Istanek v District Court of Prerov
| Jurisdiction | England & Wales |
| Judge | MR JUSTICE OUSELEY |
| Judgment Date | 03 February 2011 |
| Neutral Citation | [2011] EWHC 264 (Admin) |
| Docket Number | CO/10065/2010 |
| Court | Queen's Bench Division (Administrative Court) |
| Date | 03 February 2011 |
[2011] EWHC 264 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
THE ADMINISTRATIVE COURT
Before: MR JUSTICE OUSELEY
CO/10065/2010
Ms A Drudy (instructed by Messrs Dass Solicitors) appeared on behalf of the Claimant
Ms C Bramwell (instructed by the Crown Prosecution Service) appeared on behalf of the Defendant
: This is an appeal against the decision of the District Judge, District Judge Wickham, at the City of Westminster Magistrates' Court on 20th September 2010 whereby she ordered the appellant's extradition to the Czech Republic on what she concluded was a conviction warrant.
The terms of the warrant are those of a conviction warrant. The term of imprisonment to which the appellant has been sentenced is set out.
He was, however, convicted in his absence. The warrant states, but subsequent information makes the position clearer, that, upon return to the Czech Republic, he can, within eight days, and with no great formality, seek a retrial. He does it by simply asking that the conviction be reversed and a retrial would then take place. The precise form of the retrial may differ from the original trial in terms of what evidence is called.
The Czech judicial authorities could, but chose not to, serve the judgment upon the appellant in the United Kingdom which would have meant his eight days ran from that date of service. They say it would be served on him on his return. His trial in his absence was concluded while he was represented but that does not alter his entitlement to have the conviction set aside and a retrial take place.
The issues before the District Judge were whether the first question which had to be decided was whether the appellant was an accused or an convicted person. The second question was whether the warrant was a valid warrant for somebody who was an accused person, as Ms Drudy for the appellant submits he was. She submits that the judgment could not be final for the purposes of Article 8 of the framework decision since it could so readily be reversed.
She points to an authority: R (on the application of Bikar) v Governor of Brixton Prison [2003] EWHC 372. This was a decision on the provisions of section of 6(2) of the Extradition Act 1989. It was concerned with protecting those who were convicted in their absence who would not be retried. Although some of the language of the judgment assists her, it is not a decision I would have had any difficulty in distinguishing. More pertinently, there have been two recent decisions of the Divisional Courts in Czech Republic v Janiega [2010] EWHC 463 (Admin) and Ruzicka v Slovakia [2010] EWHC 1819 (Admin), both of which dealt with situations which had some similarity with the present.
In Janiega, the warrant was issued as an accusation warrant which was the correct position at the time and, by the time of the extradition hearing, the appellant had been convicted in his absence, had had an appeal dismissed but nonetheless would have been entitled on return to have his conviction set aside. Although the principal issue appeared to have been whether the validity of the warrant was judged at the time of issue or at the time of the hearing, the decision was resolved in favour of the Czech Republic, which argued that it was still an accusation warrant because of the ready reversibility of the conviction on return to the...
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...referring only to Moulai v Deputy Public Prosecutor of Creteil [2009] EWHC 1030 (Admin) at paragraphs 25 to 26, 28 to 29 and to Istanek v District Court of Prerov [2011] EWHC 1498 (Admin) at paragraph 20, in particular the propositions 1 to 3 in the judgment of Laws LJ. 13 The correctness o......
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...principle has been considered and identified. The judge referred in her judgment to having had regard particularly to Istanek v District Court of Prerov, Czech Republic [2011] EWHC 1498, in particular the passage in the judgment of Laws LJ running from paragraph 21 to 29, in the course of w......