B v District Court in Trutnov and Another
| Jurisdiction | England & Wales |
| Judge | Mr. Justice Silber |
| Judgment Date | 15 April 2011 |
| Neutral Citation | [2011] EWHC 963 (Admin) |
| Court | Queen's Bench Division (Administrative Court) |
| Docket Number | CO/12981/2010,Case No: CO/12981/2010 |
| Date | 15 April 2011 |
[2011] EWHC 963 (Admin)
The Honourable Mr Justice Silber
Case No: CO/12981/2010
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
Royal Courts of Justice
Strand, London, WC2A 2LL
Benjamin Newton (instructed by Sonn Macmillan Walton) for the Appellant
Alison Wilkes (instructed by the Crown Prosecution Service) for the Respondent
Hearing date: 6 April 2011
I. Introduction
Ms B ("the appellant") appeals against an order made at the City of Westminster Magistrates Court by District Judge Nicholas Evans on 13 December 2010 acceding to the request made by the District Court in Trutnov in the Czech Republic and by the District Court in Liberec (to which in each case I will refer as "the Judicial Authority") pursuant to separate European Arrest Warrants, namely respectively EAW 1 and EAW 2 and which were issued respectively on 5 February 2010 and 10 March 2010. The requests were for the return to the Czech Republic of the appellant, who is a Czech national. The Czech Republic is a Category 1 Territory and Part I of the Extradition Act 2003 ("the Act") applies.
The appellant raises two main issues which are that:-
i) in respect of EAW 1, the District Judge ought to have decided the questions in section 20(1) and (3) of the Act in the negative and had he done so, he would have been required to order the appellant's discharge as she was not entitled to a retrial, or to a review amounting to a retrial ("The Section 20 Issue"); and
ii) in respect of both warrants, the District Judge ought to have decided under section 21 of the Act that extradition was incompatible with the Appellant's article 8 rights and in consequence he ought then to have refused to order the appellant's extradition ("The Article 8 Issue").
EAW 1 at section (e), specifies the following offence as follows:-
"On 18 th December 2002 in Upice, district Trutnov in the shop s.r.o., POD Mestem 206 with a view to gain cash she undersigned a hire-purchase agreement on financial lease of the cooking stove Mora combi in the retail price 11 990,00 CZK without cognizance of her father. She submitted his identity card and indicated him as a guarantor. She committed herself to pay off monthly 501, 00 CZK, but she did not meet this agreement and stopped to pay the lease and so caused a damage amounting to 8 016, 00 CZK. The criminal act was accomplished.
The above mentioned caused the criminal offence of fraud according to Section 250 Art.1 of the penal code".
EAW 1 specifies at section (c) that a custodial sentence of one year remains to be served in its entirety, while section (d), which relates to " Decision rendered in absentia" is blank, seemingly implying that this was not a conviction in absence.
EAW 2 at section (e), specifies the following offence:-
"In Liberee, Prazska Street 13/19 on 25/07/2006 at a time around 15.35 o'clock, at DM market s.r.o. shop acting together with already sentenced Blanka Hermanova, born 31/03/1975 and Kamila Piskorova, born 22/01/1976 stole from shelves drug goods in an amount of CZK 30,841.00 in a way that they hid goods into their handbags and under their clothes subsequently they went through cash desks without paying.
Crime of theft under section 247 sub-section 1 par. E) sub-section 2 of the Act no. 140/1961 Sb. The Criminal Code of the Czech Republic with reference to section 89 sub-section 11 of the Act no. 140/1961 SB. The Criminal Code of the Czech Republic…
[followed by provisions 247,89 and 68]".
The warrant specifies at section (c) that a custodial sentence of eight months remains to be served in its entirety and at section (d) that "after being surrendered the sentenced person will have the right to having a new trial in her presence."
The chronology of the proceedings is that on 22 December 2005, a judge sitting in the District Court in Trutnov issued a penal order in respect of the offence in EAW 1. The appellant was sentenced to a term of one year's imprisonment, which was suspended for five years with supervision by Probation but she was not then present at the hearing. This order was variously described as " penal order", a " criminal order" or an " arrest order" depending on the source of the information.
