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
		26th March 2009

1. MR JUSTICE TEARE: This is an appeal from the decision of District Judge Tubbs on 12th February 2009 in which she ordered the discharge of the respondent pursuant to section 20(7) of the Extradition Act 2003. The appeal is brought pursuant to section 28 of that Act. The sole issue is whether the District Judge was right not to find that the respondent had deliberately absented himself from his trial.
2. On 12th September 2003 the respondent was convicted in the Slovak Republic of an offence of burglary. He was sentenced to 35 months' imprisonment. His extradition is sought pursuant to a European Arrest Warrant issued on 7th August 2006. The proceedings are governed by Part 1 of the Extradition Act 2003.
3. The facts giving rise to this appeal were set out by the District Judge in her judgment in the following terms. She said:

"On 6th August 1997 a criminal investigation proceeded against the defendant. On 21st August 1997 he was interviewed by the police and confessed to the crime and signed the confession. On 23rd September 1997 he repeated his confession twice more on being confronted by two named accomplices, each of whom he implicated as taking part in the burglary. On 16th October 1997 the police investigation was complete and the criminal file was submitted to the defendant and he studied the contents of the file at the District Bureau of Investigation of the Police Force in Martin on 16th October 1997 between 8.30 am-11.00 am."

A little later in her judgment she continued with the narrative as follows:

"On 4th November 1997 the defendant and others were charged with the extradition offence and the indictment was lodged at the Martin District Court. There is no evidence as to how, or if, the defendant was informed of the indictment. The 1st February 1999 was the 'main planned hearing'. There is no evidence as to how the defendant was informed of this. He did not attend that hearing. Enquiries showed he had not stayed at the address he had given since September 1998. A national police search did not find him and it was later found out that the defendant was in England at an unknown address."

4. It appears, as submitted by Mr Fidler on behalf of the Respondent, that there is a two stage criminal process in Slovakia, loosely corresponding to investigation and judicial proceedings. The information placed before the District Judge -- which was accepted as correct by the Respondent at the hearing before the District Judge -- stated that the Respondent had been charged with the offence by the investigator by a decree dated 6th August 1997, which was provided to the Respondent before his interrogation and confession on 21st August 1997. The District Judge did not refer to this charge, but found that the Respondent was charged on 4th November 1997, which appears to have been the charge at the second judicial stage of the proceedings. It appears from the information before the court that the Respondent ceased to reside at his address in Martin as from September 1998.
5. The District Judge was satisfied so as to be sure that the Respondent knew of the allegation against him, had confessed his guilt, had seen and had a chance to examine the criminal file against him, and had deliberately left his address in the Slovak Republic in order to avoid being indicted and tried for the offence of burglary. However, having considered the decision in this court of Government of Albania v Bleta [2005] 1 WLR 3576; EWHC 475 Admin, and in Mucelli v Government of Albania [2008] 1 WLR 237; [2007] EWHC 2623 Admin, the District Judge felt constrained to conclude that the Respondent had not deliberately absented himself from his trial. Both cases of Bleta and Mucelli concerned Part 2 of the Extradition Act, but the relevant provisions are identical for the purposes of this appeal.
6. On this appeal it has been submitted by Mr Lloyd, on behalf of the Appellant, that those decisions can be distinguished and that the District Judge ought to have found that the Respondent had deliberately absented himself from his trial.
7. In Bleta, an offence of murder was committed in Albania on 15th September 1998. The prosecution was registered on 21st September 1998, and on 15th December 1998 it was declared that the defendant had "escaped to an unknown direction, hiding from the investigation". The District Judge found in that case that the defendant had never been arrested or charged and that there was no evidence that he knew of the proceedings against him. In giving judgment in this court, Pill LJ said as follows at paragraph 48 of his judgment:

"I reach the following conclusions --

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

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

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

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

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

8. In Mucelli, a murder was committed in Albania on 13th June 1997 and criminal proceedings were commenced that day by charging the defendant. It is unclear when he left Albania but he was tried there in his absence between 15th April and 25th September 1998. He presumably left before his trial but he conceded in cross-examination before the District Judge that he did not arrive in the UK until 22nd October 1998. There was no evidence that he was aware of the court proceedings in which he was convicted and sentenced. The Divisional Court held that the facts could not be distinguished from those in Bleta and that, applying the reasoning in Bleta, it followed that the defendant had deliberately absented himself from the legal process but not from the trial.
9. The essential reason for the decision in Bleta is that the reference to "trial" is, in its context, a reference to a specific event and not to the entire criminal process that culminates in a trial. The defendant had absented himself from Albania, but that was not sufficient to show, on the facts of that case, that he had absented himself from Albania with the purpose of absenting himself from his trial.
10. It is immediately apparent that the facts of the instant case are different from those in Bleta. In the instant case, the Respondent was charged with the offence by the prosecutor and so knew of the allegation against him. Furthermore -- and this distinguishes the instant case from Mucelli -- he had confessed his guilt to those investigating the crime. Moreover, he had studied for some two and a half hours the file of the Bureau of Investigation in Martin. The District Judge found that the Respondent was then charged with the offence on 4th November 1997, which must have been the judicial stage of the proceedings. On the same date, the indictment was lodged at the court in Martin. Notwithstanding that the lodging of the indictment and the charging occurred on the same day, the District Judge noted that there was no evidence that the defendant was informed of the indictment.
11. There is perhaps an ambiguity in the District Judge's finding concerning the charge on 4th November 1997, and indeed in the information before the District Judge from which the findings were made. The information before the judge stated:

"In this criminal case indictment was lodged at the District Court, Martin on 4th November 1997 when Zigmund and others were charged of the offence of 9th July 1997."

