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JUDGMENT
Konecny (Appellant) v District Court in BrnoVenkov, Czech Republic (Respondent)
before
Lord Kerr
Lord Hodge
Lady Black
Lord Lloyd-Jones
Lord Kitchin
JUDGMENT GIVEN ON
27 February 2019
Heard on 6 December 2018
Appellant Respondent
Mark Summers QC John Hardy QC
Benjamin Seifert Jonathan Swain
(Instructed by Freemans
) (Instructed by CPS
Appeals and Review Unit
)
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LORD LLOYD-JONES: (with whom Lord Kerr, Lord Hodge, Lady Black
and Lord Kitchin agree)
History of proceedings
1. On 12 May 2008, Mr Karel Konecny (“the appellant”), a Czech national, was
convicted in his absence by the District Court in Brno-Venkov, Czech Republic
(“the District Court”) of three offences of fraud, committed between November
2004 and March 2005, and was sentenced to eight years’ imprisonment. It was
alleged that the three offences concerned a total sum of approximately £120,000.
2. The extradition of the appellant has been requested by the District Court by
a European Arrest Warrant (“EAW”) dated 17 April 2013 pursuant to the European
Council Framework Decision of 13 June 2002 on the European Arrest Warrant and
the Surrender Procedures between member states (2002/584/JHA) (“the Framework
Decision”). The Czech Republic is a designated Category 1 territory pursuant to
section 1 of the Extradition Act 2003 (“the 2003 Act”), by the Extradition Act 2003
(Designation of Part 1 Territories) Order 2003 (SI 2003/3333), as amended by the
Extradition Act 2003 (Amendment to Designations) Order 2004 (SI 2004/1898).
Part 1 of the 2003 Act, as amended, applies in this case. The EAW states that it is
based on an enforceable judgment, namely the judgment of the District Court dated
12 May 2008, confirmed by the resolution of the Regional Court in Brno dated 23
July 2008.
3. The EAW specifies that the appellant will be afforded an unqualified right to
be re-tried upon return in the event that he makes an application to be re-tried. A
letter from the District Court dated 17 March 2017 confirms that:
(1) The appellant was never arrested in connection with the offences;
(2) He was never questioned in connection with the offences;
(3) He was never informed that he had been sought for questioning; and
(4) He was never subject to a restriction from leaving the Czech Republic.
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4. The EAW was submitted to, and received by, the National Crime Agency
(“NCA”), an authority designated by the Secretary of State for the purposes of Part
1 of the 2003 Act. On 2 March 2017 the EAW was certified by the NCA under
sections 2(7) and (8) of the 2003 Act. The appellant was arrested pursuant to section
3 of the 2003 Act on 2 March 2017. The initial hearing took place at Westminster
Magistrates’ Court pursuant to section 4 of the 2003 Act. The appellant was
remanded in custody to the extradition hearing.
5. The extradition hearing took place before District Judge Ashworth at
Westminster Magistrates’ Court on 10 April 2017. One of the issues raised was
whether, under section 14 of the 2003 Act, extradition would be oppressive or unjust
given the passage of time since the offences. In reliance on section 14(a) of the 2003
Act, the appellant argued that he was an accused person facing a prospective trial
and that it would be unjust and oppressive to order his extradition taking into account
the delay since 2004 and events and changes in his personal circumstances within
that period. The appellant also maintained that his extradition would infringe his
rights under article 8 of the European Convention on Human Rights (“ECHR”).
6. In his judgment dated 24 April 2017 District Judge Ashworth ruled that it
was the conviction provisions in section 14(b) which were the operative provisions
and that, as a result, the passage of time to be considered under section 11(1)(c) and
section 14 was restricted to the period from 12 May 2008 (the date of conviction by
the District Court) onwards. He concluded that the circumstances of the delay did
not justify a finding that it would be unjust or oppressive to return the appellant to
the Czech Republic. He went on to consider whether the return of the appellant
would infringe the appellant’s article 8 rights and, in that context, considered the
delay since the offences were committed. He, nevertheless, concluded that the public
interest factors in favour of extradition outweighed the considerations relating to the
appellant’s family and private life, even when the delay was taken into account. The
appellant’s surrender to the Czech Republic was ordered pursuant to section 21(3)
of the 2003 Act.
7. The appellant sought to appeal against the order for his extradition. On 21
June 2017 Collins J granted permission to appeal. On 27 September 2017 Sir Wyn
Williams, sitting as a judge of the High Court, upheld the District Judge’s ruling that
it was the conviction provisions of section 14(b) which were applicable, with the
result that the passage of time to be considered under section 11(1)(c) and section
14 was restricted to the period since conviction on 12 May 2008. The judge
concluded that the extradition of the appellant would not be unjust or oppressive. He
did, however, address the issue of delay further in the context of the article 8
challenge. He noted that the District Judge was fully aware of the very long delay
between the offending and the hearing before him. Sir Wyn considered that the delay
which had occurred was a powerful factor militating against extradition. However,
he could not conclude that the District Judge’s decision on the article 8 issue could
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be said to be wrong. Accordingly, he dismissed the appeal pursuant to section
27(1)(b) of the 2003 Act.
8. On 7 November 2017 the High Court certified the following point of law of
general public importance:
“In circumstances where an individual has been convicted, but
that conviction is not final because he has an unequivocal right
to a retrial after surrender, is he ‘accused’ pursuant to section
14(a) of the 2003 Act, or ‘unlawfully at large’ pursuant to
section 14(b) for the purposes of considering the ‘passage of
time’ bar to surrender?”
On the same date the High Court refused permission to appeal to the Supreme Court.
9. On 23 March 2018 the Supreme Court (Lord Mance, Lord Hughes and Lady
Black) granted permission to appeal to the Supreme Court.
The relevant legislation
10. The European Union system for the surrender of a requested person for the
purposes of conducting a criminal prosecution or executing a custodial sentence or
detention order is established by the Framework Decision as amended. The recitals
in the preamble make clear that its objective is to abolish extradition between
member states and replace it by a system of surrender between judicial authorities.
It was intended that the introduction of a new simplified system of surrender of
sentenced or suspected persons for the purposes of execution or prosecution should
make it possible to remove the complexity and potential for delay inherent in
previous extradition procedures (recital (5)). The mechanism of the EAW is based
on a high level of confidence between member states (recital (10)). In relations
between member states the EAW was intended to replace all the previous
instruments concerning extradition (recital (11)).
11. Article 1 of the Framework Decision provides in relevant part:
“Article 1
Definition of the European arrest warrant and obligation
to execute it
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1. The European arrest warrant is a judicial decision issued
by a member state with a view to the arrest and surrender by
another member state of a requested person, for the purposes of
conducting a criminal prosecution or executing a custodial
sentence or detention order.
2. Member states shall execute any European arrest
warrant on the basis of the principle of mutual recognition and
in accordance with the provisions of this Framework Decision.
…”
Article 3 sets out grounds for mandatory non-execution of an EAW and article 4 sets
out grounds for optional non-execution.
Article 8 provides in relevant part:
“Article 8
Content and form of the European arrest warrant
1. The European arrest warrant shall contain the following
information set out in accordance with the form contained in
the Annex:
…
(c) evidence of an enforceable judgment, an arrest
warrant or any other enforceable judicial decision
having the same effect, coming within the scope of
articles 1 and 2;
…
(f) the penalty imposed, if there is a final judgment,
or the prescribed scale of penalties for the offence under
the law of the issuing member state; …”
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12. Council Framework Decision 2009/299/JHA of 26 February 2009 amends
the Framework Decision. Its full title states that its purpose is “enhancing the
procedural rights of persons and fostering the application of the principle of mutual
recognition to decisions rendered in the absence of the person concerned at the trial”.
Recital (6) of the Preamble states:
“(6) The provisions of this Framework Decision amending
other Framework Decisions set conditions under which the
recognition and execution of a decision rendered following a
trial at which the person concerned did not appear in person
should not be refused. These are alternative conditions; when
one of the conditions is satisfied, the issuing authority, by
completing the corresponding section of the European arrest
warrant or of the relevant certificate under the other Framework
Decisions, gives the assurance that the requirements have been
or will be met, which should be sufficient for the purpose of the
execution of the decision on the basis of the principle of mutual
recognition.”
