Pasquetti, R (on the application of) v Westminster Magistrates Court

Where a court proposes to proceed in a defendant’s absence, it must have a proper basis for concluding that the absence is deliberate and without good reason. If the information is incomplete or suggests a possible medical or other legitimate explanation, further enquiries should be made before proceeding. A serious failure in the court process which prejudices the absent defendant may justify judicial review and remission for a properly conducted hearing. The statutory appeal route under the Extradition Act 2003 does not necessarily provide an adequate remedy for procedural errors concerning the defendant’s absence.

The claimant faced extradition to Italy under two European arrest warrants. District Judge Zani ordered extradition on 4 May 2010 in the claimant’s absence and while he was unrepresented. The information before the district judge was that the claimant had refused to board the prison van. A document in which the claimant stated that he was ill and needed medical attention had not reached the court.

The claimant pursued both a statutory appeal and an application for judicial review. The central issue was whether the district judge had been entitled to proceed without making further enquiries into the reason for the claimant’s absence, and whether judicial review was the appropriate remedy.

1. Judicial review granted. The court treated the application as challenging the decision to continue in the claimant’s absence and granted permission to amend if necessary.
2. The decision to proceed could not safely be based on the limited information available. The district judge knew that the claimant had applied for legal aid, was a foreign national detained in prison and had refused to attend. The material did not establish whether the refusal was deliberate, medically justified, connected with representation, or attributable to another reason.
3. Following the guidance in Jones [2003] 1 AC 1, and having regard to the prejudice caused by the procedural failures, the district judge should have made further enquiries. The missing prison fax recorded a possible medical explanation. Had it been before the district judge, he would have adjourned briefly to obtain further information.
4. The court considered that a statutory appeal under the Extradition Act 2003 was confined to the statutory conditions in sections 23(4) and 26(3) or (4), concerning challenges to the merits of an extradition decision where success would result in discharge. Those provisions did not provide the appropriate route for curing the procedural errors identified here.
5. The extradition decision was therefore quashed and remitted to the magistrates’ court for determination at first instance, with proper legal representation and an informed decision. The ruling was expressly confined to the particular facts, including at least two serious errors not caused by the claimant, and was not intended to establish a general rule about proceedings in the absence of a party. Any future hearing was expected to proceed on the appointed date save in exceptional circumstances.

1. High Court (Administrative Court): quashed the decision of District Judge Zani ordering extradition and remitted the matter to the magistrates’ court.