England and Wales High Court (Administrative Court) Decisions

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

		Royal Courts of Justice Strand London WC2A 2LL
		4 February 2010

1. MRS JUSTICE SWIFT: This is an appeal by Tomasz Dula (the appellant, against the decision of District Judge Wickham on 18 November 2009, when she ordered his extradition to the Netherlands.
2. The extradition of the appellant, a Polish national, was sought by the District Public Prosecutor of Zwolle Lelystad, a Judicial Authority in the Netherlands, (the respondent) on an European Arrest Warrant (EAW). The EAW was issued on 11 February 2009 and certified by the Serious Organised Crime Agency on 30 March 2009. It relates to a conviction in the Netherlands on 11 June 2004, as a result of which the appellant was sentenced to serve a four year custodial sentence. He was convicted of offences of:

i). Being a member of a criminal organisation with the objective of human smuggling and forgery of documents, between January 2003 and 17 February 2004;

ii). Helping Polish employees stay in the Netherlands illegally between 1 January and 8 January 2004; and

iii). Forgery of travel documents between January 2002 and 8 January 2004.

3. It is common ground that the appellant was not present at his trial in the Netherlands in 2004, and that, the time for appeal having long passed, he now has no automatic right to a retrial or to a review of his conviction or sentence.
4. The appellant was arrested in the UK on the EAW on 24 July 2009. The following day he was produced before the City of Westminster Magistrates' Court for the initial hearing. There were UK criminal proceedings outstanding and therefore the extradition proceedings were adjourned. The UK proceedings were concluded on 31 July 2009 when a ten day custodial sentence was imposed on the appellant for driving offences. After that, there were a number of court appearances in connection with the extradition proceedings.
5. On 9 November 2009 the full extradition hearing took place before District Judge Wickham. The issue at that hearing was whether or not the appellant had "deliberately absented himself" from his trial in 2004, within the meaning of section 20(3) of the Extradition Act 2003. It was not in dispute that it was for the respondent to prove that fact to the criminal standard of proof.
6. On 18 November 2009, District Judge Wickham gave a written judgment in which she found that the appellant had deliberately absented himself from his trial, and ordered his extradition.
7. Section 20 of the 2003 Act applies to cases where the person whose extradition is sought has been convicted. It provides:

"(1) If the judge is required to proceed under this section ... 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, (ie to consider the issue of compatibility of the person' extradition with his Convention rights);

(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 on appeal or 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".

The rest of the section is irrelevant for the purposes of this appeal.

8. The ground of appeal relied upon is that, pursuant to section 20 of the 2003 Act, the District Judge ought to have decided the question at subsection 20(3) in the negative, ie she should have concluded that the respondent had not established to the required standard that the appellant had deliberately absented himself. If she had made that finding she would have then had to proceed to consider the question at subsection 20(5). Bearing in mind the agreement between the parties that the appellant would not be entitled to a retrial on appeal, or to a review amounting to a retrial, her answer to that question must inevitably have been in the negative. Thus, under the provisions of subsection 20(7), she would have been obliged to order the appellant's discharge. It is said that the District Judge determined the section 20(3) issue irrationally, unreasonably and/or unlawfully. Other concerns about the judgment are also raised.
9. It is necessary, first, to consider the evidence which was before the District Judge. The appellant did not make a witness statement, nor did he give oral evidence. He did not produce any documents.
10. Before the hearing, the respondent adduced a number of documents in support of its case. These were (all references except where otherwise stated are to the English translations that have been provided):
11. a) A letter dated 11 August 2009 from the respondent to the Crown Prosecution Service in Groningen, setting out the history of the proceedings. The letter stated that, on 26 April 2004, the appellant had been interrogated as a suspect in Poland by the Polish Public Prosecutor in respect of investigations being made against him in the Netherlands. This interrogation had taken place in the presence of two Dutch reporting officers. A Dutch/Polish interpreter had been present. It was said that the appellant "partially confessed" to the offences. He had said that he had acted alone, not as part of a criminal organisation. The letter went on to say that a summons setting out the offences with which he was charged (together with others) and informing him that the hearing was scheduled for 28 May 2004, had been served on the appellant in person on 17 May 2004. The summons had been accompanied by explanatory notes (translated into Polish) which informed the appellant of his right to instruct a lawyer. As a result of this information, the appellant knew of the impending trial, and when, where and at what time the hearing would take place. No lawyer reported to the court on his behalf during the trial process.
12. The letter went on to relate that, following his conviction and sentence, on 16 August 2004, a Polish District Public Prosecutor had issued the judgment notification of the Dutch Court, together with explanatory notes, to the appellant in person. The appellant had signed the Polish version of the documents to confirm receipt, stating:

"I understand this explanation of the procedure. I hereby confirm the delivery of the judicial documents and the translation thereof by placing my signature".

