Dawid Szatkowski v Regional Court in Opole (Poland)
| Jurisdiction | England & Wales |
| Judge | Lord Justice Irwin |
| Judgment Date | 10 April 2019 |
| Neutral Citation | [2019] EWHC 883 (Admin) |
| Court | Queen's Bench Division (Administrative Court) |
| Docket Number | Case No: CO/4547/2017 |
| Date | 10 April 2019 |
[2019] EWHC 883 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
DIVISIONAL COURT
Royal Courts of Justice
Strand, London, WC2A 2LL
Lord Justice Irwin
Mr Justice Stuart-Smith
Case No: CO/4547/2017
Kate O'Raghallaigh (instructed by Lansbury Worthington) for the Appellant
Alex Tinsley (instructed by Crown Prosecution Service) for the Respondent
Hearing dates: 28 March
Approved Judgment
Introduction
This is the judgment of the Court, to which we have both contributed.
The appellant appeals against the decision of District Judge Devas made in the Westminster Magistrates Court on 27 September 2017. The District Judge ordered the extradition of the appellant to Poland pursuant to a request by the respondent, based on and made by a European Arrest Warrant (“EAW”) dated 18 April 2017.
In the Court below, extradition was resisted on two grounds, identified by the District Judge as follows:
“firstly, he was not deliberately absent from his trial and there is no right to retrial under s. 20 of the Act and secondly, that extradition would not be compatible with his Article 8 rights under s. 21 of the Act.”
The District Judge found against the appellant on both grounds. The Article 8 challenge is not renewed before this court and we need say no more about it. The appeal was originally listed to be heard on 31 January 2019. Shortly before that hearing, the respondent raised new arguments as a result of which May J adjourned the hearing to this Court.
The Background Facts
The appellant was involved in a fight in 2007 when he was 17. According to his evidence, he made admissions to the police; and the next he knew of that incident was several months later when he received a letter informing him that he had been convicted of an offence of robbery and sentenced to 2 years imprisonment suspended for 5 years. Having taken advice from a lawyer, the appellant decided not to challenge his conviction. He accepted in cross examination that he could have appealed the decision but did not do so.
His evidence was that in 2009 he was involved in another fight. He said that he attended court on numerous occasions arising out of this second incident. He was charged with an offence of assault to which he pleaded guilty and was sentenced to 10 months in custody suspended for three years. Because of this further offence, his earlier suspended sentence was activated and he was in custody from 1 November 2012 to February 2013. He then obtained a 6-month break in the sentence because his father was very ill. He subsequently managed to obtain a further 6-month extension, during which time he decided to come to the United Kingdom.
According to his witness statement, in 2014 he wrote from the United Kingdom to the Court in Poland asking for his sentence to be re-suspended. He did not provide his United Kingdom address. Instead, he gave a correspondence address in Poland, which was his mother's address until she left it to come to England shortly after. He said that he believed the suspension had been granted; but this belief was not based on any communication from the respondent or any other source.
The EAW and further information
The EAW is a “conviction” EAW which was issued on 18 April 2017 and certified by the National Crime Agency on 17 May 2017. It is based upon the enforceable judgment of the Polish Court dated 10 March 2008.
In answer to the question “Indicate if the person appeared in person at the trial resulting in the decision”, the text in Box D reads:
“No, the person did not appear at the trial resulting in the decision.
(…)
a. the person was summoned in person on … (day/month/year) and thereby informed of the scheduled date and place of the trial which resulted in the decision and was informed that a decision may be handed down if he or she does not appear at the trial;
b. the person was not summoned in person but by other means actually received official information of the scheduled date and place of the trial which resulted in the decision, in such a manner that it was unequivocally established that he or she was aware of the scheduled trial, and was informed that a decision may be handed down if he or she does not appear for the trial;
We note in passing that the date of the summons is not included in (a) and that (a) and (b) are inconsistent with each other since (a) says that the appellant was summoned in person while (b) says that he was not.
Box D in the original Polish version also states that the Appellant did not appear, but does affirm that he was served with the decision on 18 March 2008 and was expressly informed about the right to a retrial or appeal. It is recited that he or she had the right to participate, allowing the merits of the case, including fresh evidence, to be re-examined, ‘which may lead to the original decision being reversed’; and further affirms that the appellant did not request a retrial or appeal within the applicable time frame. The English translation omits the date of service of the decision on the appellant.
Box E states that the EAW relates to two offences, one of assault and one of robbery of a small sum of money. Further information provided by the Respondent confirms that the appellant pleaded guilty to the offences; and that he was served with a certified copy of the judgment.
This information is consistent with the appellant's evidence that he was notified of the decision and chose not to exercise his known right to challenge the decision.
It is common ground that the sentence of the court was originally suspended but was activated before the appellant's imprisonment on 1 November 2012. The further information provided by the Respondent also confirms the granting of prison leave covering the period to 12 February 2014 and that he did not return when that period of leave expired but left to go abroad. The Respondent's further information provided to the court was that the appellant was under an obligation to report back to his prison when his leave expired and that he was aware of that obligation; and that “he deliberately left abroad so as to evade his obligation to serve the remaining part of his custodial sentence.” A wanted notice was issued on 14 April 2014 and the EAW was issued after the Respondent learned that he was in the UK.
The issues on this appeal
There are two issues on this appeal:
i) Whether the respondent has proved that the appellant deliberately absented himself from his trial, within the meaning of s. 20 of the Act; and
ii) If the answer to the first issue is that the respondent did not prove that the appellant deliberately absented himself from his trial, then the question is whether the appellant falls to be discharged pursuant to s. 20(7) of the Act because he will not be entitled to a retrial if he is now extradited.
The appellant submits:
i) On issue 1, that the evidence in support of a finding that he deliberately absented from his trial himself is weak, that the Judge's finding (as set out in [24] of his judgment) is weak and without any proper evidential foundation, and that it cannot stand;
ii) On issue 2, that the requirements of s. 20(5) are clear and that there is no prospect of a retrial or a review amounting to a retrial if he is extradited. He submits that the fact that he chose not to exercise his known right of appeal or retrial within the time limited after the decision is irrelevant, notwithstanding the terms of Article 4a(1)(c) of the 2002 Framework Decision, which we set out below.
The respondent submits:
i) On issue 1, that the statements in Box D should be considered determinative as they correspond in substance with the requirements of Article 4a(1)(a)(i) and (ii). On that basis the Judge was entitled to reject the appellant's evidence that he did not receive a summons;
ii) On issue 2, that the statement in Box D and the appellant's own evidence determine that the exception in Article 4a(1)(c) applied, as the appellant was served with the decision, could have appealed but chose not to.
The Legal Framework
The 2002 Framework Decision
Article 4a of Framework Decision 2002/584/JHA on the European Arrest Warrant and Surrender Procedures between Member States, inserted in 2009, provides as follows:
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 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...
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