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
		30 August 2012

1. MR JUSTICE SILBER: Adam Skwark, ("the appellant"), appeals against an order made by District Judge Coleman on 29 June 2012 by which he ordered the extradition of the appellant pursuant to two European Arrest Warrants issued by the District Court in Legnica in Poland, ("the judicial authority"). Poland has been designated as a Category 1 territory, pursuant to Section 1 of the Extradition Act 2003 ("the Act"), and so Part 1 of the Act applies.
2. The first European Arrest Warrant was issued on 29 February 2008 in which extradition is sought for the purpose of executing five sentences of imprisonment for five offences of theft, burglary, robbery and attempted robbery. The second European Arrest Warrant was issued on 23 September 2008 in which extradition is sought for the purpose of prosecuting the appellant for three offences of theft. No issue was raised on the second warrant, and on the first warrant only one issue is now raised, in respect of which the appellant seeks permission to amend his grounds for appeal. That ground is that:

i. "The appellant was tried in his absence for offence VII K 1198/05 in EAW1 and was not deliberately absent. He does not appear to be entitled to a retrial. The District Judge should have ordered his discharge for this offence pursuant to Section 20(7) of the Act."

3. The offence specified in that ground was an offence of theft for which a sentence of eight months' imprisonment had been imposed and no part of it has been served. This was an offence for the trial of which the appellant was not present, although he was arrested and interviewed for it. His case is that he was never notified of the hearing and thus he was tried and convicted in his absence.
4. At the extradition hearing before the District Judge, the appellant was initially represented by an experienced extradition lawyer. The only issue raised was whether the appellant's rights under Article 8 of the European Convention on Human Rights would be infringed by his extradition. This argument was rejected. After the District Judge ordered the extradition of the appellant, he filed two Notices of Appeal Against Orders For Extradition but neither mentioned his absence from trial which is the only ground referred to or relied on in his proposed amended grounds.
5. It is common ground that the appellant was not present at his trial and so the District Judge was obliged to go through the steps set out in Section 20 of the Act and it provides that:-
6. "20 Case where person has been convicted

(1) If the judge is required to proceed under this section (by virtue of section 11) he must decide whether the person was convicted in his presence.

(2) If the judge decides the question in subsection (1) in the affirmative he must proceed under section 21.

(3) If the judge decides that question in the negative he must decide whether the person deliberately absented himself from his trial.

(4) If the judge decides the question in subsection (3) in the affirmative he must proceed under section 21.

(5) If the judge decides that question in the negative he must decide whether the person would be entitled to a retrial or (on appeal) to a review amounting to a retrial.

(6) If the judge decides the question in subsection (5) in the affirmative he must proceed under section 21.

(7) If the judge decides that question in the negative he must order the person's discharge.

