BAILII
British and Irish Legal Information Institute


Freely Available British and Irish Public Legal Information

[Home] [Databases] [World Law] [Multidatabase Search] [Help] [Feedback]

England and Wales High Court (Administrative Court) Decisions


You are here: BAILII >> Databases >> England and Wales High Court (Administrative Court) Decisions >> Szymankowski v Circuit Court in Konin, Poland [2025] EWHC 1635 (Admin) (03 July 2025)
URL: http://www.bailii.org/ew/cases/EWHC/Admin/2025/1635.html
Cite as: [2025] EWHC 1635 (Admin)

[New search] [Printable PDF version] [Help]

Neutral Citation Number: [2025] EWHC 1635 (Admin)
Case No: AC-2021-LON-001152

IN THE HIGH, COURT OF JUSTICE
KING'S BENCH DIVISION
ADMINISTRATIVE COURT

Royal Courts of Justice
Strand, London, WC2A 2LL
3 July 2025

B e f o r e :

MR JUSTICE WALL
____________________

Between:
KAMIL SZYMANKOWSKI Appellant
- and –

CIRCUIT COURT IN KONIN, POLAND
Respondent

____________________

Jonathan Swain for the Appellant, instructed by GT Stewart
Alex du Sautoy for the Respondent, instructed by the CPS

Hearing date: 25 June 2025

____________________

HTML VERSION OF JUDGMENT
____________________

Crown Copyright ©

    Mr Justice Wall:

  1. This is an appeal against the decision of District Judge (Magistrates' Court) Bristow of 27 May 2021. He ordered the Appellant's extradition to Poland on a conviction warrant. The order was made in respect of three matters with Polish reference numbers 796/13, 723/14 and 1305/15.
  2. In matter 796/13 the appellant was convicted of offences of damaging property and making threats to kill. The offences were committed on 3 April 2013. He was tried and convicted in his absence on 5 December 2013. He had no legal representation.
  3. Matter 723/14 was an aggregation of sentence hearing. The hearing of that matter on 20 October 2014 involved the aggregation of sentences for 796/13 (see above) and a separate matter with reference number 1799/13 (involving already proven allegations of driving whilst banned and with more than the permitted level of alcohol in his breath). Other than it being part of the aggregation hearing, 1799/13 is irrelevant to this case. The aggregation hearing was conducted in the Appellant's absence. He was in prison in Poland at the time and the authorities there decided that it was unnecessary to have him brought to court. He was represented by a state appointed lawyer.
  4. Matter 1304/15 again concerned allegations of driving whilst banned and with more than the permitted level of alcohol in his breath. Those offences were committed on 8 October 2015. He was tried and convicted of them in his absence on 6 April 2016. He was not legally represented.
  5. This appeal concerns the interpretation of s20 Extradition Act 2003, which reads as follows:
  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."

    It is agreed that s20(3) would only be satisfied if the person realised that in deliberately absenting himself he ran the risk that he would be tried in his absence.

    It is further agreed that the entitlement to "a retrial or (on appeal) to a review amounting to a retrial" (s20(5)) would only be effective if he was made aware of his conviction in sufficient time to allow him to take steps to appeal or seek a retrial within any time limit set for making such an application.