It inserts article 4a into the Framework Decision which provides in relevant part:
“Article 4a
Decisions rendered following a trial at which the person did
not appear in person
1. The executing judicial authority may also refuse to
execute the European arrest warrant issued for the purpose of
executing a custodial sentence or a detention order if the person
did not appear in person at the trial resulting in the decision,
unless the European arrest warrant states that the person, in
accordance with further procedural requirements defined in the
national law of the issuing member state:
(a) in due time:
(i) either was summoned in person and
thereby informed of the scheduled date and place
of the trial which resulted in the decision, or by
other means actually received official
information of the scheduled date and place of
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that trial in such a manner that it was
unequivocally established that he or she was
aware of the scheduled trial;
and
(ii) was informed that a decision may be
handed down if he or she does not appear for
the trial;
or
(b) being aware of the scheduled trial, had given a
mandate to a legal counsellor, who was either appointed
by the person concerned or by the state, to defend him
or her at the trial, and was indeed defended by that
counsellor at the trial;
or
(c) after being served with the decision and being
expressly informed about the right to a retrial, or an
appeal, in which the person has the right to participate
and which allows the merits of the case, including fresh
evidence, to be re-examined, and which may lead to the
original decision being reversed:
(i) expressly stated that he or she does not
contest the decision;
or
(ii) did not request a retrial or appeal within
the applicable time frame;
or
(d) was not personally served with the decision but:
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(i) will be personally served with it without
delay after the surrender and will be expressly
informed of his or her right to a retrial, or an
appeal, in which the person has the right to
participate and which allows the merits of the
case, including fresh evidence, to be reexamined, and which may lead to the original
decision being reversed;
and
(ii) will be informed of the time frame within
which he or she has to request such a retrial or
appeal, as mentioned in the relevant European
arrest warrant. …”
Article 2(3) of Council Framework Decision 2009/299/JHA of 26 February 2009
sets out the amended requirements of the information to be included in an EAW in
such a case.
13. The Framework Decision as amended is implemented in the United Kingdom
by Part 1 of the Extradition Act 2003 as amended.
14. Section 2 provides in relevant part:
“2. Part 1 warrant and certificate
(1) This section applies if the designated authority
receives a Part 1 warrant in respect of a person.
(2) A Part 1 warrant is an arrest warrant which is
issued by a judicial authority of a category 1 territory
and which contains –
(a) the statement referred to in subsection (3)
and the information referred to in subsection (4),
or
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(b) the statement referred to in subsection (5)
and the information referred to in subsection (6).
(3) The statement is one that –
(a) the person in respect of whom the Part 1
warrant is issued is accused in the category 1
territory of the commission of an offence
specified in the warrant, and
(b) the Part 1 warrant is issued with a view to
his arrest and extradition to the category 1
territory for the purpose of being prosecuted for
the offence.
(4) …
(5) The statement is one that –
(a) the person in respect of whom the Part 1
warrant is issued has been convicted of an
offence specified in the warrant by a court in the
category 1 territory, and
(b) the Part 1 warrant is issued with a view to
his arrest and extradition to the category 1
territory for the purpose of being sentenced for
the offence or of serving a sentence of
imprisonment or another form of detention
imposed in respect of the offence.
…”
Section 10 provides:
“10. Initial stage of extradition hearing
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(1)(1) This section applies if a person in respect of
whom a Part 1 warrant is issued appears or is brought
before the appropriate judge for the extradition hearing.
(2) The judge must decide whether the offence
specified in the Part 1 warrant is an extradition offence.
(3) If the judge decides the question in subsection (2)
in the negative he must order the person’s discharge.
(4) If the judge decides that question in the
affirmative he must proceed under section 11.”
Section 11 provides in relevant part:
“11. Bars to extradition
(1) If the judge is required to proceed under this
section he must decide whether the person’s extradition
to the category 1 territory is barred by reason of –
…
(c) the passage of time;
…
(2) Sections 12 to 19F apply for the interpretation of
subsection (1).
(3) If the judge decides any of the questions in
subsection (1) in the affirmative he must order the
person’s discharge.
(4) If the judge decides those questions in the
negative and the person is alleged to be unlawfully at
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large after conviction of the extradition offence, the
judge must proceed under section 20.
(5) If the judge decides those questions in the
negative and the person is accused of the commission of
the extradition offence but is not alleged to be
unlawfully at large after conviction of it, the judge must
proceed under section 21A.”
Section 14 provides:
“14. Passage of time
A person’s extradition to a category 1 territory is barred by
reason of the passage of time if (and only if) it appears that it
would be unjust or oppressive to extradite him by reason of the
passage of time since he is alleged to have –
(a) committed the extradition offence (where he is
accused of its commission), or
(b) become unlawfully at large (where he is alleged
to have been convicted of it).”
Section 20 provides:
“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.
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(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.”
Section 21 provides in relevant part:
“21. Person unlawfully at large: human rights
(1) 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
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Convention rights within the meaning of the Human
Rights Act 1998 (c 42).
(2) If the judge decides the question in subsection (1)
in the negative he must order the person’s discharge.
(3) If the judge decides that question in the
affirmative he must order the person to be extradited to
the category 1 territory in which the warrant was issued.
…”
Section 21A provides in relevant part:
“21A Person not convicted: human rights and
proportionality
(1) If the judge is required to proceed under this
section (by virtue of section 11), the judge must decide
both of the following questions in respect of the
extradition of the person (‘D’) –
(a) whether the extradition would be
compatible with the Convention rights within the
meaning of the Human Rights Act 1998;
(b) whether the extradition would be
disproportionate.
(2) In deciding whether the extradition would be
disproportionate, the judge must take into account the
specified matters relating to proportionality (so far as
the judge thinks it appropriate to do so); but the judge
must not take any other matters into account.
(3) These are the specified matters relating to
proportionality –
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(a) the seriousness of the conduct alleged to
constitute the extradition offence;
(b) the likely penalty that would be imposed
if D was found guilty of the extradition offence;
(c) the possibility of the relevant foreign
authorities taking measures that would be less
coercive than the extradition of D.
(4) The judge must order D’s discharge if the judge
makes one or both of these decisions –
(a) that the extradition would not be
compatible with the Convention rights;
(b) that the extradition would be
disproportionate.
(5) The judge must order D to be extradited to the
category 1 territory in which the warrant was issued if
the judge makes both of these decisions –
(a) that the extradition would be compatible
with the Convention rights;
(b) that the extradition would not be
disproportionate. …”
Section 68A provides:
“68A. Unlawfully at large
(1) A person is alleged to be unlawfully at large after
conviction of an offence if –
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(a) he is alleged to have been convicted of it,
and
(b) his extradition is sought for the purpose of
his being sentenced for the offence or of his
serving a sentence of imprisonment or another
form of detention imposed in respect of the
offence.
(2) This section applies for the purposes of this Part,
other than sections 14 and 63.”
The EAW
15. The EAW in this case was issued by the District Court on 17 April 2013. It
states that it is based on an enforceable judgment, namely the judgment of the
District Court dated 12 May 2008, confirmed by the resolution of the Regional Court
in Brno dated 23 July 2008. It states that the length of the custodial sentence imposed
was eight years. In compliance with article 4a of the Framework Decision as
amended it states in Box (d) that the decision was reached in absentia and that the
person concerned has not been summoned in person or otherwise informed of the
date and place of the hearing which led to the decision rendered in absentia.
However, it specifies legal guarantees as follows:
“After surrendering, the convict will have the right for a new
process in his presence. Such right is ensured by the provisions
of section 306a para 2 of the Code of Criminal Procedure. The
provisions of section 306a para 2 of the Code of Criminal
Procedure say:
Section 306a
(1) If reasons for the proceedings against the escaped
person cease, it will be proceeded in the criminal procedure
based on general provisions. If the defendant requires so, the
evidence already given in the previous court proceedings, the
nature of which allows so or the repetition of which are not
hindered by any significant fact, shall be given again in the
proceedings in front of the court. Otherwise the protocols on
giving of such evidence will be read out to the defendant or the
video and audio recordings made on the acts made via
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videoconference facilities shall be played to him and he will be
allowed to make his statement on them.
(2) If the proceedings against the escaped person were
ended by a legally effective conviction and subsequently the
reasons ceased, for which the proceedings were lead against the
escaped person; based on the application of the convict filed
within eight days as of the delivery of the conviction, the court
of the first degree shall revoke such a conviction and the main
hearing will be done repeatedly, in the scope stipulated under
para 1. The convict must receive instructions on the right to file
an application for revocation of the legally effective conviction
when the conviction is delivered. The court reasonably
proceeds if it is required by an international treaty by which the
Czech Republic is bound.
(3) The period from the legal effectiveness of the conviction
until its revocation pursuant to para 2 shall not be counted in
the statute of limitations.
(4) In the new proceedings there cannot be any change in
the resolution to the disadvantage of the defendant.”
