Czekala, R (on the application of) v District Court In Bydgoszcz, Poland

For section 20 of the Extradition Act 2003, deliberate absence from trial requires more than conduct which causes or contributes to the person’s absence. The court must be satisfied beyond reasonable doubt that the person made a conscious decision not to attend. Ordinarily, this requires knowledge of the hearing, or conduct which clearly and unequivocally demonstrates an intention not to participate and allows the consequences to be foreseen. A failure to notify authorities of a change of whereabouts while in custody does not, without more, establish deliberate absence where the person did not know the trial date and could not foresee that the trial would proceed in his absence.

The claimant appealed against an extradition order made by District Judge Zani on 18 March 2010. Poland sought his extradition under a European Arrest Warrant to serve sentences for three offences. The appeal concerned only a theft conviction entered after a trial in the claimant’s absence.

It was accepted that the claimant had not received the summons, was in temporary police custody for another offence when the trial took place, and would not receive a retrial if returned. The issue was whether the District Judge had been entitled to find under section 20 of the Extradition Act 2003 that the claimant had deliberately absented himself from trial.

1. Appeal allowed. The extradition order relating to the theft offence was quashed, the claimant was discharged under section 27(5) of the Extradition Act 2003, and detailed assessment of his publicly funded costs was permitted.
2. The respondent bore the burden of proving deliberate absence beyond reasonable doubt. The wording of the signed rights-and-obligations document, referring to a suspect remaining at large, did not establish an obligation to notify the Polish authorities of the claimant’s whereabouts while he was in police custody. “At large” could not embrace being in police custody. Any uncertainty had to be resolved in the claimant’s favour.
3. Even assuming that such an obligation existed, failure to notify the authorities did not unequivocally demonstrate a conscious decision not to attend trial. The relevant inquiry concerns the person’s state of mind. Knowledge that criminal proceedings were continuing was insufficient where the person did not know the hearing date or place and could not reasonably foresee that the trial would proceed in his absence.
4. The court distinguished the circumstances in Dula v Director of Public Prosecutions of Zwolle Lelystad Holland, where the defendant had received the summons shortly before trial and could have sought an adjournment. The present case was materially different. The claimant’s inactivity might have reflected a hope that the proceedings would not materialise, rather than a conscious decision to absent himself from a known hearing.
5. Conduct causing absence from trial must be distinguished from a conscious decision not to attend. The District Judge had therefore answered the section 20(3) question incorrectly and should have ordered discharge under section 20(7).

• High Court (Administrative Court): District Judge Zani’s extradition order was allowed to stand for two offences, but the appeal succeeded in relation to the theft offence. The order was quashed and discharge was ordered.