The ambiguity concerns whether Zigmund and others were present when charged. It is possible, on the wording of the information, that the position was that the indictment containing the charge was lodged in court but that the Respondent was unaware of the lodging of the indictment, and therefore of the formal charge contained within it.

12. From the facts as found by the District Judge and the information before him, the next stage in the criminal proceedings which had been commenced against the Respondent was the trial, which, in the event, was planned for 1st February 1999. But by that time the Respondent could not be found. That trial was, to use the language of Bleta, a specific event, or at any rate an anticipated specific event, in criminal proceedings which had been commenced against the Respondent. Whilst there is no evidence, as stressed by Mr Fidler, that the Respondent was made aware of the lodging of the indictment or of the date planned for his trial, the respondent must have appreciated, having been investigated, having confessed his guilt, and having studied the police file, that the next event in the criminal process was, or was likely to be, the formal charging process in the indictment and his trial. That trial would be likely to be short, having regard to the Respondent's confession.
13. It appears from the information before the District Judge that the Respondent was familiar with criminal proceedings in the Slovak Republic. In 1990 he had been sentenced to 7 years' imprisonment as a dangerous habitual criminal. In those circumstances, it is a reasonable inference that he left the Slovak Republic with the intention of absenting himself from the trial. Indeed, as I have already stated, the District Judge concluded that the defendant had deliberately left the Slovak Republic in order to avoid being indicted and tried for the offence which he had admitted.
14. The facts of this case are therefore very different from those considered in Bleta, where the court was unable to conclude that the defendant had left the jurisdiction with the intention expressed in the Act, namely to absent himself from his trial. This was, by contrast, a case, adopting the language of Pill LJ in Bleta, where the respondent was aware of proceedings which might lead to a trial.
15. For these reasons I have concluded that the District Judge, consistently with the reasoning in Bleta, ought to have found that the Respondent had deliberately absented himself from his trial and therefore the District Judge ought not to have discharged him. The instant case is distinguishable from Bleta and Mucelli.
16. Although it was suggested in the written argument on this appeal that Bleta places an unduly narrow interpretation on the concept of deliberately absenting oneself from trial, I do not consider it necessary to address that question in this case, where the facts are significantly different from those in Bleta. I would, therefore, allow this appeal.
17. LORD JUSTICE RICHARDS: I agree. The District Judge sought loyally to apply the decisions in Bleta and Mucelli. She reached the conclusion she did because she felt unable to distinguish those cases. On that one point, I respectfully differ from her. For the reasons given by Teare J, I consider that this case can be distinguished on its facts from Bleta, whereas in Mucelli I held that Bleta was not distinguishable on the particular facts. Applying the principles laid down in Bleta to the facts of the present case, it can, in my opinion, properly be concluded -- and should be concluded -- that the appellant did deliberately absent himself from his trial. I too would therefore allow the appeal.
18. Where do we go from there? I do not have in front of me the provisions of the Act which tell us what further orders the court needs to make.
19. MR LLOYD: My Lord, it is set out at paragraphs 17 and 18 of my skeleton argument.
20. LORD JUSTICE RICHARDS: I do have it in front of me but I have not looked at it.
21. MR LLOYD: They deal with the court's powers under section 28. Section 29(1), my Lords, the appeal is allowed and then, over the page, subsection (5):

"If the court allows the appeal it must --

(a) quash the order discharging the person;

(b) remit the case to the judge;

(c) direct him to proceed as he would have been required to do if he had decided the relevant question differently at the extradition hearing."

22. LORD JUSTICE RICHARDS: So all of those orders, on the face of it, we should make.
23. MR LLOYD: My Lord, yes. By reference to subsection (7), the respondent is currently in custody and the court must place him in custody or on bail. In my submission, he ought to remain for the time being in custody for the reasons given by the District Judge.
24. LORD JUSTICE RICHARDS: Yes. Perhaps we should ask Mr Fidler. You agree we allow the appeal, we quash the order discharging the respondent, we remit the case to the District Judge, we direct the District Judge to proceed as she would have been required to do if she had decided the relevant question as we have decided it.
25. MR FIDLER: Yes.
26. LORD JUSTICE RICHARDS: Can you oppose remand in custody?
27. MR FIDLER: No. I just need to ask for Legal Aid assessment, that is all.
28. LORD JUSTICE RICHARDS: You can certainly have that. Thank you both very much