, p. 15, § 29; Einhorn v. France (dec.), no. 71555/01, § 33, ECHR 2001-XI; Krombach v. France, no. 29731/96, § 85, ECHR 2001-II; and Somogyi v. Italy, no. 67972/01, § 66, ECHR 2004-IV) or that he intended to escape trial (see Medenica, cited above, § 55)."

It dealt with waiver in paragraphs 86 to 88, stating:-

"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 (see Kwiatkowska v. Italy (dec.), no. 52868/99, 30 November 2000). 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 (see Poitrimol v. France, judgment of 23 November 1993, Series A no. 277-A, pp. 13-14, § 31). Furthermore, it must not run counter to any important public interest (see Håkansson and Sturesson v. Sweden, judgment of 21 February 1990, Series A no. 171-A, p. 20, § 66).

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' (latitante), 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 (see Colozza, cited above, pp. 14-15, § 28). 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 (see Jones, cited above).

88. Furthermore, a person charged with a criminal offence must not be left with the burden of proving that he was not seeking to evade justice or that his absence was due to force majeure (see Colozza, cited above, pp. 15-16, § 30). At the same time, it is open to the national authorities to assess whether the accused showed good cause for his absence or whether there was anything in the case file to warrant finding that he had been absent for reasons beyond his control (see Medenica, cited above, § 57)."

In Paragraph 99, the court underlined the importance of requiring the court to be satisfied that the accused did know of the hearing and usually that had to be by proof that the necessary information was given in accordance with the procedural and substantive requirements of the relevant law:

"99. In previous cases concerning convictions in absentia, the Court has held that to inform someone of a prosecution brought against him is a legal act of such importance that it must be carried out in accordance with procedural and substantive requirements capable of guaranteeing the effective exercise of the accused's rights; vague and informal knowledge cannot suffice (see T. v. Italy, cited above, p. 42, § 28, and Somogyi, cited above, § 75). The Court cannot, however, rule out the possibility that certain established facts might provide an unequivocal indication that the accused is aware of the existence of the criminal proceedings against him and of the nature and the cause of the accusation and does not intend to take part in the trial or wishes to escape prosecution. This may be the case, for example, where the accused states publicly or in writing that he does not intend to respond to summonses of which he has become aware through sources other than the authorities, or succeeds in evading an attempted arrest (see, among other authorities, Iavarazzo v. Italy (dec.), no. 50489/99, 4 December 2001), or when materials are brought to the attention of the authorities which unequivocally show that he is aware of the proceedings pending against him and of the charges he faces."

29. While the court is looking to knowledge of the hearing to justify a finding of waiver, it does not exclude the possibility that such waiver could be established if an individual had clearly beyond doubt decided to flee in order to avoid appearing at any trial, knowing that he was guilty of a serious offence.

31. Bleta did absent himself from his trial. It does no violence to the language of s.20(3) (or, Albania being a Part 2 territory, s.85(3) which is in identical terms) so to conclude. The words 'absented himself from his trial' do not require any particular state of mind. Failure to attend his trial is all that needs to be established. State of mind is material in deciding whether the absence was deliberate. If a person was unaware that his trial was being held, it would be difficult to establish that his absence was deliberate unless it was clear that he had fled the country in order to avoid prosecution. Having regard to the approach of the European Court of Human Rights in Sejdovic, even in such a case the court would have to consider whether Article 6 rights were breached unless retrial could be guaranteed. On the facts of Bleta, it seems that the court was not satisfied that he had left Albania in order to avoid prosecution and so had deliberately absented himself from his trial. Thus the decision on this point may have been correct, but the construction of 85(3) (and so section 20(3)) is in my judgment too narrow. I do not think it should be followed.

