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
		7 July 2011

1. MR JUSTICE OUSELEY: This is an appeal against the decision of District Judge Zani on 26 May 2011 ordering the extradition to Poland of Mr Nowicki, the appellant, to serve a sentence of 18 months' custody imposed by the military garrison court on 8 January 2009 for an offence of assault when he was serving in the Polish army.
2. The incident occurred in August 2008. The appellant did not appear before the district judge to deny there having been an incident, but he said he had been drunk at the time. He answered questions from the investigators in August 2008 and knew that charges had been laid and he was to be prosecuted.
3. That much is not in dispute. The district judge found that Mr Nowicki accepted he had been arrested shortly after the incident. He had been taken to the police station. He had been interviewed and he knew, at least, that the investigation was ongoing and, he said, that when he came to the United Kingdom on about 28 January 2009, that he had been awaiting notification of a court summons. He said notification of that would have been sent to his grandfather's address, because that is where he was living at the time because he had left the army in October 2008. That is, in fact, the address given for him in the European arrest warrant.
4. On 11 April 2011, Mr Nowicki was arrested in the United Kingdom pursuant to the European arrest warrant. He had access to the duty solicitor at the first hearing on 12 April, but on 19 May, to which date the hearing was adjourned, he was unrepresented. This was because he had been unable to obtain legal aid because, I am told by Mr Fidler on his behalf today, he did not meet the means requirement. Accordingly, he represented himself.
5. His contention was that he was neither present at his trial, nor was he aware that a trial was to take place in January 2009. He said that he had not received notification of the summons, although he anticipated that he would receive one. It is clear, just taking Mr Nowicki's evidence at face value for the moment, that when he left to come to the United Kingdom he did so knowing that a court summons was to be issued and without leaving a United Kingdom forwarding address. The judge understandably began from the basis that there was some uncertainty to say the least about the motivation for the departure.
6. The burden lay on the CPS to demonstrate that the appellant was either present at his trial or had been summonsed to appear at his trial on a particular date and had deliberately absented himself. The European arrest warrant against the box D "Decision in absentia" had been marked "Not applicable". That is a clear assertion by the judicial authority that the in absentia provisions of the EAW did not apply to this appellant, either because he was present or because he had been properly notified and had absented himself.
7. District Judge Zani heard the evidence from Mr Nowicki denying that he had received the summons, which was awaited when he left Poland for the United Kingdom. The judicial authority's case was that he was present at what was taken to be a hearing on 8 January 2009 when sentence was imposed. The district judge said that there was a clear inference to be drawn from the warrant that Mr Nowicki was present at his trial and that he had fled thereafter to come to the UK, but he continued:

"If that is not the case, then I am entirely satisfied that he had been properly notified and chose not to attend."

8. The fact that the appellant left Poland some three weeks after sentence was pronounced was, to the district judge, a strong indication that he was well aware of the court's decision, even if he had not been present at the court hearing. He said that there had been prevarication in evidence by Mr Nowicki as to when he did become aware of the sentence imposed:

"as at one point he clearly told me that 'I was meant to go to the military court in Gydnia and I was convicted and received 18 months imprisonment'. When asked to clarify this statement, he then sought to indicate that he had apparently learned of this after the event."

9. The judge found Mr Nowicki not to be a convincing witness in relation to the assertion that he was not present at the hearing or if not present that he had not been properly notified and chose not to attend. Accordingly, the judge ruled that he should be extradited.
10. The prosecution turned down the opportunity for an adjournment to investigate what Mr Nowicki was saying. Mr Fidler, who appears on behalf of the appellant today, accepts that in reality in the absence of fresh evidence he has no real basis upon which he can allege that the decision of the district judge should be overturned. I agree with him. Mr Fidler, however, contends that he has fresh evidence. After he became instructed at around the start of June 2011, certainly by the time notice of appeal was given, investigations were made, which took a little while to get underway, as to what the Polish files showed. Two days ago, an email was received by him from the lawyer he had engaged to investigate the position in the court files. The crucial passages relate to what happened on 6 January 2009. It is perfectly clear that, as Mr Nowicki accepted, he had been questioned by the police on 7 August 2008 and, as he told the district judge, he appears to have made at least partial admissions, offering the excuse that he was drunk.
11. An indictment was sent to the court on 19 November 2008. The email is a little confused about a reference to a procedural step about which Mr Nowicki was informed personally by his military superior. For these purposes, I am prepared to assume, as seems most probable, that the procedural step referred to there is the procedural step of an indictment being sent to the court. That is consistent with Mr Nowicki's evidence that he was aware that the next stage would be a summons to appear in court. I do not, for present purposes at all events, read that email as saying that Mr Nowicki was personally informed about the date of the hearing by his military superior. The email reads, on the crucial part which relates to what happened on 6 January 2009, as follows:

"The first hearing in the court was on 6/01/2009 and I have an evidence on page 104 of the court case file (protocol hearing) that Mr Nowicki was not attended but he was informed about this hearing by post. I do not have any evidence on what address the summon was sent, but on the protocol I have an information that Mr Nowicki knew about the hearing because in the files are 'return confirmation of receipt' from the summon. I do not see this confirmation, but I trust the judge (I will explain that PROTOCOL in Polish is written for trial recording every word that is said on the hearing is 'placed' on paper."

