England and Wales High Court (Administrative Court) Decisions

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

		Royal Courts of Justice Strand London WC2A 2LL
		29th June 2010

1. MR JUSTICE KING: On 18th March 2010, District Judge Zani ordered the appellant's extradition to Poland to serve sentences for three separate offences. The appellant is a Polish national and his extradition is requested under an European Arrest Warrant issued by a judge of the local court, delegated to a district court in Bydgoszcz. Poland is designated as a category 1 territory for the purposes of part 1 of the Extradition Act 2003. The appellant appeals against the decision only in relation to the first offence specified in the warrant, the theft offence.
2. This appeal is governed by section 26 and 27 of the Extradition Act 2003. Under section 27, and material for the purposes of this appeal, 27(2):

(2) The court may allow the appeal only if the conditions in subsection (3) ... are satisfied.

(3) The conditions are that—

(a) the appropriate judge ought to have decided a question before him at the extradition hearing differently;

(b) if he had decided the question in the way he ought to have done, he would have been required to order the person's discharge.""

Under subsection (5), if the court allows the appeal, it orders the person's discharge and quashes the order for his extradition. In the context of this case, it would only be in relation to the theft offence.

3. It is common ground that in relation to the theft offence the appellant was tried in his absence on 28th May 2003. It is also common ground that he had not in fact received the summons which had been issued in relation to the hearing on that day. It is common ground that, in relation to this offence, the appellant, based on the information received from the judicial authorities in Poland, is not entitled to a retrial if he is returned. This appeal concerns the finding of the District Judge for the purposes of section 20 of the Act that the appellant deliberately absented himself from his trial in Poland on the theft charge.
4. Section 20 provides as follows:

"20 Case where person has been convicted

(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.

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

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

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

The effect of section 20 of the Act is that in these circumstances, if the judge had not made the finding he made, he would have been obliged to have ordered the appellant's discharge in relation to this offence.

5. The burden of demonstrating that the appellant deliberately absented himself from his trial lay on the respondent. This must be demonstrated beyond reasonable doubt: see Mitoi v Government of Romania [2006] EWHC 1977. It is common ground also that at the time of his trial the appellant was in temporary police custody over a different offence, the third offence in fact on which his extradition was being sought, namely a robbery.
6. The essential chronology is this. On 13th February 2003 the appellant allegedly committed the theft offence. On 20th February 2003, the appellant was interrogated as a suspect in relation to the offence and, as found by the District Judge, based on information received from the judicial authority, he was on that date instructed about his rights and obligations whilst on bail. He was granted bail. On 3rd March 2003, he allegedly committed the robbery offence. On 3rd April 2003, the appellant was remanded in temporary police custody in relation to the robbery offence, from which he was not released until some four months later on 2nd July 2003.
7. The appellant said in his proof of evidence, which he adopted at the hearing before the District Judge, that he had been unaware of the trial date for the theft offence until the trial had been concluded. The District Judge did not reject that piece of evidence. It was common ground that the summons for the theft offence had been sent out but it had been sent out by the judicial authorities to the appellant's home address, which, as far as the authorities in charge of the theft case was concerned, was his address.
8. The mother gave evidence before the District Judge that she had received that summons at that address but she had been unable to visit the appellant in custody to inform him of this as she was a witness in the other case which was ongoing. The District Judge did not expressly reject that evidence. The appellant's contention, however, that he believed that his mother had attended the court to notify them of his whereabouts was found by the District Judge not to be supported by any correspondence from the Polish authorities.
9. The reasoning of the District Judge for the finding that the appellant had deliberately absented himself from the trial is set out in the judgment at paragraphs 9 to 13:

"9. Mr Czekala adopted his proof of evidence. He confirmed that so far as the conviction (a) above - for theft - he was in temporary police custody, for a number of weeks, which period spanned the trial date(s). Indeed he says he was being detained at the same police station where he was being separately proceeded against and that therefore the Polish authorities knew of his whereabouts. He added that he only became aware of the trial after it had concluded. He had not been represented by a lawyer during the said trial. He accepted that his mother had received a letter, on his behalf, in relation to that theft case but she was unable to visit him in custody as she was apparently a witness in the other case that was then ongoing, so it was not possible for her to pass onto him the communication that she had received.

