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
		14 February 2012

1. MR JUSTICE TREACY: This is an appeal against the decision of District Judge Zani on 11 August 2011 to send this appellant on an European Arrest Warrant to Poland so as to serve a sentence of three years' imprisonment for one offence of taking and driving away committed in 2000, two offences of concealing property committed in 2004, one offence of taking and driving away in 2004, one offence of taking and driving away in 2005, one offence of drunken driving committed in 2005 and four offences of attempted thefts of motor vehicles committed in 2008. The 2008 offences were all committed on 15 and 16 June 2008. All offences were committed in Poland.
2. The challenge is to the extradition in relation to the 2008 offences. The pre-2008 matters are suspended sentences activated by the conviction for the 2008 matters. It is common ground that this appellant was convicted in his absence in relation to the 2008 matters on 2 March 2009.
3. The appellant gave evidence before the District Judge. The District Judge found that the appellant had been deliberately absent from his trial and, finding no bars to extradition, ordered extradition pursuant to section 21(3) of the Extradition Act 2003.
4. The relevant part of the judge's findings are set out at paragraphs 8 to 11 of his ruling. I quote them:

"8. Mr Nebak acknowledges that in relation to case XVI K 2839/08 he was caught red-handed, on the 16th June 2008, in the process of stealing a motor vehicle (although he denies the other similar offences said to have occurred on 15th June 2008). He accepts that he was interviewed regarding the 16th June 2008 but he maintains that he was told by the police officer, whilst at the police station, that he would receive a suspended sentence, that he would be not be required to be at court and that it was a 'formality'

9. The Polish authorities state that, upon release, he was required to report regularly to the police station and to notify the authorities of any change of address. Furthermore, he was summonsed at 3 addresses but failed to appear. The Polish authorities say that he has the right to apply for an appeal out of time, although this may not be same as an automatic right of re-trial. What needs to be decided initially is whether Mr Nebak deliberately absented himself from the proceedings. In my view he did. He had not received any notification from the court or the requesting judicial authority that the matter had concluded in the way he said that he had been led to believe that it had. I do not accept that it would have been merely a 'formality', and I did not find his evidence in relation to this part of the case convincing.

10. Mr Nebak also gave confusing and conflicting accounts of the address or addresses where he is said to have lived in Poland during the relevant periods, albeit the information asked of him was straightforward. I was not persuaded by many of his answers. He accepted, however, that one of the addresses that he gave to the Polish authorities was his mother's home address. He added that he had been forwarded some official documents by her and that, separately, he himself had received documents from the Polish authorities in respect of some of the other cases in relation to which extradition is sought (although apparently not in respect of this particular case).

11. Mr Nebak's credibility was adversely affected by some of the answers that he gave to this court and, as previously stated, I am satisfied that he did in fact deliberately absent himself from the particular proceedings in respect of which he has launched this challenge to his extradition..."

5. The grounds of appeal contend that the appellant was not deliberately absent from his trial and assert that he will not be guaranteed a right to retrial if he is returned to Poland, so that his extradition would not be compatible with section 20 of the Act. It had been agreed that the appellant was convicted in his absence. Section 20(3) requires the court to consider whether the appellant deliberately absented himself from his trial. If yes, the judge is to go to section 21 of the Act and to order extradition unless human rights considerations intervene. If no, the judge must consider when the appellant would be entitled to retrial; see section 20(5). If the answer to this question is yes, the judge must move on to section 21. If the answer to this question is no, the judge must order the appellant's discharge.
6. The respondent in this case accepts that this appellant would not have an automatic and unqualified right to a retrial in Poland within the meaning of section 20(5), so the key question in this appeal is whether the appellant deliberately absented himself from his trial. The appellant says not. The respondents say that he was deliberately absent within the meaning of section 20(3). He knew of the proceedings, yet his conduct clearly demonstrated that he did not intend to participate in them or indeed to attend them.
7. The burden of proof is on the respondent. The standard is beyond reasonable doubt; see Mitoi v Government of Romania [2006] EWHC 1977.
8. I have considered the recent decision of King J in Czekala v District Court In Bydgoszcz [2010] EWHC 1895 (Admin), where he considered earlier authorities and summarised them as follows at paragraph 31:

"... these authorities hold that to make a finding that the Appellant deliberately absented himself from his trial the court must satisfy itself that the Requested Person has made a clear conscious decision not to attend his 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 been 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 his trial. Nevertheless, if the Requested Person's conduct clearly and unequivocally demonstrates that the Requested Person does not intend to take part in his forthcoming trial, the court may infer that the Requested Person has deliberately absented himself."