The EAW then sets out a description of each of the three offences of fraud of which
the appellant was convicted.
Accusation warrants and conviction warrants
16. Part 1 of the 2003 Act gives effect in national law to the Framework Decision
as amended. The choice of form and methods to achieve that result is left to member
states. In this instance, the United Kingdom has departed significantly from a direct
implementation of the scheme of the Framework Decision. The provisions of Part 1
of the 2003 Act must, nevertheless, be interpreted as intended to give effect to the
Framework Decision and, so far as possible, construed consistently with its terms
and purpose. (Criminal proceedings against Pupino (Case C-105/03) [2006] QB 83,
paras 43, 47; Office of the King’s Prosecutor, Brussels v Cando Armas [2005]
UKHL 67; [2006] 2 AC 1 per Lord Bingham at para 8; Dabas v High Court of
Justice in Madrid, Spain [2007] UKHL 6; [2007] 2 AC 31 per Lord Hope at para
25; Caldarelli v Judge for Preliminary Investigations of the Court of Naples, Italy
[2008] UKHL 51; [2008] 1 WLR 1724 per Lord Bingham at para 22, per Lord
Mance at para 42.)
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17. The Framework Decision defines the EAW as a judicial decision issued by a
member state with a view to the arrest and surrender by another member state of a
requested person for the purposes of conducting a criminal prosecution (an
accusation warrant) or executing a custodial sentence or detention order (a
conviction warrant) (article 1(1)). In general, the Framework Decision deals with
accusation and conviction cases together although the respective formal
requirements of the two types of warrant differ. The 2003 Act distinguishes between
an accusation warrant (section 2(3) and (4)) and a conviction warrant (section 2(5)
and (6)). This distinction is particularly pronounced under the 2003 Act because not
only do the formal requirements of the respective warrants differ but the statute also
sets out separate routes which must be followed in those respective cases. On the
face of the Act’s provisions, the judge at the extradition hearing must initially in
both cases decide under section 10 whether the offence specified in the Part 1
warrant is an extradition offence. If it is, he must then consider whether extradition
is barred by any of the matters set out in section 11. Most of the bars apply equally
to accusation and conviction warrants but two (“absence of prosecution decision”
and “forum”) apply only to accusation warrants. The bar arising by reason of the
passage of time is amplified in section 14 which draws an important distinction
between an accused person (where the relevant period will be the passage of time
since he is alleged to have committed the extradition offence) and a convicted person
(where the relevant period will be the passage of time since he is alleged to have
become unlawfully at large). If extradition is not barred, the different routes diverge
further at this point. The statute provides that if the person is alleged to be unlawfully
at large after conviction of the extradition offence the judge must proceed under
section 20 (section 11(4)). Under section 20, the court must be satisfied that, where
the person has been convicted, he was convicted in his presence, or he deliberately
absented himself from his trial, or he would be entitled to a retrial or (on appeal) to
a review amounting to a retrial. If section 20 is satisfied the judge must proceed
under section 21 which addresses the compatibility of the person’s extradition with
Convention rights under the Human Rights Act 1998 (“HRA 1998”). By contrast, if
the person is accused of the commission of the extradition offence but is not alleged
to be unlawfully at large after conviction of it, section 11(5) directs that the judge
must proceed under section 21A. Section 21A is discrete from section 21 and
requires the judge to address both Convention rights under the 1998 Act and the
issue of proportionality.
18. At the heart of the present appeal lies the issue of the characterisation of the
appellant as an accused person or a convicted person. The application in an
individual case of the distinction drawn by the Framework Decision between these
two cases may often be far from straightforward given the inevitable differences in
criminal procedure among member states. However, the EAW system is founded on
the high level of mutual trust and confidence between member states and, as a result,
in seeking to give effect to this distinction when applying implementing legislation,
a national court will usually attach considerable weight to the description by the
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requesting judicial authority in the EAW of the position in its own national law. In
Caldarelli Lord Bingham expressed the matter in this way:
“Under article 1 of the Framework Decision the EAW is a
judicial decision issued by the requesting state which (by article
2) this country (subject to the provisions of the Decision) must
execute on the basis of the principle of mutual recognition. It
might in some circumstances be necessary to question
statements made in the EAW by the foreign judge who issues
it, even where the judge is duly authorised to issue such
warrants in his category 1 territory, but ordinarily statements
made by the foreign judge in the EAW, being a judicial
decision, will be taken as accurately describing the procedures
under the system of law he or she is appointed to administer.”
(para 24)
Similarly, in Istanek v District Court of Prerov [2011] EWHC 1498 (Admin) Laws
LJ, observed:
“The statement of information, having its source in the judicial
authority in the requesting state, is ordinarily in our courts to
be taken at face value. It may exceptionally be appropriate to
initiate further inquiry of the requesting state’s authorities.”
(para 25)
The view of the requesting judicial authority expressed in the EAW will, therefore,
not always be conclusive. However, it will normally be influential and, in the
absence of evidence to the contrary, it is likely to be followed. (See the discussion
in Caldarelli, per Lord Mance at para 42.)
The appellant’s case
19. On behalf of the appellant, Mr Mark Summers QC submits that the category
of convicted persons is limited to persons who are finally convicted and that all other
persons are to be treated as accused. He further submits that, while the content of
the EAW in the present case would satisfy the requirements of either an accusation
warrant or a conviction warrant under section 2 of the 2003 Act, the appellant,
despite manifestly not being finally convicted, was treated as a convicted rather than
an accused person for the purpose of his extradition proceedings and that this
radically changed the substantive content and course of those proceedings. In
particular, he points to the following consequences:
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(1) The appellant’s EAW was measured against the less exacting
conviction requirements of section 2(5)-(6) of the 2003 Act as opposed to the
accusation requirements of section 2(3)-(4).
(2) He was treated as being “unlawfully at large” from that conviction
rather than still “accused” of the offences, for the purposes of the passage of
time assessment under section 14. Mr Summers submits that, as a result,
consideration of delay prior to conviction and consideration of injustice were
precluded.
20. Mr Summers seeks to advance his case on two distinct bases. First, he submits
that, as a matter of EU law, the appellant is required to be categorised as a person
whose return is sought “for the purposes of conducting a criminal prosecution”
within article 1(1) of the Framework Decision. Secondly, he submits that, as a matter
of domestic law, the appellant is not to be categorised as “convicted” under the 2003
Act. These submissions will be considered in turn.
EU law
21. Mr Summers places at the forefront of his submissions on EU law the
decision of the CJEU in Proceedings concerning IB (Case C-306/09) [2011] 1 WLR
2227. IB, a Romanian national had been convicted of criminal offences in Romania
and sentenced to four years’ imprisonment to be served under a system of supervised
release. That sentence was upheld on appeal. However, on further appeal the
Supreme Court ordered that the sentence be served in custody. The decision of the
Supreme Court was rendered in absentia and IB was not notified of the date or place
of the hearing. The sentence was never executed. IB fled Romania and settled in
Belgium where he obtained a residence permit and was joined by his wife and
children. The Romanian requesting authority issued an EAW for his arrest with a
view to executing the sentence. At the relevant time, prior to Council Framework
Decision 2009/299/JHA, article 4(6) of the Framework Decision authorised the
executing judicial authority to refuse to execute the warrant “if the [EAW] has been
issued for the purposes of execution of a custodial sentence” where the person is
resident in the executing member state and that state undertakes to execute the
sentence in accordance with its domestic law. Article 5(1) provided that where the
EAW had been issued “for the purposes of executing a sentence” in absentia without
notice to the person concerned, surrender might be subject to a condition that the
issuing judicial authority give an assurance that the person will have an opportunity
to apply for a retrial. Article 5(3) provided that where a person whose return is
sought “for the purposes of prosecution” is a resident of the executing member state,
surrender may be subject to the condition that the person is returned to the executing
member state to serve there any sentence passed against him in the issuing member
state. Article 18 of the Belgian Law on Transfers, which governed the execution in
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Belgium of sentences imposed abroad, did not apply to sentences imposed in
absentia save in specified cases where the sentence had become final.
22. The Belgian Court of First Instance, Nivelles, found that under Romanian
procedural law, due to the fact that he had been sentenced in absentia, IB was
entitled to be retried. That court took the view that it was a warrant for the execution
of a sentence and that therefore there were no legal grounds for refusing execution
or making it conditional on the later return of IB to serve his sentence in Belgium.
