Bukowski v Regional Court In Bydgoszcz

Under section 20 of the Extradition Act 2003, deliberate absence from trial is a question of fact, proved by the requesting judicial authority to the criminal standard. Where a person raises duress, there is initially an evidential burden on that person. If it is discharged, the requesting authority must disprove the duress to the criminal standard, because sufficiently extreme duress may negative deliberate absence. The issue is fact-sensitive and would arise only in an extreme case where the person’s will was overborne. A failure to discharge the initial evidential burden is sufficient to uphold the extradition decision.

The claimant faced extradition to Poland under a European Arrest Warrant concerning three matters. He accepted extradition in relation to drug and robbery offences. The appeal concerned only his conviction for causing a man’s death by beating him with a baseball bat.

After attending earlier stages of a retrial, the claimant failed to attend its later stages. He alleged that threats from associates of the deceased amounted to duress. The District Judge held that he had not established a sufficient basis for that fear and, alternatively, that he had deliberately absented himself. The section 21 human-rights issue was not pursued on appeal. The central issue was whether duress could prevent an absence from being deliberate under section 20 of the Extradition Act 2003.

1. Appeal dismissed. The District Judge had not reversed the burden of proof. Properly understood, his decision was that the claimant had failed to discharge the initial evidential burden in relation to duress.
2. Under section 20 of the Extradition Act 2003, the requesting judicial authority must establish deliberate absence to the criminal standard. Where duress is raised, the person resisting extradition must first adduce sufficient evidence to raise the issue. Once that evidential burden is discharged, the requesting authority must disprove duress to the criminal standard.
3. The court rejected the submission that duress could never be relevant to deliberate absence. In an extreme case, a person whose will was overborne by fear of death might be able to show that the absence was not deliberate, in the same way as a person physically prevented from attending. Whether duress has precisely the same meaning as in domestic criminal law was left open.
4. Whether absence was deliberate is ultimately a question of fact. The principles in Deputy Public Prosecutor of the Court of Appeal of Montpellier v Wade [2006] EWHC 1909 (Admin) and Falanga [2007] EWHC 268 (Admin) supported that approach.
5. The claimant had attended earlier stages of the retrial, had not told his advocate why he failed to attend later stages, and had not established the alleged post-release threats to the required evidential threshold. The appeal therefore failed at the first stage. The observations on the possible effect of extreme duress were not necessary to the result.

• High Court (Administrative Court): Appeal dismissed. The court upheld the District Judge’s extradition decision in relation to the third file.
• District Judge: Ordered extradition after finding that the claimant had deliberately absented himself and that extradition was not barred by section 21 of the Extradition Act 2003.