QUEEN'S BENCH DIVISION
Strand, London, WC2A 2LL
B e f o r e :
THE HON. MRS JUSTICE SWIFT DBE
| Usti Nad Labem Regional Court (Czech Republic)
|- and -
Miss Rebecca Hill (instructed by Kaim Todner LLP) for the Respondent
Hearing dates: 17 February 2010
Crown Copyright ©
The Hon. Mrs Justice Swift DBE :
The proceedings in the Czech Republic
The extradition proceedings
"It is not true that the defendant has no right to retrial; this is guaranteed by provision of article 306a paragraph 2 of the Criminal Procedure Code. The defendant has the right to apply for reversal of a judgment within eight days after delivery thereof, and the Court is obliged to grant the application. Then the final session of the main trial is held again, closing statements are repeated and a new judgment is pronounced. The defendant has also the right to make motions for the completion of proofs."
The extradition hearing
i) By discharging the respondent under section 10(3) of the 2003 Act which, it was said, is only applicable if there is a finding that the offences listed on the EAW are not extradition offences; it is contended that, if the District Judge were minded to discharge the EAW, he should have declared that the EAW was void ab initio.
ii) By finding that the key date for ascertaining the respondent's status was at the time of the extradition hearing and not at the time of the issue of the EAW ("the date issue");
iii) By not granting the appellant an adjournment to ascertain whether or not the respondent's conviction and sentence were final and enforceable; it was submitted that, had the District Judge granted the adjournment, the appellant could have provided evidence to demonstrate that the respondent should be treated as an accused person.
"a) sentenced Janiga has the right, after being served the judgement (which he has not taken over yet) to apply within eight days for reversal of this judgement. The judgement must be served on the sentenced person in person and the eight-day time limit thus cannot expire earlier than the sentenced person is factually extradited to the local court.
b) I can confirm that sentenced Janiga has automatic right to reversal of judgement of conviction and reopening of the case to the moment when criminal proceedings against fugitive were initiated.
c) in case that the sentenced person is extradited he will be escorted to a judge and he/she will serve the judgement of conviction on the sentenced person; the sentenced person shall be notified of the possibility to apply for its reversal pursuant to article 306a of the Criminal Procedure Code. At that time a defence lawyer of the sentenced person shall already be present. If the sentenced person states that he applies for reversal of the judgement, the court is obliged to reverse it.
d) I confirm that the court is obliged to reverse the judgment of conviction based on application of the sentenced person and order a new trial.
e) I confirm that in case of reversal of the judgement the sentenced person will be treated as if he were tried for the first time. The principle of presumption of innocence applies in the Czech law.
f) At reopening of the case the court will order the main trial again, provide remaining evidence proposed by the parties and then it will adjudicate anew by judgement. "
The letter then went on to set out the provisions of article 306a which provide for the procedure described. The letter also stated that, contrary to the assumption made by the District Judge, Czech law does not permit the issue of a new EAW.
"(1) On an appeal under section 28 the High Court may—
(a) allow the appeal;
(b) dismiss the appeal.
(2) The court may allow the appeal only if the conditions in subsection (3) or the conditions in subsection (4) are satisfied.
(3) The conditions are that—
(a) the judge ought to have decided the relevant question differently;
(b) if he had decided the question in the way he ought to have done, he would not have been required to order the person's discharge.
(4) The conditions are that—
(a) an issue is raised that was not raised at the extradition hearing or evidence is available that was not available at the extradition hearing;
(b) the issue or evidence would have resulted in the judge deciding the relevant question differently;
(c) if he had decided the question in that way, he would not have been required to order the person's discharge."
Thus, fresh evidence can found an appeal only if it was "not available at the extradition hearing".