It held that IB could not rely on the Belgian law implementing article 4(6) of the
Framework Decision because it only applied to final decisions and IB had the right
to request a retrial. The court referred the matter to the Belgian Constitutional Court
which, in turn, made a preliminary reference to the CJEU. Its first two questions
were as follows:
“(1) Is a European arrest warrant issued for the purposes of
the execution of a sentence imposed in absentia, without the
convicted person having been informed of the date and place
of the hearing, and against which that person still has a remedy,
to be considered to be, not an arrest warrant issued for the
purposes of the execution of a custodial sentence or detention
order within the meaning of article 4(6) of Framework Decision
[2002/584], but an arrest warrant for the purposes of
prosecution within the meaning of article 5(3) of the
Framework Decision?
(2) If the reply to the first question is in the negative, are
article 4(6) and article 5(3) of the Framework Decision to be
interpreted as not permitting the member states to make the
surrender to the judicial authorities of the issuing state of a
person residing on their territory who is the subject, in the
circumstances described in the first question, of an arrest
warrant for the purposes of the execution of a custodial
sentence or detention order, subject to a condition that that
person be returned to the executing state in order to serve there
the custodial sentence or detention order imposed by a final
judgment against that person in the issuing state?”
23. Mr Summers places particular reliance on the following passage in the
judgment of the CJEU in response to the first two questions:
“56. If the sentence imposed in absentia – which, in the case
in the main proceedings, provides the basis for the arrest
Page 21
warrant – is not yet enforceable, the surrender would serve the
specific purpose of enabling a criminal prosecution to be
conducted or the case to be retried, that is to say surrender
would be for the purposes of criminal prosecution which is the
situation envisaged by article 5(3) of Framework Decision
2002/584.
57. Given that the situation of a person who was sentenced
in absentia and to whom it is still open to apply for a retrial is
comparable to that of a person who is the subject of a European
arrest warrant for the purposes of prosecution, there is no
objective reason precluding an executing judicial authority
which has applied article 5(1) of Framework Decision
2002/584 from applying the condition contained in article 5(3)
of that framework decision.”
24. The CJEU concluded in relation to the first two questions:
“61 In the light of all of the foregoing considerations, the
answer to the first and second questions is that articles 4(6) and
5(3) of Framework Decision 2002/584 must be interpreted as
meaning that, where the executing member state has
implemented article 5(1) and article 5(3) of that Framework
Decision in its domestic legal system, the execution of a
European arrest warrant issued for the purposes of execution of
a sentence imposed in absentia within the meaning of article
5(1) of the Framework Decision, may be subject to the
condition that the person concerned, who is a national or
resident of the executing member state, should be returned to
the executing State in order, as the case may be, to serve there
the sentence passed against him, following a new trial
organised in his presence in the issuing member state.”
25. Mr Summers submits that this decision and, in particular, the passage at paras
56 and 57 establish that, in all cases where a person whose surrender is sought under
an EAW following conviction in absentia of which he had no notice and, as a result,
is entitled to a retrial, the EAW must be characterised as “for the purposes of
conducting a criminal prosecution” and not “for the purposes of … executing a
custodial sentence”. I am unable to accept this submission.
(1) The referring court expressly asked by its first question whether in
circumstances where there was a right of retrial the EAW should be treated
Page 22
not as a warrant for the purposes of the execution of a custodial sentence but
as a warrant for the purposes of prosecution. The CJEU did not answer that
question directly.
(2) Instead it stated that if the sentence imposed in absentia is not yet
enforceable the surrender would serve the purpose of enabling a criminal
prosecution to be conducted or the case to be retried and the surrender would
be for the purposes of criminal prosecution. It did not say that that
consequence followed if the sentence was enforceable but subject to an
application to set it aside.
(3) The CJEU then went on to say (at para 57) that the situation of a person
sentenced in absentia and who could apply for a retrial was comparable to
that of a person who was the subject of a prosecution warrant. On that basis,
it was able to conclude that there was no objective reason precluding an
executing judicial authority from applying the condition contained in article
5(3). The court was extending the application of article 5(3). It was not saying
that such a warrant was or was to be treated for all purposes as if it were a
prosecution warrant.
(4) The CJEU concluded (at para 57) that the condition contained in
article 5(3) could be applied by an executing judicial authority which had
applied article 5(1). The warrant must, therefore, have been “issued for the
purposes of executing a sentence or detention order”.
(5) Had the CJEU intended to draw the conclusion for which the appellant
contends, it would have effected a fundamental change in the operation of the
EAW scheme. I am confident that, had this been intended, such a
development would have been expressed by the court in the clearest terms
possible.
(6) I accept that there are certain passages in the opinion of Advocate
General Cruz Villalon which go some way to support the proposition for
which the appellant in this case contends. In particular, at paras 49-51 the
Advocate General considers that an EAW which allows the person sought to
be retried is formally a warrant for execution of a sentence which, once the
person states that he or she wishes to be retried, becomes in substance a
warrant for the purposes of prosecution. Accordingly, he says, entry into play
of article 5(1) changes the form of the arrest warrant but does not affect the
rights accorded to the person concerned under EU law. However, there is no
trace of such reasoning in the judgment of the court. Moreover, it is
inconsistent with the dichotomy between accusation warrants and conviction
Page 23
warrants established by the Framework Decision, a dichotomy which has
been maintained since the decision in IB.
26. When asked by the court during the course of his submissions whether there
was any other Luxembourg authority to support his submission, Mr Summers very
frankly accepted that there was no such direct authority. He did, however, refer the
court to Criminal proceedings against Tupikas (Case C-270/17PPU) [2017] 4 WLR
188. This case, it seems to me, is concerned with a different issue. There, the EAW
mentioned an enforceable judgment sentencing the defendant to a term of
imprisonment and further stated that he had unsuccessfully appealed against that
judgment. He had appeared in person at the trial at first instance but the EAW
provided no information as to whether he had appeared at the appeal hearing. The
CJEU held that where the criminal procedure of the issuing member state gives rise
to successive judicial decisions, at least one of which has been handed down in
absentia, the concept of “trial resulting in the decision” in article 4a(1) of the
Framework Decision must be interpreted as relating only to the instance at the end
of which the decision is handed down which finally rules on the guilt of the person
concerned and imposes a penalty on him, following a re-examination, in fact and in
law, of the merits of the case (at para 98). The decision was therefore concerned
with ascertaining which stage or stages of proceedings constitute the “trial resulting
in the decision” for the purposes of article 4a. Criminal proceedings against
Zdziaszek (Case C-271/17PPU) [2017] 4 WLR 189 addresses the same issue and
applies Tupikas. This is a distinct question from that before us, namely whether the
present case is to be treated as an accusation case or a conviction case. (I note that
the same conclusion was drawn by the Divisional Court (Treacy LJ and Males J) in
Attila Imre v District Court in Szolnok (Hungary) [2018] EWHC 218 (Admin), para
57.)
27. In particular, Tupikas and Zdziaszek do not support the proposition that for
an EAW to be issued for the purpose of executing a custodial sentence it must be a
final judgment of conviction in the sense that it is irrevocable. On the contrary, the
court in Tupikas observed:
“In that regard, it should be pointed out that although article
8(1)(c) of Framework Decision 2002/584 uses the terms
‘enforceable judgment’ or ‘any other enforceable judicial
decision having the same effect’ and although such
enforceability is decisive in determining the time from which a
European arrest warrant may be issued, that enforceability is of
lesser relevance under article 4a(1) of that Framework
Decision. However, it is appropriate to pay attention to the
‘final’ nature of the ‘decision’ or ‘judgment’ for the purposes
of interpreting article 4a(1), as is apparent from other relevant,
convergent provisions of the Framework Decision.” (para 71)
Page 24
I note that article 1(1) of the Framework Decision identifies the two categories of
warrant without including any reference to a final decision. The references in the
Preamble of the Framework Decision to abolishing the formal extradition procedure
“in respect of persons who are fleeing from justice after having been finally
sentenced” (recital 1) and “a system of free movement of judicial decisions in
criminal matters, covering both pre-sentence and final decisions” (recital 5) are
merely incidental. Article 8(f) does require that a warrant should state the penalty
imposed “if there is a final judgment”. By contrast, article 8(c) requires a warrant to
contain evidence of “an enforceable judgment” and “any other enforceable judicial
decision having the same effect”. We now have an authoritative statement from the
CJEU in Tupikas (para 71) that while it is appropriate to pay attention to the final
nature of the decision or judgment for the purposes of interpreting article 4a(1), it is
enforceability which is “decisive in determining the time from which a European
arrest warrant may be issued”. (See also, in this regard, IB at para 56.)
28. I have, accordingly, come to the clear conclusion that the appellant’s case
founded on EU law is not made out. In these circumstances, I would refuse the
application on behalf of the appellant, made during the oral hearing, to refer this
issue to the Court of Justice of the European Union for a preliminary ruling.
