Samuel Fortes Paiva v Tribunal Da Comarca De Setubal Portugal

For extradition following a conviction in absence, the requesting judicial authority must prove to the criminal standard that the requested person unequivocally waived the right to attend the operative trial. The waiver must be effective, knowing and intelligent. A mere failure to keep in contact with authorities, or a manifest lack of diligence, is insufficient without more.

An arrest warrant must clearly identify the trial resulting in the decision and provide unequivocal information showing that the requested person knew the date and place of that hearing. Ambiguity in the warrant cannot be resolved by assuming that the requesting authority’s account is correct. If deliberate absence is not proved and no right to a retrial exists, the requested person must be discharged.

The appellant challenged an order for extradition to Portugal to serve a sentence imposed after a trial in his absence. The district judge concluded that he had deliberately absented himself from the trial under section 20(3) of the Extradition Act 2003 and therefore did not need to consider whether he had a right to a retrial.

The arrest warrant referred to service at an address recorded in a Portuguese statement of identity and residence. It also stated that the appellant was later served with the judgment at Lisbon airport. The warrant did not clearly identify whether the relevant trial was the first-instance proceedings or later appeal proceedings, nor did it explain the appellant’s knowledge of the proceedings. The central issue was whether deliberate absence had been proved to the criminal standard.

1. Appeal allowed. The order for extradition was quashed and the appellant was discharged.
2. Under section 20(3) of the Extradition Act 2003, deliberate absence is synonymous with an unequivocal waiver of the right to be present at trial. The waiver must be effective, knowing and intelligent. The requesting judicial authority bears the burden of proving it to the criminal standard.
3. The arrest warrant did not establish which hearing was the trial resulting in the decision. The first-instance conviction appeared to have occurred in 2015, while the final decision was recorded as occurring in 2019. If an appeal hearing finally disposed of the case on its merits, that hearing would be the operative trial for section 20(3), applying Foster Taylor v Italy [2019] EWHC 2938 (Admin).
4. Service of a hearing notice at an address in a statement of identity and residence was insufficient, without the statement itself or further evidence, to prove deliberate absence. The evidence did not show why the appellant had signed the statement, what he knew about the proceedings, or that he had deliberately avoided receiving notice of the date and place of trial.
5. The warrant was equivocal about the relevant proceedings and did not provide a sufficient narrative of events. Mutual recognition and respect did not require the court to accept an ambiguous warrant at face value. Disbelief of the appellant’s evidence could not, by itself, discharge the respondent’s burden.
6. As deliberate absence was not proved and there was no evidence of a right to a retrial, section 20(7) required discharge. The court therefore allowed the appeal and ordered discharge under section 27(5) of the Act.

• District Judge’s court: On 14 October 2022, District Judge McGarva ordered extradition to Portugal and concluded that the appellant had deliberately absented himself from his trial under section 20(3) of the Extradition Act 2003.
• High Court (Administrative Court): The appeal was allowed. The extradition order was quashed and the appellant was discharged.