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

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

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

7. As the district judge found correctly that the appellant had been convicted in his absence, he was then obliged to consider Section 20(3) of the Act but it does not appear that he did so in so far as it was not referred to in his decision. I cannot stress too strongly that it is vital that district judges go through the steps specified in Section 20, step by step in the order in which they are set out in every case in which extradition is sought and where the issue arises as to whether the person subject to extradition was convicted in his presence or in his absence.
8. The case for the appellant is that the District Judge should have found that the appellant did not deliberately absent himself and then he should, on the facts of the case, have proceeded to order the discharge of the appellant on the charge which is the subject of appeal. It is pointed out correctly by Mr James Stansfield, counsel for the appellant, that the burden of proving that the appellant deliberately absented himself is on the judicial authority and that this burden must be proved beyond reasonable doubt, see Mitoi v Government of Romania [2006] EWHC 1977 (Admin). The case for the appellant is that the judicial authority cannot discharge that burden, and reliance is placed.
9. In a witness statement of the appellant which is dated 21 August 2011, he sets out various facts and states that he was present for the trial of all these offences, except with reference to the matter which is the subject of the proposed amended grounds of appeal. He explained that he did not know about the hearing for that offence. His statement goes on to state that he was arrested and interviewed for this offence, but that he was not notified of the hearing date for the court and that he had not been given any conditions to follow when he was released by the police after the interview. He then proceeds to state that he pleaded guilty to various other offences. The Judicial Authority submits that this evidence should be rejected.
10. First it contends that although the appellant can now raise the Section 20 point, he should not now be allowed to rely on his witness statement because first the new evidence was not adduced before the District Judge and second it does not satisfy the requirements for adducing new evidence on appeal which were explained by this court in the case of Hungary v Roland Fenyvesi & Kalman Fenyvesi [2009] EWHC 231 (Admin), in which it was stated that the conditions on which appeals can be brought are to the effect that:
11. "'(a) ... evidence is available that was not available at the extradition hearing;
12. (b) the ... evidence would have resulted in the judge deciding the relevant question differently ...'
13. So that he would not have been required to order the respondents' discharge."
14. The court in that case then considered what was meant by the words "not available at the extradition hearing" and they stated in relation to it in paragraph 32:
15. "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 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. 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."
16. The court then proceeded to elaborate as to whether or not there was a degree of latitude that might be given to the court over and above what is set out in Section 29(4) and that was explained in paragraph 34.
17. "Section 29(4) of the 2003 Act is not expressed in terms which appear to give the court a discretion; although a degree of latitude may need to be introduced from elsewhere. As Latham LJ said in Miklis, there may occasionally be cases where what might otherwise be a breach of the European Convention on Human Rights may be avoided by admitting fresh evidence, tendered on behalf of a defendant, which a strict application of the section would not permit."
18. The judgment of the court, concluded in paragraph 35 in this way:
19. "Even for defendants, the court will not readily admit fresh evidence which they should have adduced before the district judge and which is tendered to try to repair holes which should have been plugged before the district judge, simply because it has a Human Rights label attached to it. The threshold remains high. The court must still be satisfied that the evidence would have resulted in the judge deciding the relevant question differently, so that he would not have ordered the defendant's discharge. In short, the fresh evidence must be decisive."
20. A further submission that is made by Ms Katherine Tyler, who appears for the judicial authority, is that, as the appellant was represented before the District Judge, it must be expected that his advisers explained fully to him what the law would be. It is therefore said by her that the appellant should have waived privilege so that that matter could be investigated and that failure to do so could lead to an adverse inference being drawn against him, as was explained by Mr Justice Openshaw in Sondy v Crown Prosecution Service [2010] EWHC 108 (Admin).
21. I must now consider whether the new evidence in the appellant's witness statement and the other matters upon which the appellant relies is decisive, bearing in mind that the burden of proving that the appellant deliberately absented himself is on the judicial authority, who must prove that beyond reasonable doubt. The case for the respondent is that they can do so, and they rely on a number of matters, of which the first is the assertion which is set out in the European Arrest Warrant in Section D, which states that:

i. "Decision rendered in absentia and does not apply to --

22. The person concerned has been summoned in person or otherwise informed of the date and place of the hearing which led to the decision rendered in absentia, but has the following legal guarantees after surrender (such guarantees can be given in advance);
23. 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 but has the following legal guarantees after surrender (such guarantees can be given in advance)."
24. It then proceeds to state:

i. "The judgment in the cases with the reference numbers ... VII K 1198/05 was issued in absentia ... In every case Adam Skwark was informed properly about the term of the trial ... He was absent during announcing the verdicts in the cases with the reference [and the number of one of those is] VII K 1198/05. After validation of the judgment Adam Skwark was summoned properly -- he did not appear to serve the penalty."

25. The reason why it is said that the contents of the appellant's witness statement are not decisive is that there is clear authority that it is only very exceptional cases that the court receiving the European Arrest Warrant should not go behind the terms of the European Arrest Warrant, and reliance is placed on what was said by Mr Justice Ouseley in the case of Nowicki v Military Court of Gydnia Poland [2011] EWHC 1962 (Admin), in which he explained about a European Arrest Warrant against the box D "Decision in absentia" marked "Not applicable":

i. "That is a clear assertion by the judicial authority that in absentia provisions of the EAW did not apply to the appellant, either because he was present or because he had not been properly notified and had absented himself."