10. Mr Czekala was adamant that he had not received any written documentation from the Polish authorities notifying him of his rights and obligations, including the obligation to notify them of any change of address/whereabouts (this being in relation to the said theft case). He was certain that there was no document in existence that would have his signature in respect thereof. However when the case resumed, part heard, on 28th January Mr Czekala was at a loss to explain the document then put to him - produced in the interim by the Polish authorities - which bore his signature and which indeed, inter alia, require him to keep the authorities in Poland notified of any change of address. He said that he had no recollection of having signed the document though he conceded that it did look like his signature, but it was some 7 years previous and, in any event, he believed that his mother had attended the court to notify them of his whereabouts. However no such document has been produced by Mr Czekala to confirm this and there is nothing in the correspondence produced by the Polish authorities that would support this assertion. Mr Czekala did have the services of a lawyer whilst in temporary police custody (she was dealing with one of the other pending allegations against him) but - rather extraordinarily - he says that she (his lawyer) was the victim of the said theft, in respect of which he was being investigated!

11. I am satisfied that Mr Czekala was well aware of his duty to notify the Polish authorities of his change of address - albeit he was in police custody at the time. I see no reason why he could not have written to the court or, as he had retained the services of his lawyer, arranged for her to have notified the court, on his behalf. Dula v the Netherlands (Admin Court Feb 2010) stated that the fact that the requested person was in custody at the time of his trial (in the Dula case, in a different country) did not, of itself, mean that he could not be said to have deliberately absented himself from his trial for the purposes of s20 of the 2000 Act.

12. The Judicial Authority has the burden of demonstrating, beyond reasonable doubt, that Mr Czekala deliberately absented himself from his trial see Mitoi v Government of Romania 2006 EWHC 1977 (Admin Court). I note also that, so far as the theft case is concerned Mr Czekala is not entitled to a retrial and the time for lodging an appeal has lapsed.

13. Mr Czekala was wrong when he told me, on oath, on 7th January 2010 that he had not been given notification of his rights and duties: he clearly had been. I take the view that notwithstanding the fact that he was in temporary police custody at the relevant time, this did not absolve him of his said obligation to notify the authorities of his whereabouts at all times. I am satisfied that he did nothing to comply with that duty. I am further satisfied, to the required standard, that Mr Czekala deliberately absented himself from the theft trial."

10. It can be seen from those paragraphs that the reasoning which led to the finding under challenge in this appeal was that the District Judge was satisfied that the appellant, contrary to his evidence, was well aware of his duty to notify the Polish authorities of his change of address, albeit he was in police custody at the time; that the fact he was in temporary police custody did not absolve him from that obligation to notify the authorities of his whereabouts at all times and that the appellant had done nothing to comply with that duty. There was no reason why he could not have written to the court or arranged for his lawyer to have notified the court on his behalf.
11. The District Judge had previously at an earlier hearing of the 7th January adjourned matters so that further information could be provided by the respondent which went to the issue of the obligation said to be upon the appellant to notify the Polish authorities of his whereabouts, notwithstanding he was then in temporary police custody. As at 7th January, the information before the court was at point 1c, within the document dated 27th November 2009. This is a document on behalf of the Polish judicial authorities and the chairwoman of the material Magistrates' Court:

"In my opinion, Pawel Czekala deliberately did not inform the court about being kept in police custody in connection with his temporary arrest for another case, which caused that he was not brought for his trial. In the course of preparatory proceedings, at the first hearing he was instructed about the duty of informing the organ conducting the proceedings about any changes of the place of his whereabouts. Not discharging this duty causes the consequence of recognizing the letter as delivered to the previous address. The accused received these instructions in writing, and he acknowledged it with his own signature. After conducting the trial in absentia, the judgement was pronounced in absentia. The copy of the judgement together with the instruction about means to appeal to which the accused has the right were delivered in a substitutionary way, it means to his mother - Iwona Czekala, on 05 June 2003."

At Point 1d this appears:

"The judgement is legally valid. After coming back to the country Pawel Czekala is not entitled to ordinary means of appeal. However, regulations of the Code of the Penal Procedure provide emergency measures of appeal in the form of resumption of legal proceedings or in the form of an application for restoring the date of lodging the appeal against the judgement in absentia."