Domestic law
29. On behalf of the appellant it is submitted that, because he has a right to be
retried, he is required to be treated as an accused person for the purposes of Part 1
of the 2003 Act.
Contumacious convictions
30. Mr Summers submits that a conviction where a defendant has an unfettered
and unconditional right to have the conviction set aside and to obtain a retrial has
always been regarded, as a matter of English law, as a conviction in contumacy
(conviction par contumace) and not a final judgment. He submits that courts in this
jurisdiction have consistently held that the categorisation of such a case depended
upon a factual assessment of whether, upon return, the defendant would enjoy an
unqualified right to a retrial on the merits notwithstanding the conviction. If so, that
person’s extradition had to be sought as an accused person, the conviction being
contumacious. If not, the person’s extradition had to be sought as a convicted person.
In this regard we were referred to a large number of decisions concerning
contumacious convictions.
Page 25
31. It is clear that courts in this jurisdiction, applying legislation previously in
force, have been willing to treat a person convicted in his absence as an accused
person, provided that the whole matter can be reopened as of right in the event of
his subsequent surrender and appearance. (See, for example, R v Governor of
Pentonville Prison, Ex p Zezza [1983] 1 AC 46, per Lord Roskill at p 55D-E.) This
approach has also been reflected in the legislation itself. (See, for example, section
26 Extradition Act 1870; section 19(2), Fugitive Offenders Act 1967; Schedule 1,
paragraph 20 to the Extradition Act 1989.) However, the appellant’s reliance on
these authorities fails to take account of the fact that the EAW was intended to be a
new departure introducing a simplified scheme for the surrender of accused and
convicted persons. The Framework Decision sets out a relatively detailed scheme
which distinguishes between an accusation warrant and a conviction warrant without
giving any indication that a principle of contumacious convictions resembling that
developed in this jurisdiction was to play any part. On the contrary, provision was
made originally in article 5(1) and is now made by article 4a(1) for cases of
conviction in absentia without requiring or permitting a person with a right of retrial
to be dealt with under the scheme as an accused person. Indeed, the original article
5(1) contemplated that cases of conviction in absentia would be dealt with under a
conviction warrant, as does recital (13) in the Preamble to Framework Decision
2009/299/JHA. Recital (4) in the Preamble to that Framework Decision provides:
“(4) It is therefore necessary to provide clear and common
grounds for non-recognition of decisions rendered following a
trial at which the person concerned did not appear in person.
This Framework Decision is aimed at refining the definition of
such common grounds allowing the executing authority to
execute the decision despite the absence of the person at the
trial, while fully respecting the person’s right of defence. This
Framework Decision is not designed to regulate the forms and
methods, including procedural requirements, that are used to
achieve the results specified in this Framework Decision,
which are a matter for the national laws of the member states.”
Lest the contrary be suggested, I consider that the final sentence of this recital leaves
no room for the application of a principle which would be inconsistent with the
common scheme.
32. In the same way, in the implementing legislation in Part 1 of the 2003 Act
section 20 is clearly intended to make comprehensive provision for cases of
conviction in absentia without requiring or permitting a contumacious conviction to
be treated as an accusation case. I consider that the principles relating to
contumacious convictions developed in the case law under previous legislation can
have no application under the current scheme. For courts in this jurisdiction now to
impose this concept unilaterally on the EAW scheme by requiring accusation
Page 26
warrants in such cases would be highly disruptive of the EAW scheme and
inconsistent with the obligations of the United Kingdom under it.
33. The principle of contumacious convictions described above is likely to be the
origin of an observation of Lord Brown in Gomes v Government of the Republic of
Trinidad and Tobago [2009] UKHL 21; [2009] 1 WLR 1038 in relation to section
82 of the 2003 Act, a provision in Part 2 of the Act, which is in substantially identical
terms as section 14.
“The final question discussed before the House was the period
of time for consideration under section 82. It starts, of course,
with the date of the alleged offence (section 82(a)) or when the
fugitive became unlawfully at large (section 82(b)) (a fugitive
tried in his absence without having deliberately absented
himself from his trial falling for this purpose under section
82(a)).” (para 38)
Whatever may be the current relevance of the principle of contumacious convictions
as developed in this jurisdiction to extradition proceedings under Part 2 of the 2003
Act, I consider that it has none under Part 1.
The statutory scheme
34. More generally, I consider that the appellant’s case that, because of his right
to be retried, he is required to be treated as an accused person for the purposes of
Part 1 of the 2003 Act is inconsistent with the EAW scheme and the express
provisions of the statute.
35. Mr Summers submits that, when section 11 is applied in this case, if none of
the bars to extradition applies the case falls within section 11(5) because the
appellant is a person accused. However, even if the appellant were required to be
treated as a person accused for this purpose, which I would not accept, that
subsection applies only where the person is accused of the commission of an
extradition offence “but is not alleged to be unlawfully at large after conviction of
it”. Section 68A defines “unlawfully at large” for the purposes of section 11. Here,
the appellant clearly falls within that definition. He is alleged to have been convicted
of the relevant offences and his extradition is sought for the purpose of his serving
a sentence of imprisonment imposed in respect of those offences. His case does not
fall within subsection 11(5) but within subsection 11(4) because he is alleged to be
unlawfully at large after conviction of the extradition offence. As a result, the judge
is directed to proceed under section 20 and not under section 21A.
Page 27
36. Mr Summers then submits that if section 20 is applied to the case of this
appellant, he would enter section 20 as a convicted person but should leave as an
accused person. He would have been recognised by the extradition court as entitled
to an unfettered and unconditional retrial. In these circumstances, it is submitted,
fairness ought to dictate that he now be recategorized as an accused person and that
all of the antecedent statutory questions that have been answered on the false
premise that he was a convicted person be re-examined. I am unable to accept this
submission. First, section 20 is intended to provide protection in the specific case of
a person convicted in his absence and the sequential application of its express
provisions achieves precisely that. In the present case, it is common ground that the
appellant was not convicted in his presence within subsection 20(1) and that he did
not deliberately absent himself from his trial under subsection 20(3). However, it is
also common ground that he would be entitled to a retrial under subsection 20(5)
which meets the requirements of subsection 20(8). If the last issue were not resolved
in that way, the appellant would have to be discharged. In this case, however, the
judge is directed by subsection 20(6) to proceed under section 21 which addresses
the human rights of persons unlawfully at large. Secondly, I am unable to accept the
submission that section 20 is the successor to section 6(2) of the Extradition Act
1989 and therefore was never intended to apply to persons with a right of retrial. In
this regard I note the decision of the Divisional Court in Foy v The Governor of HM
Prison Brixton and the Government of France (unreported) 14 April 2000 on the
earlier provision. However, whatever may have been the position under the 1989
Act, it is clear that section 20 is intended to make comprehensive provision for cases
where a convicted person was convicted in absentia. Thirdly, Mr. Summers submits
that if a person convicted in absentia subsequently disavows his right to a retrial his
status would revert to that of a convicted person. However, nothing in the statutory
scheme contemplates or makes provision for such changes of status.
37. Mr Summers accepts that section 20(6), which requires the judge to proceed
under section 21 which addresses the human rights of persons unlawfully at large,
appears to preclude the approach for which he contends. It does indeed. If a person
whose surrender is sought emerges from section 20 as an accused person his or her
case should, surely, thereafter be dealt with under section 21A which addresses the
human rights and proportionality of a person not convicted. Mr Summers’ response
was that this was an oversight in the drafting of the legislation. He submits that it
would still be open to the extradition court at any stage to recognise that the warrant
was no longer valid as a conviction warrant within the meaning of section 2 and to
cause it to be re-appraised and re-issued if necessary as an accusation warrant.
Further, he submits that the fact that EU law requires a defendant in such
circumstances to be re-treated as an accused person requires the court to adopt a
reading of section 20 which achieves that result or to find a common law solution
which achieves that result. Here he relies on Criminal proceedings against Pupino.
For reasons stated earlier in this judgment, I do not accept that EU law requires the
result for which he contends. Moreover, it seems to me that this proposed reading
of section 20 cannot be correct and, on the contrary, that subsections 20(6), (7) and
Page 28
(8) make it entirely clear that a person with a right to a retrial which meets the
requirements in (8) is to be treated as convicted not as accused. The express
provisions in their natural meaning provide a coherent structure within which to
address all cases of trial in absentia.
Authorities
38. We have been referred to a number of authorities which, it is said, support
the appellant’s case.
