NUNO EMANUEL REGO v JUDICIAL DISTRICT COURT OF AÇORES (PORTUGAL)

For the purposes of section 20 of the Extradition Act 2003, a person deliberately absents himself from trial where he actually knows the decisive hearing date and chooses not to attend. The court may determine that issue from the whole evidential picture, including conduct, departure from the jurisdiction, prior familiarity with criminal proceedings and the absence of oral evidence capable of rebutting an otherwise compelling inference. The fact that the judicial authority bears the burden of proof does not prevent such an inference. On an appeal under section 27, the appeal succeeds only if the lower court ought to have reached a different conclusion and that conclusion would have required discharge.

The appellant appealed against District Judge Sarah-Jane Griffiths’s order of 7 August 2020 extraditing him to Portugal under a conviction European Arrest Warrant. He had been convicted and sentenced in his absence to 10 months’ detention by house arrest for driving with excess alcohol and driving without a valid licence.

The sole issue was whether he had deliberately absented himself from the decisive hearing on 29 November 2017, so that he was not entitled to a retrial under section 20 of the Extradition Act 2003. He argued that he lacked actual knowledge of the hearing date and that the evidence did not satisfy the criminal standard.

1. The appeal was dismissed. The district judge’s finding that the appellant deliberately absented himself from the trial was sustainable and, on the evidence, incontestably right.
2. The appellant accepted that actual knowledge of the hearing date, followed by a decision not to attend, would amount to deliberate absence. The appeal therefore turned on whether the finding that he knew of the 29 November 2017 hearing was properly open to the district judge.
3. The finding was supported by the combined evidence. The appellant had lived in the Azores, was familiar with Portuguese criminal proceedings from earlier cases, had signed the TIR containing obligations concerning attendance and changes of address, attended a meeting with social workers after the trial had been adjourned, and left for the United Kingdom shortly afterwards.
4. The absence of oral evidence and cross-examination was materially relevant. In circumstances where the evidence otherwise gave rise to an obvious inference that the appellant understood the court process, his failure to give oral evidence left that inference unrebutted.
5. The district judge’s reasoning was brief and not systematically expressed, but it included a finding to the criminal standard that the appellant knew the hearing date and deliberately chose not to attend. That finding had ample evidential support.
6. Under section 27 of the Extradition Act 2003, the appeal could succeed only if the district judge ought to have decided the issue differently and, had she done so, would have been required to discharge the appellant. Since the finding was upheld, the appeal could not succeed. The court considered it unnecessary to undertake a further review of the authorities.

1. High Court (Administrative Court): Mr Justice Kerr dismissed the appeal against the extradition order.
2. District Judge: On 7 August 2020, District Judge Sarah-Jane Griffiths ordered extradition to Portugal and found that the appellant had deliberately absented himself from his trial.
3. Permission to appeal: Lane J granted permission to appeal. The appeal was later confined to the deliberate-absence issue.