12. By the date of the final hearing further information had been obtained in a document dated 21st January 2010. That informed the District Judge that, regardless of oral instructions given in the course of the interrogation, Pawel Czekala had received written instructions about his rights and duties and that he had acknowledged the fact of receiving the document with his own signature. Enclosed was a signed copy of the document together with its translation.
13. I set out the entirety of the material part of the document headed "Instructing the suspect about his rights and duties". It is subparagraph (3). The words begin as follows:

"The suspect remaining at large:

Is obliged to appear in court at any summons during the course of criminal proceedings as well as to inform the organ leading the proceedings about any change of place of his residence or stay lasting more than 7 days; in case of the suspect's unexcused absence in court, he may be brought there by force (article 74 paragraph 1 and 2 of the Code of the Penal Procedure);

...

- if the suspect, not giving his new address, changes the place of his residence or does not stay at this address, a letter sent at this address during the preparatory proceedings in progress is considered as a delivered one..."

14. I should add that that document also indicated that when the appellant learnt of the sentence which he had been given, which was in effect a suspended sentence conditional on his making restitution for the damaged caused, he did not take any steps to appeal the decision. It is indicated that in the course of a sitting on 15th April 2004 he appeared in person and explained he was badly off and that he would make restitution within the month but at the next sitting of the court in May 2004 he did not appear, despite being properly instructed, and his mother stated he had left to look for a job.
15. The appellant seeks to challenge the validity of the reasoning of the District Judge leading to his finding that the appellant deliberately absented himself from the trial. The challenge is put in two separate ways. First, it looks to the interpretation placed by the district judge upon the rights and obligations document. It is conceded by the respondent that, if in fact, in the circumstances in which the appellant found himself in temporary police custody, he was not under any obligation to inform the authorities of his present whereabouts in relation to the theft offence, then it would be difficult for a court to find in the case of a person in custody, with no notice of the hearing and ex hypothesi no obligation to inform the court of his whereabouts, that he had taken an equivocal decision not to attend trial. It follows that it is common ground that it was essential to the District Judge's reasoning, and indeed there is no other express reasoning for his finding, that the appellant was under the obligation even though in temporary police custody to the extent indicated. It is said that the District Judge was wrong to interpret this rights and obligations document as imposing any obligation upon the appellant once he was taken into temporary police custody.
16. Reliance is placed on what is said is the ordinary and natural meaning of the words in paragraph 3 of the document, which begins "The suspect remaining at large". It is said that on the facts he was not at large, he was in custody and the only way a continuing obligation could be inferred would be if the document were interpreted as referring to a suspect "remaining at large in these proceedings". It is said that this would be an construction which goes too far for two principal reasons. First, that it is not a matter of true inference that this is the meaning of the document but is one of pure guesswork. Reliance is placed on Lord Hope's words in the Office of the King's Prosecutor Brussels v Cando Armas and another [2006] 2 AC 1 at paragraph 48:

"... those against whom the system for extradition is imposed are entitled to protection against its use in circumstances which have not been provided for by Parliament. So I think that Crane J was right to indicate that, if there is a gap in the information, it ought not to be filled by mere guesswork."

17. It is said moreover that it is wrong to adopt such a construction assuming for the moment that the words give rise to an ambiguity, having regard to two principles of construction: that which is against doubtful penalisation, namely that ambiguous provisions in penal enactments should be generally construed in favour of the defendant (see R (CPS) v Bow Street Magistrates' Court [2006] EWHC 1763) and the principle of contra proferentem holding that ambiguous terms in contracts should be generally construed against the party which drafted its terms.
18. The second ground of attack is that, even if the District Judge had been right to find that the appellant was in breach of his obligations to the Polish judicial authority, the judge was wrong to find that his conduct in not doing anything to fulfil that obligation should be characterised as conduct deliberately absenting himself from trial. It is submitted that his conduct in failing to keep the authorities informed of his whereabouts could not unequivocally indicate that he had made a conscious decision to not take part in the theft trial proceedings and, absent evidence unequivocally demonstrating such a conscious decision, a finding that he had deliberately absented himself from the trial could not be made.
19. As to the first submission on construction, the respondent's response is that the court should, when looking to the construction of documents in extradition proceedings, construe them on their face, adopting "a broad, generous and purposive construction" encouraged by the decision in re Ismail [1991] 1 AC 320 and that, where relevant terms are ambiguous, the court should look to the context of the document.
20. It has been strongly urged upon me by Ms Hill that, although the reference in the document to a person's obligations whilst "remaining at large" was ambiguous on its face, taking into account the vagaries of translation and the potential difference between British and continental criminal procedures, nonetheless, when one looks at what is said to be the context, the only sensible conclusion that this court could draw is that which had been drawn by the District Judge, namely that the obligation must extend to where the appellant is in temporary police custody, albeit on a different matter. The reasoning flows from the jurisprudence in the European Court on the obligations of a state under Article 6 of the European Convention on Human Rights. Article 6 has been interpreted as requiring that a person charged with a criminal case is entitled to take part in the hearing. In the European Court's decision of Sejdovic v Italy [2006] WL 5003056, the court at paragraphs 86 onwards dealt with the right of a defendant who had been tried in his absence to a retrial. This was subject to the exception where the defendant could be shown to have waived his right to appear at trial. In paragraph 86, it is said:

"... 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 at paragraph 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' ... 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 (see Jones, cited above)."