The notes made clear that the appellant had 14 days in which to instigate the appeal process. Since he did not do so, it was said that the judgment became final on 30 August 2004 On 18 October 2004, another judgment notification was delivered to the appellant in person. Again he acknowledged receipt by signing the Polish translation of the documents.

13. b) A letter dated 24 August 2009, again from the respondent to the Dutch Crown Prosecution Service. This letter indicated that the explanatory notes (translated into Polish) which had accompanied the summons had referred the appellant to his right to instruct a lawyer and to request a deferment of the trial. No such request had been received by the Dutch court at any time. The letter explained that, had the appellant requested a deferment of the trial so as to enable him to attend, that application would have been considered by the court. The letter stated that, according to Dutch law, in a case where the accused cannot reasonably be expected to attend the hearing and he or his lawyer requests an adjournment to enable him to do so, the court should, in principle, grant that request, unless doing so would seriously delay the trial.
14. c) A letter dated 2 October 2009, once again from the respondent to the Dutch Crown Prosecution Service. In it, the Public Prosecutor said:

"During the issue of the summons, Mr Dula was detained in prison in Poland. We contacted the liaison officer in Poland and he told us that, according to the law in Poland, everyone who remains in prison is allowed to make phone calls from the prison, send letters from the prison, and can be visited by relatives and friends. The possession of a mobile phone in prison is forbidden. Only in cases of special restrictions is it possible a prisoner is not allowed to call, send a letter or be visited by relatives or friends. In the Polish system, there was no note that there were any restrictions against Mr Dula".

15. Enclosed with that letter was a copy (in Dutch) of the summons served on the appellant, together with the explanatory notes. An English (but not a Polish) translation of both documents was also attached.
16. d) A letter dated 19 October 2009, enclosing further documentation, namely:

(i) A letter from the Dutch Public Prosecutor to the Polish authorities, requesting them to serve the appellant with the writ of summons which had been translated into Polish. A Polish version of the writ of summons was attached, as were the explanatory notes translated into Polish;

(ii) A memorandum of service, which had also been translated into Polish, to be completed by the Polish authorities and then returned to the Dutch Public Prosecutor for his file. The memorandum of service bears what appears to be the appellant's signature;

(iii) An official report of the service in person of the judgment documents. This report is in Polish and appears to bear the appellant's signature. The declaration he signed states:

"After having been informed of the legal recourse available to him against the district court judgment, dated 1 July 2004, the appellant stated the following: 'I understand this explanation of the procedure. I hereby confirm the delivery of the judicial documents and translation thereof by placing my signature'".

17. The respondent contended that these documents demonstrated that the appellant was fully aware of the place and time of his trial. He took no step to instruct a lawyer, to contact the Dutch authorities, or to seek a deferment of the trial, despite the fact that he was informed of his right to do so. Nor, when he was served with the judgment, did he take the opportunity to seek a retrial of his case.
18. In her judgment, the District Judge stated that she found the following facts:

(i). The defendant was a remand prisoner in Poland during the time of these proceedings in the Netherlands;

(ii). He was questioned by Dutch investigation authorities in that same prison on 26 April 2004. He made a partial confession;

(iii). On 17 May he was personally served with the summons for his trial in the Arnhem District Court on 28 May 2004. Attached to the summons was a page of explanatory notes. All documents were translated into Polish. The defendant acknowledged receipt of the summons in Polish and signed it;

(iv). The trial was heard in his absence on 28 May 2004. He was not represented. He made no applications at all to the court in accordance with the guidance offered;

(v). The judgment of the court, dated 11 June 2004, was once again personally served on the defendant in the prison in Poland on 16 August 2004. Once again, he acknowledged this document by writing and signing for it in Polish. He was informed of the appeal process in the Netherlands, again he made no contact with the court and no appeal was made against the decision;

(vi). The defendant now has no usual means of legal recourse against the decision of the court in 2004. There may be a review in exceptional circumstances, together with a potential suspension of the enforcement of the sentence.

