Jersey Unreported Judgments

Extradition - appeal against the decision of the Magistrate's Court

[2019]JRC039

Royal Court

(Samedi)

11 March 2019

Before     :

J. A. Clyde-Smith, Esq., Commissioner, and Jurats Blampied and Ramsden

 

IN THE MATTER OF AN APPEAL AGAINST THE DECISION OF THE MAGISTRATE'S COURT

AND IN THE MATTER OF THE EXTRADITION (JERSEY) LAW 2004

Advocate J. D. Garrood for theAppellant.

Advocate M. R. Maletroit for the Respondent.

judgment

the COMMISSIONER:

1.        This is an appeal under Article 40 of the Extradition (Jersey) Law 2004 ("the Extradition Law") against the decision of the Assistant Magistrate, Peter Harris, handed down on 13^th December, 2018, that the case be sent to the Attorney General for a decision as to whether the appellant should be extradited.

Background

2.        The appellant is a Polish national, who was born in Poland on 21^st July, 1986, and is therefore now aged 32.  He came to Jersey in August 2010 when he was 24.

3.        In 2004, when he was 18, he was involved in a number of offences which resulted in five convictions before the Polish courts, of which we are concerned with two:-

(i)        On 26^th April 2005, in the District Court of Pisz for the breaking into and then taking an Audi 100 motor vehicle, committed on the night of 21^st/ 22^nd September 2004 (Ref 55/05).

(ii)       On 11^th May 2005, in the District Court of Ostroda for the theft of a VW Passat motor vehicle committed on the night of 20^th/21^st September 2004 (Ref 145/05).

4.        We will refer to these two convictions as the "Relevant Convictions" in respect of each of which he was sentenced to 1 year and 6 months deprivation of liberty, suspended for four years, subject to the supervision of a probation officer.

5.        On 13^th December, 2007, the sentences imposed for the Relevant Convictions and the three other convictions were reviewed by the District Court of Nidzica in what is described as a cumulative judgment (the "Cumulative Judgment").  The sentence for the three other convictions were combined into an aggregate sentence of four years deprivation of liberty and the sentences for the Relevant Convictions were combined into one aggregate sentence of two years deprivation of liberty, suspended conditionally for a probation period of four years.  The Cumulative Judgment was appealed by the appellant but the sentences imposed were upheld and became final on 26^th March, 2008.

6.        The appellant was released from prison on 17^th February, 2010, after serving his sentence arising out of the other convictions, at which point his probation for the Relevant Convictions became active.  On 30^th August, 2011, the District Court of Szczytno ordered the execution of the conditionally suspended sentence of two years deprivation of liberty for the Relevant Convictions on the grounds that the appellant had failed to maintain regular contact with his probation officer, had left his place of residence and had left the country without informing his probation officer.  At that time, the appellant was living in Jersey. We will refer to that as "the Crystallisation Hearing".

7.        On 24^th November, 2011, the District Court of Szczytno ordered a search for the appellant, by means of an arrest warrant, with a view to executing the sentence of two years of deprivation of liberty.

8.        On 20^th May 2015, the Attorney General received a letter from the Minister of Justice in Poland, requesting the extradition of the appellant to Poland.  On 16^th July 2018, an application was made to the Magistrate under Article 8 of the Extradition Law for the arrest of the appellant.  No explanation has been provided for the delay.  His arrest was ordered on 18^th July, 2018, and he was remanded in custody until 26^th September 2018, when bail was granted.  He has thus spent over two months in custody in relation to this matter.

9.        The extradition hearing was commenced on 15^th October, 2018, when the evidence of the appellant was heard.  It was adjourned until 13^th November, 2018, and then again to 6^th December, 2018, whilst information was obtained from the Polish courts.

Powers of the Court on appeal

10.      Under Article 41(1) of the Extradition Law, on an appeal under Article 40, the Royal Court may:-

(i)        allow the appeal;

(ii)       direct the Magistrate to decide again any question or questions that the Magistrate decided at the extradition hearing; or

(iii)      dismiss the appeal.

11.      Under Article 41(2), the Court may allow the appeal only on the grounds specified in Article 41(3) or the grounds specified in Article 41(4).  It is only the former which applies in this case, Article 41(3) being in the following terms.

"(3)     The ground to which this paragraph refers is -

(a)       that the Magistrate ought to have decided differently a question before the Magistrate at the extradition hearing; and

(b)       that if the Magistrate had decided the question in the way in which it ought to have been decided, the Magistrate would have been required to order that the person be discharged."

12.      As the Assistant Magistrate said at paragraph 9 of his decision, the provisions of the Extradition Law are to all intents and purposes similar to the equivalent provisions in the Extradition Act 2003, and reflect Jersey's participation in a regime of international cooperation in extradition matters.  Under Part 1 of Schedule 1 to the Extradition Law, Poland is a designated territory of the First Category.  He referred to this passage of the judgment of Sir Richard Tucker in De Figueiredo v Commonwealth of Australia [2010] JLR 376 at 380:-

"The law on the matter is contained in the Extradition (Jersey) Law 2004 ("the Law").  This is the first such case to come before the Royal Court and therefore the first time that the provisions of the Law have had to be considered.  However, valuable guidance is available from decisions of the English courts relating to comparable provisions of the United Kingdom law now contained in the Extradition Act 2003.  As the Magistrate observed, such decisions have persuasive though not binding authority in Jersey, unless they are decisions of the Privy Council in a Jersey case."

