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
		19 January 2015

SIR STEPHEN SILBER:

Introduction

1. Waldemar Trocha challenges one part of a decision made by District Judge Tempia at the Westminster Magistrates' Court on 28th October 2014 to order his extradition pursuant to three European Arrest Warrants. The first European Arrest Warrant related to a conviction for five offences for theft and burglary in 2003. A sentence of one year and seven months was imposed and a sentence of six months and three days remains to be served. The second European Arrest Warrant was an accusation one issued by the District Court in Legnica on 27th March 2012 and certified by the National Crime Agency on 17th June 2014. It relates to two offences of fraud.
2. The present appeal does not relate to either of these European Arrest Warrants, but instead it relates to a third one which is a conviction warrant issued by the District Court in Legnica on 29th October 2013 and certified by the National Crime Agency on 7th April. The appellant was convicted of two offences, one being theft of a motorcar and the other was driving with excess alcohol, both committed in 2009.
3. The issue on the third warrant is whether the District Judge was correct to be sure that the appellant had deliberately absented himself from the trial.

The statutory landscape

4. The statutory position is that section 20 of the Extradition Act 2003 provides that:

i. "Case where person has been convicted

(2) 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.

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

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

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

(6) 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.

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

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

iii. (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."

5. This provision has been the subject of two important judicial decisions, the first being that of the Government of Albania and Bleta [2005] 1 WLR 3576, in which Pill LJ gave a leading judgment on the preceding section to section 20, which was section 85, where he said:

i. "I reach the following conclusions:

(a) in Section 85(3) Parliament has adopted the expression 'deliberately absented himself from his trial'. Consideration must be given to the concept of deliberate absence and to the concept of a trial. The Respondent has deliberately absented himself from Albania but there is no evidence that he knew of the existence of a trial or of any proceedings which might lead to a trial.

(b) the word 'trial' was adopted by Parliament in the context of the presence of Article 6 with its use of the word 'hearing' and its reference to a right to a hearing and a right to be informed of the nature and cause of the accusation. Article 6 confers the right to a fair trial and the word 'trial' would not have been used by Parliament in Section 85(3) if a wider view of absence had been intended.

(c) the sub-section must be construed in a context in which capital importance is attached to the appearance of a defendant at his trial. The focus is on a specific event at which the Respondent could expect to be present. Other factors, as well as the need to facilitate extradition, are at work.

(d) Parliament could have used an expression such as 'deliberately absenting himself from legal process' which could, on appropriate findings of fact, include leaving a jurisdiction to avoid arrest but Parliament has not done so and the sub-section cannot be construed as if it had. The expression 'his trial' contemplates a specific event and not the entire legal process.

(e) In the result, I am unable to construe the words of Section 85(3) as covering the present circumstances. While the absence from the jurisdiction of Albania is established, it is not established that the Respondent left that jurisdiction, or remained in the United Kingdom, with the intention expressed in the sub-section."

6. The next matter of importance so far as this provision is concerned is that it was addressed in the Framework Decision of 26th February 2009 in which it was pointed out in paragraph 1.1, that the objectives to this Framework Decision are to enhance the procedural rights of persons subject to criminal proceedings to facilitate judicial co-operation in criminal matters and in particular to include mutual recognition of judicial decisions between Member States.
7. Article 4 was inserted into the Framework Decision and it sets out in paragraph 1, in a section dealing with decisions rendered following a trial at which the person does not appear in person that:

i. "1. The executing judicial authority may also refuse to execute the European arrest warrant issued for the purpose of executing a custodial sentence or a detention order if the person did not appear in person at the trial resulting in the decision, unless the European arrest warrant states that the person, in accordance with further procedural requirements defined in the national law of the issuing Member State:

(a) in due time:

(i) either was summoned in person and thereby informed of the scheduled date and place of the trial which resulted in the decision, or by other means actually received official information of the scheduled date and place of that trial in such a manner that it was unequivocally established that he or she was aware of the scheduled trial ... "