  7. I am going to address the issues in respect of each matter separately.
  8. In respect of 796/13 the District Judge concluded that the Appellant had deliberately absented himself from his trial. He accepted evidence that he had given an address to the Polish authorities while he was being investigated for this offence, that he had been warned that he must notify the authorities of any change to that address and that he had continued to live at the address until after the date of conviction. He went on to find that a summons containing the date of the trial had been sent to the address and collected by an adult housemate of the Appellant. The Appellant gave evidence. He was asked whether he knew of the hearing date in advance. His answer as recorded by the Judge was "Of course. We received all the correspondence in the post from the court". He then said that he didn't think that the adult housemate who had collected the post told him about the summons. When challenged that he deliberately absented himself from court, he is recorded as saying, "No. My position is that the post did not reach the address. It's a very convenient excuse". (It was common ground at the appeal hearing that the reference to it being a "convenient excuse" was a reference to it being convenient for the authorities to allege that they had sent the summons by post and not an acceptance by the Appellant that his contention that he had not seen it was convenient to his case). On this evidence the Judge concluded that the Appellant's failure to attend trial amounted to deliberate absence.
  9. The Appellant's case is that this was not a conclusion which it was open to the Judge to make on the available evidence bearing in mind that it was for the Respondent to prove their case to the criminal standard. In any event there is no evidence that the Appellant was told that one possible outcome of his failing to attend his trial was that he might be tried in absence, without which evidence the court could not infer that he would have been aware of this. Finally, it is averred that there is no evidence that the Appellant was entitled to an appeal or retrial or, if he was, that he was told about this in time for him to exercise that right.
  10. The Respondent's case is that the Judge was entitled to find that the Appellant received the summons and therefore that he knew of the date of the trial and thereafter deliberately absented himself from it. Further, that as a matter of common sense the Appellant would have realised that by absenting himself he might be tried in his absence. Finally, that he had a right to an effective retrial or appeal and did not avail himself of that right.
  11. I am sure that it was open to the Judge to conclude that the Appellant knew of the trial date and made a decision not to attend. He was entitled to do that on the basis of the Appellant's own evidence. He was asked the direct question as to whether he knew of the trial date and replied, "Of course. We received all the correspondence in the post from the court". Despite the somewhat contradictory answers he gave thereafter when it was suggested to him that he had deliberately chosen not to attend his trial, this answer was on its face a straightforward acceptance of having been notified of the date. It is of note that in circumstances in which the evidence established that the Appellant's housemate collected the summons, the Appellant said that "we received all the correspondence from the Court" (emphasis added). It cannot be said that the Judge was not entitled to take this answer as a clear acceptance by the Appellant that he was aware of the trial date before it happened.
  12. However, I do not accept that the Appellant is to be taken to have realised that one of the possible consequences of his absence from trial was that he would be tried in his absence. There was no evidence that he was told about this possibility before he made the decision not to attend this trial. He was not legally represented and therefore it cannot be inferred that he received legal advice to that effect. I am sure that it could not properly be concluded to the necessary standard that the Appellant would have contemplated that he risked trial in absence if he absented himself from trial. Of course, he would realise that his decision might have consequences for his case. It might have affected his bail status. It might have resulted in further charges of absconding being brought against him. It might have been taken as evidence of guilt when his trial eventually took place. A layman is not expected to be conversant with the law. There is no basis to conclude that a layman would automatically know that he risked trial in absence if he failed to attend court. It is for that reason that nowadays criminal courts in England and Wales specifically warn defendants at their PTPH that their trial might proceed in their absence if they fail to attend it without good reason. If there was confidence that all laymen would know this, such a warning would be otiose. I have therefore concluded that absent any evidence that the Appellant was told of this particular risk he ran by absconding, admitted that he knew of that risk, or there were other circumstances justifying the conclusion that the Appellant must have been aware of it, it would not be open to a Judge to conclude that he must have been aware of it from his general knowledge of how the system worked. That being so, the Court was wrong to reach the conclusion that he deliberately absented himself from trial.
  13. Further, I do not accept that he was entitled to a retrial or appeal. In order for him to have an effective remedy of this sort , the remedy must actually have existed and the Appellant must have been aware of its existence in time to exercise it. There was evidence that the judgment in the case was sent to the Appellant's address on 10 December 2013 and collected by the Appellant's adult housemate. There was no evidence that the housemate passed it on to the Appellant. In any event, there is no evidence as to the form in which that judgment was sent and, in particular, whether it included advice as to the availability of an appeal or a retrial. There was evidence that the Appellant saw the Probation service on 27 January 2014. There is no evidence about what was said at that meeting and certainly no indication that the Probation officer who saw the Appellant would have or did discuss with him his appeal rights. I would not expect a Probation Officer in the United Kingdom necessarily to discuss possible routes of appeal with an offender. There was evidence that a notice of imprisonment in respect of this matter was personally collected by the Appellant on 7 April 2014. That is evidence that he was aware of his conviction by that date but, given the lack of evidence as to what was contained in that notice, there is no evidence that this was sufficient to alert him to any appeal rights or rights to a retrial he might have. Further, there is neither evidence as to what his rights would have been nor as to any time limits within which he must exercise them. There was evidence that by the time of these extradition proceedings any time limits for challenging the conviction had expired. That evidence was provided by the Respondent without setting out what the Appellant's appeal rights or the relevant time limits were. The Judge, given his finding that the Appellant deliberately absented himself from trial, did not need to consider this issue. I am sure that had he addressed it, he would have been driven to conclude that he could not be sure that there were adequate appeal rights in place of which the Appellant was aware.
  14. It follows that in respect of matter 796/13 I am driven to allow the appeal. The Judge wrongly decided the issues under s20 of the Act and, had he decided them correctly, he would have ordered the Appellant's discharge on this matter.
