Neutral Citation Number: [2010] EWHC 463 (Admin)
Case No: CO/15739/2009
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
DIVISIONAL COURT

Royal Courts of Justice
Strand, London, WC2A 2LL

Date: 11/03/2010

Before :

THE RT. HON. LORD JUSTICE WALLER

and

THE HON. MRS JUSTICE SWIFT DBE
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Between :

	Usti Nad Labem Regional Court (Czech Republic)	Appellant	
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	Miroslav Janiga	Respondent 	

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Mr Myles Grandison (instructed by the Crown Prosecution Service) for the Appellant
Miss Rebecca Hill (instructed by Kaim Todner LLP) for the Respondent

Hearing dates: 17 February 2010
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Judgment

The Hon. Mrs Justice Swift DBE : 
1.	This is the judgment of the court. 
The appeal 
2.	This is an appeal by the Usti Nad Labem Regional Court (a Czech Republic Judicial Authority) against the decision of District Judge Evans sitting at the City of Westminster Magistrates Court, ordering the discharge of the respondent, Miroslav Janiga, under section 10(3) of the Extradition 2003 Act  2003 (the 2003 Act ) on 21 December 2009.
The proceedings in the Czech Republic 
3.	It is alleged that, between 2003 and 18 May 2004, in the Czech Republic, the respondent sexually assaulted and raped his stepdaughter, Kristyna Jelinkova, on numerous occasions.  At the time of the offences she was under the age of 10 years.  Furthermore, it is said, that between the same dates, the respondent sexually assaulted another stepdaughter, Dominika Janigova.  She was under the age of six years.
4.	The respondent was charged with the offences in the Czech Republic on 24 June 2004. He was remanded on bail. The trial commenced on 12 April 2005,   in the presence of the respondent and his lawyers. Evidence was heard on 2 August 2005, 24 January 2006, 30 March 2006, 6 June 2006 and 7 August 2006. The trial was then adjourned at the request of the defence in order for psychiatric evidence to be obtained.  However, the respondent, who had been on bail throughout, did not attend his appointment with the psychiatrists. He disappeared.  As a result, on 20 March 2007, a domestic arrest warrant was issued. The respondent could not be found and information from his employers suggested that he had left the Czech Republic. The domestic warrant was never executed. A European arrest warrant (EAW) was issued by a judge of the Czech court on 7 November 2007.  At that time, the respondent was an accused person and was being sought for the purpose of attending his adjourned trial.  
5.	By the beginning of 2009, it must have been clear that the respondent was not going to return to the Czech Republic for the conclusion of his trial. The trial was resumed in the respondent’s absence, although lawyers attended on his behalf. The hearing took place on 10 March 2009. At that hearing, the court heard closing statements from the parties and convicted the respondent in his absence of the offences.  A sentence of nine years’ imprisonment was imposed.  
6.	Subsequently, an appeal was instituted by the respondent’s lawyers against both conviction and sentence. That appeal was determined by the High Court of Prague on 26 May 2009, when the court upheld the respondent’s conviction but reduced the sentence of imprisonment to one of six years. 
The extradition proceedings
7.	The EAW was certified by the Serious Organised Crime Agency (SOCA) on 27 August 2009, i.e. after the respondent’s conviction and sentence. He was arrested on the EAW on 21 September 2009 and produced before the City of Westminster Magistrates Court on 22 September 2009.  He was remanded in custody.  The extradition hearing was formally opened on 29 September 2009 and was adjourned on that occasion, and on subsequent occasions, in order that both parties could obtain evidence. 
8.	On 29 October 2009, the respondent served on the appellant’s solicitors a statement of issues which stated, inter alia, that the respondent believed that the EAW was defective since he had been told that he had been convicted of the extradition offences listed in the EAW and sentenced in his absence. 
9.	On 18 November 2009, the Crown Prosecution Service (CPS), which represents the appellant, dispatched a formal request for information from the Czech Republic Judicial Authority about the status of the Czech proceedings. That request could not be sent direct to the Judicial Authority. Instead, it had to be sent to the SOCA for translation into Czech and subsequent onward transmission to the Judicial Authority. Further similar requests were sent to the Judicial Authority by the same route on 24 November and 11 December 2009. 
