KING'S BENCH DIVISION
ADMINISTRATIVE COURT
Strand, London, WC2A 2LL |
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B e f o r e :
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PIOTR MARZEC |
Appellant |
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WARSAW REGIONAL COURT, POLAND |
Respondent |
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Adam Squibbs (instructed by Crown Prosecution Service) for the Respondent
Hearing date: 21st January 2025
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Crown Copyright ©
Mr Justice Linden :
Introduction
i) First, that the District Judge was wrong to find that section 20 of the Extradition Act 2003, which is concerned with fair trial rights, was satisfied in relation to three of the offences which were the subject of the AW ("Offences 1-3") ("Ground 1").
ii) Second, assuming Ground 1 to be correct, so that the Appellant is discharged in respect of Offences 1-3, his extradition in respect of the remaining offences ("Offences 4-7") would be disproportionate and therefore incompatible with Article 8 of the European Convention on Human Rights ("ECHR") ("Ground 2").
The basis for the Arrest Warrant
i) On 9 October 2010:
a) driving whilst disqualified by an order of the court made on 18 February 2009. On 4 August 2011 the Appellant was sentenced by the District Court of Dabrowa Gornicza to 1 year's imprisonment, suspended for 3 years, for this offence. This was case file VII K 376/11 ("Offence 1").
b) theft of a wallet with PLN 800 in cash, an ID, an ATM card, a health insurance card, and a driver's license. On 19 June 2011 he was sentenced by the District Court of Sosnowiec to 6 months' imprisonment for this offence. The sentence has been served in full. This was case file VII K 607/10. ("Offence 2").
ii) On 17 August 2010, driving whilst disqualified. On 20 January 2011 the Appellant was sentenced by the District Court of Strzelce Opolskie to 3 months' imprisonment for this offence, suspended for 3 years. This was case file II K 1319/10 ("Offence 3").
iii) On 18 November 2009, driving whilst disqualified. On 20 April 2010 he was sentenced to 3 months' imprisonment for this offence by the District Court of Katowice. The sentence has been served in full. This was case file III K 120/10 ("Offence 4").
iv) On 16 October 2009:
a) giving a police officer a bribe of PLN 300 to refrain from carrying out his duty ("Offence 5");
b) possession of 0.02 grammes of amphetamine ("Offence 6");
c) driving whilst disqualified ("Offence 7").
v) Offences 5-7 were the subject of case file IV K 203/11. On 19 March 2014, the Appellant was sentenced as follows for these offences by the District Court for Warsaw:
a) 1 year's imprisonment for Offence 5;
b) 3 months' imprisonment for Offence 6; and
c) 1 year's imprisonment for Offence 7.
i) In respect of Offences 1-3, 1 year and 3 months' imprisonment;
ii) In respect of Offences 4-7, 1 year and 7 months' imprisonment.
i) In respect of Offences 1-3, the Appellant was in custody between 19 May and 3 June 2011 and between 3 June and 17 November 2012. The period which therefore remained to be served was 7 months and 15 days.
ii) In respect of Offences 4-7, he was in custody on 18 November 2009 and between 9 October 2010 and 8 January 2011 in respect of Offence 4, and on 16 October 2009 and between 18 and 19 April 2013 in respect of Offence 5. The period which remained to be served was therefore 1 year 3 months and 27 days.
i) Offence 1: the Appellant was not present at the handing down of the judgment but had been informed of the hearing as he was in custody at the time. The penalty imposed was one to which he had already consented.
ii) Offence 2: the Appellant was present at trial.
iii) Offence 3: the Appellant was not present although he was notified of the hearing, collected the judgment and agreed to the penalty.
iv) Offence 4: the Appellant had been notified of the hearing but chose not to collect the notification from the post office.
v) Offences 5, 6 and 7: the Appellant participated in the hearing but was not present at the announcement of the judgment.
"..was issued at a court session of which the parties were not notified. The ruling … was delivered to the convicted person - with an information note about the right to appeal and the method of and deadline for appealing - to the address indicated by the convict in the course of the proceedings. The mail was not collected by the convict (he was correctly notified twice by a notice left in the mailbox that the mail would be waiting to be collected at the nearest post office). The uncollected mail with an official copy of the ruling was deemed to have been delivered correctly on 15 October 2015."
Ground 1
Section 20 of the Extradition Act 2003
"20 Case where person has been convicted
(1) If the judge is required to proceed under this section …. 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."