26. The issue was then considered further by Mr Justice Wilkie in the case of Emil Kis v District Court In Sokolov, Czech Republic [2010] EWHC 93 (Admin), in which he stated in paragraph 22:
27. "This is, in my judgment, the clearest possible assertion on behalf of the judicial authority that the decision was not rendered in absentia but rather that he was present. In that, I am reassured by what was said by Ouseley J in the case of Nowicki v Military Court of Gydnia, Poland [2011] EWHC 1962 (Admin), where he said:
28. '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 in absentia provisions of the EAW did not apply to the appellant, either because he was present or because he had not been properly notified and had absented himself.'"

i. The judge then stated that:

ii. "In the light of the approach of these courts to this scheme, which relies on the recognition by the courts of different members of the scheme of the good faith of the authorities in each court's jurisdiction, it is only in very exceptional circumstances that one would be concerned to go behind the clear and unambiguous terms contained in the European Arrest Warrant. Indeed, that appears to have been the attitude of the judicial authority in this case indicating clearly to the judge below that it would not be making any further enquiries."

29. I would respectfully agree with that approach because it seems clear from the Framework Direction that it is the duty of the requested country to comply with the European Arrest Warrants and to regard what is stated in them as being correct.
30. Another factor on which the respondent relies to show that the appellant's witness statement is not decisive is the material set out in a document sent from the judicial authority, dated 29 August 2005, in which it explains more details about the appellant. It sets out in that document details about the circumstances in which the appellant was interviewed and what he said.It refers to him being given instructions on both occasions concerning his rights and obligations, and he acknowledged delivery of them by affixing his signature. Both instructions delivered to the appellant included information on the obligation to inform the authority conducting criminal proceedings about "each change of residence or stay lasting less than seven days," as well as information that, if the appellant did not inform the authorities conducting the criminal proceedings of a new address, or changes in his place of residence, or does not stay in the address indicated, a letter sent to the address would be deemed properly served.
31. The document goes on to point out that, during the course of the proceedings, the appellant indicated his place of residence for delivery but he never informed the police or the prosecutor's office of any change of address.
32. It was then explained that the appellant was served with the summons to appear on the 5 December 2005, which is of importance in case and it included in the instruction an obligation on the appellant to notify the court of any change in address and the consequence of failure to comply. It is pointed out that this summons was collected by the appellant's mother but it was explained to us that the appellant had ceased to have good relations with his mother. What however is important is that he had been told at earlier stages about the clear obligation on his part to give details of any change of address. The appellant's witness statement states that indeed he did come to England in 2005 on his own to start afresh. The inevitable inference to be drawn from that is that he came to England and that was the reason why he did not attend, but that he had not given any details to the authorities, as he was bound to do, of his change of address.
33. It is said by Mr Stansfield that the appropriate test for determining whether or not somebody deliberately absented himself was that explained by Mr Justice King in the case of Pawel Czekala v District Court in Bydgoszcz, Poland [2010] EWHC 1895 (Admin), in which he said at paragraph 31 that, having looked at various cases:

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

34. I am satisfied that the judicial authority can show beyond reasonable doubt that the appellant did deliberately absent himself. It is quite clear that he knew of his obligations to give details of changes of address and, therefore, he was either properly served at the right address and decided not to turn up or that he had absented himself. Either interpretation would show that the judicial authority had satisfied the obligation imposed on it. In reaching that decision, which I must say is a fact-sensitive decision, I have taken account of all the submissions made by Mr Stansfield but, nevertheless, my conclusion is that the new evidence is not "decisive" and so could not be admitted in the light of what was explained in the criteria for doing it in the case of Hungary v Fenyvesi, to which I have already referred.
35. I should add that, in those circumstances, it is unnecessary for me to consider whether any of the other conditions set out in that case could in fact be satisfied. Nevertheless, I ought to make it clear that my view is that the evidence on which the appellant seeks to rely was available at the hearing below, because it did exist and it could, with any low degree of diligence, have been adduced as it required nothing more than a short statement from the appellant.
36. It might be some consolation to the appellant, who will have to be extradited not only for this charge but for the other charges which he has not contested, that every point that could have been made on his behalf has been made by his counsel. Nevertheless, for the reasons which I have explained, this appeal must be dismissed.
37. Thank you very much.
38. MR STANSFIELD: My Lord, I am grateful. The appellant is legally aided in this case. May I therefore ask for the usual assessment of those costs?
39. MR JUSTICE SILBER: Of course,.
40. Thank you both for your help which has been very, very considerable and for which I am very grateful.