13.      The only guidance counsel were able to find on the approach of the Court under the English equivalent of Article 41(3) is a judgment of Sedley LJ in the case of Mariusz Artur Wiejak v Olsztyn Circuit Court of Poland [2007] EWHC 2123 (Admin), where he said at paragraphs 23 and 24:-

"23     The effect of sections 27(2) and (3) of the Extradition Act 2003 is that an appeal may be allowed only if, in this court's judgment, the District Judge ought to have decided a question before her differently.  This places the original issues very nearly at large before us, but with the obvious restrictions, first, that the court must consider the District Judge's reasons with great care in order to decide whether it differs from her and, secondly, that her fact-findings, at least where she has heard evidence, should  ordinarily be respected in their entirety.

24       But if, accepting all the District Judge's findings, this court agrees with her conclusion or conclusions, it is both free and bound so to hold."

We adopt that approach.

The Assistant Magistrate's decision

14.      We take the findings of the Assistant Magistrate which are challenged in this appeal in the order they were required to be made under the Extradition Law.

Attorney General's certificate

15.      Under Article 7 of the Extradition Law, when the Attorney General receives a valid request for the extradition to a designated territory of a person who is in Jersey, he is required to issue a certificate, which he then sends with the request to the Magistrate.  Advocate Garrood submitted that the Attorney General's certificate in this case was fatally flawed, because it did not comply with the following requirements of Article 7(3) and (6):-

"(3)     A request for a person's extradition is valid if it contains a statement -

(a)       that the person is accused in the designated territory of the commission of an offence specified in the request; or

(b)       that the person is alleged to be unlawfully at large after conviction by a court in the designated territory of an offence specified in the request,

and the request is made in the approved way."

"(6)     A request for extradition to any other designated territory is made in the approved way if it is made by -

(a)       an authority of the designated territory whom the Attorney General believes to have the function of making requests for extradition in that designated territory; or

(b)       a diplomatic or consular representative of the designated territory."

16.      Advocate Maletroit rightly points out that there is no provision under the Extradition Law to appeal the validity of the Attorney General's certificate.  If there is to be a challenge, it should be brought by way of Judicial Review.  However, we do not think this challenge has any merit. 

17.      The Attorney General's certificate was in the following form:-

"I, Robert James MacRae, Her Majesty's Attorney General for Jersey, HEREBY CERTIFY that the request for the extradition of Dariusz Burdynski from Jersey to Poland received by me from the Minister of Justice of Poland on the 20^th May 2015 is made in the approved way for the purposes of Article 7(6)(a) of the Extradition (Jersey) Law 2004."

18.      The letter received on 20^th May 2015 was from Judge Kamila Jonczyk-Piskorska, Head of International Law Division, which in turn enclosed a letter from the Minister of Justice dated 7^th May 2015 in the following terms:-

"Timothy Le Cocq QC, H.M. Attorney-General Jersey

Dear Mister Attorney General,

Pursuant to Article 12 of the European Convention on Extradition, dated 13 December 1957 I have the honour to direct you to the attached request made by the District Court in Szczytno for extradition from Jersey to Poland of a Polish citizen Dariusz Tomasz Burdynski for the purpose of serving the cumulative sentence of 2 years of imprisonment imposed upon him by means of the final judgment of the District Court in Nidzica dated 13 December 2007 (Ref. II K 411/07), whose enforcement was ordered by the decision of the District Court in Szczytno dated 30 August 2011.

Moreover, pursuant to the Article 18 (1) of the aforementioned Convention, I have the honour to ask you to comply with the request of the court and notify me of your decision regarding the extradition of Dariusz Burdynski.

Sincerely yours

(signature)

By authority of the Minister of Justice

Wojciech Wegrzyn

Undersecretary of State"

19.      Enclosed were details of the Relevant Convictions together with the request made by the District Court of Szczytno headed "Template of Request for Surrender or Transportation of Sentenced Person for Purposes of Sentence Execution", which is a form made pursuant to the European Arrest Warrant regime, which is not applicable in Jersey.  The documents attached to it included certified copies in translation of the Cumulative Judgment and the Crystallisation Hearing and a certified copy in translation of the judgment of the District Court of 24^th November 2011.

20.      Advocate Garrood said that the request did not contain a statement that satisfies Article 7(3)(b).  Whilst the request did not contain language in precisely those terms, it was pellucid from the documentation submitted that the appellant was alleged to be unlawfully at large after conviction for the offences which were specified in the request.  Advocate Garrood further argued that on a proper reading, the request for extradition came from the District Court of Szczytno and it followed, he said, that the Attorney General could not have reasonably believed that this District Court would have the function of making requests for extradition to Poland.

21.      In our view and as the above letter demonstrates, the request for extradition came from the Minister of Justice, and there is nothing to suggest that the Attorney General did not believe the Minister of Justice to be an authority with the function of making requests for extradition.

22.      In the premises, the Attorney General's certificate was not flawed.

Initial stages of extradition hearing

23.      If the Magistrate Is satisfied as to the documentation before him, Article 15(3) provides as follows:-

"(3)     If the Magistrate decides that question in the affirmative, the Magistrate shall decide -

(a)       whether the person appearing or brought before the Magistrate is the person whose extradition is requested;

(b)       whether the offence specified in the request is an extradition offence; and

(c)       whether copies of the documents sent to the Magistrate under Article 6 have been served on the person."