19. On behalf of the appellant, fact (iii) is not accepted. It is said that the way in which the relevant documents were presented by the respondent, before and on the day of the hearing before the District Judge, raised doubts about which documents were in fact provided to the appellant on 17 May 2004 and, in particular, whether he was provided with a Polish translation and acknowledged receipt thereof.
20. It was common ground at the hearing before the District Judge that, following receipt of the documents, the appellant did not make contact with the Dutch court in order to seek an adjournment or deferment of this case. Nor did he request that he be provided with a state lawyer to assist him in doing so. For the appellant, it was suggested that, even if he had understood the import of the documents which had been served on him, he would not have been in a position to seek an adjournment or deferment of his trial. He would have been prevented from doing so by lack of money and legal advice, because he had no knowledge of how to deal with the Dutch legal system, and because he did not speak Dutch.
21. On the basis of the assertions contained in the respondent's letter of 7 October 2009, relating to the facility for Polish prisoners to communicate by letter, telephone or visits, the District Judge made the following finding:

"I find, in the absence of any form of contradiction by the defendant, that this defendant could have been, between the 17 May and 28 May 2004, afforded a telephone call in prison, or a visit from a family member or other assistance, in order to seek a deferment of the Arnhem proceedings".

22. It was said on the appellant's behalf that the information about the regime in relation to communications with the outside world constituted hearsay evidence obtained in 2009 about prison conditions five years earlier. For the appellant, Miss Hobcraft suggests that the regime in 2004 might have been very different. In any event, even if the appellant had had access to the facilities claimed, he would not have been in a position, she said, to seek deferral of his trial, for the reasons I have previously referred to.
23. In her oral submissions made before us today, Miss Hobcraft suggested that there was material which cast doubt on the respondent's assertion that the appellant would have had 14 days from the date on which he was served with the court's judgment within which to appeal. We were referred to a document which suggested that that right might not have existed in view of the fact that he had not attended at trial, but had been aware of the date thereof.
24. Having made the findings of fact referred to at paragraphs 11 and 14 above, the District Judge referred to the case of Atkinson and another v the Supreme Court of Cyprus [2009] EWCA 1579 Admin. In that case, the appellants had been present at their trial in Cyprus when they were acquitted. They left Cyprus. The prosecution then launched an appeal. One appellant had received notice of the appeal hearing. The other did not receive formal notice but was aware of the appeal proceedings. Both appellants were informed by their lawyer that they did not have to attend court and that the appeal was unlikely to succeed. In the event, the appeal did succeed and the appellants were convicted and sentenced to three years' imprisonment. They did not attend the hearing although they were legally represented.
25. In the extradition proceedings, there was an issue as to whether the appellants had deliberately absented themselves from the appeal hearing. The District Judge found that they had, and made the extradition orders. They appealed those orders. At paragraph 31 of his judgment on the appeal, Collins J said this:

"The words 'absented himself from his trial' do not require any particular state of mind. Failure to attend his trial is all that needs to be established. State of mind is material in deciding whether the absence was deliberate. If a person was unaware that his trial was being held, it would be difficult to establish that his absence was deliberate, unless it was clear that he had fled the country in order to avoid prosecution".

In the same case, at paragraph 41, Maurice Kay LJ said:

"The second issue, whether a person has deliberately absented himself from the trial or part of it, is a question of fact. It calls for a consideration of what was in his mind. Generally, a conscious decision not to attend will amount to a deliberate absence, although I accept the possibility considered but not found in Onwuzulike v United States of America, a decision of this court given on 21 May, that there may be a case in which a conscious decision is so affected by an absence of free will that it should not be classed as deliberate".

The court found, in that case, that the District Judge had been entitled to find that the appellants had deliberately absented themselves.

26. Relying on those two passages from Atkinson, District Judge Wickham, in the present case, concluded that the appellant had made a conscious decision not to attend the trial or to make any attempt to defer it until a time when he could attend. Having found that an extradition order would not be incompatible with his human rights, she ordered the appellant's extradition.
27. Miss Hobcraft submits that the fact that, at the time of his trial, the appellant was being held in prison in Poland, clearly meant that he was deprived of the opportunity of attending his trial. She argues that to find that the appellant deliberately absented himself from the trial by failing to make an attempt to defer the trial (which she says would have been virtually bound to fail) was irrational and unreasonable. It was also unfair, because it had the effect of depriving the appellant of the protection which would otherwise have been afforded to him by section 20(5) and 20(6) and 20(7) to which I have already referred.
28. Miss Hobcraft referred to observations made obiter by Maurice Kay LJ in the case of Marcinbukowski v Regional Court in Bydgoszcz [2009] EWHC 1283 Admin That was a case where the appellant was arguing that he had been prevented from attending his trial as a result of duress. His argument was rejected by the court. At paragraphs 16 and 17 of the judgment, Maurice Kay LJ said:

"16 There is, as I have said, another issue that was sought to be raised, which is whether duress can ever prevent an absence from a trial from being deliberate. The point Miss Wilkes advanced before the District Judge, and which he appears to have accepted, is that if you decide to absent yourself from trial because of matters amounting to duress, you nevertheless deliberately absent yourself from that trial. Miss Wilkes' suggestion is that, if there are any issues calling for consideration in this regard, they do not arise under section 20, they arise, or may arise, under section 21.

17 Although it is not strictly necessary to decide this point having come to the conclusion that the appellant has failed at the first hurdle, I am bound to say that I do not think that Miss Wilkes is correct about duress. It seems to me that there must be a possibility, in an extreme case, of a person who absents himself on fear of death were he to attend, being able to say I did not deliberately absent myself, just as someone who is physically restrained from attending would not deliberately be absenting himself so in extreme cases. It seems to me that a person whose will was overborne by duress, would also be a person who was not deliberately absenting himself".

29. Miss Hobcraft relies on the reference to a person who is physically restrained from attending, in support of her argument that a person who is deprived of his liberty at the time of his trial cannot sensibly have been said to be "deliberately" absent. In effect, he has been deprived of a choice as to whether or not to attend. Miss Hobcraft contends that the District Judge did not place sufficient weight on these considerations.
30. Miss Hobcraft points out that this is not a case where the appellant had left the country to avoid the trial. At the time he left the Netherlands, proceedings were not yet in train. By the time proceedings against him were commenced, he was already in custody in Poland. The respondent was well aware of that fact. Despite its knowledge, it had elected to proceed with the trial rather than deferring it until his release. The court itself had, it appeared, been prepared to continue without (so far as is known) any enquiries as to whether the appellant had or should have had appropriate representation, or whether the trial should be adjourned. These were, she said, matters to be considered when deciding whether the appellant's absence had been truly "deliberate". Miss Hobcraft complains that the District Judge did not appear to have given any weight to these factors when reaching her decision.
31. For the respondent, Mr Harland submits that, given the clear and uncontroverted evidence produced by the respondent, it was well within the District Judge's discretion to make the findings of fact that she did.
32. He argues that section 20 of the 2003 Act must be read in the light of Article 5(1) of the Framework Decision which it was intended to implement. Article 5(1) states:

"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 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".

33. Mr Harland submits that Article 5(1) does not support the strict interpretation of section 20(3) contended for by the appellant. It requires only that the subject of the warrant be aware in advance of the hearing giving rise to a decision made in his absence. It does not demand that a retrial should be guaranteed in all cases, except those where the subject has been deliberately absent. He relies on the approach of Collins J in Atkinson (paragraph 19) to the situation where there was a barrier to the surrender which is not authorised by the Framework Decision:

"If possible, a construction should be applied, (unless it does violence to the language of the statute) which ensures that the necessary co-operation and so speedy surrender takes place".

34. It is, Mr Harland says, clear from Atkinson and from the case of Slovak Republic v Zigmund [2009] EWHC 922 Admin, that the word "trial" should be construed as meaning the whole trial process, right up to the point when a final decision has been made. In his discussion of the circumstances in which a person might be described as "absent", at paragraph 29 of his judgment in Atkinson, Collins J cited the case of Sejdovic v Italy ECHR 1 March 2006, in which the court stated:

"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 cause of the accusation, and does not intend to take part in the trial, or wishes to escape prosecution".