10.	 On 26 November 2009, the respondent’s solicitors wrote to the Judge of the Czech Republic Judicial Authority, posing a number of questions. They received a response by email dated 1 December 2009 in which the Judge stated, inter alia, that Czech law enables an accused person to apply for a retrial after his return to the Czech Republic. 
11.	The CPS received no response to their requests until Friday, 18 December 2009. That response, which was dated 8 December 2009, was not seen by counsel for the appellant until the morning of the hearing on Monday, 21 December 2009. The response stated:
“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
12.	The matter came before District Judge Evans on 21 December 2009 for a full hearing.  At that hearing, Counsel for the respondent, Miss Hill, argued that the EAW was deficient since it had been issued when the respondent was an accused person, whereas his status had by the time of the hearing changed to that of a convicted person. She argued that the respondent’s status must be determined at the date of the extradition hearing, not at the date of the issue of the warrant. (For ease, we shall refer to this issue as “the date issue”.)  She invited the District Judge to find that the warrant was invalid and to discharge the respondent.  
13.	Counsel for the appellant, Mr Grandison, sought an adjournment of the full hearing to a future date, in order to enable the appellant to obtain further clarification as to whether or not the respondent’s conviction and sentence could properly be regarded as “final and enforceable” in Czech law. If they were not final and enforceable, then the respondent’s status had not changed from that of an accused person and the EAW would be valid. Mr Grandison had attended the hearing prepared to argue “the date issue”. He was not in a position immediately to argue the issue of whether or not the Czech conviction and sentence were final and enforceable (“the finality issue”).  He therefore requested that, at the very least, the case should be adjourned until later that same day in order that he could undertake the necessary research to enable him to argue the point fully.    
14.	Mr Grandison argued that, in any event, the respondent’s status (i.e. whether he was as an accused or a convicted person) should be ascertained at the date of issue of the EAW not at the time of the extradition hearing.  
15.	The District Judge refused the appellant’s application to adjourn the hearing on the ground that the appellant had had ample time to investigate the case.  He went on to find that the status of a requested person must be assessed as at the date of the extradition hearing.  He appeared to accept that the respondent must be regarded as a convicted person.  As a consequence, he decided that he could not order the respondent’s extradition on the basis of the existing warrant. He said that, if the application for extradition were to proceed, a new EAW would have to be issued. He observed that his experience led him to believe that this should be “quite straightforward”. Meanwhile, he ordered the respondent’s discharge under section 10(3) of the 2003 Act.  
The appeal 
16.	The appellant immediately instituted appeal proceedings under section 28 of the 2003 Act.  An application for the respondent to be remanded in custody pending the appeal was made and granted.  The grounds of appeal alleged that the District Judge erred in three respects  :
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.    
17.	The respondent agrees that the first ground of appeal must succeed. It is accepted that, in the light of his findings, the District Judge should have declared that the EAW should not have discharged the respondent under the section 10(3) of the 2003 Act. Instead, he should have declared that the EAW was invalid.  This makes no practical difference to the respondent’s position.  
Fresh evidence 
18.	Before going on consider the other grounds of appeal, it is necessary to refer to further evidence which was before us but not before the District Judge. Following the hearing before the District Judge, the CPS sought further information from the Czech Republic Judicial Authority in order to clarify the evidence contained in the letter of 8 December 2009. There was before us a letter dated 29 January 2010 from the Judge of the Czech court. In it, she said:
“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. 
19.	The appellant sought to adduce the letter by way of fresh evidence. Section 29 of the 2003 Act sets out the circumstances in which an appeal may be allowed. It provides:  
“(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”. 
