District Court in Krakow, Poland v Kamil Pultorak

On an appeal against discharge under section 20 of the Extradition Act 2003, the court must apply the statutory questions sequentially. If presence at trial is not proved, it must then decide whether the requested person deliberately absented himself. A person who knowingly leaves the requesting state in breach of conditions while criminal proceedings remain ongoing may be treated as having deliberately waived attendance, even if he did not know the precise trial date. Evidence creating ambiguity in the European arrest warrant may be considered. However, post-hearing evidence should not be admitted merely on an informal request without a proper application on notice.

The District Court ordered the respondent’s extradition on a murder accusation warrant but discharged him on a conviction warrant relating to an assault conviction. The warrant stated that he had appeared at his trial. Other information indicated that he had left Poland in 2017, before the trial concluded in 2018. The district judge treated that information as creating a contradiction but discharged the respondent without deciding whether he had deliberately absented himself under section 20(3) of the Extradition Act 2003.

The requesting judicial authority appealed, arguing that the district judge had misapplied section 20 and should have admitted further information supplied after the hearing.

1. Appeal allowed. The order discharging the respondent was quashed and the matter was remitted to the district judge under section 29(5)(b) and (c) of the Extradition Act 2003.
2. Under section 20, the judge must first decide whether the person was convicted in his presence. If not, the judge must next decide whether he deliberately absented himself from the trial. Only if that question is answered negatively does the judge proceed to consider entitlement to a retrial or review.
3. The information before the district judge created real doubt about the statement in Box D of the warrant that the respondent had appeared at trial. The requesting authority bore the burden of proving presence beyond reasonable doubt. In circumstances where the authority had supplied information casting ambiguity on the warrant, it was right to consider that information.
4. Even on that material alone, the respondent had deliberately absented himself. He had been arrested and questioned about the assault, remained subject to conditions including a prohibition on leaving Poland, and left Poland while the proceedings were continuing. Applying Cretu and Zagrean, his lack of knowledge of the eventual trial date resulted from his own deliberate conduct. He was therefore treated as having waived his right to attend, and the conviction in absence did not engage the Article 6 bar.
5. The district judge’s refusal to admit further information served after the hearing was within his case-management discretion. A proper application on notice was required because the respondent might have wished to challenge admissibility.

1. High Court (Administrative Court): appeal allowed against the district judge’s discharge order; the order was quashed and the matter remitted under section 29(5)(b) and (c) of the Extradition Act 2003.