8. The law in relation to this provision was more recently considered by Mitting J in Bicioc v Romania [2014] EWHC 628 Admin where he said at paragraph 12:

i. "I turn now to the Framework Decision of 26 February 2009. Its objectives are set out in 1.1:

ii. 'the objectives of this Framework Decision are to enhance the procedural rights of persons subject to criminal proceedings to facilitate judicial cooperation in criminal matters and, in particular, to improve mutual recognition of judicial decisions between Member States.'

iii. Article 4a is inserted into the Framework Decision 2002/584/JHA. It reads:

i. 'Decisions rendered following a trial at which the person did not appear in person.

1. The executing judicial authority may also refuse to execute the European Arrest Warrant issued for the purpose of executing a custodial sentence or a detention order, if the person did not appear in person at the trial resulting in the decision, unless the European Arrest Warrant states that the person, in accordance with further procedural requirements defined in the national law of the issuing Member State:

(a) in due time:

(i) either was summoned in person and thereby informed of the scheduled date and place of the trial which resulted in the decision, or by other means actually received official information of the scheduled date and place of that trial in such a manner that it was unequivocally established that he or she was aware of the scheduled trial;

iv. and

v. (ii) was informed that a decision may be handed down if he or she does not appear for the trial;

vi. or

(b) being aware of the scheduled trial, had given a mandate to a legal counsellor, who was either appointed by the person concerned or by the State, to defend him or her at the trial, and was indeed defended by that counsellor at the trial;

vii. or

(c) after being served with the decision and being expressly informed about the right to a retrial, or an appeal, in which the person has the right to participate and which allows the merits of the case, including fresh evidence, to be re-examined, and which may lead to the original decision being reversed:

(i) expressly stated that he or she does not contest the decision;

viii. or

ix. (ii) did not request a retrial or appeal within the applicable time frame ... "

9. It is accepted that the burden of proof is on the judicial authority to show whether the appellant deliberately absented himself at trial and Mitting J proceeded to set out in paragraph 24 the proof being required to the criminal standard.

The Facts

10. In this case,he European Arrest Warrant at section D2 where it is stated:

i. "The summons to appear before the court were sent to the last known address indicated by the sentenced person and it was collected by his mother who obliged herself to give the letter to her son."

11. There was also some further information provided on 19th August 2014 which stated that the appellant had been present for the interviewing process and present at the trial before the court on 5th March, as well as on successive adjournments but he did not appear on the appointed date at the court in his home country although he had been summoned to appear properly. It was pointed out that the summons had been collected by the appellant's mother at the address indicated by him and his mother would in turn have been obliged to hand over the correspondence which was the effective summons
12. Nevertheless,the appellant did not appear at the trial and did not account for his absence in any way or apply for an adjournment. The sentence had not been appealed and it was pointed out that the appellant was instructed about his obligation to appear each time when summoned and he did not comply with it.
13. The District Judge had the benefit of hearing the appellant giving evidence. She said at paragraph 54:

i. "I have to decide if Mr Trocha was convicted in his presence and I am satisfied that he was not. I now turn to the question of whether he deliberately absented himself from the trial. On the evidence I have read and heard I am satisfied to the requisite standard that he did."

14. She had made it clear in the previous paragraph that the requisite standard was proof beyond reasonable doubt. The District Judge explained that the trial process had been initiated and that the appellant had chosen to leave Poland, but a summons was properly served at his registered address with his mother. He should have told the authorities of his new address as he was required to do so but he did not do so. The District Judge also explained that she did not find the appellant to be honest or credible. She said that the appellant's mother was not incapacitated and she was entitled to be served with the information and she did not accept the evidence that the appellant was unaware of the hearing in December.