20.	Mr Grandison submits that the difficulty of communication between the CPS and the Czech Judicial Authority meant that, through no fault of the appellant, the letter of 29 January 2009 was “not available” at the hearing. Until the letter of 8 December 2009 was received, it was not clear that a point arose as to whether, at the date of the hearing, the respondent was still an accused person. He sought an adjournment so as to be able to obtain clarification from the Czech Republic Judicial Authority. That adjournment was not granted and thus the further clarification was not available to the District Judge when making his decision. 
21.	Miss Hill submits that the material obtained by the appellant subsequent to the extradition hearing does not constitute “evidence that was not available at the extradition hearing” within the meaning of section 29(4) of the 2003 Act.  She relied on the case of The Szombathely City Court and Others v Fenyvesi and Fenyvesi [2009] EWHC 231 Admin, in which Sir Anthony May emphasised (at paragraph 3) the principle militating against general admission of new evidence upon appeal:
 “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.”
22.	Miss Hill submits that the material which has now been obtained was available at all times to the Czech Republic Judicial Authority and could, with reasonable diligence, have been communicated to their legal representatives before the extradition hearing. She accepts that the necessity of communicating through a third party (the SOCA) and for translations of the request for information and the response means that the process of obtaining information is likely to be slower than the usual  communications between solicitor and client. However, she points out that it was almost three weeks after being alerted to the fact that the respondent was claiming that he had been convicted in his absence that the CPS made their first request for information. She stresses the importance of expedition in extradition cases, particularly when the requested person is in custody pending the outcome of the extradition proceedings. She submits that, applying the criteria set out by Sir Anthony May in Fenyvesi, the new material cannot be regarded as evidence which was “not available” at the extradition hearing. She contends that it is therefore inadmissible before this court.  
The relevant provisions of the Extradition Act 2003  
23.	Section 2 of the 2003 Act sets out the requirements for a Part I warrant and the steps to be taken by the “designated authority”, i.e the UK body (in this case the SOCA) designated by the Secretary of State as responsible for the certification of EAWs. Section 2(2) provides:  
“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).” 
24.	Section 2(3) relates to warrants issued in respect of accused persons. It provides:
 	“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.” 
25.	Section 2(4) sets out the information which a warrant relating to an accused person must contain. It states:
 “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.” 
26.	Section 2(5) (as amended) relates to warrants issued in respect of convicted persons. It provides:
“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.” 
27.	Section 2(6) sets out the information which a warrant relating to a convicted person must contain. It states:
 	“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.”
28.	At an extradition hearing, the judge must first decide whether the relevant EAW is valid and contains the information specified in section 2 of the 2003 Act.  In this case, it was not disputed that the EAW contained the statement and information required under the provisions of section 2(3) and (4) for an accused person. It was agreed that, at the time of issue of the EAW, the respondent was an accused person so that, if the validity of the EAW had fallen to be determined at that time, it would have been valid.   It was agreed also that the EAW did not contain the statement and information required under the provisions of section 2(5) and (6) for a convicted person. In particular, it did not contain (for obvious reasons) particulars of the respondent’s conviction or of the sentence(s) imposed for the offences. Thus, the respondent argued, if his status had changed by the time of the extradition hearing from an accused person to a convicted person and if the relevant time for ascertaining his status was the date of the extradition hearing (rather than the date of issue of the EAW), the warrant was not valid.  
29.	The next matter to be determined at an extradition hearing is whether the behaviour alleged in the EAW is an “extradition offence” within the meaning of the 2003 Act. The judge must then consider whether there is any bar to extradition pursuant to section 11(1) of the 2003 Act.  If he concludes that the offence is an extradition offence and that there is no bar to extradition, he must then go on to decide whether the requested person is a person who is alleged to be lawfully at large after conviction of an extradition offence (section 11(4)) or a person accused of the commission of the extradition offence but not alleged to be unlawfully at large after conviction of it (section 11(5)). If he is found to be the latter, the judge must proceed under section 21 to consider whether the requested person’s extradition would be incompatible with his human rights. If he finds that it would not, then he must order the person’s extradition. If he finds that it would, he must order the person’s discharge.   
