Deputy Public Prosecutor of the Court of Appeal of Montpellier v Wade

For the purposes of section 20 of the Extradition Act 2003, a person does not deliberately absent himself from a criminal hearing merely because he received notice and consciously decided not to attend. “Deliberately” requires an inquiry into the person’s state of mind and a decision taken in the light of all material information. Material misinformation about the nature of the hearing or the consequences of non-attendance may prevent deliberate absence. Where the person was convicted in his absence, did not deliberately absent himself, and would have no retrial or review amounting to a retrial, section 20(7) requires discharge.

The French prosecutor sought the extradition of George Wade under a European arrest warrant. Wade had been acquitted by the criminal court at Perpignan but convicted on the prosecutor’s appeal by the Court of Appeal at Montpellier, where he was absent but represented by a lawyer. He had been advised that he could ignore the appeal and did not understand that the hearing might involve a rehearing with fresh evidence.

The Senior District Judge ordered his discharge under section 20 of the Extradition Act 2003, finding that he had not deliberately absented himself and would not be entitled to a retrial or review amounting to a retrial. The central issue on the prosecutor’s appeal under section 28 was whether Wade’s absence was deliberate.

1. Appeal dismissed. The court upheld the Senior District Judge’s decision, although for different reasons. Since Wade was convicted in his absence, would not be entitled to a retrial or review amounting to a retrial, and had not deliberately absented himself, section 20(7) of the Extradition Act 2003 required his discharge.
2. Section 20 applies where the person was convicted in his absence. If the person did not deliberately absent himself and would not be entitled to a retrial or, on appeal, a review amounting to a retrial, discharge is mandatory. The Montpellier hearing was “the trial” for section 20(3) because, on the assumed facts, it was a rehearing at which fresh evidence could be heard and conviction resulted.
3. “Deliberately” concerns the person’s state of mind. It connotes a decision taken in the light of all material information. It is not confined to deliberate evasion of justice or to awareness merely that the hearing might result in conviction. Wade had been materially misinformed by advice that he could ignore the appeal with no consequences. He therefore had not deliberately absented himself.
4. The reasoning was consistent with Sejdovic v Italy 42 EHRR 360. A waiver of the right to attend must be unequivocal and attended by safeguards commensurate with its importance. The relevant consequences extend beyond the possible outcome of the appeal, including the loss of an opportunity to give evidence in a rehearing.

• High Court (Administrative Court): On an appeal under section 28 of the Extradition Act 2003, the court dismissed the prosecutor’s appeal and upheld the discharge ordered by the Senior District Judge on 1 June 2006.