"If the judge is required to proceed under this section (by virtue of section 20) he must decide whether the person's extradition would be compatible with the Convention rights withing the meaning of the Human Rights Act 1998 (c 42)."
The arguments on the section 20 issue before the District Judge
i) As far as the 4 December 2014 hearing was concerned, the Appellant had deliberately absented himself and section 20(3) of the 2003 Act was therefore satisfied. Reliance was placed on the evidence of the Appellant who, in his written evidence at least, appeared to admit that he left Poland knowing that he was due to be sentenced on Offences 5-7 and/or was aware of the ongoing proceedings for a cumulative sentence which he had issued on 7 December 2012. The circumstances in which he fled to the United Kingdom therefore effectively amounted to a waiver of his Article 6 ECHR rights.
ii) For the same reasons, section 20(3) was satisfied in relation to the 23 September 2015 hearing. Alternatively, section 20(5) was satisfied on the basis that the Appellant had been served with the judgment, indictment and information concerning his right to appeal this decision but had not lodged an appeal. It did not matter, for these purposes, whether he had been personally served with these documents.
The District Judge's reasons for rejecting the section 20 argument
"…The RP accepted that the case had been set down for another date and he decided to leave Poland at that stage as he was worried about being sent back to prison…"
"…he understood very well that he had been sentenced to a period of immediate custody, that the appeal would go ahead in his absence, and he came to the UK in order to avoid being sent back to prison." (emphasis added)
"31.I accept the evidence of the JA that the cumulative sentences resulted from an application made by the RP. I am therefore satisfied that he knew the sentences which had been passed and was hoping for a reduction or at least a delay in the imposition of immediate custody.
32.In my assessment the changes and embellishments in his evidence were not due to a genuine loss of memory, but because he now understood the significance of not being present at, or aware of, a particular court hearing. The RP had to concede that when he left Poland, he knew that he could not and would not receive any correspondence, unless he took steps to seek information through his grandmother.
33.He accepts leaving Poland to avoid being sent to prison "so that he could continue to care for his sick grandmother". He agreed with Mr Squibbs that he knew the hearing would proceed in his absence and that if he was not successful, he would have to serve that sentence of imprisonment. I am satisfied to the high criminal standard so that I am sure that he came to the UK in order to avoid being returned to prison in Poland. By leaving and not providing any address at which he could be contacted, he placed himself deliberately and knowingly beyond the reach of the legal process. I therefore agree with the JA that he is a fugitive." (emphasis added)
"59 I am satisfied that the RP initiated the application for cumulative sentences to be considered on 7 February 2012, but that he had no intention of ever attending any such hearing, in case the sentences were activated and he was returned to custody.
60.Box D of the AW states that the RP did not appear at the trial resulting in the decision, that is the cumulative sentence of the District Court for Warsaw handed down and dated 4 December 2014. Mr Mak submits that the RP had not been deliberately absent because it was a notice of substitute serve (sic) delivered at his address; the notice was left at the nearest post office instead.
61. The RP was twice sent a notice "of the date of the trial resulting in the cumulative judgement" to the address he had given in respect of offences 3, 4 5, 6 and 7. He had given the same address when leaving prison. This was not collected from the post office by the RP. He cannot escape "service" by simply ignoring the fact he had been sent correspondence from the court.
62.The RP had been aware of the requirement for him to notify any change of address and warned that if failed to do so, he would be considered to have been served with documents sent to him at the address provided. The RP was clear in his evidence that he knew he would be dealt with in his absence.
63.I have set out above why I have found the RP to be a fugitive and I am satisfied that once he left for the UK, his goal was that he could not and would not receive any post from the JA and therefore this can be regarded as his "expression of an intention not to respond to summonses."
64.I agree with Mr Squibbs that in a case of deliberate absence I have to consider whether it was reasonably foreseeable that the hearing could proceed in his absence. The RP's evidence was clear - he believed if he could not collect the documents, if he did not attend, and if he left the jurisdiction these cases could, and would, go ahead in his absence. He did not engage with the process but left Poland and waived his rights to attend any hearing.
