Dula v Director of Public Prosecutions of Zwolle Lelystad Holland

Detention at the time of a foreign criminal trial does not, by itself, prevent a person from deliberately absenting himself within Extradition Act 2003, section 20(3). The question is fact-sensitive. A deliberate failure to take available steps to secure attendance or an adjournment may amount to deliberate absence. Relevant evidence includes notice of the trial, explanations of the available procedures, opportunities to obtain legal assistance, and the absence of any evidence that the person attempted to participate. A person detained abroad does not automatically lose the protection of section 20. The decision is confined to the evidence in the individual case.

The claimant appealed against District Judge Wickham’s order of 18 November 2009 requiring his extradition to the Netherlands under a European Arrest Warrant. He had been convicted in the Netherlands in his absence and sentenced to four years’ imprisonment.

The parties agreed that he had no entitlement to a retrial or review amounting to a retrial. The central issue was whether the respondent had proved, to the criminal standard, that he had deliberately absented himself from his trial within section 20(3) of the Extradition Act 2003. If not, discharge under section 20(7) would have followed.

1. The appeal was dismissed. The District Judge was entitled to find that the claimant had deliberately absented himself from his trial.
2. The mere fact that a person is imprisoned does not prevent a finding of deliberate absence. Arrangements may be possible for attendance, or the trial may be adjourned until release. A deliberate failure to take the necessary steps to obtain attendance or an adjournment may therefore satisfy section 20(3). Each case depends on its facts.
3. The claimant had been questioned about the charges, personally served with the summons and Polish explanatory notes, and informed of the trial date and his right to seek legal assistance or a deferment. He signed to acknowledge receipt. He made no attempt to contact the Dutch court, obtain a lawyer, seek an adjournment or otherwise participate.
4. The District Judge was entitled to infer a voluntary and conscious decision not to participate. The claimant’s possible logistical difficulties were speculative because he gave no evidence explaining his inaction. His failure to use a further opportunity to pursue an appeal after service of the judgment strengthened that inference.
5. The decision did not establish that a person detained outside the trial country automatically loses section 20 protection. The claimant lost that protection on the evidence available, and the court expressly confined its conclusion to those circumstances.

Lord Justice Waller agreed with Mrs Justice Swift’s judgment. Detailed assessment of the publicly funded claimant’s costs was ordered.

• High Court (Administrative Court): The appeal against District Judge Wickham’s extradition order of 18 November 2009 was dismissed.