24.      Advocate Garrood submitted that the two offences specified in the request were not extradition offences.  Under Article 4 to be an extradition offence as defined these conditions have to be met:-

"(3)     the conditions in this paragraph are that -

(a)       the conduct occurs in the designated territory

(b)       the conduct would constitute an offence under the law of Jersey punishable with imprisonment or another form of detention for a term of 12 months or a greater punishment if it occurred in Jersey;

(c)       a sentence of imprisonment or another form of detention for a term of 4 months or a greater punishment has been imposed in the designated territory in respect of the conduct."

25.      There was no doubt that the conduct occurred in Poland, which is a designated territory, and that a sentence of imprisonment had been imposed in Poland for a term greater than four months, but Advocate Garrood argued that this conduct would not constitute offences under the law of Jersey punishable with imprisonment for a term of twelve months or greater for two reasons:-

(i)        The Assistant Magistrate did not have sufficient details of the offences to properly analyse or evaluate the conduct said to comprise the offences, and

(ii)       The Assistant Magistrate should have carried out a decision making process as to what sentence would have been imposed by the Court in Jersey.  If he had done so, he would have concluded that the appellant would not have received a sentence of custody in excess of twelve months.

26.      The particulars of the offences provided in the request were as follows:-

"STATEMENT OF OFFENCES:

Count 1 (District Court in Pisz, II K 145/05) Violation of Article 279(1) of 6 June 1997 Penal Code

PARTICULARS OF OFFENCE:

BURDYNSKI, on the night of 20/21 September 2004 in Milakowo, district of Ostroda, committed a theft of a passenger car VW Passat Combi No. NOS 6 E17 valued at 18,000 PLN, by breaking into it in an undetermined way, to the detriment of Dorota Przetacka;

Count 2 (District Court in Ostroda, 11 K 55/05) Violation of Article 279(1) of 6 June 1997 Act - Penal Code

PARTICULARS OF OFFENCE

BURDYNSKI, on the night of 21/22 September 2004 in Ruciane Nida, province of Olsztyn, after previously breaking the lock on the door and ignition, started and then took with the aim of appropriation a car make Audi 100 A6, Reg. No. BSGR-42, with its contents in the form of clothes and other items of the value of 22,380 PLN to the detriment of Monika Rocsin."

27.      The key issue here is what is meant by "punishable" and whether the Assistant Magistrate was required to go through a hypothetical sentencing exercise for which, arguably, he would have required much more information than that contained above.  Advocate Garrood accepted that under our common law, the sentence for larceny of a motor vehicle was at large, and that under Article 53 of the Road Traffic (Jersey) Law 1956, the sentence for a second conviction for taking and driving away a motor vehicle would be a sentence of imprisonment of up to three years,  but he pointed to the provisions of the Criminal Justice (Young Offenders) (Jersey) Law 2014, and argued that in practice, it was most unlikely that the appellant, if sentenced here, would have received a sentence of imprisonment.

28.      The Assistant Magistrate dealt with the argument in this way:-

"22     Advocate Garrood did not challenge the matters in paragraphs (a) and (c) but submitted that the sentence likely to be imposed on Mr Burdynski had he been sentenced in Jersey would not have exceeded 12 months in detention.  Mr Burdynski was 18 at the relevant time and would thus have had the protection of the Criminal Justice (Young Offenders) (Jersey) Law 2014.  As a matter of law that is obviously a correct statement but that does not mean that he could not have had such a sentence imposed and, in my judgment, Article 4(3)(b) is clear in its use of the word 'punishable'.  It is not for me to carry out a hypothetical sentencing exercise.  Either the equivalent Jersey offence can have imposed a custodial sentence in excess of 12 months or it cannot."

29.      We agree with Advocate Maletroit that the Assistant Magistrate adopted the correct approach.  It is not for the courts of the requested state to conduct a hypothetical sentencing exercise in order to determine if the offences would have been punished for a term of 12 months or greater if committed locally.  The question is simply whether the offence is punishable (i.e. capable of being punished) by a sentence of 12 months' imprisonment or more.  That was clearly the approach taken by the Royal Court in De Figueiredo v Commonwealth of Australia.  It is also the logical interpretation of the Extradition Law and the dual criminality requirements, which are, in part, designed to ensure that trivial offences do not fall within the scope of the extradition regime.

30.      As Advocate Maletroit said, the Assistant Magistrate's approach is also consistent with the international obligations that apply to Jersey in respect of extradition, which the Extradition Law was designed to implement.  The Explanatory Note to the Draft Extradition (Jersey) Law 200- projet refers to these international obligations:

"The legislation has been considered carefully to ensure that the international obligations to which the Island is subject are fully met.  In large measure, these obligations are the same as those which affect the United Kingdom, but differences have arisen in connection with the European Arrest Warrant which binds the United Kingdom through its relationship with the European Union, but does not bind Jersey whose relationship with the Union is governed by Protocol 3."

31.      Jersey's extradition obligations are the same as those which affect the United Kingdom, with the exception of those in connection with the European Arrest Warrant, which binds the UK through its relationship with the European Union (EU) but does not affect Jersey.  These similarities and differences were reflected in the Extradition Law, which substantially followed the UK's Extradition Act 2003 in relation to extradition under treaties and equivalent extradition arrangements.