65.The arguments on section 20 therefore fail" (emphasis added)
Summary of the arguments in the appeal on Ground 1
i) Although it was common ground before the District Judge that section 20 required to be satisfied by the Respondent in respect of the September 2015 hearing she had failed to make any material finding or reach any conclusion in relation to this issue. Her decision only addressed the December 2014 hearing.
ii) There was no dispute that the Appellant was not present at the September 2015 hearing.
iii) As far as section 20(3) is concerned:
a) Fugitivity alone is not a sufficient basis for a finding that the Appellant deliberately absented himself from his trial: see Sejdovic v Italy (Application No 56581/00) 2006 WL 5003056 at [87] ("Sejdovic"). For there to be a waiver of Article 6 rights by a failure to attend, there has to be a knowing, voluntary and intelligent act done with sufficient awareness of the relevant circumstances, and it must be shown that the defendant could reasonably have foreseen what the consequences of his conduct would be: Sibgatullin v Russia (Application No 143/05) 24 April 2012 at [48] ("Sibgatullin").
b) Here, the Appellant accepted the District Judge's finding that he waived his Article 6 rights in relation to the December 2014 hearing but this was in the context of her finding that he had initiated the cumulative sentence process which had resulted in the judgment of 4 December 2014. He had left the jurisdiction after the hearing in relation to Offences 5-7, at which he was present, and knowing that the cumulative sentence process was ongoing and that hearing(s) in the course of that process would proceed in his absence.
c) However, the District Judge's finding in relation to the December 2014 hearing could not and should not be extended to the September 2015 hearing. Although Mr Mak accepted that, if he was right that she did not address the September 2015 hearing, I should reach my own conclusion based on her findings and the evidence, the September 2015 hearing was a different proceeding of which there was no evidence that the Appellant was aware. There was no evidence as to how this decision came about, nor to the effect that it was a continuation of the cumulative sentence proceedings which had concluded on 4 December 2014. Applying the criminal standard, I therefore could not and should not be sure that the Appellant had sufficient awareness of this hearing and the consequences of not attending for it to be said that he waived his Article 6 rights in relation to it.
d) As for any argument that section 20(5) of the 2003 Act applies in the alternative, there was no evidence that the Appellant was aware of his right of appeal from the September 2015 decision and he therefore could not be held to have waived this right. The First FI stated that the ruling and the information about his right of appeal and the deadline for doing so were delivered to the address which he had provided in the course of the criminal proceedings. He was therefore deemed to have been correctly served but that was not enough for the purposes of waiver.
e) Accordingly, I should discharge the Appellant on Offences 1-3.
i) Reading the judgment as a whole, it was plain that the District Judge had considered the September 2015 hearing and her finding that the Appellant had waived his rights to attend "any" hearing was intended by her to apply to this hearing as well as the 4 December hearing. This was also apparent from the reference to "these cases" in [64] of her judgment (cited at [21], above). The parties agreed that section 20 applied to the September 2015 decision and she was addressed on this basis. It is inconceivable that she did not have that hearing in mind.
ii) Even if the District Judge did not have the September 2015 hearing in mind when she made her finding at [64], this was a case in which the Appellant had left Poland knowing that the sentence which he would be required to serve in respect of his offending was under consideration by the Polish courts, that there would be further hearings, and that those hearings would proceed in his absence. There was therefore a clear waiver of his Article 6 rights and I could be sure that section 20(3) was satisfied.
iii) In any event, section 20(5) of the 2003 Act was satisfied. The section should be read as applying when the requested person "was or would be entitled to a retrial": see the decision of the Divisional Court in Szatkowski v Regional Court in Opole, Poland [2019] EWHC 883 (Admin), [2019] 1 WLR 4528 at [33]-[34] ("Szatkowski"). The Appellant had been given a right of appeal from the September 2015 decision but had not exercised it. The Szatkowski principle does not require the requested person to have actual knowledge of the right of appeal. It is sufficient that they have constructive knowledge in that they have been notified but have chosen not to receive notifications in the context of the ongoing proceedings of which they are aware.
Discussion of Ground 1
The powers of the High Court in this appeal
"(2) The court may allow the appeal only if the conditions in subsection (3) or the conditions in subsection (4) are satisfied.
(3) The conditions are that—
(a) the appropriate judge ought to have decided a question before him at the extradition hearing differently;
(b) if he had decided the question in the way he ought to have done, he would have been required to order the person's discharge."
Did section 20/Article 6 apply to the September 2015 decision?