30.	In the case of a requested person who is alleged to be unlawfully at large after conviction, there is an additional step in the process pursuant to section 11(4) and section 20 of the 2003 Act. The judge must go on to consider whether the requested person was convicted in his presence (section 20(1)). If the judge decides that he was convicted in his presence, he will proceed to consider the question of human rights under section 21 (section 20(2)). If he finds that the person was convicted in his absence, he must consider whether he deliberately absented himself from his trial (section 20(3)). If he finds that he did, he must go on to consider the human rights issue under section 21 (section 20(4)). If the judge finds that the person was convicted in his absence and did not deliberately absent himself from his trial, he must consider whether the person would be entitled to a retrial or, on appeal, a review amounting to a retrial (section 20(5)). If the judge finds that he would be so entitled, he must go on to consider human rights issues under section 21 (section 20(6)). If the judge finds that the person would not be so entitled, he must order his discharge (section 20(7)). 
31.	Section 20 of the 2003 Act provides a safeguard for a convicted person, who may have been tried in his absence without having had any knowledge of the proceedings (and/or without having been absent through any fault of his own). If the safeguard was not provided, such a person would be liable (in jurisdictions where there is no right of appeal or review) to be returned to serve his sentence without having been afforded any right to participate in the trial process. The safeguard is afforded only to a requested person who is alleged to be unlawfully at large after conviction of the extradition offence (section 11(4)). It is not available to an accused person (section 11(5)).   
32.	 Paragraph 68A of the 2003 Act provides that:
“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 
33.	Although it was not at the forefront of the parties’ written submissions, we shall deal first with the third ground of appeal, namely that the District Judge erred in refusing an adjournment to enable the appellant to seek further clarification as to whether or not the respondent’s conviction and sentence were final and enforceable and/or to make appropriate preparations to argue “the finality issue”. At the hearing before us, Mr Grandison indicated that, although it was not clear from his grounds as drafted, he was also submitting that in any event, on the evidence before him, the District Judge should have concluded on the available evidence that the respondent’s conviction and sentence were not final and enforceable so that he should continue to be treated as an accused person. 
34.	For reasons that will become evident, it will not be necessary for us to consider the appellant’s second ground of appeal, which relates to the “date issue”.    
The appellant’s case 
35.	Mr Grandison relies on the case of Caldarelli v Court of Naples, Italy [2008] 1WLR 1724.  In that case, an Italian court had found the appellant guilty in his absence of a drugs offence and had sentenced him to a term of imprisonment.  His lawyers lodged an appeal against conviction on his behalf.  There was agreed expert evidence that, under Italian law, a first instance judgment is neither final nor enforceable while the criminal appeal process remains uncompleted. This is despite the fact that a person who had been tried in his absence and convicted has no unqualified right to a fresh hearing on the merits.  
36.	After the judgment, an Italian judge issued an EAW which, pursuant to section 2(3) of the 2003 Act, contained a statement that the appellant was accused in Italy of the commission of a drugs offence and that the warrant had been issued with a view to his arrest and extradition for the purpose of being prosecuted for the offence, The appellant was arrested in the UK pursuant to the EAW and the District Judge ordered his extradition.  The appellant appealed on the ground that the EAW should have contained a statement in accordance with section 2(5) of the 2003 Act, namely that he had been convicted of an offence and that the warrant was issued with a view to his arrest and extradition for the purpose of serving a sentence of imprisonment in respect of the offence. It was argued that, since the EAW characterised him as an accused – rather than a convicted – person, it was invalid.  
37.	The Divisional Court dismissed the appeal. The House of Lords dismissed the appellant’s appeal from the decision of the Divisional Court. In giving judgment, Lord Bingham of Cornhill observed that both the Council Framework Decision of 13 June 2002 on the European Arrest Warrant and the surrender procedures within member states (the Framework Decision) and the 2003 Act provide for international co-operation between states with differing procedural regimes. They cannot be interpreted on the assumption that procedures that apply in the UK also apply elsewhere.  In Caldarelli, the Italian judge who had issued the EAW after the judgment had treated the appellant as an accused - not a convicted - person.  That accorded with legal practice in Italy, where the trial is a continuing process. The process had not yet been completed in the appellant’s case.  Thus, his conviction was not final and his extradition had been properly sought as an accused person.  
