Tyrakowski v Regional Court In Poznan, Poland

For the purposes of s 20 of the Extradition Act 2003, the central question is whether surrender would breach the absent defendant’s fair-trial rights. The requesting authority must prove to the criminal standard that the defendant deliberately absented himself from the trial. That requires proof of a voluntary waiver of the right to appear or conduct intended to evade justice. The absence of an express indication in the European arrest warrant that a summons was issued does not necessarily determine the issue. The court may draw the necessary conclusions from the warrant, further information and reliable findings of fact. Where deliberate absence is proved, the enquiry under s 20 ends and the court need not determine entitlement to a retrial.

The appellant appealed, with permission, against District Judge Jabbitt’s order of 26 April 2017 extraditing him to Poland on two European arrest warrants. The appeal concerned only EAW1, relating to a conviction in absentia for attempted burglary and a sentence of 18 months’ imprisonment. The appellant argued that the Polish authorities had not proved that he had been summoned to the trial, that he had not deliberately absented himself, and that he would not receive the retrial rights required by s 20 of the Extradition Act 2003.

The respondent relied on the appellant’s knowledge of the pending proceedings, his obligation to notify the authorities of changes of address, his departure from Poland, and the further information supplied by the Polish judicial authority. The central issue was whether the district judge was entitled to find beyond reasonable doubt that the appellant had deliberately absented himself from his trial.

The appeal was dismissed.

1. Statutory framework. Section 20 of the Extradition Act 2003 requires the court to consider whether a person convicted in his absence deliberately absented himself from the trial. If he did, the court proceeds under s 21 and need not consider whether he would receive a retrial. If he did not, the court must consider retrial or review rights and, unless the statutory safeguards are established, discharge the person.
2. Applicable test. The requesting judicial authority bears the burden of proving deliberate absence to the criminal standard. The relevant question is whether surrender would breach the person’s defence rights. That turns on whether it has been unequivocally established that the person waived the right to appear and defend himself, or was seeking to evade justice. The court left open the broader question whether deliberate absence always requires proof of a summons.
3. Application. The district judge had heard and seen the appellant give evidence and was entitled to find that he was untruthful, knew that criminal proceedings were continuing, and left Poland to avoid the trial and imprisonment. The appellate court should ordinarily respect such findings, applying the approach in Wiejak v Olsztyn Circuit Court of Poland [2007] EWHC 2123 (Admin).
4. Although EAW1 did not state that the appellant had been summoned and relied instead on the post-conviction notification condition, the court inferred from the appellant’s duty to appear when summoned, the normal procedure, and letters sent to his Polish address that a summons had been issued. His failure to receive it resulted from his own departure to England.
5. There was therefore no need finally to determine whether the appellant had a right to a retrial. The district judge had correctly concluded that the appellant deliberately absented himself for the purposes of s 20.

• High Court (Administrative Court): dismissed the appeal against the extradition order.
• Westminster Magistrates’ Court: District Judge Jabbitt ordered extradition on 26 April 2017.