Opalfvens v Public Prosecutor Antwerp, Belgium

For the purposes of Extradition Act 2003, section 20(3), deliberate absence from trial depends on whether the requested person knowingly and deliberately failed to participate in the trial process. The court must consider the person’s state of mind and the adequacy and clarity of the notice given about the conviction and available appeal or opposition rights. A prima facie case of deliberate absence may support an adverse inference in a summary extradition hearing. Where deliberate absence is established, the court need not consider entitlement to a retrial under section 20(5). A renewal notice seeking permission to appeal must engage with the single judge’s reasons and explain briefly why the decision was wrong. Automatic renewal by repetition of the original grounds is inadequate.

The applicant sought permission to appeal against District Judge Goldspring’s decision of 19 June 2015 ordering his extradition to Belgium. He had been convicted in his absence. The extradition challenge concerned whether he had deliberately absented himself from trial, within section 20(3) of the Extradition Act 2003, by failing to lodge a notice of appeal or opposition.

The district judge considered the European Arrest Warrant and further evidence, applied VB and Others v Westminster Magistrates’ Court [2014] UKSC 59, Podlas v Poland [2015] EWHC 908 and Goatley v Netherlands [2012] EWHC 315 (Admin), and found deliberate absence proved to the criminal standard. Permission to appeal was refused on paper and renewed.

1. Permission refused. Mr Justice Irwin agreed with the district judge’s conclusions and held that the reasoning was proper.
2. Under section 20 of the Extradition Act 2003, the critical issue was whether the applicant had deliberately absented himself from the trial. The trial process was continuous. The inquiry required consideration of the applicant’s state of mind and whether the notice given to him clearly and adequately explained the relevant right of appeal or opposition, the applicable time limit and when that period began.
3. The approach in VB and Others v Westminster Magistrates’ Court [2014] UKSC 59 permitted the extradition judge to use the powers available in a summary trial, including appropriate evidential and procedural powers. It was accepted that, where the judicial authority raised a prima facie case of deliberate absence, the judge could draw an adverse inference.
4. The European Arrest Warrant provided sufficiently clear information about the applicant’s available remedies and time limits. Applying the principles in Podlas v Poland [2015] EWHC 908 and the approach in Goatley v Netherlands [2012] EWHC 315 (Admin), the district judge was entitled to find deliberate absence proved to the criminal standard. Since deliberate absence was established, it was unnecessary to decide whether the applicant would otherwise have been entitled to a retrial under section 20(5).
5. A renewed application for permission to appeal must comply with Criminal Procedure Rules rule 17.22. The renewal notice must grapple with the single judge’s reasons and state concisely why the decision was wrong. Repeating the original grounds without proper consideration may amount to a failure to lodge valid grounds for renewal, permitting dismissal without a renewal hearing.

• High Court (Administrative Court): permission to appeal was refused by Mr Justice Irwin on 11 August 2015.
• Westminster Magistrates’ Court: District Judge Goldspring ordered extradition on 19 June 2015.
• High Court: Supperstone J refused permission on the papers on 17 July 2015; the order was sealed on 20 July 2015. The application was then renewed.