39. Mr Summers places considerable reliance on the decision of the House of
Lords in Caldarelli. In that case, Mr Caldarelli had been convicted by an Italian
court of a drugs offence and sentenced to a term of imprisonment. He had
deliberately absented himself from the trial but was represented by lawyers
appointed by him personally. His lawyers lodged an appeal on his behalf. While that
appeal was still pending an Italian judge issued an EAW which stated that he was
accused in Italy of a drugs offence. He was arrested in the United Kingdom under
the warrant and his extradition to Italy ordered. He appealed on the ground that the
warrant ought to have included a statement that he had been convicted of an offence
in accordance with section 2(5) of the 2003 Act and was therefore invalid. The
appeal was dismissed on the ground that his extradition was sought for the purposes
of his being prosecuted for an offence within section 2(3)(b).
40. Contrary to what might appear at first sight, however, the decision does not
assist the appellant in the present case. Under Italian law the first instance judgment
and sentence were neither final nor enforceable until the criminal appeal process
was concluded and Mr Caldarelli was not regarded as convicted until his conviction
became final. Furthermore, he was not entitled as of right to a retrial or to a review
amounting to a retrial. As Lord Bingham explained:
“Here, as is common ground, the foreign judge has treated the
appellant as an accused and not a convicted person. This seems
strange to an English lawyer, familiar with a procedure by
which a defendant sentenced to imprisonment at the end of a
jury trial goes down the steps from the dock to the cells. But
such is not the practice in Italy where the trial is indeed a
continuing process, not yet finally completed in this case, and
not an event. On the evidence the appellant falls within section
11(5) of the Act as a person accused of the commission of an
extradition offence but not alleged to be unlawfully at large
after conviction of it, not within section 11(4) as a person
alleged to be unlawfully at large after conviction of it. In terms
Page 29
of recital 1 of the Framework Decision he has not been ‘finally
sentenced’ and (article 8(f)) no ‘final judgment’ has been given
as to the penalty imposed.” (para 24)
41. We were also referred, on behalf of the appellant, to the decision of the
Divisional Court (Sharp LJ and Sweeney J) in Lewicki v Preliminary Investigation
Tribunal of Napoli, Italy [2018] EWHC 1160 (Admin). That decision was, however,
an application of Caldarelli (see Sweeney J at paras 67-68) and therefore does not
assist the appellant.
42. The appellant also relies on a line of relatively recent authority in which it
was held that persons convicted in absentia who had a right to request a new trial
could be dealt with as persons accused. In R (Bikar) v The Governor of HM Prison
Brixton [2003] EWHC 372 (Admin), a case on the Extradition Act 1989, the
applicants, who had been convicted in absentia in the Czech Republic resisted their
extradition under an accusation warrant on the ground that autrefois convict applied.
Henriques J held that as they had a right to request a new trial this was not a final
judgment and accordingly they could be dealt with as persons accused as in Foy v
Governor of HM Prison Brixton where the Divisional Court had held that a person
who would be entitled to have his conviction set aside was rightly regarded for the
purposes of section 6(3) of the Extradition Act 1989 as a person accused.
43. In Usti Nad Labem Regional Court (Czech Republic) v Janiga [2010] EWHC
463 (Admin) Mr Janiga had absconded after the start of his trial in the Czech
Republic. An EAW was issued. In the period between the issue of the warrant and
the extradition hearing in the United Kingdom he was convicted and sentenced in
his absence, although lawyers attended the hearing on his behalf. His lawyers lodged
an appeal against conviction and sentence. On appeal the conviction was upheld but
the sentence reduced. At the extradition hearing the District Judge ordered his
discharge on the ground that the accusation warrant was defective as he had been
convicted. The Divisional Court (Waller LJ and Swift J) allowed the appeal. Further
information provided by the issuing authority established a right to apply for reversal
of the judgment and this “puts it completely beyond doubt in our view that the
conviction and sentence were not final and enforceable” (at paras 49-53).
44. In Ruzicka v District Court of Nitra, Slovakia [2010] EWHC 1819 (Admin)
the Divisional Court (Elias LJ and Keith J) held that an accusation warrant issued
by the Slovakian judicial authority was valid notwithstanding the fact that Mr
Ruzicka had already been convicted and sentenced in Slovakia because he had
appealed against the conviction and sentence in circumstances in which the appeal
had caused the conviction and sentence to cease to be valid. In these circumstances
the court considered it plain that the conviction and sentence was not a final
determination of the criminal process. Until the expiry of time within which to
Page 30
appeal the judgment was neither final nor enforceable. Accordingly, the accusation
warrant was in correct form. The court approved the similar conclusion in Janiga.
45. Bikar, Janiga and Ruzicka should, however, be contrasted with Sonea v
Mehedinti District Court, Romania [2009] EWHC 89 (Admin); [2009] 2 All ER 821
and Istanek v District Court of Prerov [2011] EWHC 1498 (Admin).
46. In Sonea the appellant was arrested under a conviction warrant which stated
that in his absence he had been tried and convicted in Romania and sentenced to ten
years’ imprisonment. He appealed against an order for his extradition contending
that because he had a right to a re-trial in Romania the warrant should have been
drafted as an accusation warrant and was therefore invalid. This submission was
rejected by the Divisional Court (Scott Baker LJ and Maddison J). Scott Baker LJ,
delivering the only judgment, considered (at para 9) that it was necessary to follow
carefully and chronologically the structure of the 2003 Act and that it was liable to
be misleading to pick out observations by judges concerned with earlier legislation.
“The structure of Part 1 of the Extradition Act 2003 envisages
a step-by-step approach by the judge. Each step requires
consideration of a particular question and its answer determines
the next move that the judge is required to make. It is to be
noted that it is only when the step-by-step exercise takes the
judge to section 20 that he is required to consider whether the
person was convicted in his presence, whether he deliberately
absented himself from his trial and whether he would be
entitled to a retrial or (on appeal) to a review amounting to a
retrial. As Ms Mannion, for the respondent, observes section
20 is only reached where a person has been convicted and if Ms
Freeman’s argument is correct none of the steps set out in such
detail in section 20 would be relevant.
…
Ms Freeman’s argument, as it seems to me, puts the cart before
the horse. It seeks to extract questions that Parliament has said
fall to be dealt with under section 20 and make them issues that
determine the nature of the warrant, whereas the legislation
clearly sets out a step-by-step process that the judge must
follow.” (paras 16, 18)
Page 31
The fact that the appellant had an unfettered right to a retrial did not stop the warrant
from being a conviction warrant.
47. A similar approach was adopted by the Divisional Court (Laws LJ, Collins
and Stadlen JJ) in Istanek. The appellant had been convicted in the Czech Republic
in his absence. He was entitled to a full retrial by virtue of section 306a of the Czech
Penal code, the same provision which applies in the present case. A conviction EAW
was issued for his surrender and his return was ordered. On behalf of the appellant
it was argued that he was, in truth, an accused person and not a convicted person
and that the warrant was, accordingly, invalid. Laws LJ, delivering the only
judgment, noted the apparently conflicting authorities and observed (at para 29) of
Bikar, Janiga and Ruzicka that all three were cases where the result arrived at was
in fact in conformity with the requesting state’s position on the question whether the
proposed extraditee was to be treated as accused or convicted. However, in his view
there was no reason to hold that in the result any of those cases was wrongly decided
on its facts. He considered it plain that Sonea was correctly decided.
48. Laws LJ considered (at para 23) that it was inherent in the scheme of the 2003
Act that courts in this jurisdiction will proceed on the basis of the statements in the
warrant and will properly categorise the relevant facts according to the procedures
and law of the foreign state. Applying Caldarelli, he observed (at paras 23-25) that
information in an EAW, having its source in the judicial authority of the requesting
state, is ordinarily in our courts to be taken at face value although it may
exceptionally be appropriate to initiate further inquiry of the requesting authority.
With regard to finality, he noted (at paras 26-27) that the definition of the EAW in
article 1(1) contained no reference to finality although there was a reference to it in
article 8(1)(f). He considered that insofar as finality is an incident of conviction for
the purposes of a conviction EAW, the warrant will reflect the meaning of finality
applied in the criminal jurisdiction of the requesting state. Furthermore, he
considered (at para 28) that the existence of a right of retrial cannot be treated, as a
matter of law, as systematically inconsistent with the fugitive being a convicted
person. To apply such a “one size fits all” approach would be inconsistent with his
general approach and with section 20. The issue of characterisation was not to be
decided by courts in this jurisdiction by their own lights. That would be contrary to
the position taken by the Czech judicial authority which had explained that if a
fugitive convicted in absentia did not ask for his case to be reopened, the judgment
would remain legally binding and enforceable, as the entire proceedings had already
taken place and the judgment was already legally valid.