30. I would therefore reject Mr Jones' submissions that the appellants did not absent themselves from their trial. I should add that such absence need not be from the whole trial. A person convicted in his absence following his flight during his trial, perhaps because it was in his view going badly, has clearly absented himself from his trial within the meaning of section 20(3). Any other construction would be absurd.
31. The question which now must be considered is whether the appellants absented themselves from their trial deliberately. Mr Jones relies on Wade's case and submits that they were misled by the poor advice given by their legal representatives coupled with the indication in the Home Office letter that they did not need to attend the hearing. In Wade's case, the appellant had received written advice from his French lawyer, the critical sentence of which read:-

"You can ignore this appeal with all [its] consequences."

Thus the Court said that it was apparent that he was unaware of the fact that the appeal court would conduct a rehearing at which it would or might hear fresh evidence. Counsel for the appellant French court submitted that "deliberately" only required that the respondent was given notice of the hearing and made a conscious decision not to attend. Poor or wrong advice from his lawyer would not prevent his decision being deliberate.

32. In paragraph 15 of his judgment, May LJ said this:-

"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."

The European authorities to which he referred included Sejdovic v Italy, the material passages in which I have already cited. But those authorities are material to whether there would be a breach of human rights, in particular Article 6, not to whether the decision not to attend was deliberate. Section 20 is intended to implement Article 5(1) of the Framework Decision. Its purpose is to enable guarantees of an opportunity to apply for a retrial to be in place where the person concerned was unaware of the hearing. In context, it seems to me that "deliberately" means no more than that the person concerned has made a conscious decision not to attend. But that does not mean that his human rights are overridden. The reason why he has decided to absent himself may persuade the court not to permit his surrender unless assured that the Member State in question, which will itself be a signatory to the European Convention on Human Rights, will where appropriate at least enable an application for a retrial to be made. This court should not readily assume that the Member State will fail to comply with its obligations to the person concerned under Article 6 and in an extreme case if persuaded that there is a real risk of a serious breach the court may refuse to surrender pursuant to section 21 of the Act.

