Bialkowski v Regional Court In Kielsce, Poland

For the purposes of section 20 of the Extradition Act 2003, a requested person may be treated as having deliberately absented himself from trial where his own conduct caused him to remain unaware of the trial date and place. Actual receipt of the trial summons is not invariably required. The requesting state must nevertheless establish that it took steps which would have informed a non-evasive person of the trial arrangements. Deliberately avoiding service, including by failing to notify a change of address, may satisfy the test. On the facts, the evidence justified the finding that the appellant had deliberately absented himself. The article 8 interference caused by extradition did not approach the exceptionally severe consequences required to outweigh the public interest in extradition.

The appellant challenged the decision of District Judge Tempia, dated 12 November 2018, ordering his extradition to Poland to serve a six-month sentence for driving while disqualified. He pursued only the ground concerning section 20 of the Extradition Act 2003: whether he had deliberately absented himself from his trial so that the absence of a right to a retrial did not prevent extradition. He also renewed an article 8 challenge, although permission on that ground had previously been refused. The central issues were whether the evidence supported the section 20 finding and whether extradition would be disproportionate.

1. The appeal was dismissed. The district judge’s finding that the appellant had deliberately absented himself from his trial was adequately supported by the evidence.
2. The relevant authorities establish that actual receipt of the trial information is not always essential. A person may be treated as deliberately absent where his own conduct led to his unawareness of the trial date and place. The requesting state must still show that it took steps which would have acquainted a non-evasive person with that information. Mere evasive conduct, without proof that proper informing steps were taken, is insufficient.
3. The principles stated by Hickinbottom J in Stryjecki v District Court in Lublin, Poland [2016] EWHC 3309 were treated as sound. The sixth proposition was reconcilable with the Divisional Court’s formulation in Cretu v Local Court of Suceava, Romania [2016] 1 WLR 3344. The court’s concern was to distinguish evasive conduct alone from evasive conduct which caused the person to remain uninformed despite proper steps by the requesting state.
4. The district judge was not required to set out the case law in detail. Her findings that the appellant was dishonest and had failed to notify the Polish authorities of his change of address justified the conclusion that he had deliberately avoided knowing, or avoided receiving information about, the trial dates. It was immaterial whether he actually knew the dates and deliberately failed to attend or deliberately avoided learning them.
5. The article 8 challenge failed. Applying the balance-sheet approach, the relatively limited disruption caused by extradition for a short sentence did not meet the high threshold in HH v Deputy Prosecutor of the Italian Republic, Genoa [2012] UKSC 25. The consequences were not exceptionally severe and did not outweigh the public interest in extradition.

• High Court (Administrative Court): the appeal against District Judge Tempia’s extradition decision of 12 November 2018 was dismissed.
• District Court: extradition to Poland was ordered under section 21(3) of the Extradition Act 2003.