35. Mr Harland submits that that interpretation accords with the principles of English law as set out in R v O'Hare [2006] Crim L R 950 CA. At paragraph 35 of his judgment in that case, Thomas LJ said that, for an accused to be taken to have waived his right to be present at his trial, "knowledge of or indifference to the consequences of being tried in his absence and without legal representation would have to be proved".
36. Mr Harland reminds us of the background to this case. He submits that the explanatory notes provided by the Netherlands Court made clear that it was not unusual for a defendant not to attend court in the Netherlands. Thus, the absence of a defendant from a trial - even a trial involving a number of other defendants - would not provoke the same kind of enquiry as to the reasons for absence as would be undertaken if a defendant did not appear at his trial in the United Kingdom. Mr Harland submits that the case must be viewed with that fact well in mind.
37. Applying the various principles set out in the authorities to the appellant's case, Mr Harland argues that the appellant was given the opportunity to seek a deferral of his trial. He was informed of his right to instruct a lawyer. He had the opportunity to appeal his conviction, thus securing a retrial. However, he took no step to contact the Dutch Court, to obtain the services of a lawyer, to seek a deferment or to mount an appeal. Mr Harland submits that these facts provide an unequivocal indication that he was well aware of the proceedings being taken against him and their possible consequences, but did not intend to take any part in the trial process. He submits that the District Judge was entitled so to find.
38. I cannot accept the proposition that the mere fact that a person is being 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. In many cases, arrangements can readily be made for a prisoner to attend court, and a refusal to avail himself of those arrangements could properly be held to amount to a deliberate absence. If attendance at trial cannot be arranged for some reason, it will often be possible to adjourn the trial until after the prisoner's release. Once again, I do not see why a deliberate failure to take the necessary steps to obtain an adjournment - as a result of which the trial proceeds in the prisoner's absence - should not amount to "deliberately absenting himself" from the trial. Each case will depend upon its own specific facts.
39. Of course, the circumstances in the appellant's case were more complex, in that he was being held in a different country from that where the trial was to take place. At the time proceedings were commenced against him, he was in custody in Poland. He was questioned in connection with the charges in April 2004. The decision having been made to prosecute him, he was informed of that fact and of the impending trial date on 17 May 2004. There can be no doubt, on the basis of the documents disclosed by the respondent, that the summons and explanatory notes, translated into Polish, were given to him, and that he signed, indicating that he had read and understood them.
40. It is true that, at the time the summons was served, there were only 11 days before the trial was due to begin in the Netherlands. It is true, also, that there may well have been considerable logistical difficulties for the appellant in instructing a lawyer, contacting a Dutch Court and/or seeking a deferment of his trial within the time available to him. However, the District Judge had no evidence from the appellant about these difficulties, nor any evidence as to why he had not attempted to instruct a lawyer and/or seek a deferment of his trial. In particular, she had no evidence from the appellant that it was those difficulties which had prevented him from obtaining an adjournment of this trial, or as to any steps that he had taken to try to resolve those difficulties. The possible reasons for his non-participation advanced by his counsel were no more than speculation on her part. The District Judge had no evidence about any enquiries that the appellant had made to ascertain the progress or outcome of his trial in the Netherlands. The only evidence the District Judge had was that the appellant had not availed himself of any of the opportunities for participation in the Dutch trial process that had been offered to him.
41. The appellant was offered another opportunity to participate in the trial process when notice of the judgment was served upon him, together with documents informing him about the appeal process. Again, the evidence is that he did not avail himself of that opportunity. It may be that the documents which he received were a little opaque in relation to the precise circumstances in which he would be able to lodge an appeal, but there was no evidence before the District Judge that there was any confusion on his part about that or, that he had requested an explanation, or as to any practical or other difficulties which prevented him from doing so. It is to be noted, also, that the District Judge, having made the adverse findings of fact which she did, there is no evidence before this court from the appellant as to the matters to which I have referred.
42. In these circumstances, I consider that the District Judge was entitled to conclude that she was sure that the appellant had taken a voluntary and conscious decision not to participate in the Netherlands proceedings, and that he had therefore "deliberately absented himself" from his trial within the meaning of section 20(3). That conclusion derived considerable support from the fact that the appellant had had two separate opportunities to become involved in the proceedings, and had availed himself of neither. If there had been evidence that he had requested, unsuccessfully, that arrangements be made for his attendance, that he had sought an adjournment or taken positive steps to do so, or that he had taken steps to initiate an appeal, her decision may very well have been different. As it was, however, her decision cannot, in my view, be faulted.
43. I would dismiss this appeal. In doing so, however, I would not wish to suggest that, if a person is held in prison outside the country where a trial is proceeding, he or she automatically loses the protection of section 20. The appellant here has lost that protection because it was possible, in the absence of any evidence from him about the matters I have mentioned, to draw inferences from that absence which are adverse to him. This decision must not be taken to be establishing any wider principle than that circumscribed by the evidence in this case.
44. As I have already indicated, I would dismiss this appeal.
45. LORD JUSTICE WALLER: I agree.
46. MISS HOBCRAFT: My Lord, if I may ask for a detailed assessment of costs? The appellant is publicly funded in this matter.
47. LORD JUSTICE WALLER: Yes, you shall have that.