Karel Konecny v District Court Czech Republic

JurisdictionEngland & Wales
JudgeSir Wyn Williams
Judgment Date27 September 2017
Neutral Citation[2017] EWHC 2360 (Admin)
CourtQueen's Bench Division (Administrative Court)
Date27 September 2017
Docket NumberCase No: CO/2010/2017

[2017] EWHC 2360 (Admin)

IN THE HIGH COURT OF JUSTICE

QUEEN'S BENCH DIVISION

ADMINISTRATIVE COURT

Royal Courts of Justice

Strand, London, WC2A 2LL

Before:

Sir Wyn Williams

(sitting as a High Court Judge)

Case No: CO/2010/2017

Between:
Karel Konecny
Claimant
and
District Court Czech Republic
Defendant

Benjamin Seifert (instructed by Freemans solicitors) for the Appellant

Jonathan Swain (instructed by CPS Extradition Unit) for the Respondent

Hearing date: 24 August 2017

Judgment Approved

Sir Wyn Williams
1

This is an appeal against a decision made on 24 April 2017 by District Judge Ashworth, sitting in the Westminster Magistrates' Court, whereby he directed that the Appellant should be extradited to the Czech Republic to serve a sentence of 8 years' imprisonment which had been imposed upon the Appellant on 12 May 2008 for three offences of fraud. At the extradition hearing the Appellant argued that his extradition was barred on two bases. First, that extradition would be unjust or oppressive within section 14 Extradition Act 2003. Second, that extradition would constitute a disproportionate interference with the Appellant's rights and those of his partner under Article 8 ECHR. In this appeal, brought, with the permission of Collins J, the Appellant submits that DJ Ashworth was wrong to conclude that the extradition of the Appellant would not be oppressive or unjust and wrong to conclude that extradition would not be a disproportionate interference with the human rights of the Appellant and his partner.

2

The Appellant is now very nearly 56 years old. The offences for which he stands convicted in the Czech Republic were committed on 26 November 2004, 21 December 2004 and 7 March 2005 when he was in his early forties and resident in the Czech Republic. The offences were serious offences of their kind; the victims were deprived of property having a value in sterling of approximately £70,000 as at the date of the offences.

3

The Appellant was tried in his absence in 2008. He had left the Czech Republic in June 2007. The sentence of 8 years' imprisonment was imposed after a trial in which the Appellant did not participate although he was represented by a lawyer who had been allocated to defend him by the appropriate state agency.

4

It was common ground before the District Judge that the Appellant had served a sentence of imprisonment between about 2001 and 2003 for an offence of "misappropriation". He was released from that sentence, conditionally, on 26 March 2003.

5

According to his evidence before the District Judge (which was accepted to be truthful) the Appellant had some contact with the police in relation to the offences of which he was convicted in his absence in November 2005. The Appellant's account was that "the police/authorities" approached him and he handed various documents to them. The documents were very important, according to the Appellant, since they had the effect of proving his innocence of the charges which were brought against him subsequently.

6

Despite this involvement with the authorities in the Czech Republic in 2005 it was accepted by the Respondent that the Appellant was not to be regarded as a fugitive from justice. At the time when the Appellant left the Czech Republic in 2007 he was entitled to do so; there were no proceedings against him and no restriction upon his right to travel and leave the Czech Republic.

7

Information provided by the Respondent and adduced before the District Judge shows that a decision to detain the Appellant was made in November 2007. On 14 April 2008 a court in the Czech Republic authorised the Appellant's prosecution and a trial must have taken place very quickly thereafter because sentence was imposed in May 2008.

8

Although, as I have said, a lawyer was appointed to represent the Appellant in the proceedings in the Czech Republic, the Respondent accepted before the District Judge that the Appellant had no knowledge of the proceedings which had been brought against him until he was arrested under a European Arrest Warrant (EAW) in 2017. The District Judge proceeded on that basis.

9

Should this appeal be dismissed the Appellant will have an unfettered right to a re-trial in the Czech Republic upon his return. It was common ground before me that I should proceed on the basis that such a trial would respect and conform with the Appellant's right to a fair trial under Article 6 ECHR.

