Kamil Szymankowski v Circuit Court in Konin, Poland

For extradition following a conviction in absence, deliberate absence requires proof that the person knew, or must properly be taken to have known, that non-attendance created a risk of trial in absence. General knowledge of legal systems is insufficient for a person without legal representation. The inference may arise from the person’s own previous experience of having been tried in absence.

An entitlement to a retrial or review amounting to a retrial requires an effective remedy which existed in fact and of which the person was informed in sufficient time to use it. Evidence from which the court can rationally infer that a represented person received advice about appeal rights may suffice.

The appellant appealed against District Judge Bristow’s order of 27 May 2021 requiring his extradition to Poland on a conviction warrant. The appeal concerned three Polish matters: a conviction for damaging property and making threats to kill; an aggregation-of-sentence hearing conducted while the appellant was in custody; and convictions for driving whilst disqualified and exceeding the permitted alcohol limit.

The central issue was the application of Extradition Act 2003, section 20, where proceedings had taken place in the appellant’s absence. The court considered whether he had deliberately absented himself, whether he knew that trial in absence was a possible consequence, and whether he had an effective and timely right to a retrial, review or appeal.

1. Matter 796/13. The District Judge was entitled to find that the appellant knew the trial date and chose not to attend. However, there was no evidence that he knew that trial in absence was a possible consequence. As he was unrepresented, that knowledge could not be inferred from general familiarity with legal proceedings. The finding of deliberate absence was therefore unavailable under section 20(3) of the Extradition Act 2003.
2. The appellant was also not shown to have an effective remedy under section 20(5). The evidence did not establish what appeal or retrial rights existed, what time limits applied, or that the appellant had been informed of those rights in time to use them. The appeal was allowed on this matter and the appellant would have been entitled to discharge.
3. Matter 723/14. The appellant had not deliberately absented himself. The court nevertheless upheld the conclusion that he had an effective right to challenge the aggregation hearing. His state-appointed lawyer had attended, was under a duty to report the hearing’s consequences, and could properly be inferred to have explained available rights before they became time-barred. This part of the appeal was dismissed.
4. Matter 1304/15. The appellant deliberately left Poland without leaving a means of contact and failed to attend his trial. Unlike matter 796/13, his own previous experience of being tried in absence justified the inference that he appreciated the risk of the same consequence. The absence of proof that he received timely information about appeal rights was immaterial because deliberate absence required the court to proceed under section 21. This part of the appeal was dismissed.
5. The appeal was allowed in respect of matter 796/13 and dismissed in respect of matters 723/14 and 1304/15.

1. High Court (Administrative Court): Appeal against the decision of District Judge Bristow dated 27 May 2021. The appeal was allowed on matter 796/13 and dismissed on matters 723/14 and 1304/15.