Submissions

15. Miss Laura Herbert, counsel for the appellant, contends that the District Judge erred in finding that the appellant deliberately absented himself from the proceedings. She complains that the District Judge appeared to conclude that because the appellant attended some of the earlier hearings that he knew the case had been concluded and therefore deliberately absented himself rather than considering,as she should have done, whether the appellant knew about the specific event when he was required to be present at the trial. She submits that the District Judge erred in finding that because the summons was served on the appellant's mother at his registered address this indicated that the appellant had deliberately absented himself from the trial. Her case is that the judge ought to have considered whether the appellant knew about the time, date and place on 29th December having been told by his mother.
16. Another criticism that is made by Miss Herbert is that the District Judge relied too heavily on the confusion of the appellant as to exact date he was between Poland and Berlin in 2009 and 2010 and that she did not consider the appellant's live evidence that his mother's address in Poland was two hours by car from Poland. Miss Herbert also submits the judge erred in finding that the appellant's mother was not incapacitated at the time of the trial on 29th December, which she says, ignores the fact that the appellant's mother sadly died on 15th January 2010 of a blockage to the lungs, a serious illness of the lungs, heart failure and an inability to breathe. It is said by Miss Herbert that the respondents did not give a date when the alleged summons for the hearing on 29th December was served and their case is that it is highly likely the appellant's mother would have been very ill, given the type of illness from which she died and that is supported by the appellant's evidence that she was very ill prior to her death.
17. Miss Herbert contends the District Judge did not consider the credibility of the evidence of the appellant properly and therefore in consequence the learned judge erred in finding that the respondent had proved beyond reasonable doubt that the appellant deliberately had absented himself.
18. In response to that, Miss Katherine Howarth takes issue with these points. She contends that the District Judge was correct. She places emphasis on the reasoning of the District Judge in her judgment. One of the passages she relies on is paragraph 55 of the District Judge's judgment in which she explained that she did not accept the evidence of the appellant. She noted that he changed details about when he would return to Poland.
19. In his first proof of evidence of 20th August 2014, the appellant admitted being arrested in interview for the offence on 1st September. He admitted the excess alcohol count but not the theft of the car. She said he was released after interview without being given a date either to return to the police station or to go to court and he did not receive any letters from his mother about this. In his addendum proof he says: "I recall now I did go to the court in relation to the matter."

Discussion

20. The District Judge noted that the appellant did state in his proof that shortly before his mother died, he was spending week days in Germany and returning at weekends to care for her but in his oral evidence, he changed that by saying in April 2010 he stopped going back to Poland. She also noted that the appellant accepted that he had a further interview with his probation officer which his mother told him about, but then he changed his evidence and said he was in Berlin at the time of the interview before he left to go there, clarifying that by saying what he meant was he was not yet permanently in Berlin. He accepted that he knew he had to give any change of address to the authorities and meet his obligation to attend trial. Then in a passage of some importance at paragraph 59, the District Judge said:

i. "I do not find Mr Trocha either honest or credible. He was entitled to leave Poland but he knew he had to give the authorities his new address. For all intents and purpose he was living in Berlin with his sister and not at his registered address. He contradicted himself about how often he returned to Poland. He was told by his mother of a number of appointments but, crucially, in relation to the last summons requiring his attendance in court on 29th December, he said he did not get anything from his mother. She was not incapacitated or infirm at that time, she could leave her home. His mother was entitled to be served with further documentation and I accept the Further Information which says this in fact happened. I do not accept his evidence about being unaware of the hearing on 29th December 2010."

21. The District Judge proceeded to say that the appellant was aware of the trial process and the summons was properly served. He should have told the authorities of his new address as he was required to do so and for those reasons she dismissed the appeal, holding that a trial process had been initiated from which the appellant had deliberately absented himself.
22. In my view the District Judge had to reach a fact-sensitive decision, and for the reasons that she explained, she was entitled to conclude that the minimum requirement had been met and the appellant had deliberately absented himself from the trial for the purposes of section 20(3) of the Act. Thus notwithstanding the able submissions of Miss Herbert, this appeal must be dismissed.