49. I find the reasoning of the Divisional Courts in Sonea and Istanek compelling.
The scheme of Part 1 of the 2003 Act is restrictive in that the judge at an extradition
hearing is directed to follow particular routes through the statute depending on his
answer to each question the statute requires him to address. This step by step
approach is entirely incompatible with the appellant’s case. If and to the extent that
Page 32
Sonea and Istanek are inconsistent with the approach adopted in other cases, in
particular Bikar, Janiga and Ruzicka, I consider that Sonea and Istanek are to be
preferred.
The process of characterisation
50. The criteria for determining what constitutes a criminal conviction for the
purposes of the Framework Decision and implementing legislation within member
states must be derived from the Framework Decision. Those criteria must be applied
to the position as it exists under the law and practice of the member state of the
requesting authority. I consider, therefore, that the following principles should be
applied by a court in this jurisdiction when seeking to characterise a case as an
accusation case or a conviction case.
(1) The dichotomy drawn by the Framework Decision between accusation
warrants and conviction warrants is a matter of EU law. The Framework
Decision does not have direct effect but national implementing legislation
should, so far as possible, be interpreted consistently with its terms.
(2) The court should seek to categorise the relevant facts by reference to
their status and effects in the law and procedure of the member state of the
requesting judicial authority.
(3) Ordinarily, statements made by the requesting judicial authority in the
EAW or in supplementary communications will be taken to be an accurate
account of its law and procedure but evidence may be admitted to contradict
them.
(4) A person may properly be regarded as convicted for this purpose if the
conviction is binding and enforceable under the law and procedure of the
member state of the requesting authority.
(5) For this purpose, it is not a requirement that a conviction should be
final in the sense of being irrevocable. In particular, a convicted person who
has a right to a retrial may, nevertheless, be properly considered a convicted
person for this purpose, provided that the conviction is binding and
enforceable in the law and procedure of the member state of the requesting
authority.
Page 33
(6) While the view of the requesting judicial authority on the issue of
characterisation cannot be determinative, the question whether a conviction
is binding and enforceable will depend on the law of that member state.
Disadvantage to the appellant?
51. Complaint is made that treating the appellant as a convicted person as
opposed to an accused person disadvantaged him in the extradition proceedings in
two respects. First it is said that the EAW was measured against the less exacting
requirements of a conviction case in section 2(5)-(6) as opposed to those of an
accusation case in section 2(3)-(4). The particular point made here concerns
particularity. In Sandi v The Craiova Court, Romania [2009] EWHC 3079 (Admin)
Hickinbottom J observed (at para 33), when delivering the judgment of the
Divisional Court, that there is no reason why the same level of particularity of the
circumstances of the offence is needed for a conviction warrant as for an accusation
warrant. However, he went on to point out (at paras 34-36) that, while the
appropriate level of particularity to satisfy section 2(6)(b) will depend on the
circumstances of each case, in a conviction case the requested person will need to
have sufficient details of the circumstances of the underlying offences to enable him
sensibly to understand what he has been convicted of and sentenced for and to enable
him to consider whether any bars to extradition might apply. In the present case it
has not been suggested that there is any specific deficiency in the particulars
contained in the warrant which would disadvantage the appellant if he exercises his
right to a retrial. On the contrary, the EAW contains in Box (e) full particulars of the
three relevant offences.
52. Secondly, it is said that the appellant is prejudiced in the consideration of the
bar to extradition on grounds of passage of time under section 11(1)(c) and section
14 because the relevant periods of time differ in an accusation warrant and a
conviction warrant. Section 14 provides that a person’s extradition is barred by
reason of the passage of time if it would be unjust or oppressive to extradite him by
reason of the passage of time (a) in an accusation case, since he is alleged to have
committed the offence; and (b) in a conviction case, since he is alleged to have
become unlawfully at large. “Unjust” is directed primarily to the risk of prejudice to
the accused in the conduct of the trial itself; “oppressive” is directed to hardship to
the accused resulting from changes in his circumstances that have occurred during
the period to be taken into consideration (Kakis v Government of the Republic of
Cyprus [1978] 1 WLR 779 per Lord Diplock at pp 782H-783A).
53. To my mind, there is more substance in this complaint. This bar to extradition
operates very differently depending on whether the requested person is categorised
as an accused person under section 14(a) (in which case he may rely on the entire
passage of time since the date of the offence to found injustice or oppression) or as
Page 34
a person unlawfully at large after conviction under section 14(b) (in which case he
may rely only on the passage of time since the date of the conviction). Mr Summers
submits that in the present case this precluded any consideration of injustice in
relation to the retrial and coloured the court’s assessment of oppression.
54. If, as I consider to be the case, a person with a right to a retrial is correctly
classified as a convicted person for the purposes of the 2003 Act, I accept that this
could work to his disadvantage in the operation of section 14 because the passage
of time prior to his conviction is excluded from consideration. It seems to me that
this is a deficiency in the drafting of the statute which requires consideration by the
legislature at an early opportunity.
55. This is a matter which has troubled judges in a number of cases concerning
convictions in absentia. In Campbell v Public Prosecutor of the Grande Instance
Tribunal of St Malo, France [2013] EWHC 1288 (Admin) Keith J was inclined to
think that the appellant could not rely on the passage of time since the date of
commission of the alleged offence because he faced a conviction warrant, but he
nevertheless examined whether the delay from that date would have been oppressive
for the purposes of section 14 and concluded that it would now be an abuse of
process to insist upon his return. In R (Cousins) v Public Prosecution of the Grande
Instance Tribunal of Boulogne sur Mer, France [2014] EWHC 2324 (Admin) at
para 12 Ouseley J expressed his concern that where there has been a delay prior to
a conviction in absentia the requesting judicial authority could, in effect, prevent
section 14 from being argued. In his view it would be an unfair and prejudicial
outcome if there were no other means whereby the section 14 facts could be given
full rein. He had reservations about using article 8 “as some sort of kitchen sink for
all aspects of extradition that cannot properly be considered under other headings”
(at para 14). However, he dealt with the matter on the basis that there would be no
injustice to the appellant through consideration of injustice and oppression to the
full extent using the article 8 framework. Similarly, in Wisniewski v Regional Court
of Wroclaw, Poland [2016] EWHC 386 (Admin); [2016] 1 WLR 3750 the
Divisional Court (Lloyd Jones LJ and Holroyde J) considered that in such
circumstances the human rights examination under section 21 would provide a
safety net which would permit the effect of passage of time to be brought into
account.
56. In Farzal Rahman v County Court of Boulogne sur Mer, France [2014]
EWHC 4143 (Admin) Blake J adopted a rather different approach. There a
conviction warrant was founded on a conviction in absentia. It was common ground
that Mr Rahman had had no notice of the proceedings leading to conviction and that
the conviction could be set aside on his demand. The judge was referred to Campbell
and Cousins and was invited by counsel for the appellant to look at the full period
of the delay either on abuse of process grounds or on article 8 grounds. The judge
said that he shared the reservations of Ouseley J about simply proceeding down the
Page 35
article 8 route as a catch-all where the central point the appellant wanted to make
was the change of circumstances caused by the passage of time since the offence
was first committed. Noting that the definition of “unlawfully at large” in section
68A of the 2003 Act did not apply to section 14, he considered that it was necessary
to give it a meaning which avoided the absurdity of effectively preventing the
appellant from pleading delay at all. He concluded that:
“… [I]n effect a person remains accused of a crime for the
purposes of the oppression limb of section 14 unless or until
there has been a conviction from which he was required to
participate from which he has absconded himself and is
therefore a fugitive from justice. Such an approach avoids
having to shoehorn the present problem either into abuse of
process questions, where there is a more rigorous test and a
requirement generally of absence of good faith or simply
leaving it to a factor in the article 8 balance.” (sic)
I sympathise with the judge’s wish to find an interpretation of section 14 which
would enable him to do justice in the particular case. However, I consider that this
strenuous reading is inconsistent with the scheme of the Framework Decision and
Part 1 of the 2003 Act.
