Lagocki & Anor v Regional Court In Szczecin, Poland Prosecutor General's Office, Republic of Lithuania

A magistrates’ court has power to conduct extradition proceedings and make a surrender order in the requested person’s absence. The power should be exercised only rarely, consistently with procedural fairness. It may properly be exercised where the person’s absence is deliberate, the likely consequences have been explained, and the court is satisfied that proceeding is in the interests of justice and that there is no acceptable reason for the absence. The court need not undertake further investigation where the available evidence adequately establishes deliberate absence. Failure to communicate the order and reasons is a procedural fault, but it does not retrospectively invalidate the hearing. It may instead be relevant to whether an appeal should be permitted out of time.

Two linked matters concerned extradition orders made by Westminster Magistrates’ Court in the absence of Piotr Lagocki and Vjaceslavs Tarabanovs. Each applicant resisted extradition under Articles 3 and 8 of the European Convention on Human Rights. Lagocki sought permission to appeal out of time and judicial review of the order made after he declined to attend, claiming illness. Tarabanovs sought permission to appeal and judicial review after repeated refusals to attend, including refusal based on an unresolved asylum application.

The central issues were whether the magistrates’ court had lawfully proceeded in the applicants’ absence, whether the proceedings were procedurally unfair or a nullity, and, in Lagocki’s case, whether an appeal should be permitted out of time.

1. Judicial review refused. The Divisional Court held that the magistrates’ court had statutory and, in any event, inherent power to proceed with extradition proceedings in the requested person’s absence. The power is subject to common-law procedural fairness and should be exercised only rarely, as explained in R v Bow Street Magistrates’ Court, ex parte Government of Germany and R (Griffin) v City of Westminster Magistrates’ Court.
2. In Lagocki’s case, the signed note and prison email showed that he had chosen not to attend despite being warned that the hearing might proceed. The district judge had made proportionate enquiries and was entitled to find deliberate absence. Further investigation was not required. The statutory conditions were satisfied: the warrants had been served, proceeding was in the interests of justice, and there was no acceptable reason for the absence.
3. In Tarabanovs’s case, the repeated refusals to attend, the warning that the hearing would almost certainly proceed in his absence, and his stated reason for refusing to attend justified the same conclusion. His waiver was voluntary, informed and unequivocal, assuming that principle applied.
4. The Criminal Procedure Rules stated general rules favouring the defendant’s presence and an opportunity to make representations, but expressly allowed discretionary exceptions, including deliberate absence. The decisions were therefore consistent with the substance of those rules.
5. The magistrates’ court was at fault in failing to send each absent applicant the extradition order and at least a brief summary of reasons. That was a discrete matter and did not affect the lawfulness of the decisions to proceed or render the orders nullities.
6. Lagocki’s delay was substantially caused by the failure to notify him, but permission to appeal out of time still required an arguable ground of appeal under section 26(5) of the Extradition Act 2003. No arguable challenge to the Article 3 or Article 8 conclusions was identified. Permission was refused. Tarabanovs’s in-time appeal application was also refused because, after the judicial review failed, no ground of appeal remained.

• High Court (Administrative Court): [2015] EWHC 3641 (Admin). Judicial review permission was refused in both cases. Lagocki’s application for permission to appeal out of time was refused, and Tarabanovs’s application for permission to appeal was refused.
• Westminster Magistrates’ Court: extradition orders were made against Lagocki on 28 July 2015 and Tarabanovs on 3 August 2015, each in the requested person’s absence.
• High Court: Cranston J refused Lagocki permission to appeal on the papers on 14 August 2015.