32.      The principal treaty concerning extradition which has been extended to Jersey is the Council of Europe Convention on Extradition ("the Convention"), Article 27 of which provides for territorial application to Jersey.  Article 2 of the Convention provides as follows:-

"Article 2: Extraditable offences

Extradition shall be granted in respect of offences punishable under the laws of the requesting Party and of the requested Party by deprivation of liberty or under a detention order for a maximum period of at least one year or by a more severe penalty.  Where a conviction and prison sentence have occurred or a detention order has been made in the territory of the requesting Party, the punishment awarded must have been for a period of at least four months." (emphasis added)

33.      Guidance on this obligation is provided in the Explanatory Note to the Convention:-

"Article 2 (Extraditable offences)

Paragraph 1 specifies what offences are in principle extraditable; they must be offences which are punishable under the law both of the requested Party and of the requesting Party:

... the penalty has been found at 'a maximum period of at least one year'.  This has been possible because the countries which preferred a maximum of more than one year can exclude offences punishable by a penalty of one year's imprisonment in accordance with the provisions of paragraphs 3, 4 and 5 of this article, if extradition for these offences is not authorised under their laws ...

The second part of this paragraph covers the case of a person who has already been convicted.  In such a case the sentence must be of a certain duration, on the understanding that the condition laid down in the first part of the Article that the offence must be punishable by a certain penalty in both the requested and requesting country must also be fulfilled."

34.      The international obligations on which Jersey's definition of "extradition offences" is based refer to sentences of a "maximum period of at least one year", rather than the likely penalty that may have been imposed in the requested territory.

35.      The Assistant Magistrate correctly concluded that the Relevant Convictions were extradition offences as defined in Article 4 of the Extradition Law, and the particulars of the offences provided were more than sufficient for this purpose.

36.      In relation to Article 15(3)(c), the Assistant Magistrate said this:-

"As a matter of record I note that Article 6 merely refers to designated territories rather than to any documents.  I conclude from examining the Law that the correct reference should be to Article 7."

37.      Advocate Garrood argued that the Assistant Magistrate provided no reasoning for this construction of Article 15(3)(c).  He had received no evidence or submissions on the point, and gave no explanation as to why the cross reference to Article 6 must be read as a reference to Article 7. 

38.      Article 6 is concerned entirely with the definition of designated territories and makes no reference whatsoever to documents sent to the Magistrate.  The only part of the Extradition Law which does make such a reference is Article 7(8), which is in these terms:-

"7(8)   If a certificate is issued under this Article, the Attorney General shall send -

(a)       the request; and

(b)       the certificate,

to the Magistrate."

It was not in dispute that these documents had been served on the appellant.

39.      Advocate Maletroit referred us to the explanatory note to the draft Extradition Law which gave this explanation in relation to Article 15:-

"Under Article 15, the Magistrate must first decide whether the documents sent to the court include the request, the Attorney General's certificate, particulars of the person and of the offence and (where applicable) the authorization in the designated territory for his or her arrest or a certificate of the person's conviction and sentence in that territory.

If the Magistrate decides that they do not include that information, the person must be discharged.

If the Magistrate decides that they do include the information, he or she must then decide whether the person before the court is the one whose extradition is requested, whether the offence is an extradition offence, and whether copies of the documents in support of the request have been given to the person." (our emphasis)

40.      Advocate Garrood did not put forward any viable alternative construction as to how this could have been a reference to Article 6 and, in our view, the Assistant Magistrate was entirely correct in interpreting this as reference to Article 7(8).  His approach accords with the principle of rectification of drafting errors (see, for example, AG v Bouhsine [1992] JLR Note 13a (10^th February 1992)) and requires no further explanation.

41.      The Assistant Magistrate found there were no bars to extradition, in particular in relation to delay, pursuant to Article 16 of the Extradition Law, in respect of which there is no appeal, and so he moved to Article 22.

Article 22 - Case where a person has been convicted

42.      This article takes the Magistrate through a decision making process and it is helpful, therefore, to set it out in full:-

"22     Case where a person has been convicted

(1)       If the Magistrate is to proceed under this Article, he or she shall decide whether the person was present when convicted.

(2)       If the Magistrate decides that the person was present when convicted, the Magistrate shall proceed directly under Article 35 (human rights).

(3)       If the Magistrate decides that the person was not present when convicted, the Magistrate shall decide whether the person deliberately absented himself or herself from the trial.

(4)       If the Magistrate decides that the person deliberately absented himself or herself from the trial, the Magistrate shall proceed directly under Article 24 (human rights).

(5)       If the Magistrate decides that the person did not deliberately absent himself or herself from the trial, the Magistrate shall decide whether the person would be entitled to a retrial or (on appeal) to a review amounting to a retrial.

(6)       If the Magistrate decides that the person would not be entitled to a retrial or (on appeal) to a review amounting to a retrial, the Magistrate shall order that the person be discharged.

(7)       If -

(a)       the Magistrate decides that the person would be entitled to a retrial or (on appeal) to a review amounting to a retrial; and

(b)       the designated territory to which extradition is requested is a designated territory of the first category,

the Magistrate shall proceed directly under Article 24 (human rights).

(8)       If -

(a)       the Magistrate decides that the person would be entitled to a retrial or (on appeal) to a review amounting to a retrial; and

(b)       the designated territory to which extradition is requested is a designated territory of the second category,

the Magistrate shall proceed under Article 23 (relating to convictions in absentia).

(9)       The Magistrate shall not decide under paragraph (7) or paragraph (8) that a person would be entitled to a retrial or (on appeal) to a review amounting to a retrial unless, in any proceedings that would allegedly constitute a retrial or review amounting to a retrial -

(a)       The person would have the right to defend himself or herself in person or through legal assistance of his or her own choosing, or, if the person does not have sufficient means to pay for legal assistance, the right to be given it free when the interests of justice so require; and

(b)       The person would also have the right to examine witnesses against him or her or to have them examined, and to obtain the attendance and examination of witnesses on her or her own behalf under the same conditions as the witnesses against the person."