38.	In his judgment in Caldarelli, Lord Bingham referred to the case of La Torre v HM Advocate 2006 SCCR 503.  In that case, the appellant had been tried,   convicted and sentenced in Italy at a trial which he had not attended, but at which he had been represented. The evidence before the sheriff was that Italian law provided that the judgment could be challenged on appeal. The sheriff ordered the appellant’s extradition. One of the issues before the High Court of Justiciary was whether the EAW should have treated the appellant as a convicted person - rather than, as it did - an accused person.  Although this issue arose under Part 2 of the 2003 Act, the relevant provision was very similar to that contained in Part 1.  The appellant contended that he should have been treated as a convicted person.  For the respondent, it was submitted that, under the 2003 Act, there were only two categories of persons to be extradited: (a) an accused person and (b) a person who was unlawfully at large after conviction. On the evidence before the sheriff, it was apparent that the sentence passed upon the appellant had not yet become final. Since the sentence was not yet enforceable, the appellant could not be unlawfully at large and must therefore be an accused person.    
39.	 The court found that the appellant’s submission was misconceived.  They said that the “key provision” was section 70(4) of the 2003 Act (the equivalent of section 2(3)) At that time section 70(4) (and section 2(3)) distinguished between an accused person and a person alleged to be unlawfully at large after conviction. Since his sentence was not yet enforceable, the appellant could not be a person “alleged to be unlawfully at large after conviction”. It therefore followed that he had to be categorised as an accused person and the sheriff had been right to proceed on that footing.  
40.	Mr Grandison relies also on the case of The Queen on the Application of Milar Bikar and Jan Bikar v The Governor of HM Prison Brixton [2003] EWHC 372 (Admin). This was a case involving the legal system in the Czech Republic. The applicants had been convicted and sentenced in their absence in the Czech Republic. The question arose as to whether their convictions were final. The court had evidence from the court in the Czech Republic to the effect that the applicants had a right to appeal against the judgment within eight days of the delivery of the judgment. This right was said to be based on the provisions of article 306a of the Czech Criminal Procedure (the same provision as was referred to by the judge of the Czech court in the present case). There was a letter before the court in Bikar which stated:
“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.  
41.	Mr Grandison submits that, in the present case, the respondent’s status remained that of an accused person at the time of the extradition hearing.  If an appeal is lodged upon the respondent’s return to Czech Republic, the court must re-try him. There is no statutory discretion to do otherwise. Until that is done, his sentence cannot be enforceable. In those circumstances, Mr Grandison submits that the respondent cannot fall within the category of a person “unlawfully at large after conviction of an offence” for the purposes of section 11 of the 2003 Act.  He must therefore be regarded as a person accused of the commission of the extradition offence, but not unlawfully at large after conviction of it within the meaning of section 11(5).      
42.	Mr Grandison argues that, on the basis of the letter of 8 December 2009, which was before him at the time of the hearing, the District Judge should have concluded that the respondent’s conviction was not final. He accepts that he was unable to argue the point as fully as he would have done had his application for an adjournment been granted. He was able to refer the District Judge to the cases of Caldarelli and La Torre, which had been central to his argument on “the date issue”. However, he was not aware of the decision in Bikar and was therefore unable to draw the District Judge’s attention to the fact that a court had already concluded that a conviction in a Czech court should not be regarded as final. He was not able to provide the District Judge with the additional clarification that had been obtained since the extradition hearing.  Nor was he able to correct the District Judge’s assumption (which, as it turned out, was erroneous) that it was likely to be a “quite straightforward” matter for the Czech Republic to issue a new EAW in the respondent’s case.       
The respondent’s case            
43.	 Miss Hill submits that the District Judge was right to refuse the application for an adjournment. She points out that the appellant had been aware of the respondent’s contention that he had been convicted when the statement of issues was served upon it on 29 October 2009. That was more than seven weeks before trial. She says that that appellant had had ample time to obtain the necessary evidence from the Czech Republic Judicial Authority. She emphasises the need for speed in the disposal of extradition cases. She argues that the District Judge’s decision not to allow the adjournment was entirely reasonable in the circumstances.   