On 17 March 2006, the penal order was according to the Judicial Authority served on the appellant and she signed to accept it although this has been disputed by the appellant and I will return to consider this issue in paragraphs 33 and 34 below. As the appellant chose not to exercise her right to have the order set aside, it became fully enforceable on 28 March 2006.
In respect of EAW 2, the appellant after arrest was interrogated before pleading guilty to this offence. On 10 October 2006, she was given a penal order.
The public prosecutor challenged the decision and a court hearing was ordered and this took place on 13 October 2008 when the criminal order was nullified. The appellant could not be found to have the summons served on her as she was not residing at the address known to the court. On 17 January 2009, a search was ordered for her.
Meanwhile in respect of the first warrant, the appellant did not fulfil her obligations in the period of suspension. On 2 February 2009, the court decided to revoke the suspension of her imprisonment but she was not present as her whereabouts were not known. In consequence it was impossible to serve a summons on her and so the proceedings were therefore against a fugitive but she was legally represented. At the hearing on 2 February 2009, the one year sentence of imprisonment imposed on the appellant became enforceable.
On 12 February 2009, the court dealing with the second warrant was notified the appellant was staying in the United Kingdom. A hearing took place on 24 September 2009 in her absence. She was convicted and a sentence of eight months imprisonment was imposed.
On 10 March 2010, the District Court at Trutnov issued a warrant in respect of the first offence seeking the appellant's return to serve one year's imprisonment. On 13 July 2010, the District Court in Liberec issued a warrant in respect of the second offence seeking the appellants return to serve eight months imprisonment.
Moving to the proceedings in the United Kingdom, EAW 1 was certified by SOCA on 9 June 2010 and the appellant was arrested on 10 July 2010 in respect of it. When she appeared before the City of Westminster Magistrates Court on 12 July 2010 for an initial hearing, the defence identified four issues which the appellant wished to raise in opposition to the Judicial Authority's extradition request, namely section 14 of the Act (passage of time), section 20 of the Act (conviction in absence), abuse of process (because the warrant should not have been used to enforce the loan) and the triviality of the offences. She was then released on bail and the hearing was adjourned until 24 August 2010, when it was then adjourned again this time to 22 September 2010.
EAW 2 was certified by SOCA on 22 September 2010 and the appellant was arrested in relation to it at the hearing on 23 September 2010. The extradition hearing in respect of both matters was adjourned until 4 October 2010, when there was a full hearing in respect of the section 20 and article 8 issues with the appellant giving evidence. The hearing was adjourned to allow further evidence to be presented.
On 29 October 2010, further evidence was served on the court by the relevant Judicial Authority and the next hearing was on 13 December 2010, when there were further brief arguments before the District Judge then gave judgment ordering the appellant's extradition to the Czech Republic.
In summary form, the District Judge found first that in respect of EAW 1, the appellant was not present when the penal order was made on 22 December 2005; second that the penal order was of no effect unless and until it was served on the appellant; and third that it only became a conviction when a defendant had been served with it and did not lodge an objection to it. In the appellant's case, she was convicted when she accepted the penal order on 17 or 28 March 2005 and/or alternatively by her failure to oppose the penal order. The District Judge then stated of the appellant that " either way, for the purposes of section 20(1) [of the Act], I conclude she was convicted in her presence".
The District Judge rejected the claim of the appellant that an order extraditing her to the Czech Republic would be incompatible with her rights under article 8 of the ECHR with the consequence that extradition should not be ordered. He duly ordered the appellant's extradition and this is the hearing of her appeal against that order.
II. The Section 20 Issue
(i) Introduction and the Sub-Issues
The case for the appellant is that there are two grounds for quashing the District Judge's decision not to discharge the appellant on EAW 1 both of which depend on section 20 of the Act. They are that:-
(a) the appellant had not been convicted in her presence. The Judicial Authority has not pursued its alternative contention that the appellant was deliberately absent when convicted; and that
(b) although the Judicial Authority had to prove to the criminal standard of proof that the appellant was served with the penal order, they failed to do so.
The relevant provisions of section 20 state that:-
"(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...
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