10

As I have said, the Appellant came to the UK in June 2007. He was soon followed by his long term partner Ms Olga Janeckova. They have lived together in the North West of England since September 2007. For the last 10 years the Appellant has been employed as a lorry driver. Ms Janeckova has also been gainfully employed. However, in December 2012 she suffered a significant hand injury at work. This inhibited her employment; for the last 4 or 5 years Ms Janeckova has been self-employed making jewellery and selling it on-line. At the time of the hearing before the District Judge the Appellant and his partner had accumulated debts. In the main, that was because the Appellant had been remanded in custody following his arrest and he was unable to work. Following the Appellant's release on bail (following a hearing before me) the Appellant has resumed his work as a lorry driver.

11

The EAW was issued by the Respondent on 17 April 2013. It was not certified until 2 March 2017. No explanation for the delay between issue and certification was offered to the District Judge; the delay was not explained before me. The Appellant was arrested pursuant to the warrant on the day it was certified i.e. 2 March 2017. He was in custody from that date until early May April 2017.

Ground 1 – section 14 Extradition Act 2003

12

The relevant provisions of section 14 Extradition Act 2003 are as follows:-

"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)"

13

Despite the apparent clarity of the wording of section 14 Mr Seifert argues that the District Judge was wrong to conclude that the "passage of time" to be considered in this case was from the date when the Appellant was sentenced i.e. 12 May 2008. Mr Seifert submits that the passage of time to be considered in this case was the period from the commission of the first offence i.e. 26 November 2004. He supports that submission by reference to the decision of Blake J in Rahman v County Court of Boulogne Sur Mer, France [2014] EWHC 4143 (Admin).

14

The salient facts in Rahman were similar to the facts in the instant case. Mr Rahman (a British citizen usually resident in the UK) was alleged to have committed tax evasion offences in France in the period 2007 to 2008. Criminal proceedings in respect of the alleged offences were commenced in October 2009 by which time, on any view, Mr Rahman was residing in his usual home in the UK. On 15 November 2011 he was convicted in his absence and sentenced to a term of imprisonment. It was common ground that Mr Rahman had no knowledge of the proceedings which had been instituted in 2009 nor his conviction and sentence in 2011 until he was arrested pursuant to an EAW in 2013. At his extradition hearing before a district judge and on appeal before Blake J Mr Rahman argued that he was entitled to rely upon section 14 of the 2003 Act and that the relevant "passage of time" began with the earliest date of the alleged offending namely 2007. Mr Rahman had an unfettered right to a re-trial in the event that he was returned to France.

15

During the course of his judgment Blake J reviewed a number of earlier authorities before concluding:-

"31 ….the ordinary meaning of unlawfully at large is to apply. Indeed any other meaning would render the words of the section absurd if an absentia conviction which is not the responsibility or fault of the appellant could prevent him, essentially, pleading delay at all. Mr Sternberg [counsel for the judicial authority] conceded that cannot have been Parliament's intention. One of the canons of construction is to avoid consequences that are absurd if it is possible to do so."

16

Later, at paragraph 37, Blake J expressed himself thus:-

"Fortified by these authorities I reach the conclusion that in 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…."

17

In the result Blake J concluded that the period of delay to be considered in Mr Rahman's case began with the earliest date of the offending not the date when Mr Rahman was sentenced.

18

In Wisniewski and others v Regional Court of Wroclaw, Poland and others [2016] EWHC 386 9 (Admin) the Divisional Court (Lloyd Jones LJ and Holroyde J) had before them 3 appeals against extradition which raised issues as to the availability of the bar to extradition on the grounds of passage of time under section 14 of the 2003 Act in circumstances where a requested person had left the requesting state whilst subject to a suspended sentence of imprisonment which was activated thereafter in his absence. During the course of his judgment (paragraphs 34 to 45) Lloyd Jones LJ set out the effect of a number of authorities in which section 14 of the 2003 Act had been considered particularly so far as those authorities threw light upon the concepts of a person being "unlawfully at large" within section 14(1)(b) of the 2003 Act and a fugitive. He then expressed himself thus:-

"51. The...

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