43.      Advocate Garrood submitted that the Assistant Magistrate failed to identify the correct hearing by reference to which the mechanism in Article 22 should be applied and that he should have considered the Crystallisation Hearing.  This argument was rejected by the Assistant Magistrate, who held "the obvious meaning of conviction in this context refers to the hearings on 26^th April and 11^th May 2005, and would not include the Crystallisation Hearing."

44.      We agree with the Assistant Magistrate's interpretation.  The Crystallisation Hearing did not give rise to a conviction.  Rather, it was the process by which the two year suspended sentence was executed in the light of the appellant's breaches of probation.  The Assistant Magistrate was right, therefore, to apply the mechanism in Article 22 to the hearings on 26^th April and 11^th May 2005 (the Relevant Convictions), when the plea bargain arrangements were formalised.

45.      With reference to Article 22(1), it was not in dispute that the appellant was not present at the Relevant Convictions, and so the Assistant Magistrate then had to move to Article 22(3) and decide whether the appellant deliberately absented himself from the trial.

46.      The appellant gave evidence through an interpreter on 15^th October 2018 and said that he had signed a document sent to him by the police, who had not allowed him to have a lawyer, and which he signed under threat in this way:-

"INTERPRETER:          And they told me to, that it gonna be better for me if I'll sign the papers and then, if I'll agree to what's written in the papers and I will signed, everything's gonna be closed and dealt with really quickly and they have, they have promised that for both of the convictions I'll, Ill be given, there'll be only one, one, one court hearing and I'll be given maximum two years' imprisonment if."

47.      He went on to say that he was never invited to the Polish court and never had a chance to say anything in respect of either conviction.  He didn't understand the whole concept, and didn't agree to anything.  He thought he would be given a lawyer who would help him, but that didn't happen.  At that stage of the hearing before the Assistant Magistrate, the prosecution did not have available the relevant documents signed by the appellant to put to him.  The documents were subsequently provided under cover of a letter from District Judge Joanna Herman of the District Court in Szczytno, dated 26^th November, 2018.  That letter and its enclosures were not put to the appellant at the adjourned hearing on 6^th December, 2018, and following submissions the Assistant Magistrate made these findings:-

"58     The information from District Judge Herman was that letters would have been sent notifying Mr Burdynski of the relevant Court dates but as there was no evidence to prove this beyond reasonable doubt I did not find that Mr Burdynski deliberately absented himself (Article 22(3)).

59       The next step is Article 22(5), to decide whether the person would be entitled to a retrial or (on appeal) a review amounting to a retrial.  Article 22(9) sets out the criteria to be established, albeit that it confusingly refers to Articles 22(7) and (8).

60       No evidence was adduced as to Article 22(9), thus prima facie Article 22(5) would not be satisfied.  That would, however, be an absurd result in circumstances where the Relevant Convictions are not challenged and where the sentence imposed in the Cumulative Judgment has in fact been appealed, albeit unsuccessfully.  Mr Burdynski was of course present through counsel at both of those hearings and it was in the Cumulative Judgment that the sentence of two years' detention was imposed.  Article 22 is a protective measure to ensure that the interests of justice are met.  The terms of Article 22(9) have other parallels with Article 6.3 of the Convention Rights in Schedule 1 of the Human Rights (Jersey) Law 2000.  In this respect I refer again to the words of Lord Brown in Gomes.

6.1      It cannot have been the intention of the legislature to prevent the extradition of a person to a council of Europe country who has admitted the relevant offending, simply because no evidence has been adduced regarding the manner of a retrial that they do not seek.  I was therefore satisfied that Mr Burdynski should not be discharged under Article 22 and I proceeded under Article 24 (relating to human rights)."

48.      The reference by the Assistant Magistrate to Gomes is to the case of Gomes v Government of Trinidad and Tobago [2009] UKHL 21, where Lord Bryan said this at paragraph 35:-

".... present no problem.  All (Council of Europe) countries are subject to article 6 of the Convention and should readily be assumed capable of protecting an accused against an unjust trial".

49.      Advocate Garrood argued that having found under Article 22(3) that the appellant had not deliberately absented himself from the trial, in the absence of any evidence pursuant to Article 22(5) that he would be entitled to a retrial or (on appeal) to a review amounting to a retrial, the Assistant Magistrate was mandated under Article 22(6) to discharge the appellant.  He had construed Article 22 in a manner which meant he could disregard Articles 22(5) to (9) entirely.  That was not sustainable, and could not be supported.  The relevant articles were clear and cogent, and there was no need to construe any part of that article.  The provisions were mandatory.

50.      On the face of it there is a finding of fact on the part of the Assistant Magistrate, pursuant to Article 22(3), that the appellant did not deliberately absent himself from the trials, and ordinarily, such a finding should be respected, but there are considerable difficulties with it.  The finding is not premised upon the evidence of the appellant, to which no reference is made, but entirely upon the letter from District Judge Herman that letters "would have been sent" to the appellant, notifying him of the relevant court dates.  He found that the use of the word "would" was not sufficiently certain to put the matter beyond reasonable doubt.

51.      When you look at the letter, however, it goes much further than this.  We set out that part which deals with Case 55/05:-

"1)       Regarding the case of the District Court in Pisz, case file ref. II K 55/05:]Dariusz Burdynski in this case was not represented  by a legal counsel, he did not file a request for a court-appointed defence counsel and did not provide circumstances which could justify the assignment of a court-appointed defence counsel.

