Bobis, R (on the application of) v The Regional Court in Gliwice

For extradition following a conviction in absentia, deliberate absence requires an initiated trial process from which the requested person deliberately absented himself. It is insufficient that the person was arrested when a trial was likely or inevitable. Deliberate absence may be inferred from conduct clearly and unequivocally showing an intention not to participate, including conduct frustrating notification of the trial. The extradition court may rely on the issuing state’s further information and the surrounding circumstances. A separate question may arise as to entitlement to a retrial, but the court need not determine the burden of proof on that issue where deliberate absence is established and the appeal fails.

Damian Bobis appealed against District Judge Snow’s order for his extradition to Poland under a conviction European Arrest Warrant. The appeal concerned only the sentence imposed for an assault offence. The central issues were whether Mr Bobis had deliberately absented himself from the trial, as required by section 20 of the Extradition Act 2003, and whether, if returned, he would be entitled to a retrial. The District Judge concluded that Mr Bobis had deliberately absented himself after leaving Poland and failing to collect registered letters notifying him of the hearing.

1. Appeal dismissed. The District Judge was entitled to conclude that the statutory requirements for extradition were met.
2. Under section 20 of the Extradition Act 2003, where a person was not convicted in his presence, the court must consider whether he deliberately absented himself from the trial and, if not, whether he would be entitled to a retrial or review amounting to a retrial.
3. The court applied the approach stated in Bicioc v Romania [2014] EWHC 628 (Admin): at minimum, a trial process must have been initiated from which the appellant deliberately absented himself. Arrest in circumstances where a trial is likely or inevitable is insufficient.
4. The evidence permitted the District Judge to find deliberate absence. The further information stated that Mr Bobis had failed to collect letters sent to him, had left for Great Britain, and had been instructed to notify the Polish court of changes of residence or stays exceeding seven days. The District Judge was entitled to infer either that he had breached that obligation after leaving Poland or that, while remaining in Poland, he deliberately failed to collect letters whose likely contents he understood.
5. The court did not need to determine the burden relating to the right of retrial. The information concerning that issue was confused and lacked sufficient explanation of the relevant legal principles, but the appeal failed on the deliberate-absence issue.

• High Court (Administrative Court): On 28 November 2014, the appeal against the extradition order was dismissed.
• District Judge Snow: On 16 October 2014, ordered extradition pursuant to the conviction European Arrest Warrant.