44.	Miss Hill acknowledges that there are circumstances in which, under the criminal procedure of the relevant state, a conviction may not be final and a sentence not enforceable until the conclusion of the trial process by the exhaustion of all avenues of appeal. However, she submits that the evidence before the District Judge fell far short of establishing that the respondent had a right of retrial such as would prevent his conviction from being final. She reminds us that it was for the appellant to persuade the District Judge to the criminal standard of proof that the EAW was valid and that the respondent was rightly described in it as an accused person. In cases such as Caldarelli and La Torre, it was clear that the court had been provided with expert evidence as to whether or not, in the jurisdiction under consideration, a conviction and sentence was final and enforceable. She submits that, even with the addition of the material obtained after the hearing before the District Judge, the position is still not clear. The letters of 8 December 2009 and 29 January 2010 are, she says, ambiguous and inconsistent. It is, for example, still not clear whether the respondent would be entitled to a full or a partial retrial on his return. Expert evidence would be required to ascertain whether, in the particular circumstances of this case, the conviction and sentence should be regarded as final and enforceable. 
45.	As to Bikar, Miss Hill submits that it would have been dangerous for the District Judge, as it would for this court, to rely on that case (which related to a conviction in 2001) as authority for the proposition that the conviction in this case was final. Law or practice might have changed since 2001. It could not be assumed that the circumstances of the appellant’s case would produce the same result as those of the applicants in Bikar.    
46.	Miss Hill argues that, if the respondent is to be regarded as a convicted person, the existing EAW is plainly deficient. In particular, it does not contain the particulars required by section 2 of the 2003 Act. The District Judge was right to discharge the respondent, albeit that he did so under the wrong provision.   
Discussion and Conclusions 
47.	It is clear that, prior to the day of the hearing, the appellant’s counsel believed that, since the information he had was that the respondent had been convicted and sentenced, the primary issue to be determined in connection with the validity of the EAW was “the date issue”. It was only on the morning of the hearing, when he received the information from the Czech Republic Judicial Authority, that he realised that it would be possible to argue that the respondent’s conviction was not final and that he should still be regarded as an accused person. He realised also (a) that there was a risk that the District Judge might regard the letter of 8 December 2009 as insufficient for the purpose of proving that the conviction was not final and (b) that he was not sufficiently prepared to argue the point to best advantage. It was for those reasons that he sought an adjournment, either to a different date (to enable further clarification to be sought) or, at the least, until later in the day (to enable him to carry out some research).  Those applications were, as we have said, refused. 
48.	After that, it seems that the hearing focussed on “the date issue”, an issue which only became relevant if the conviction and sentence were final and enforceable and the respondent was to be regarded as a convicted – rather than an accused – person.  It does not seem that the District Judge gave any proper consideration to what was in reality the first and most important question to be determined, namely what was the respondent’s status at the time of the hearing? 
49.	In particular, it does not seem that the District Judge gave any proper consideration to the contents of the letter of 8 December 2009 and the light it shed on whether, in the Czech Republic, the respondent’s conviction would  be regarded as final in the sense that it marked the end of the criminal trial process.  In the letter of 8 December 2009, the Czech judge stated that the respondent  had the right to apply for “reversal of judgment” within eight days after delivery thereof and that the court was obliged to grant the application. It appears that the District Judge failed to have regard to the evidence of the Czech judge at all. His ruling makes no mention of it.
50.	 It was against the background of that evidence that the District Judge should have considered the appellant’s application for an adjournment. Had he considered that evidence, he should have realised that there were, at the very least, strong grounds for believing that the respondent should still be regarded as an accused person.  If he had taken the view that the evidence fell short of establishing the respondent’s status to the required standard, he should then have given careful consideration to the appellant’s application for an adjournment to obtain further evidence on the point.  In the event, it does not appear that he gave any serious consideration to the application for an adjournment.  