"the concept of a "trial resulting in the decision", within the meaning of article 4a(1) of Framework Decision 2002/584, must be interpreted as referring not only to the proceedings which gave rise to the decision on appeal, where that decision, after a fresh examination of the case on the merits, finally determined the guilt of the person concerned, but also to subsequent proceedings, such as those which led to the judgment handing down the cumulative sentence at issue here, at the end of which the decision that finally amended the level of the initial sentence was handed down, in as much as the authority which adopted the latter decision enjoyed a certain discretion in that regard."
"88. This is the case with respect to specific proceedings for the determination of an overall sentence where those proceedings are not a purely formal and arithmetic exercise but entail a margin of discretion in the determination of the level of the sentence, in particular, by taking account of the situation or personality of the person concerned, or of mitigating or aggravating circumstances…."
"92……since the level of the sentence is not determined in advance but depends on the assessment of the facts of the case by the competent authority and it is precisely the duration of the sentence to be served which is finally handed down which is of decisive importance for the person concerned."
Is section 20(5) the answer?
i) First, as Mr Squibbs accepted, there is no information as to the nature of the appeal from the September 2015 decision which was available to the Appellant: did he have a right to a rehearing of the issue or would he have been limited, for example, to asking for a review or establishing an error of law?
ii) Second, in Szatkowski the position was that the requested person had received notice of his conviction and sentence when in Poland and, having taken advice from a lawyer, decided not to challenge it. He accepted that he could have appealed the decision but chose not to do so. The basis for the decision in Szatkowski was therefore that, as Irwin LJ said:
"33. The clear intent of section 20 of the 2003 Act is to give proper protection to the requested person's Article 6 rights. That intent cannot reasonably be said to be "contradicted" by an interpretation which allows a person to be extradited, when the only reason that he will not have the opportunity of a retrial on his return is that he had such an opportunity previously and chose not to take it." (emphasis added)
iii) By contrast, in the present case, the Appellant did not actually receive notice of the September 2015 decision – hence Mr Squibbs' reliance on the fact that he was deemed to have been served – and he did not choose not to exercise his right to appeal, at least in the sense in which Mr Szatkowski specifically chose not to exercise a right of appeal of which he was well aware.
The applicable legal principles in relation to waiver in this context
"….Just as the Amended Framework Decision reflects the provisions of article 6 of the Convention, as interpreted by the Strasbourg Court, on the right to be present at trial so too does section 20. The phrase "deliberately absented himself from his trial" should be understood as being synonymous with the concept in Strasbourg jurisprudence that an accused has unequivocally waived his right to be present at the trial." (emphasis added)
"87. The Court has held that where a person charged with a criminal offence had not been notified in person, it could not be inferred merely from his status as a "fugitive".., which was founded on a presumption with an insufficient factual basis, that he had waived his right to appear at the trial and defend himself (see Colozza , cited above, § 28)." (emphasis added)
"For a requested person to have deliberately absented himself from trial for the purpose of section 20(3) of the Extradition Act 2003, must the requesting authority prove that he has actual knowledge that he could be convicted and sentenced in absentia?"
"86. Neither the letter nor the spirit of Article 6 of the Convention prevents a person from waiving of his own free will, either expressly or tacitly, the entitlement to the guarantees of a fair trial .. However, if it is to be effective for Convention purposes, a waiver of the right to take part in the trial must be established in an unequivocal manner…
87…….before an accused can be said to have implicitly, through his conduct, waived an important right under Article 6 of the Convention, it must be shown that he could reasonably have foreseen what the consequences of his conduct would be…."
i) "there can be no question of waiver by the mere fact that an individual could have avoided, by acting diligently, the situation that led to the impairment of his rights" [47].
