Da Silva v First Mixed Competence Court of Loures, Portugal

Under section 20(3) of the Extradition Act 2003, the judicial authority must prove to the criminal standard that the requested person deliberately absented himself or herself from the trial process. The person need not have known the precise trial date. It is sufficient that the person knew of the trial process, and whether that process had begun is a question of fact. Deliberate absence may be established by circumstantial evidence, including effective notification, failure to respond or update an address, and departure shortly afterwards.

The appellant appealed against a District Judge’s order for his extradition to Portugal. The appeal had previously been dismissed on grounds 1 and 3, but was adjourned on ground 2, concerning whether the appellant had deliberately absented himself from his trial. The issue arose from notification of a Portuguese trial listed for 5 May 2004, the effectiveness of service, and whether the trial process had begun before the relevant notification. The court reconsidered ground 2 in light of Podlas v District Court in Koszalin, Poland [2015] EWHC 908 (Admin).

1. The appeal was dismissed. Grounds 1 and 3 had already been rejected, and ground 2 was not made out.

2. Section 20(3) of the Extradition Act 2003 requires the judicial authority to prove to the criminal standard that the requested person deliberately absented himself from the trial process. As explained in Podlas v District Court in Koszalin, Poland [2015] EWHC 908 (Admin), awareness of the precise trial date is unnecessary. The relevant question is whether the person knew of the trial process. Whether that process had begun is a question of fact.

3. The court was not satisfied that the trial process had commenced when the appellant was personally notified of the accusation on 2 December 2003. The translated documents did not establish that the document served was an indictment forming part of the trial process.

4. The trial process had commenced by 4 February 2004, when the accusation was received by the Portuguese court and the judge fixed the trial date. The notification letter posted on 11 February 2004 was effectively served under Portuguese law, and Article 313 of the Criminal Code treated service as effective on posting where there was proof of deposit.

5. Having regard to the proof of deposit, the appellant’s failure to notify the court of a change of address or respond to the notification, and his departure from Portugal shortly afterwards, the court was satisfied to the criminal standard that he deliberately absented himself from the trial process.

• High Court (Administrative Court): the appeal against the extradition order was dismissed. Grounds 1 and 3 had previously been rejected, and ground 2 was rejected after the adjourned hearing.
• District Judge: on 13 February 2015, ordered the appellant’s extradition to Portugal.