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England and Wales High Court (Administrative Court) Decisions
You are here: BAILII >> Databases >> England and Wales High Court (Administrative Court) Decisions >> Da Silva v First Mixed Competence Court of Loures, Portugal [2015] EWHC 2450 (Admin) (10 July 2015)
URL: http://www.bailii.org/ew/cases/EWHC/Admin/2015/2450.html
Cite as: [2015] EWHC 2450 (Admin)
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QUEEN'S BENCH DIVISION
THE ADMINISTRATIVE COURT
Strand London WC2A 2LL |
||
B e f o r e :
Between:
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| CARLOS ALBERTO MARTINS DA SILVA | Appellant | |
| v | ||
| FIRST MIXED COMPETENCE COURT OF LOURES, PORTUGAL | Respondent |
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Mr Benjamin Seifert (instructed by the Extradition Unit CPS) appeared on behalf of the Respondent
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- MR JUSTICE SUPPERSTONE: This is the adjourned hearing of an appeal by the Appellant against the decision of District Judge Zani made on 13 February 2015 ordering his extradition to Portugal.
- The original hearing was on 22 April 2015. Following that hearing I gave written reasons as to why I considered grounds 1 and 3 not to be made out, but that ground 2 required further consideration. The appeal was adjourned for that limited purpose. I gave directions in that regard.
- The single issue to be resolved under section 20 of the Extradition Act 2003 is whether the Appellant was deliberately absent from his trial.
- On the state of the law, as presented before the court at the earlier hearing, the principal issue was whether the Appellant was properly notified of the trial date.
- However, counsel have drawn my attention to the decision in Podlas v District Court in Koszalin, Poland [2015] EWHC 908 (Admin), which is now the leading case on section 20. It was in fact decided on 31 March 2015, unknown to counsel when they attended before me on 22 April 2015 and therefore not considered at that hearing.
- I must now decide ground 2 having regard to this decision and the judgment of Aikens LJ in which he comments on parts of the earlier judgment of Mitting J in Bicioc v Baia Mare Local Court Romania [2014] EWHC 628 (Admin). At paragraph 23 Aikens LJ states that section 20(3) is only relevant when a "trial process" has begun. It is for a judicial authority to prove to the criminal standard that the requested person has deliberately absented himself or herself from the "trial process". How the person knows of the process is not relevant. The authority of Podlas makes clear that it is not necessary to be aware specifically of the trial date, but of the trial process. Whether the "trial process" has been initiated will be a question of fact in each case.
- Mr Keith emphasises the difference between a pre-trial investigatory stage of proceedings and the actual trial process. He relies on the case of Kandola v Germany [2015] EWHC 629 (Admin) where Aikens LJ explains the two-stage test in order for a jurisdiction to comply with section 12A of the 2003 Act. The case law in relation to section 12A is relevant, he submits, by analogy as it shows the difference between a pre-trial investigatory stage of proceedings and the actual trial phase. A decision to charge and try is now required for section 12A.
- Mr Keith accepts that the notification of the trial date in February 2004 and hence the trial process can be said to have started by the attempt to send the letter to the Appellant. However, assuming that the Portuguese court did send the letter to the correct address there is, he submits, no evidence that the Appellant received it. Accordingly there is no evidence of knowledge or personal service which is required for a person to deliberately absent himself from the trial process. For these reasons Mr Keith submits that the appeal should be allowed.
- Mr Seifert relies on the further information dated 15 May 2015 sent to the CPS. That shows that the Appellant was personally notified of the indictment on 2 December 2003 and signed the notification. Mr Seifert's primary submission is that there was effective service on 2 December 2003 of the indictment which was part of the trial process. Mr Keith, relying on the report of Ms Ramos, submits that it was not an indictment that was served but merely an "accusation" which is part of the pre-trial investigatory process, not part of the trial phase. Mr Seifert fairly observes that we are here dealing with documents that have been translated from another language and that creates obvious problems. Bearing that in mind I am not satisfied to the requisite standard that the trial process had commenced in December 2003.
- However, on 11 February 2004 (and this appears to be the correct date) the letter informing the Appellant of the date of the trial on 5 May 2004 was posted and there is proof of deposit of this letter. Mr Seifert relies on Article 313 of the Criminal Code, which provides that service is effective when the document is sent by post and there is proof of deposit. Mr Keith accepts that under Portuguese law there was effective service. He further accepts that the trial process began on 4 February 2004 when the accusation, as Ms Ramos describes it, was received by the court and the judge set a date for the trial hearing of 5 May 2004. However that, Mr Keith submits, does not conclude the matter. There is, he submits, no evidence of knowledge of personal service which is required for a person to deliberately absent themselves from the trial process.
- Mr Seifert submits that this court can be sure that the Appellant deliberately absented himself from the trial process for a number of reasons. Having been questioned whilst in prison the Appellant gave a statement of identity and residence. Further there is proof of deposit of the letter sent on 11 February 2004. The evidence from Ms Ramos is that the Appellant left Portugal around 22 February 2004, which would have been shortly after he had been informed of the date of the trial. Mr Keith accepts that there is no evidence from the Appellant as to the date on which he left Portugal, or that he left for any other reason than the one Mr Seifert submits can be inferred from his departure so soon after being notified of the trial date. The Appellant did not notify the court of any change of address. He did not respond to the notification. Within a matter of days he left Portugal for the UK.
- I am satisfied for the reasons advanced by Mr Seifert in reliance on the evidence to which I have referred that, proven to the criminal standard, the Appellant deliberately absented himself from the trial process.
- Accordingly ground 2 is not made out.
- For the reasons I have given rejecting grounds 1 and 3, and for the reasons I have now given in relation to ground 2, this appeal is dismissed.
- MR JUSTICE SUPPERSTONE: Mr Keith and Mr Seifert, have all matters been covered that should have been covered in that judgment?
- MR KEITH: Yes, thank you, my Lord.
- MR SEIFERT: Yes, thank you, my Lord.
- MR JUSTICE SUPPERSTONE: Thank you both very much for your assistance and for your helpful submissions.