On 15 March 2005 at the Police Station in Ruciane Nida, in the course of preparatory proceedings, Dariusz Burdynski who was interrogated as a suspect declared that he had been released from the detention centre on 11 March 2005, and pleaded guilty to having committed the offence, and provided explanations.  He requested to be convicted for the offence he was charged with and to have a penalty imposed on him in the amount of 1 year and 6 months of deprivation of liberty with conditional suspension of its service for a trial period of 4 years and to be placed under the supervision of a probation officer.  He filed his statement in the suspect interrogation report.  As the case files indicate, he submitted a handwritten statement under the report with the following wording:

'I have personally read the report and I confirm its accuracy with my handwritten signature.  I do not request to view the investigation file.  Dariusz Burdynski'. 

The interrogation report of the suspected individual Dariusz Burdynski includes also the notes of guidance regarding the contents of Article 335(1) and (2) of the Code of Criminal Procedure and a declaration of consent for the application of the article signed by the suspected individual Dariusz Burdynski as well as an additional declaration supplemented with his handwritten signature and stating:

'I hereby grant my consent to the following measures to be imposed on me without a court trial:

1)        One year and six months of deprivation of liberty with four years of suspension;

2)        Supervision of a probation officer;

3)        Exemption from the payment of legal costs and court fees.'

In line with the above request made by Dariusz Burdynski, the District Public Prosecutor [Prokurator Rejonowy] filed a motion to the District Court in Nidzica [Sad Rejonowy] to issue a conviction in a hearing without a trial pursuant to Article 335 of the Code of Criminal Procedure and to impose the penalty agreed upon with Dariusz Burdynski.

The accused was informed of the date of the hearing regarding the abovementioned motion at the address provided by Dariusz Burdynski in the suspect interrogation report.

The notice and an official copy of the public prosecutor's motion were served correctly and in line with the manner set out in Article 132(2) of the Code of Criminal Procedure.

Art. 132(1)       A writ shall be served personally upon the addressee.

and (2) If the addressee is temporarily absent from his place of residence, a writ shall be served upon an adult member of the household of the addressee.

The accused, despite having been notified of the date of the hearing, did not appear at the hearing, did not file a motion to have the hearing adjourned and did not provide a justification of his absence.  The failure of the accused individual who has been correctly notified of the date of the hearing to appear, in line with Article 335 of the Code of Criminal Procedure, does not constitute an obstacle to hold the hearing.  The accused individual had the right, not an obligation, to participate in the hearing, therefore his appearance was deemed effective.

The contents of Article 335(1) of the Code of Criminal Procedure and Article 343)(1), (5) and (6) of the Code of Criminal Procedure in force at the time of the decision in the case:

Article 335(1)  The public prosecutor may attach to the indictment a motion to convict the accused for an offence, subject to a penalty not exceeding 10 years of deprivation of liberty without conducting a trial and impose a penalty or a penal measure agreed on with the accused if circumstances surrounding the commission of the crime do not raise doubts, and the attitude of the accused indicates that the objectives of the proceedings will be achieved.

Article 343(1)  In the event of grating the motion referred to in Article 335, the Court may adopt an extraordinary mitigation of the penalty, suspend its service or order only a penal measure mentioned in Article 39, items 1-3, 5-8 of the Penal Code.

5.        The public prosecutor, the accused individual and the injured party may participate in the hearing.

6.        Upon granting the motion, the court shall convict the accused by a sentence.

The accused had the right to file an appeal against the abovementioned sentence.  The accused did not file an appeal against the sentence."

52.      This letter from District Judge Herman and the documents enclosed with it are receivable in evidence pursuant to Article 116 of the Extradition Law, because they have been duly authenticated by a judge of the designated territory, namely Poland.  In summary the letter from District Judge Herman confirmed that:-

(i)        The appellant admitted the offence to the police, and provided an explanation.

(ii)       The appellant agreed to the penalty of 1 year and 6 months deprivation of liberty suspended for four years under probation without the necessity of a trial.

(iii)      The appellant was informed of the date of the hearing, and the motion of the prosecutor was served upon him.

(iv)      The appellant did not attend the hearing "despite having been notified of the date of the hearing". 

(v)       The appellant did not exercise his right of appeal.

53.      A similar explanation is given in relation to Case 145/05.  District Judge Herman produced copies of the documents signed by the appellant, together with certified translations.  That documentation included this extract from the Suspect Interrogation Report giving the appellant's detailed explanation in relation to offence 55/05:-

"On 11^th March 2005 I left the Detention Centre in Szczytno and today I appeared at the Police Station in Ruciane Nida.  I plead guilty to an accusation presented to me on 03 March 2005 regarding the theft of an Audi 100 car in the area of Ruciane Nida.  I do not remember the date, but it happened in September 2004.  I took a bus to Ruciane Nida to commit a car burglary.  I wanted to take a radio from the car and sell it and to get some money for daily expenses.  In the evening I was walking around the housing estate.  At the car park in front of a block of flats there was a dark Audi car.  Now I do not remember whether the car had Polish or foreign registration plates.  I used a car key I had with me to open the driver's door. It was rather late at night.  I got into the car.  I put the car key into the ignition, I turned the key and the engine started.  I did not look for the radio in the car anymore.  I drove the car to Szczytno. I do not remember the names of villages I drove through to get to Szczytno as I do not know this region and I was in the neighbourhood for the first time in my life.  Early in the morning I got to Wielbark in the car.  I drove the car to Mr Marcin Sztof who lives in the forest.  I knew Mr Sztof as a few days before that I had hidden a Toyota car I had stolen in his barn.  I called Mr Sztof, he left the house, he opened the gate and the barn door and I parked the car in the barn.  As far as I know, after a few days this car and other ones were secured by the Police.  I do not remember what equipment there was in the car and I also do not remember what I took from the car.  I committed the car burglary and theft by myself.  With regard to the possibility of application of punitive measures I hereby voluntary submit myself to the penalty."