"It is normally incumbent on litigants in first instance courts or tribunals in which evidence is adduced to advance their whole case at first instance and to adduce all the evidence on which they want or need to rely. In most cases, the purpose and function of an appeal is to review the decision of the lower court upon the evidence which was adduced before the lower court. An appeal court is not generally there to enable a litigant who has lost in the lower court to advance their case upon new and enlarged evidence which they failed to adduce in the lower court. Litigation should normally be conducted and adjudicated on once only. It is generally neither fair nor just that the expense and worry of litigation should be prolonged into an appeal because a party failed to adduce all the evidence they needed at first instance. The same policy which underlies this contributes to the now very widespread requirement that an appeal or a claim for judicial review (which is appellate in nature) requires permission or leave. There are exceptions to this, of which perhaps the most obvious is an appeal to the Crown Court from a determination of a magistrates' court in a criminal matter, which may be brought without leave; at which fresh evidence may be adduced; and where the appeal is a full hearing."
At paragraph 32, he said:
"In our judgment, evidence which was "not available at the extradition hearing" means evidence which either did not exist at the time of the extradition hearing, or which was not at the disposal of the party wishing to adduce it and which he could not with reasonable diligence have obtained. If it was at the party's disposal or could have been so obtained, it was available. It may on occasions be material to consider whether or when the party knew the case he had to meet. But a party taken by surprise is able to ask for an adjournment. In addition, the court needs to decide that, if the evidence had been adduced, the result would have been different resulting in the person's discharge. [sic] This is a strict test, consonant with the parliamentary intent and that of the Framework Decision, that extradition cases should be dealt with speedily and should not generally be held up by an attempt to introduce equivocal fresh evidence which was available to a diligent party at the extradition hearing. A party seeking to persuade the court that proposed evidence was not available should normally serve a witness statement explaining why it was not available. The appellants did not do this in the present appeal."
The relevant provisions of the Extradition Act 2003
"A Part 1 warrant is an arrest warrant which is issued by a judicial authority of a category 1 territory and which contains—
(a) the statement referred to in subsection (3) and the information referred to in subsection (4), or
(b) the statement referred to in subsection (5) and the information referred to in subsection (6)."
"The statement is one that—
(a) the person in respect of whom the Part 1 warrant is issued is accused in the category 1 territory of the commission of an offence specified in the warrant, and
(b) the Part 1 warrant is issued with a view to his arrest and extradition to the category 1 territory for the purpose of being prosecuted for the offence."
"The information is —
(a) particulars of the person's identity;
(b) particulars of any other warrant issued in the category 1 territory for the person's arrest in respect of the offence;
(c) particulars of the circumstances in which the person is alleged to have committed the offence, including the conduct alleged to constitute the offence, the time and place at which he is alleged to have committed the offence and any provision of the law of the category 1 territory under which the conduct is alleged to constitute an offence;
(d) particulars of the sentence which may be imposed under the law of the category 1 territory in respect of the offence if the person is convicted of it."
"The statement is one that—
(a) the person in respect of whom the Part 1 warrant is issued has been convicted of an offence specified in the warrant by a court in the category 1 territory, and
(b) the Part 1 warrant is issued with a view to his arrest and extradition to the category 1 territory for the purpose of being sentenced for the offence or of serving a sentence of imprisonment or another form of detention imposed in respect of the offence."
"The information is—
(a) particulars of the person's identity;
(b) particulars of the conviction;
(c) particulars of any other warrant issued in the category 1 territory for the person's arrest in respect of the offence;
(d) particulars of the sentence which may be imposed under the law of the category 1 territory in respect of the offence, if the person has not been sentenced for the offence;
(e) particulars of the sentence which has been imposed under the law of the category 1 territory in respect of the offence, if the person has been sentenced for the offence."
"A person is alleged to be unlawfully at large after conviction of an offence if -
(a) he is alleged to have been convicted of it, and
(b) his extradition is sought for the purpose of his being sentenced for the offence or of his serving a sentence of imprisonment or another form of detention in respect of the offence."
The parties' cases
The appellant's case
"A person convicted and sentenced upon final judgment resulting from the proceedings in absentia has [the] right to request a new trial. It is important to point out that under Czech law a court delivers only one decision – judgment – in which it must at the same time make both a statement determining guilty and a statement specifying punishment.
If such a person requests a new trial a court must revoke (cancel) a whole judgment, for example, both a statement determining guilty and a statement specifying punishment, and hold the main hearing once again under request of the defendant."
On the basis of the evidence before it, the court concluded that it was "manifestly plain" that the convictions were not final.
The respondent's case
Discussion and Conclusions