51.	Furthermore the District Judge had no evidence before him as to whether, if he set the EAW aside, it would be straightforward for the Judicial Authority to issue a further warrant. He assumed (as it turns out, wrongly) that it would be straightforward and, on that basis, he did not give any real consideration to the application for an adjournment and to the actual consequences if it was refused. The application is not referred to in the body of his ruling. He added a paragraph at the end dealing with it only after his ruling had been delivered and at the specific request of the appellant. 
52.	Even if the District Judge had not been prepared to adjourn the case to another day, on the grounds of avoiding delay, he should at least have considered adjourning for a short time to allow the appellant’s counsel to research “the finality issue”.  If he had done that, it is highly likely that he would have been referred to the case of Bikar. If he had considered the evidence contained in the letter of 8 December 2009 in conjunction with Bikar, then we consider that he would, or should, have concluded that the respondent’s conviction and sentence were not final and enforceable and that his status remained that of an accused person for the purposes of the 2003 Act.     
53.	 The further information which has been provided by the Czech Republic Judicial Authority puts it completely beyond doubt in our view that the conviction and sentence were not final and enforceable. We have concluded that we are entitled to take that further information into account. It was not before the District Judge at the extradition hearing. We have received evidence from counsel employed by the CPS who has explained the cumbersome and time-consuming procedure for obtaining evidence from the Czech Republic Judicial Authority. There were three requests for information in the weeks before the hearing. The response to those requests arrived too late for the CPS and counsel for the appellant to seek further supplementary evidence. Counsel made an immediate application for an adjournment for the purpose of obtaining the further evidence that is now before us. We find no want of diligence on the part of the appellant or its legal advisers. 
54.	In addition, the evidence deals with the bar against the issuing of a second EAW. It demonstrates that the District Judge was under a fundamental misapprehension in considering whether to grant an adjournment. Since this was a point taken by the   District Judge for the first time at the hearing, no possible blame can attach to the appellant for not obtaining the evidence earlier. 
55.	Furthermore, in the particular circumstances of this case, where the failure of the District Judge to grant an adjournment is in issue, we consider that it would be wholly artificial not to admit the evidence.  The appellant was seeking an adjournment to obtain clarification that the respondent’s conviction was not final. The material which has now been obtained has done precisely that. Had it been available to the District Judge, there can be no doubt that he would have found that the EAW was valid.  
56.	In our view, when considering whether to grant an adjournment, the District Judge did not take into account the information contained in the letter of 8 December 2009, which was highly significant. Nor did he take into account the absence of evidence as to the consequences for the appellant if the EAW was held to be invalid. He assumed that it would be “quite straightforward” for the Czech Republic to issue a new warrant, alleging conviction. The fresh evidence makes clear that his assumption was quite wrong. The effect of his finding that the EAW was invalid would be that the respondent would escape extradition. Having regard to the gravity of the offences of which the respondent was convicted and the length of the term of imprisonment imposed, it is likely that, had the District Judge been aware of the possible consequences, his decision on the issue of an adjournment would have been different.  This is a case in which the District Judge should have granted an adjournment and, if he had done so, he would have found, at the renewed hearing, that the EAW was valid. 
57.	In addition we should make clear that, in our view, the letter of 8 December 2009 alone demonstrated that the status of the respondent was still that of an accused person. It indicated that the Czech court would be obliged to grant an application by the respondent for “reversal” of the judgment against him. It indicated that his trial might simply be continued from where it had left off, after which a “new judgment” would be entered. It is true that the letter did not go as far as the later letter of 29 January 2010 which would indicate that the respondent was entitled to a complete rehearing. Nevertheless, the guaranteed reversal of the judgment against him (i.e. the setting aside of his conviction) would in our view be sufficient to indicate that his conviction was not final. Thus, if, having refused an adjournment, the District Judge had considered only the evidence that was before him, he should have concluded that the respondent was still an accused person and that the EAW was valid.      
58.	We therefore allow the appeal. In the light of our decision on “the finality issue”, it is unnecessary to consider the other ground of appeal.