The document goes on to confirm that he requested a penalty of 1 year and 6 months deprivation of liberty with four years probation "without a trial". 

54.      This letter from District Judge Herman and these documents were not put to the appellant, and we gave consideration as to whether the matter should be returned to the Assistant Magistrate for that to be done and for the Assistant Magistrate to re-assess his finding of fact.  However, we took account of the following:-

(i)        Although the appellant was not represented at the Relevant Convictions, he was legally represented at the hearing which led to the Cumulative Judgment in which the sentences for the two offences were combined and at the unsuccessful appeal against that combined sentence.  No point was taken throughout this process about the validity of the two convictions.

(ii)       In evidence, the appellant gave a very equivocal answer as to whether he accepted any guilt in relation to the Relevant Convictions.  At the hearing, Advocate Garrood confirmed to us on instructions that there had been no miscarriage of justice in relation to the Relevant Convictions.  He subsequently rowed back somewhat from this by saying that the appellant admitted being involved in both offences, but not to being the instigator; this is somewhat inconsistent with the detailed explanation set out above

(iii)      The appellant has recently initiated proceedings in Poland seeking clemency in respect of the sentence for the Relevant Convictions, but no point was being taken in those proceedings about the convictions themselves.

(iv)      The Assistant Magistrate had made his finding of fact based entirely upon the evidence of District Judge Herman, and that makes it clear that the appellant was notified of the date of the hearings and that he had entered into a plea bargain which avoided the necessity of a trial.

55.      Furthermore, we accept Advocate Maletroit's submission that the question whether the appellant deliberately absented himself from the hearings is not simply dependent on notification of the time and date of the hearings.  A more purposive construction to Article 22(3) should be applied.

56.      In Tyrakowski v Poland [2017] EWHC 2675 (Admin), Mr Justice Knowles commented on the rationale of section 20 of the Extradition Act 2003 (the UK equivalent to Article 22 of the Extradition Law).

"16     Unlike in this jurisdiction, where trials in absentia are comparatively rare, in many other jurisdictions they are not.  However, proceeding to a trial in the absence of a defendant carries with it a risk of injustice.  It is obviously unjust to imprison a defendant on the basis of a conviction obtained in his absence at a trial he could not have attended because he did not know about it.  Indeed in Othman v united Kingdom [2002] 55 EHRR 1, para 259, the European Court of Human Rights cited such a situation as being a rare example of a 'flagrant denial of justice' which would be sufficient to bar extradition under Article 6 of the European Convention on Human Rights ('The ECHR').

17       Section 20 of the EA 2003 is intended to ensure that a defendant in extradition proceedings who has been convicted in his or her absence but who did not have an opportunity to appear at his/her trial is not extradited unless s/he is guaranteed a fair trial in his presence in the Category 1 requesting state.  The judge is required to proceed under s 20 if the defendant is alleged to be unlawfully at large after conviction of an extradition offence (s 11(45)).  The effect of a s 20 is that if a defendant was convicted in his or her absence and if s/he did not deliberately absent himself or herself from his trial, and if s/he would not be entitled to a re-trial or, on appeal, a review amounting to a re-trial, then the court must discharge him or her.

...

19       Hence, the first question for the judge to consider is whether the defendant deliberately absented himself from the trial.  If s/he did so, then that is the end of the enquiry under s 20.  Section 20(4) reflects the fact it is not unfair to extradite someone for the enforcement of a sentence against them if the court is sure s/he has chosen not to attend their trial through voluntary choice.  That is the position under English law in relation to domestic criminal trials..."

57.      Article 22 of the Extradition Law is a safeguard based on the right to a fair trial under Article 6 of the European Convention on human Rights ('ECHR').  Article 6 of the ECHR requires an unequivocal waiver of the right to attend one's trial before a court is entitled to proceed in absentia (Colozza v Italy [1985] 7 EHRR 516.  Moreover, a defendant can only waive his right to trial where with knowledge of a forthcoming trial he voluntarily absents himself (R v Jones [2003] 1 AC 1.)  To waive an important right under Article 6 it must be shown that the defendant could have reasonably foreseen what the consequences of his conduct would be and that there is an unequivocal and intentional waiver of those rights (Jones  United Kingdom [2003] 37 EHRR CD 169, 278-279).

58.      In Podlas v Poland [2015] EWHC 980 (Admin), Aikens LJ reviewed the domestic authorities concerning the meaning of the phrase 'deliberately absented himself from his trial'.

"In our view the correct position is as follows: first, section 20(3) cannot be construed in the light of the 2009 Framework Decision, ...