9. An alternative formulation has been put to me by counsel this afternoon. It is put in this way: do the established facts clearly and unequivocally show that the appellant was aware of the proceedings but either did not attend to take part in his trial or wished to escape prosecution in such a way as to be deliberately absent?
10. The appellant asserts that he was not deliberately absent, that he did not know that his attendance was required at court for his trial. He denies that he was under any form of conditional release or bail and denies that he signed any document which required him to notify any change of address to the authorities.
11. The District Judge found that the appellant's evidence on and around these topics was unconvincing and he rejected it. I have already reviewed the District Judge's reasons.
12. In submissions made to me this afternoon, Ms Asfaw has further sought to develop arguments based first of all on an analysis of letters which were before the District Judge from the judicial authority, namely letters of 4 May 2011 and of 26 May 2011. Ms Asfaw submits that there is a discrepancy between those two letters which renders the position uncertain. The asserted discrepancy is a statement in the first letter that the appellant was "not devoided of liberty", whereas the second letter sets out what can broadly be described as the requirement to provide notification of his address and restraint on leaving Poland. It is submitted that the different contents of those two documents are such as to engender doubt in the case.
13. As far as that discrete submission is made, I do not find it a convincing one. The second letter merely condescends to provide more information than the first did. I do not see that there is any inherent contradiction between the two and certainly nothing which should have led the District Judge to take a different view of the position.
14. It is also submitted to me that the subpoenas or letters sent to the appellant requiring his attendance at court referred to in the first of those two letters should have been produced in these proceedings since the appellant was making an issue about his knowledge of the proceedings. Again, it is asserted that the burden of proof lies on the respondent and the difficulties in the way of the defence are pointed out.
15. The answer to this submission is a clear one, it seems to me. The judicial authority has provided material setting out the steps taken to inform this appellant of proceedings and setting out the matters such as reporting conditions and requirement to provide changes of address in the two letters already referred to. Our courts proceed upon the basis of mutual recognition and trust in the information provided to it by foreign courts. The information in those documents is in my judgment sufficiently clear for this court to apply those principles of mutual recognition and trust. The submission that there is some further onus on the judicial authority to provide copies of underlying documentation in the face of the defendant's challenge to his liability to extradition on the basis that he was unaware of the proceedings in Poland is not in my judgment made out.
16. There has also been produced before this court, after an adjournment was granted on a previous occasion, some further material. I have agreed to accept such material in evidence.
17. The purpose of granting the adjournment was to enable the appellant to show that under Polish law there is a procedure which permits an agreement to be made between an offender and the prosecutor as to sentence which will not require the defendant subsequently to attend the trial.
18. The case, as I have stated, was previously adjourned since the appellant wished to present such material to the court. It has arrived at a late stage but not so late that both the respondent and I have been unable to consider it. It appears from the documentation provided by the Polish authorities that there is indeed such a procedure. The documentation indicates that this appellant sought to avail himself of such procedure. But the documentation is equally clear that, in the case of this appellant, there was no agreement made with this appellant of the sort for which section 335 of the Polish Criminal Procedure Code provides.
19. The submission made to me by Mrs Asfaw is that the question is not so much whether no agreement was in fact made, but whether this appellant may genuinely have believed that such an agreement was reached and, if that was so, it is submitted that the decision of the District Judge would have been a different one and would have led him to order the appellant's discharge. I shall return to that shortly.
20. The papers before me show that this appellant was arrested and questioned on 16 and 17 June 2008. He had been caught red-handed at least in relation to the incident of 16 June. There is nothing on the face of the papers to suggest that the appellant was led to believe that the matter would not be taken further or that he would be released unconditionally. The papers before the court, including those which have recently arrived, suggest that he made admissions to all offences at the time of his questioning on 16 and 17 June 2008.
21. The materials provided show that the appellant was released on conditions that he report twice a week to the police until final verdict in the case. They show that the appellant gave an address near to his mother's house and that he was told that, if he did not inform the authorities about a change of address, any subpoena to the address given would be treated as having been delivered to the appellant. The papers show that the appellant was told that he was obliged to attend at every court appearance to which he was summoned until the final verdict and that he could not leave the country.
