Dziel v District Court In Bydgoszcz, Poland

Under section 20(3) of the Extradition Act 2003, a person may be deliberately absent from trial where his own deliberate conduct prevents the authorities notifying him of the trial date and place. This includes breaching an obligation to provide an address and deliberately ignoring the court process.

Article 4a of the Framework Decision requires actual communication of the trial date and place, but failure to satisfy that condition leaves an optional refusal ground rather than requiring refusal. Extradition remains lawful where surrender would be compatible with article 6 ECHR. Full knowledge that trial could proceed in absence is not essential where the consequence was reasonably foreseeable or the person showed complete indifference to the proceedings.

This was an appeal against District Judge Goozee’s order at Westminster Magistrates’ Court for the appellant’s extradition to Poland to serve a sentence imposed following a trial in his absence.

The appellant had left Poland without notifying the authorities of his new address, despite being under an obligation to do so. The law later changed to permit trial in absence. The central issue was whether, for the purposes of section 20 of the Extradition Act 2003, the appellant had deliberately absented himself from the trial, notwithstanding that he had not actually received notice of the trial date or been told that trial could proceed in his absence.

Appeal dismissed. The appellant was deliberately absent from his trial and his extradition did not breach article 6 ECHR.

1. The court admitted further information from the Polish authorities. Applying FK v Stuttgart State Prosecutor’s Office, Germany [2017] EWHC 2160 (Admin), it distinguished the admissibility of respondent evidence from the stricter approach that may apply to evidence adduced by an appellant. Excluding important information would have required the court to proceed on a false assumption and could have led to futile further proceedings.
2. Under section 20(3) of the Extradition Act 2003, the relevant question was whether the appellant’s own conduct caused him to be unaware of the date and place of the trial. Cretu v Local Court of Seceava, Romania [2016] EWHC 353 (Admin) and Romania v Zagrean [2016] EWGC 2786 (Admin) supported that approach. Deliberately making it impossible for the authorities to communicate with the defendant, including by breaching address obligations and ignoring the court process, could constitute deliberate absence.
3. Article 4a(1)(a)(i) and (ii) of the Framework Decision contemplate actual knowledge of the trial date and place and information that trial may proceed in absence. The appellant lacked that knowledge. However, those provisions create an optional ground for refusing surrender. They do not require refusal where the conditions are unmet. The executing authority may still order surrender if this is compatible with article 6 ECHR and domestic law.
4. The reasoning in R v Jones [2003] 1 AC 1 showed that deliberate absconding, complete indifference to the proceedings, or a deliberate choice not to attend may amount to waiver or an equivalent choice not to exercise the right to attend. Full knowledge of the precise procedural consequence was unnecessary where the consequence was reasonably foreseeable or could have been discovered by reasonable diligence.
5. The appellant knew that the criminal process continued, deliberately broke contact, and took no reasonable steps to discover the changed legal position. His earlier information that trial could not proceed in his absence did not freeze the law or excuse his later conduct. The District Judge’s findings therefore established deliberate absence. The court proceeded under section 21 of the Extradition Act 2003 and dismissed the appeal.

• High Court (Administrative Court): appeal against the extradition order dismissed, [2019] EWHC 351 (Admin).
• Westminster Magistrates’ Court: District Judge Goozee ordered extradition to Poland on 11 December 2017.