12. The next stage in the process was that on 8 January 2009, the court announced its verdict of guilty. Mr Nowicki did not attend and was not told about the date of that hearing, the hearing at which the sentence he is required to serve was passed.
13. Mr Fidler submits that I should accept that new evidence. He submits that it passes the requirements for the admission of such evidence in Szombathely City Court & Ors v Fenyvesi & Anor [2009] EWHC 231 (Admin). He submits that it was not available and could not with reasonable diligence have been obtained by the date of the district judge's hearing.
14. I accept that argument in light of the fact that Mr Nowicki was not represented, not through his own choice either, and investigations would have been required. Although Mr Nowicki could have asked for an adjournment, I think it is expecting too much to say in this particular case that reasonable diligence would have required him to understand without legal assistance the potential for obtaining the sort of information that was obtained.
15. But that is not the end of the matter. The second requirement in relation to Fenyvesi is that the new material be potentially decisive. For those purposes, it is actually necessary to consider what can be made of the new evidence.
16. I should add that Mr Fidler seeks an adjournment to try to iron out some of the uncertainties in the email about what was meant by the return confirmation of receipt and the basis for the information that Mr Nowicki knew about the hearing. He would also wish to pursue the question of how a return confirmation of receipt might have been given by someone other than Mr Nowicki at that address.
17. The significance which Mr Fidler says the email has is twofold. Firstly, he submits that it shows that Mr Nowicki was not present at the trial. This is not a case which engages consideration of jurisprudence as to what is meant by a trial. It is clear in this simple case that what matters is whether he was present or knew about it and deliberately absented himself from the 6 January hearing. That is clearly the crucial, indeed only, hearing that can amount to the trial.
18. Mr Fidler submits that if it shows, as on the face of it it does, that Mr Nowicki was not present on 6 January, that would help a judge considering the credibility of his evidence that he did not know of the hearing on 6 January either, the alternative basis upon which the judge concluded that he had deliberately absented himself. He submits that the email raises at least sufficient question over his knowledge of the trial, given his absence from it, that an adjournment should be given or even the appeal allowed.
19. In my judgment, the email does not bear the weight that is necessary for either contention. Accepting Mr Fidler's first submission that it shows that Mr Nowicki was not present, and accepting that that can be relevant to the way his evidence in general is judged, the clear content of the email is that Mr Nowicki knew of the hearing, just as the judge found as his alternative basis, drawing on the sequence of events and the timing of departure from Poland.
20. The email, in my judgment, makes it perfectly clear that a summons was sent, was sent to the address of the grandfather, not merely as that is where Mr Nowicki was expecting it to be sent, but that is the address which appears on the European arrest warrant. So the summons was sent to the right address. It was received at the address, because of a return confirmation of receipt from the summons, and in those circumstances I find it very difficult to see how that email could be decisive as to overturning the otherwise justified conclusion which the district judge drew from the information before him.
21. It is clear that the Polish judge on 6 January was satisfied that Mr Nowicki knew of the hearing, and it is clear that is the basis for the notation against the letter D in the European arrest warrant. The fact that the files themselves do not contain the receipt is nothing to the point. The judge was satisfied that the return confirmation of receipt was there. Not merely is this email evidence, therefore, not decisive from the appellant, it is positively supportive of the conclusion reached by the district judge as to the credibility of Mr Nowicki on this issue as to knowledge, which undermines the first way in which Mr Fidler sought to use this to bolster the otherwise rather doubtful credibility of Mr Nowicki.
22. Mr Fidler, also in seeking an adjournment to investigate these matters further, said in response to a point I raised that of course he would wish to take further the question of whether somebody else is at the address. Perhaps the grandfather might have signed the return confirmation receipt without Mr Nowicki himself being ever aware of the summons, the letter perhaps then just being left for Mr Nowicki to come across and handle at his leisure while in Poland. But this is difficult to follow. If the document was received at the address and had been left there, the address where Mr Nowicki was on his own evidence living, he would have seen it, even if he had not signed for it.
23. Mr Nowicki has also known, as indeed have his solicitors, since the judgment of District Judge Zani, that if the conclusion of District Judge Zani was to be displaced by evidence, it would be necessary to have evidence from people living there that they had not seen or received or signed for the summons. I do not know whether the grandfather, whose house it was, is alive or dead, there is no evidence, but on the basis that he is alive, it has been open at least since District Judge Zani's decision to the appellant to produce evidence from the grandfather saying that no document had been received or upon receipt had been disposed of in order that Mr Nowicki should not see it.
24. Accordingly, I have considered the evidence. It is not decisive. I see no prospect of it becoming decisive unless yet further evidence is forthcoming as to which there has been no indication as to its potential. I decline the adjournment. Whether the evidence is admitted and assessed as not being of weight or is not admitted because it is not decisive, the outcome is the same. There is no adequate basis for overturning the otherwise justified conclusion of District Judge Zani. The email is not decisive; rather, it is in essence supportive of the conclusion of the district judge. For those reasons, this appeal is dismissed.
25. MR FIDLER: Thank you very much, my Lord.