ii) "the waiver of the right must be a knowing, voluntary and intelligent act, done with sufficient awareness of the relevant circumstances." [48]
"99. In previous cases concerning convictions in absentia, the Court has held that to inform someone of a prosecution brought against him is a legal act of such importance that it must be carried out in accordance with procedural and substantive requirements capable of guaranteeing the effective exercise of the accused's rights; vague and informal knowledge cannot suffice… ..The Court cannot, however, rule out the possibility that certain established facts might provide an unequivocal indication that the accused is aware of the existence of the criminal proceedings against him and of the nature and the cause of the accusation and does not intend to take part in the trial or wishes to escape prosecution. This may be the case, for example, where the accused states publicly or in writing that he does not intend to respond to summonses of which he has become aware through sources other than the authorities, or succeeds in evading an attempted arrest..…..or when materials are brought to the attention of the authorities which unequivocally show that he is aware of the proceedings pending against him and of the charges he faces." (emphasis added)
"This paragraph of its judgment sees the Strasbourg Court, in language that is familiar, carefully avoiding drawing hard lines. Cases are fact specific. It leaves open the possibility of a finding of unequivocal waiver if the facts are strong enough without, for example, the accused having been explicitly told that the trial could proceed in absence…." (emphasis added)
"It is only where it is apparent from precise and objective indicia that the person concerned, while having been officially informed that he or she is accused of having committed a criminal offence, and therefore aware that he or she is going to be brought to trial, takes deliberate steps to avoid receiving officially the information regarding the date and place of the trial that the person may … be deemed to have been informed of the trial and to have voluntarily and unequivocally foregone exercise of the right to be present at it. The situation of such a person who received sufficient information to know that he or she was going to be brought to trial and, by deliberate acts and with the intention of evading justice, prevented the authorities from informing him or her officially of that trial in due time…[may be tried in their absence]." (emphasis added)
"50. The appellant's dealings with the police ..fell a long way short of being provided by the authorities with an official "accusation". He knew that he was suspected of a crime and that it was being investigated. There was no certainty that a prosecution would follow. When the appellant left Italy without giving the judicial police a new address there were no criminal proceedings of which he could have been aware, still less was there a trial from which he was in a position deliberately to absent himself."
"The Strasbourg Court has been careful not to present the issue in such stark terms although ordinarily it would be expected that the requesting authority must prove that the requested person had actual knowledge that he could be convicted and sentenced in absentia. As we have already indicated, in Sejdovic … the court was careful to leave open the precise boundaries of behaviour that would support a conclusion that the right to be present at trial had been unequivocally waived. The cases we have cited provide many examples where the Strasbourg Court has decided that a particular indicator does not itself support that conclusion. But behaviour of an extreme enough form might support a finding of unequivocal waiver even if an accused cannot be shown to have had actual knowledge that the trial would proceed in absence. It may be that the key to the question is in the examples given in Sejdovic at para 99. The court recognised the possibility that the facts might provide an unequivocal indication that the accused is aware of the existence of the criminal proceedings against him and of the nature and the cause of the accusation and does not intend to take part in the trial or wishes to escape prosecution. Examples given were where the accused states publicly or in writing an intention not to respond to summonses of which he has become aware; or succeeds in evading an attempted arrest; or when materials are brought to the attention of the authorities which unequivocally show that he is aware of the proceedings pending against him and of the charges he faces. This points towards circumstances which demonstrate that when accused persons put themselves beyond the jurisdiction of the prosecuting and judicial authorities in a knowing and intelligent way with the result that for practical purposes a trial with them present would not be possible, they may be taken to appreciate that a trial in absence is the only option…." (emphasis added)
The application of these principles to the present case
"Box F of the AW states that subsequently, in a judgment dated 23 September 2015, the District Court for Warsaw reduced the cumulative sentence of 1 year 3 months' imprisonment (relating to offences 1, 2, and 3) to a cumulative sentence of 1 year 1 month and 15 days' imprisonment."
i) She had repeatedly found that the Appellant understood that if he did not attend hearings he would be dealt with in his absence.
ii) At [63] she found that the Appellant's "goal was that he could not and would not receive any post from the JA and therefore this can be regarded as his "expression of an intention not to respond to summonses." This quotation from Sejdovic [99] and Bertino [58] was clearly intended to identify the present case as being in the category where there may be waiver on the basis that the offender has chosen, with knowledge of the consequences, not to be aware of hearings or to participate in them. In this regard, the District Judge's analysis was also consistent with the passage from Criminal Proceedings against IR (supra) at [48] (quoted at [39], above) where the CJEU referred to "deliberate steps to avoid receiving officially the information regarding the date and place of the trial" or "[preventing] the authorities from informing him or her officially of that trial" potentially leading to the conclusion that there has been a waiver of the right to attend. In Bertino the Supreme Court also recognised that it was possible, in principle, for there to be a waiver where the evidence establishes that the requested person has knowingly taken steps to prevent a trial with them present, or has elected not to participate in the trial.
iii) This feature of the case is also referred to at [64] of the District Judge's decision where, as noted above, she found that:
"The RP's evidence was clear - he believed if he could not collect the documents, if he did not attend, and if he left the jurisdiction these cases could, and would, go ahead in his absence. He did not engage with the process but left Poland and waived his rights to attend any hearing."
Conclusion on Ground 1
Ground 2
Conclusion