Skwark v District Court In Legnica, Poland

Under section 20 of the Extradition Act 2003, an extradition judge must address, sequentially, whether a person convicted in absence deliberately absented himself and, if not, whether he would be entitled to a retrial or equivalent review. The judicial authority bears the burden of proving deliberate absence beyond reasonable doubt. Clear and unambiguous statements in a European Arrest Warrant should generally be accepted, and the court should go behind them only in very exceptional circumstances. Fresh evidence on appeal is subject to a strict test: it must have been unavailable at the extradition hearing and decisive of the relevant issue. Evidence which could reasonably have been adduced earlier will ordinarily be excluded.

The applicant appealed against an order made by District Judge Coleman on 29 June 2012 directing his extradition to Poland under two European Arrest Warrants. One warrant concerned the execution of five sentences; the other concerned prosecution for three offences. The appeal concerned only one conviction for theft, at which the applicant had not been present.

The applicant contended that he had not been notified of the hearing, had not deliberately absented himself and was not entitled to a retrial. He sought to rely on a witness statement not adduced before the District Judge. The central issues were whether the new evidence could be admitted and whether the judicial authority had proved deliberate absence under section 20 of the Extradition Act 2003.

1. The appeal was dismissed. The District Judge had correctly found that the applicant was convicted in his absence. However, the District Judge had not expressly addressed section 20(3) of the Extradition Act 2003. District judges must work through the section 20 questions step by step and in the statutory sequence whenever conviction in absence is in issue.

2. The judicial authority bore the burden of proving beyond reasonable doubt that the applicant deliberately absented himself. The court accepted that burden. The applicant knew of his obligation to notify the authorities of changes of address and had moved to England without providing the required information. In those circumstances, he had either been properly served at the relevant address and failed to attend, or had absented himself in circumstances demonstrating deliberate absence.

3. The court agreed with the approach in Nowicki v Military Court of Gydnia, Poland [2011] EWHC 1962 (Admin) and Emil Kis v District Court In Sokolov, Czech Republic [2010] EWHC 93 (Admin). A clear and unambiguous assertion in a European Arrest Warrant should generally be treated as correct. It is only in very exceptional circumstances that the requested court should go behind the warrant.

4. The proposed witness evidence was not decisive. Applying the strict approach explained in Hungary v Roland Fenyvesi & Kalman Fenyvesi [2009] EWHC 231 (Admin), the evidence was available at the extradition hearing because it existed and could have been obtained with minimal diligence. It therefore could not be admitted to repair an omission at the hearing below.

5. The finding of deliberate absence was fact-sensitive but satisfied the statutory standard. Since the new evidence failed the applicable test, it was unnecessary to consider the remaining conditions for admitting fresh evidence.

1. High Court (Administrative Court): District Judge Coleman’s order of 29 June 2012 was challenged. The appeal was dismissed.