33. Accordingly I do not think that May LJ was correct to conclude that the misinformation from his legal advisor meant that Mr Wade's decision to absent himself was not deliberate. It is incidentally noteworthy that in Al-Mehdawi v Secretary of State for the Home Department [1989] 3 All ER 843, the House of Lords decided that the failure by his legal advisers to notify the claimant of or take any steps to seek an adjournment of his appeal against a decision to deport him so that his appeal was heard and dismissed in his absence did not amount to a breach of natural justice. Albeit it might lead to his deportation, his only remedy was against his legal advisers. While I recognise that this decision preceded the Human Rights Act and should not be applied rigorously in, for example, asylum or human rights appeals (see for example R(Haile) v IAT [2002] INLR 283), it does make the point that poor advice or incompetence will not necessarily mean that the person affected can rely on it to excuse his actions. No doubt, since the result of extradition may or will result in loss of liberty, the court will be concerned to ensure that the individual's rights are protected. But that is to be achieved by ensuring that the necessary protections will be afforded him by applying section 21.
34. The District Judge, being bound to apply Wade's case, decided that neither appellant had been materially misinformed. They knew that the Court had the power to convict and sentence and that, if it did, extradition might follow. They were advised that they were bound to win, but they provided their lawyers with material which was put forward in mitigation. No doubt the advice that they would succeed was poor, but it was not material to their non-attendance. For the reasons I have given, I do not think that the District Judge needed to consider whether there was material misinformation. But, if he did, his conclusion was one open to him and I do not consider that he fell into error.
35. Mr Jones' last ground is based on Article 6 of the European Convention on Human Rights. After the District Judge had rejected his arguments in relation to section 20(3) on 5 September 2008, he was persuaded to permit Mr Jones to argue that the hearing before the Supreme Court was not in accordance with Article 6 since there was no right to call evidence or to examine or cross-examine witnesses. The District Judge dealt with and rejected those submissions on 26 January 2009.
36. As will be apparent, since the submissions were based on the assumption that the appellants' trial within the meaning of section 20(3) was the hearing before the Supreme Court, they are without substance. The appellants had a full Article 6 compliant hearing before the Assize Court. The Supreme Court only considered whether the findings of fact made by the Assize Court ought as a matter of law to have resulted in a conviction. The appellants could play no part in that; it was left to their legal representatives to argue the issue. It is in the circumstances quite impossible to say that they were prejudiced or that the trial process as a whole failed to comply with Article 6. They were involved in a course of conduct which led to the death of one and serious injury to another wholly innocent young man.
37. I would, for the reasons I have given, dismiss these appeals.
38. LORD JUSTICE MAURICE KAY: I agree. The first issue - whether the appellate hearing is to be seen as part of the trial process - has to be considered from the cosmopolitan perspective propounded by Lord Steyn in Ismail (paragraph 18, above), even before the enactment of the Extradition Act 2003, and now implicitly required if the Act is to give proper effect to the Framework Decision. Where, as in Cyprus, the appellate court is a jurisdiction in which the prosecution can discharge the burden of proof and rebut the presumption of innocence, it is axiomatically part of the trial process. The necessary protection for the defendant is that it remains Article 6 compliant. If it does not, extradition will be refused by reference to section 21.
39. The second issue - whether a person has deliberately absented himself from the trial or a part of it - is a question of fact. It calls for consideration of what was in his mind. Generally, a conscious decision not to attend will amount to deliberate absence, although I accept the possibility considered (but not found) in Onwuzulike v United States of America (a decision of this court given on 21st May), that there may be a case in which a conscious decision is so affected by an absence of free will that it should not be classed as "deliberate". For the reasons given by Collins J, I am satisfied that this is not such a case.
40. The third issue - the Article 6 point - seems to me to be utterly unarguable in the circumstances of this case.
41. It follows that these appeals must be dismissed and the decision of the District Judge is affirmed.
(Discussion - before the judgment was delivered)
42. MR JUSTICE COLLINS: Mr Caldwell, I understand you have problems at half past ten.
43. MR CALDWELL: I do.
44. MR JUSTICE COLLINS: You have obviously both seen the judgments and I know it is the wrong way round but I am quite happy to deal with any, as it were, subsequent matter now to enable you to say what you wish about it.
45. MR CALDWELL: I think my learned friend and I are both agreed that any dispute on the issue of a certified question is something that can be dealt with on the papers another time.
46. MR JUSTICE COLLINS: Obviously Lord Justice Maurice Kay and I have discussed the question of whether we should certify. Since we are disagreeing with two previous decisions of this court, we both take the view that we must, if requested to do so, and I imagine Mr Jones has such a request.