  15. I move to matter 723/14. The Judge did not find that the Appellant had deliberately absented himself from this hearing. There was no evidence upon which he could do so. The Appellant was in custody serving another sentence at the time of the hearing and it was the Court's decision not to bring him to court to participate in the aggregation hearing. The Judge went on to decide that the Appellant had a right to appeal or review which he decided not to exercise. He based that conclusion on the Appellant's evidence. He was asked if he had appealed the hearing or asked for a rehearing and answered, "No if I remember correctly". From that answer the Judge inferred to the criminal standard not only that the Appellant had made a decision not to appeal but that the right of appeal existed and that he could have exercised such a right had he chosen to do so. The Judge said that the Appellant's failure to exercise any appeal right was not surprising as the effect of the aggregation hearing was that the overall sentence on the Appellant was reduced.
  16. The Appellant's case is that the fact that the sentence was reduced at that hearing and therefore the outcome of that hearing to the Appellant might be said to be favourable to him is jurisprudentially irrelevant. (That was accepted by the Respondent as being a correct statement of the law). Whatever its outcome, the hearing was one which the Appellant was entitled to attend and he was denied that right. The indication from the Appellant that he had not appealed is not sufficient evidence from which to deduce that he had such a right.
  17. The Respondent asserts that there was sufficient evidence from which to deduce that such a right existed in this case even if the District Judge did not make overt reference to it in his judgment. In particular they point to the fact that the Appellant had a lawyer present at these proceedings; there was evidence that the lawyer was under a duty to report back to his client the effect of the judgment; there would have been no impediment to his doing so as the Appellant was in custody in Poland at the time; the Appellant had never suggested in evidence that he was not told of the existence of a right to a rehearing or an appeal; and, that there was evidence that a right of appeal had at one stage existed even if the (unascertained) time limit for exercising that right had now expired.
  18. I am sure that there was evidence before the District Judge sufficient to allow him to reach the conclusion he reached. There is a proper inference to be drawn that a lawyer present at a hearing when his client is absent and who is under a duty to report back to his client on the ramifications of the that hearing for the client has done so. It is also proper to conclude that any rights of challenge would have been explained to him. Finally, it is also proper to conclude in the absence of evidence to the contrary that a qualified lawyer would have given his client the necessary advice before any rights of challenge had become time barred. This is a rational conclusion to draw even in a case such as this when the court has no evidence as to the period of the time afforded to a convicted man to appeal or seek a review in these circumstances.
  19. It follows that for reasons other than those given by the District Judge, I am sure that the Judge correctly decided the questions relevant to this matter and therefore this part of the appeal must be dismissed.
  20. Finally I move to matter 1304/15. The Judge found that the Appellant was arrested and questioned about these offences on 8 October 2015. He was warned that he had to attend court when his trial was listed. He provided the authorities with an address and was told that he must inform them if he changed address. He was told that if he moved abroad, he was under a duty to provide the authorities with an address in Poland where he could be contacted. The Judge found that he moved to the United Kingdom on 7 December 2015. He left no address where he could be contacted. He then failed to attend his trial when it was listed on 6 April 2016. The Judge found that the Appellant had deliberately absented himself from his trial. He knew that criminal proceedings were to be taken in respect of these offences but left his address and the country without leaving any means for the authorities to contact him.
  21. The Appellant again submits that, while there was evidence which would have allowed the Judge properly to find to the required standard that he was deliberately avoiding justice, there was no evidence that he would have contemplated a trial in his absence being a likely consequence of this decision. There is no record that he was told of this possibility by the court. He did not have a lawyer who would have told him of this possibility. Further, there is no indication that he had any effective right to appeal or otherwise challenge this decision. The only information provided by the Defendant was that any such right he might have had is now time barred. There is no evidence as to what the timescale was within which an appeal must be started. There is no evidence that he was ever told of his rights of appeal or challenge before those time limits expired.
  22. The Respondent asserts that the Judge was entitled to decide that the Appellant had deliberately chosen not to come to court when his case was listed and that he had done so in contemplation that he might be tried in his absence. To make good this submission, they relied on the chronology of the case. He was absent for his trial on 796/13 on 5 December 2013. He learnt that the court had convicted him in his absence by 21 January 2014 at the latest; that was the date on which he spoke to a Probation officer about his conviction and sentence. Therefore, by the time he absented himself from trial on this matter (6 April 2016) he would have done so in full realisation that he might again be tried in his absence. The Respondent further relies on the EAW in respect of this matter. It purports to show that the Appellant was served with a copy of his conviction on 25 April 2016 shortly after it occurred. They assert that from this it can properly be inferred that he would have known about his right of appeal before such a right expired.
  23. I have concluded that in relation to this matter the Judge was entitled to find both that the decision not to attend his trial was deliberately taken by the Appellant and that, when he took it, he would have been aware that he risked having his trial heard in absence. That is based on his past experience of the system. By the time he absented himself on this occasion, he had absented himself on the earlier matter, had been tried in his absence, and had found out that this had occurred. It is fanciful to think that he might have thought that this would not happen again if similar circumstances repeated themselves. No longer was the Judge being asked to infer this realisation from the Appellant's general knowledge as to how the Polish legal system worked as was the case on matter 796/13. He was now simply being asked to infer that the Appellant would have appreciated the risk from his own lived experiences of the system. He was obviously entitled to do so.
  24. I do not find that the Appellant was informed of his rights of appeal or challenge in time to exercise those rights. I pay heed to what it written on the EAW but the factual position on 25 April 2016 when it is said that the conviction was served on the Appellant was that he had moved abroad and left no forwarding address. The most that could have occurred is that the relevant documentation was sent to his last known address in Poland but there was no evidence that he received post from that address.
  25. Although I make the finding at paragraph 23 concerning the Appellant's rights of appeal, it is of no consequence. In respect of this matter, the Judge was right to find that the Appellant had deliberately absented himself from trial knowing that he might be tried in absence. In such circumstances, the issue dealt with in paragraph 23 does not fall to be considered. I uphold the Judge's decision in respect of matter 1304/15.
  26. I therefore allow the appeal on matter 796/13 but dismiss it on 723/14 and 1304/15.

About BAILII - FAQ - Copyright Policy - Disclaimers - Privacy Policy amended on 25/11/2010