57. It seems to me that until such time as section 14 can be amended by
Parliament, article 8 provides an appropriate and effective alternative means of
addressing passage of time resulting in injustice or oppression in cases where the
defendant has been convicted in absentia. Passage of time is clearly capable of being
a relevant consideration in weighing the article 8 balance in extradition cases. (See
H (H) v Deputy Prosecutor of the Italian Republic, Genoa (Official Solicitor
intervening) [2012] UKSC 25; [2013] 1 AC 338 per Baroness Hale JSC at paras 6,
8.) It is capable of having an important bearing on the weight to be given to the
public interest in extradition. In the article 8 balancing exercise, the relevant period
of time will not be subject to the restrictions which appear in section 14. I note that
in Lysiak v District Court Torun, Poland [2015] EWHC 3098 (Admin), a conviction
case, the Divisional Court (Burnett LJ and Hickinbottom J) attached great weight to
the nine years the criminal proceedings in Poland took to come to trial and the further
two and a half years it took for the conviction to be confirmed in appeal proceedings,
when concluding that it would be disproportionate under article 8 to return the
defendant to Poland. Furthermore, in cases where it is maintained that passage of
time would result in injustice at the retrial to which the defendant is entitled, this
consideration could also be brought into account under article 8. The risk of
prejudice at a retrial would be highly relevant in the balancing exercise which the
extradition court would be required to undertake. Moreover, the threshold test to be
satisfied would not be one of injustice or oppression but the lower one of
disproportionality. This feature also makes reliance on article 8 a more effective
Page 36
solution than abuse of process where the burden on an appellant would be a much
heavier one.
Application to the present case
58. On behalf of the appellant it is submitted that he should be treated as an
accused person rather than a convicted person for the purpose of his extradition
proceedings.
59. The EAW states in Box (b) that the enforceable judgment on which the
warrant is based is the judgment of the District Court dated 12 May 2008, confirmed
by the resolution of the Regional Court on 23 July 2008. It states in Box (d) that the
decision was rendered in absentia and that the appellant had not been summoned or
otherwise informed of the hearing. However, it also states that after surrendering the
appellant will have the right to a new process by virtue of section 306a of the Code
of Criminal Procedure. I note that subsection 306a(2) refers to “an application for
revocation of the legally effective conviction” and that subsection 306a(3) refers, in
the context of limitation, to “the period from the legal effectiveness of the conviction
until its revocation”. The letter from the requesting judicial authority dated 17 March
2017 confirms that the appellant will have “an unqualified right for complete retrial
before court”. There was no evidence before the District Judge to contradict the
statements of the requesting judicial authority as to the relevant law and procedure
in the Czech Republic.
60. In these circumstances District Judge Ashworth correctly characterised the
EAW as a conviction warrant. Furthermore, he was correct in characterising this as
a conviction case. The EAW indicated that there was an enforceable judgment and
a legally effective conviction which would remain such until revoked. There was no
evidence before him as to the law and procedure of the Czech Republic on which he
could have concluded that this should be characterised as an accusation case.
61. The District Judge proceeded by following the appropriate channel in the case
of a conviction warrant as required by the 2003 Act. It was common ground that the
offences specified in the warrant were extradition offences as required by section
10. Under section 11(1)(c), as amplified by section 14, he considered whether
extradition was barred by reason of the passage of time since the appellant was
convicted in 2008 and concluded that it was not. So far as section 20 is concerned,
it was common ground that the appellant had been tried, convicted and sentenced in
absentia, and that the appellant had not deliberately absented himself from his trial,
but that he would be entitled to a retrial meeting the requirements of subsection
20(8). The District Judge therefore, correctly, proceeded to consider under section
21 the appellant’s ground founded on his right to respect for his family and private
Page 37
life under article 8 ECHR. Having decided that the appellant’s extradition would be
compatible with his Convention rights, the District Judge ordered his extradition to
the Czech Republic as required by section 21(3).
62. In the present case the appellant was convicted on 12 May 2008 of three
offences alleged to have been committed between November 2004 and March 2005.
The conviction was confirmed by the Regional Court on 23 July 2008. The EAW
was issued on 17 April 2013. It was certified by the National Crime Agency on 2
March 2017 and the appellant was arrested on the same day. At the extradition
hearing the appellant relied on evidence as to changes in his personal circumstances.
He also maintained that in 2005 the police in the Czech Republic had spoken to him
and removed documents relevant to his defence to the current offences. The
documents, which he claimed would exculpate him, had not been returned.
63. At the extradition hearing the District Judge considered the passage of time
under section 11(1)(c) and section 14. At this point in his judgment he confined his
attention to the passage of time since the date of conviction in 2008.
64. In 2003 the appellant had been convicted and sentenced to four years’
imprisonment in the Czech Republic. That conviction related to the same building
project to which the 2008 convictions related. He had been aware in November 2005
that the police were once again conducting investigations. He came to the United
Kingdom in June 2007. In November 2007 the Office of the District Public
Prosecutor had issued a consent to his detention. The District Judge noted that as
there was no direct evidence that the appellant knew of the proceedings against him,
it was common ground that he could not be considered a fugitive for the purposes
of section 14.
65. During the period since 2008 the appellant had been working as a lorry driver
in the United Kingdom. His partner had suffered a workplace accident in 2012 which
had impaired her ability to work although she now works full-time at her own
jewellery making business.
66. The District Judge considered that the long period between conviction and
arrest on the EAW had not been a time of particular change in the appellant’s life.
The offending was particularly serious, repetitive and followed closely his release
for a similar offence. Mr Konecny had been termed a particularly dangerous
recidivist by the Czech authorities. So far as the documents given to the police in
2005 were concerned, there had been a trial in 2008 and there was no evidence to
suggest that the documents had been lost or destroyed. If they had been, the
magistrate was entitled to assume that the retrial to which the appellant was entitled
would be compliant with article 6 ECHR and that that would take account of that
Page 38
potential unfairness. Having regard to all these factors he concluded that the
circumstances of the delay did not justify a finding that it would be unjust or
oppressive to return the appellant. This was not, in his assessment, a borderline case
where culpable delay on the part of the judicial authority would tip the balance in
the appellant’s favour.
67. However, the District Judge returned to the issue of delay when carrying out
the balancing exercise under article 8 ECHR. He listed this among the factors
militating against extradition. He noted that “the delay since the crimes were
committed” could both diminish the weight to be attached to the public interest and
increase the impact upon private and family life. Here the offending had been some
12-13 years earlier when the appellant had been considerably younger. The passage
of time would have served to mature him and in the intervening period he had
worked peaceably. There was no evidence he had any knowledge of the proceedings
against him. There was no explanation for the considerable delay in finding him,
bearing in mind that he was living openly in another member state. Nevertheless,
the public interest factors in favour of extradition outweighed his family and private
life considerations, even when the delay was taken into account.
68. On appeal, Sir Wyn Williams considered that the District Judge had been
correct in considering that, when assessing whether the passage of time rendered his
return unjust or oppressive under sections 11(1)(c) and 14 of the 2003 Act, the
relevant period of time commenced on 12 May 2008. He referred to the fact that
throughout that period the appellant had led a settled life in the north of England and
that this was a marked change from the time when he was apparently committing
serious offences in the Czech Republic. The District Judge was not to be criticised
for his observations in relation to the possibly exculpatory papers. There was no real
basis for a conclusion that extradition would be unjust. He could not conclude that
the District Judge was wrong to conclude that extradition of the appellant would not
be oppressive.
69. Sir Wyn returned to the issue of delay in the context of article 8. He
considered that the District Judge was entitled to approach the case on the basis that
there had been long delays in the processes leading to the certification of the EAW
which were unexplained. The District Judge was not wrong in failing to infer from
the length of the delay that the requesting judicial authority or the National Crime
Agency were guilty of culpable delay. The District Judge was right to consider that
there were very powerful factors supporting an order for extradition. While Sir Wyn
observed that he might have been more troubled than was the District Judge about
the length of the delay, he was unable to say that his ultimate decision that
extradition was not an unwarranted interference with article 8 rights was wrong.
Accordingly, he dismissed the appeal.
Page 39
70. I am satisfied that in this case full and appropriate account was taken of the
entire passage of time since the offences were allegedly committed, albeit in the
context of section 21 of the 2003 Act and article 8 ECHR as opposed to sections
11(1)(c) and 14 of the 2003 Act. I am also satisfied that this appellant has not been
disadvantaged in any way as a result. Like Sir Wyn, I might have been more troubled
than the District Judge about the length of delay in this case, but I am unable to say
that the decision of the District Judge was wrong.
71. Finally, I should record that in his case Mr Summers points to what he says
are further instances of substantive unfairness which might result from the
characterisation of a case as a conviction case where the person whose return is
sought has a right to a retrial. These relate to double criminality, prematurity, issues
of forum and proportionality. However, as it is accepted on behalf of the appellant
that they do not arise in this case and as they were not developed in argument, I do
not propose to address them.
Conclusion
72. For these reasons, I would dismiss the appeal.