47. MR JONES: My Lord, yes, and I do have --
48. MR JUSTICE COLLINS: Potentially I would have thought there are three questions, are there not? Or two, certainly, and possibly three.
49. MR JONES: Yes.
50. MR JUSTICE COLLINS: I mean, obviously I will have to discuss with Lord Justice Maurice Kay the precise terms of the question and, if there is any issue, perhaps you could each of you put in your drafts, if you cannot agree, or obviously if you can agree then an agreed draft and we will deal with it in due course on the paper.
51. MR JONES: Thank you, my Lord. My Lord, it did occur to me that since we are here this morning, and your Lordship gave the first judgment, that there might be a fruitful ten minute discussion about the question.
52. MR JUSTICE COLLINS: Well, if you want to discuss it by all means. It is just that Mr Caldwell, as I understand it, has to leave by half past ten, which is why I have raised it now and, as I say, you have both seen the meat of the judgment, so if there is anything that needs to be said now beyond what I have indicated, by all means.
53. MR CALDWELL: In my submission, the impetus for the questions must come from the appellant --
54. MR JUSTICE COLLINS: Of course.
55. MR CALDWELL: And if it is to be two or three questions, rather than the one that Mr Jones envisaged --
56. MR JUSTICE COLLINS: It may be -- that was just my immediate reaction. It may be that one will cover it. I know not.
57. MR JONES: My Lord, my preliminary view, if I can hand this up.
58. MR JUSTICE COLLINS: By all means. (handed) It is commendably brief.
59. MR JONES: Well, my Lord, it seemed to me that that obviously is the principal critical question. My Lord, it occurred to me there is a subsidiary one --
60. MR JUSTICE COLLINS: Well, there is deliberate.
61. MR JONES: Yes, what does deliberate mean, and, my Lord, that is only a first go, so to speak, for discussion purposes.
62. MR JUSTICE COLLINS: Well, that is why I thought at least two, because deliberate and trial were two separate matters. Whether there is a third, because of the slight distinction between the approach which is relevant in Bleta and that which is relevant in Wade, but I am not sure. But maybe those two can be brought together and covered by the meaning of trial.
63. MR JONES: Well, my Lord, if it meets with the court's approval, I am content to put in sort of draft questions, in light of what your Lordship has said. I can discuss them with my learned friends beforehand, so we might be able to reach agreement.
64. MR JUSTICE COLLINS: Obviously if you can agree a question or questions, so much the better.
65. MR JONES: And if we do not, my Lord --
66. MR JUSTICE COLLINS: And, if you cannot, then put in your drafts within the next few days and Lord Justice Maurice Kay and I will consider them and give a written response, unless, of course, we take the view that there is a requirement for some oral argument, but I doubt it and, again, the probability is, and this is not a certainty, because we have not discussed it finally, but the probability is that we would be likely to refuse leave and leave it to their Lordships to decide whether they want to take the matter.
67. MR JONES: Of course.
68. MR JUSTICE COLLINS: Which is, I think, the usual course.
69. MR JONES: Absolutely, my Lord.
70. MR JUSTICE COLLINS: Although not necessarily so.
71. MR CALDWELL: My Lord, I am obliged for the opportunity for airing that preliminary issue.
72. MR JUSTICE COLLINS: Yes. Is there anything else you think it is necessary to say?
73. MR CALDWELL: No, my Lord. Might I leave my learned friend junior?
74. MR JUSTICE COLLINS: By all means, at any stage.
75. MR CALDWELL: Thank you very much. I think it might be more convenient that I do so now.
76. MR JUSTICE COLLINS: As I say, we deliberately gave you an advance copy because we foresaw the likelihood of a request to certify and it seemed sensible to enable you to see what we were going to say.
77. MR CALDWELL: We are both very grateful. Thank you.
78. MR JUSTICE COLLINS: Yes, I am sorry it is not a hand down but for various reasons that has not proved possible. As you appreciate, one of the problems being the absence of Lord Justice Maurice Kay. We have not been able to sit together. All right, well.
(The judgment followed)
79. MR JUSTICE COLLINS: Mr Jones, there is one other matter. What is the position of the appellant so far as any bail or anything like that is concerned.
80. MR JONES: My Lord, there is a bail order which I am sure is continuous.
81. MR JUSTICE COLLINS: Yes. I mean, I imagine it would have required them to surrender to this court, would it not?
82. MR CALDWELL: My Lord, I had assumed that it did not do that, that it was one of those which was continuous.
83. MR JUSTICE COLLINS: Well, for the avoidance of doubt, it will continue until obviously the matter or any legal process is continued if there is an application made to the House of Lords.
84. MR CALDWELL: Yes, certainly, my Lord.
85. MR JUSTICE COLLINS: And on the same terms, whatever they were. Yes, thank you. Right. Well, do not wait, because we have to reconstitute the court. Mr Jones, I do not know how long it -- obviously it is as soon as possible.
86. MR JONES: Yes, my Lord. I will seek to formulate questions and circulate them to my learned friend, I hope nine o'clock On Monday morning would be all right.
87. MR JUSTICE COLLINS: No problem. Yes. You can have in fact until Tuesday, because I know Lord Justice Maurice Kay may not be available until Tuesday. Let us say 4 o'clock on Monday.