Secondly, it is clearly established by Calderelli and Atkinson & Bennington that what constitutes 'the trial' for the purposes of section 20(3) is a question of fact and that in many Member States, 'the trial' is a process, not just a single hearing.  We think we must follow that approach.  Thirdly, however, we accept that, upon its correct construction, section 20(3) can only become relevant when, in accordance with the procedures of the relevant requesting state, a 'trial process' has been initiated against the requested person.  Whether this 'trial process' has been initiated will be a question of fact in each case.  Fourthly, given the terms of section 2206 of the EA, it must be for the JA to prove to the criminal standard, that the requested person has absented himself from this 'trial process' and that he has done so deliberately.  How the requested person knows of the process if irrelevant; it is the fact of his knowledge of the process that counts.  Fifthly, whether a requested person has absented himself from the trial process 'deliberately' calls for a consideration of what is in the mind of that person: see Atkinson & Binnington at [40] per Maurice Kay LJ.  A requested person cannot have 'deliberately' absented himself from a 'trial process' if he did not know that that process is taking place or is about to be started.  Sixthly, we agree with Mitting J that proof of the fact that the requested person had taken steps which made it difficult or impossible for the prosecuting authorities of the requesting state to serve the requested person with documents which would have notified him of the fact, date and place of the trial or, we would add, the start of the 'trial process', is not of itself proof that the requested person has 'deliberately absented himself from his trial' for the purposes of section 20(3)."

59.      In the instant case, the evidence for District Judge Herman shows that the appellant knew full well that there would be hearings at which the prosecutors would file motions to formalise the plea bargain arrangements.  This followed his guilty plea in each case, and his requests for the agreed penalties to be imposed without a trial.  In agreeing these plea bargain arrangements, the appellant opted not to challenge the evidence against him.

60.      The appellant's failure to attend at these hearings, having been duly notified of when they would take place as confirmed by District Judge Herman, was an unequivocal and intentional waiver by the appellant of his right to attend.  Having regard to his state of mind following his agreement of the plea bargain arrangements, the obvious inference is that his "absence" was deliberate.

61.      We conclude that the Assistant Magistrate should have decided the question differently, namely that the appellant had deliberately absented himself from the trial, in which event he would have proceeded directly as mandated to Article 24 of the Extradition Law which is in these terms:-

"24     Consideration of human rights

(1)       If the Magistrate is required by any of Articles 21, 22 or 23 to proceed under this Article, the Magistrate shall decide whether the person's extradition would be compatible with the Convention rights within the meaning of the Human Rights (Jersey) Law 2000.

(2)       If the Magistrate decides in the negative the question in paragraph (1), the Magistrate shall order that the person be discharged.

(3)       If the Magistrate decides that question in the affirmative, the Magistrate shall send the case to the Attorney General for the latter's decision as to whether the person is to be extradited."

62.      The Assistant Magistrate found that the appellant's extradition would be compatible with his Convention Rights and no appeal is brought against his findings in this respect.

63.      We observe, in passing, that the Assistant Magistrate did, in fact, have evidence before him as to the appellant's entitlement to a re-trial in the letter from District Judge Herman, from which we conclude that it would not now be open to the appellant to challenge his convictions, which is unsurprising.

64.      Advocate Garrood suggested that it was not open to the respondent to argue against the decision of the Assistant Magistrate in relation to Article 22(3), because it had not exercised its right of appeal under Article 40, which provides under Article 40(1) that "A person may appeal ...." which, he said, would include the respondent.   Whilst we doubt that interpretation, we do not accept that once the case is before us, we are constrained in that way. As Sedley LJ said in Wiejak v Court of Poland, the issues are at large before us.  We do disagree with the Assistant Magistrate's decision in respect of Article 22(3) of the Extradition Law but, applying Article 41(3), if the Assistant Magistrate had decided the question in the way we say it ought to have been decided, he would not have been required to discharge the appellant. In other words the outcome is the same and the appeal fails. 

65.      Whilst we have some sympathy with the appellant, who has been well settled in Jersey now for some nine years, it is for the Polish courts, not this Court, to decide how he is to serve the remainder of his sentence. 

66.      There are no bars to his extradition, which is compatible with his Convention rights, and we are mindful of the strong public interest in his being returned. As Lord Phillips said in Norris v Government of the United States of America [2010] UKSC 9:-

 "It is of critical importance in the prevention of disorder and crime that those reasonably suspected of crime are prosecuted and, if found guilty, duly sentenced.  Extradition is part of the process for ensuring that this occurs, on a basis of international reciprocity."

67.       Lord Collins said at paragraph 127:-

 "It hardly needs to be said that there is a strong public interest in international cooperation for the prevention and punishment of crime"

68.      Lady Hale said in the case of ZH (Tanzania) v Secretary of State for the Home Department [2011] UKSC 4 at paragraph 8:-

"There is a constant and weighty public interest in extradition; that people accused of crime should be brought to trial; that people convicted of crime should serve their sentences; that the United Kingdom should honour its Treaty obligations to other countries; and that there should be no 'safe havens', to which either can flee in the belief that they will not be sent back."

69.      For all these reasons, the appeal is dismissed. We note that pursuant to Article 30 of the Extradition Law the Attorney General has already decided that, subject to this appeal, the appellant should be extradited.

Authorities

Extradition (Jersey) Law 2004. 

De Figueiredo v Commonwealth of Australia [2010] JLR 376. 

Mariusz Artur Wiejak v Olsztyn Circuit Court of Poland [2007] EWHC 2123. 

Road Traffic (Jersey) Law 1956. 

Criminal Justice (Young Offenders) (Jersey) Law 2014. 

AG v Bouhsine [1992] JLR Note 13a. 

Gomes v Government of Trinidad and Tobago [2009] UKHL 21. 

Tyrakowski v Poland [2017] EWHC 2675 (Admin). 

Colozza v Italy [1985] 7 EHRR 516. 

R v Jones [2003] 1 AC 1. 

Jones United Kingdom [2003] 37 EHRR CD 169. 

Podlas v Poland [2015] EWHC 980 (Admin) 

Norris v Government of the United States of America [2010] UKSC 9. 

ZH (Tanzania) v Secretary of State for the Home Department [2011] UKSC 4.