22. It is the fact that the appellant was a man with considerable previous experience of criminal proceedings in Poland. The papers show that he was summoned at three separate addresses, including the address which he had given for himself on three occasions, as well as twice at his mother's, an address which he had also given. In evidence, the appellant admitted that his mother had forwarded official documents to him, albeit not documents regarding this case. The facts also show that the appellant left Poland in September or October 2008 without informing the authorities.
23. Insofar as reliance has been placed today upon the fresh materials, showing that there is a procedure under section 335 and that the appellant had indicated he would wish to avail himself of it, there is in my judgment a total absence of any basis for concluding that in those circumstances the defendant genuinely believed that an agreement to that effect had been reached. It is clear from the information provided by the Polish authorities that there was no such agreement. It is hard to envisage how in those circumstances someone in the appellant's position would have thought that such an agreement had been reached, not least when he had been warned not to leave the country, when he had been warned to respond to bail twice a week and when he had been told that there needed to be a notification if there were any change in relation to any of the addresses which he provided for service of documents and that service of documents to such addresses would be regarded as conclusive of delivery in his case. All the evidence points entirely in the direction which led the District Judge to come to the conclusion that in this case the appellant's assertion that he had been led to believe there was no requirement on him to attend at court proceedings and that the matter remained purely as one of mere formality was untrue. There would be no reason for the District Judge to have come to any different conclusion from that which had already been reached had this material been before him.
24. I reject the contention therefore that the fresh material put before me today would make a material difference to the case. Initially, Ms Asfaw appeared to acknowledge that that was so, although her later submissions sought to persuade me otherwise. I shall act on the basis of her later submissions, but, as I have already indicated, they are unsuccessful.
25. In these circumstances, I do not consider that the District Judge ought to have decided the question of whether the appellant was deliberately absent from his trial differently, nor do I consider that, in the light of the evidence which I have admitted, it would have resulted in him deciding the question differently if the additional information had been before him. He would not have reached any conclusion based on the fresh material which would have required him to order the discharge of this appellant.
26. There was ample evidence for the judge to conclude that the appellant was fully aware of the proceedings against him, aware of the importance of attending and taking part in them and yet chose to ignore the restrictions on his liberty by way of reporting in Poland by leaving the country. His conduct shows a conscious decision not to attend his trial, realising that any trial would take place in his absence. The judge was clearly entitled to come to this conclusion.
27. In those circumstances, this appeal must fail and it is dismissed.
28. Are there any consequential matters?
29. MS ASFAW: Just a request for a legal aid assessment of costs.
30. MR JUSTICE TREACY: Yes, I will certainly grant you that. Thank you.
31. MS ASFAW: And no, other than a request that three days spent in custody --
32. MR JUSTICE TREACY: How many days?
33. MS ASFAW: Three days.
34. MR JUSTICE TREACY: What do you say about that?
35. MS TYLER: My Lord, normally this is a matter for the Polish authorities. They certainly have an obligation under the Framework Decision and I understand that the precise nature of the period of time spent in custody is deducted depends on the letter that's coming from the prison governor to the Polish authorities.
36. MR JUSTICE TREACY: So it's a matter for the Polish authorities to decide on the information provided by the British prison authorities, is it?
37. MS TYLER: Yes, my Lord.
38. MR JUSTICE TREACY: I see. Well, I'm not going to make any order about that at this hearing -- it's a matter which I leave open to the Polish authorities to deal with. My declining to deal with it at this hearing is neutral, it's not an indication either way as to how the Polish authorities should approach the matter when they have fuller information from the British prison authorities. Thank you.
39. Any further matter. No. All right. Thank you both for your help.
40. May I just say, Ms Asfaw -- I'm not renewing criticism, but just to observe for the future -- I think it would be useful in future, if you are going to detail some fairly specific factual comparison between documents of the sort that you did, to give a flavour of that in the skeleton argument. Your submissions on the law were helpful, and I am grateful for those, but I think we judges like to have an idea of pretty well everything that's coming towards us at a hearing, rather than to be met with detailed points afresh. So perhaps you will bear that in mind for the future.
41. MS ASFAW: I will, and I am very grateful for the guidance.
42. MR JUSTICE TREACY: Thank you.