21. In this case the information from the Polish judicial authority was that the appellant would not be entitled to a retrial. Ms Hill's line of reasoning is this: it must be assumed that the judicial authority in Poland is aware of its obligations under Article 6 as interpreted by European jurisprudence in cases such as Sejdovic. The requesting judicial authority in this case has taken the decision that the appellant was deprived of his right to a retrial; it must therefore follow that, by inference, the judicial authority has satisfied itself that the appellant deliberately absented himself and had unequivocally waived his right to a retrial; that this would have had to have been on the facts solely because he had breached his obligations in relation to bail pending trial for the theft, being the obligation specifically set out in the document. This would have to be the logical conclusion, it is said, because there is no other basis on the information provided by the respondent which would explain why the judicial authority had determined that he was not to have a retrial.
22. It is therefore said that the only proper interpretation of the document must be one which is consistent with the requesting state carrying out its obligations under Article 6. This means that this court must interpret the document as meaning that there was a continuing obligation on the appellant to notify the authorities of his whereabouts, albeit the appellant was not at large in the general sense but was in temporary police custody and that "at large" has to be interpreted as meaning "at large on bail in the theft proceedings".
23. Notwithstanding the impressive way in which that argument has been presented to me, I have concluded that it would be wrong of this court to go about the interpretation of the document in this way. I have to remind myself that the burden of proof is on the respondent to establish that the appellant had deliberately absented himself and to establish it to the criminal standard. I agree with Mr Morris' submission to me that the effect of this submission is to reverse the burden of proof. The court can only act on the evidence. Information was expressly sought from the Polish judicial authority as to the nature of the obligation. Nothing in the information which has been received can satisfy any court in my judgment beyond a reasonable doubt that the obligation was a continuing obligation to inform the authorities, albeit he was in temporary police custody and not on the fact of it "at large".
24. In my judgment, on the evidence it cannot be said that the obligation was as extensive as is contended for by the respondent. Any doubt on the matter has to be resolved in favour of the appellant simply because of where the burden of proof lies on the issue. I also accept that, if there were ambiguity, then the court would have to have regard to the principles of construction urged upon me by Mr Morris. In my judgment, however, looking at the document on its face, there is no ambiguity. "At large" cannot embrace being in police custody. If the respondent had sought to take a stance that in fact a different meaning was to be adopted because of problems of translation or differences in practice as between the criminal justice systems of this country and Poland, one would have expected that information to have been laid before the court and it was not.
25. I therefore conclude that the appellant's submission succeeds that on the evidence before the District Judge he was wrong to find that there was an obligation upon the appellant albeit he was in police custody to notify the authorities of his whereabouts.
26. If I am wrong on this point, I go on to consider whether, on the assumption the appellant was under such an obligation, his conduct in not notifying the authorities of his whereabouts can be properly interpreted as establishing an unequivocal intention not to attend his trial.
27. I put the question in this way because there appears no dispute between the parties as to the legal principles which should be applied when considering the concept of a person appellant deliberately absenting himself from trial for the purposes of section 20. I have had helpfully drawn to my attention a number of authorities on this question. In particular, Deputy Public Prosecutor of the Court of Appeal of Montpellier v Wade [2006] EWHC 1909 where May LJ at paragraph 15 said:

"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."

I have in mind also the approach of Collins J in Atkinson and Binnington v Cyprus [2009] EWHC 1579 (Admin), where he held:

"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." (paragraph 31).

and (paragraph 34):

"... In context, it seems to me that "deliberately" means no more than that the person concerned has made a conscious decision not to attend."

28. I was referred to the terms of Article 5(1) of the Framework Decision, which section 20 of the 2000 Act was intended to implement. That stated:

"Where the European Arrest Warrant has been issued for the purposes of executing a sentence ... 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 conditions that of 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 of the issuing member state and to be present at the judgment."

29. It is pointed out that Article 5(1) focuses on the need for the person to be informed of the date and place of any hearing if he is to receive the protection to which he is entitled under Article 6. I was also referred to the decision of this court in Dula v Director of Public Prosecutions of Zwolle Lelystad Holland [2010] EWHC 469 (Admin). In that case, Swift J held that, where the requested person had been personally served with the summons when he was held in custody in Poland and the summons informed him he was about to tried in Holland, the appellant's subsequent failures to take any steps to obtain an adjournment in the light of his summons amounted to "a voluntary and conscious decision not to participate in the Netherlands proceedings" and therefore "deliberately absented himself from trial". At paragraph 38, Swift J said that she could not accept the proposition that the mere fact a person has been held in custody means that he cannot be found to have deliberately absented himself from the trial of criminal proceedings in which he is involved. Each case will depend upon its own specific facts.
30. I was referred further to those paragraphs in Sejdovic v Italy, to which I have already referred, but also at paragraph 99 where it is said:

"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."

31. The respondent does not dispute that the authorities to which I have been referred give rise to a basic statement of principle accurately set out at paragraph 45 of the appellant's skeleton argument:

"It is submitted that these authorities hold that to make a finding that the Appellant deliberately absented himself from his trial the court must satisfy itself that the Requested Person has made a clear conscious decision not to attend his trial foreseeing that the consequence of this decision will be that the trial takes place in his absence. Normally, such a decision can only be properly said to have been taken where the Requested Person is aware of the date and place of the hearing since only then will the Requested Person reasonably foresee that his conduct will have the consequence of him not being present at his trial. Nevertheless, if the Requested Person's conduct clearly and unequivocally demonstrates that the Requested Person does not intend to take part in his forthcoming trial, the court may infer that the Requested Person has deliberately absented himself."

32. I was further referred in support of those propositions to the observations of Collins J in Atkinson and Binnington. He referred to paragraph 99 of the Sejdovic decision, which I have already set out. At paragraph 30 of his judgment in Atkinson, the observation is made that, whilst the European Court was 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 ..."

Then at paragraph 31 this observation appears:

"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."

33. It is submitted on behalf of the appellant that, given the limitations of what the appellant could foresee when he was in custody in the police station of the very same police force connected to the theft offence, it could not be said that a decision not to fulfil his obligation to inform the authorities of his whereabouts demonstrated unequivocally an intention not to participate in any trial and not to attend any trial. He did not know when any trial would take place. He had not received any summons. This, it is said, distinguishes his case from Dula, where the essential fact was that the requested person, albeit in custody in Poland, had been served a few days before his trial in Holland by the Dutch authorities with notice of that trial date and place and so that he must have known that if he had failed to do anything the trial would proceed in his absence.
34. It is said on behalf of the appellant that at it highest the finding of the District Judge was that the appellant was lying low and hoping that the proceedings against him in respect of the theft charge might not materialise. But nonetheless, he could not foresee that his conduct would necessarily result in his not being present at his trial. As far as the appellant was concerned, although he was not doing anything to further the process of his prosecution for the theft, he could have been brought to court on the theft charge at any time.
35. For the respondent, emphasis is put on the finding of the District Judge that the appellant had been fully interrogated in the February about the theft offence; that although he knew nothing about any summons he nonetheless knew the nature of the case against him and that a prosecution was underway, unlike the facts in other cases where no summons had been served. It is said that, on the facts found by the District Judge, the appellant had indulged in what is described as prolonged and total failure to make any effort to notify the relevant body of his whereabouts and that this persistent conduct puts a very different light upon his position compared with the defendants in the three domestic cases upon which much reliance was placed by the appellant.
36. Those domestic cases are R (on the application of R) v Thames Youth Court [2002] EWHC Admin 1670, Davis v Solihull Justices [2008] EWHC 1157 and the case of R (on the application of M) v Tower Bridge Magistrates Court [2007] EWHC 2766.
37. I accept entirely that this present case can be distinguished from the facts of the case in Thames Youth Court and in Davis v Solihull Justices. In those cases, the defendant had committed behaviour not directly relevant to the trial, not done on the face of it with the purpose of frustrating the existing criminal process but which had the effect of causing the defendant not to be at his trial. In the Thames Youth Court case, the defendant had committed an offence the night before his court appearance and was absent from trial because he was still in police custody. In Davis, the defendant had indulged in disorderly conduct which had caused his absence from the trial. In both cases this court held that the judge below was wrong to have proceeded on the basis that the claimant was deliberately excluding himself from the court.
38. The case of M is closer on the facts in that the defendant in that case had been remanded in custody on other matters but failed to contact the court from prison in relation to a trial which then proceeded in his absence. This court held that that court had been wrong so to do and that too much weight had been placed on an individual's failure to contact the court from prison, given the specific date of the hearing was unknown: seen Gibbs J at paragraph 15. Ms Hill says that that case is different from the present case because here there was an obligation of which the appellant was fully aware to notify the judicial authorities in respect of the theft trial of his whereabouts, albeit he was in temporary police custody, and he had been previously interrogated in the February and he therefore knew that there was an ongoing criminal process in respect of the theft charge.
39. On this issue I prefer the submissions of the Appellant. I accept that a distinction has to be drawn between reprehensible conduct on behalf of a person which has the effect of or is causative of his not being present at his trial, and absence which is the result of a conscious decision not to attend his trial. It cannot necessarily be inferred from conduct which has been causative of absence that the individual has made a deliberate i.e. conscious, decision not to attend trial. In my judgment it was wrong of the District Judge on the evidence before him to find (assuming that he did go through this necessary process of reasoning) to the criminal standard that the conduct relied upon in this case - the failure of the appellant to notify the judicial authorities of his whereabouts in temporary police custody in breach of a known obligation to do so - demonstrated unequivocally an intention on his part not to attend his trial, so as to enable the inference to be drawn that he had deliberately absented himself from his trial. There is a fundamental difference between the situation as existed in Dula where the individual knew by receipt of information that the trial was about to take place and where it was open to him to seek the adjournment of the trial and he could reasonably have foreseen that the consequence of inaction on his part would be a trial proceeding in his absence, and the situation in this case where at best all the appellant knew was that there was an ongoing criminal legal process in respect of the theft charge but did not know when his trial was to take place and did not know whether he might at any moment be taken by the authorities in whose control he was, to the theft trial.
40. The evidence as to what the appellant's intention was, in not notifying his whereabouts, albeit in breach of a known obligation, is not unequivocal. The evidence is open to interpretations other than that contended for by the respondent. I agree with Mr Morris that the appellant could not have foreseen that his failure to keep the court or the "organ leading the proceedings" (to quote the written obligations document signed by him) of his whereabouts in temporary police custody would necessarily have had the effect of his not being brought to the court for his trial or of a trial proceeding in his absence. The material paragraph (paragraph 3) of that signed document stated that "in the case of the suspect's unexcused absence in court he may be brought there by force" and given the appellant was in police custody (albeit on a different charge) he must have been in jeopardy - or at least may well have regarded himself as being so - of such action being taken against him. The appellant in not notifying his whereabouts may well have been hoping that the outstanding criminal proceedings against him on the theft matter might not materialise and might go away. He may well have been lying low and taken the decision not to take any steps himself to further the criminal theft proceedings against him but this inaction in my judgment cannot be unequivocally interpreted as a conscious decision not to attend any trial of which at the time he had no knowledge. I have formed this view notwithstanding the point fairly made Ms Hill that it would appear the appellant did not in the event take steps to appeal the court decision when he became aware of it - although he did attend the hearing in April 2004 relating to the condition under the conditional sentence to make restitution.
41. For all these reasons I have concluded that on the evidence before the court below it was wrong of the Judge to have found to the criminal standard of proof that the Appellant had by his conduct in not notifying the authorities of his whereabouts in temporary police custody demonstrated an unequivocal intention not to attend his trial and by inference had deliberately absented himself from his trial. The judge ought to have answered the question whether the Appellant had deliberately absented himself from trial in the negative and in those circumstances he was required to order the Appellant's discharge on the theft offence. Accordingly this appeal succeeds.

MR MORRIS: I am grateful my Lord. Formally, I think it needs to be ordered that the appellant's extradition in relation to the theft offence is quashed.

MR JUSTICE KING: Yes.

MR MORRIS: And his discharge is ordered under section 27(5).

MR JUSTICE KING: I shall do that.

MR MORRIS: I am grateful, my Lord, and, secondly, the appellant is legally funded. May I have detailed assessment of the appellant's costs?

MR JUSTICE KING: You may.

MR MORRIS: I am grateful.

MR JUSTICE KING: And can I thank both counsel for their very careful submissions and I am sorry to have kept you so late.