Martin Jirik v District Court of Prague, Czech Republic

For extradition following an overseas conviction, a warrant may validly seek surrender for a hearing to determine whether a suspended custodial sentence should be activated, even though the hearing may result in no imprisonment. The statutory purpose of extradition is construed in the context of a system accommodating different criminal justice procedures and sentencing practices.

For absence from trial, deliberate absence under section 20 of the Extradition Act 2003 requires proof to the criminal standard that the accused unequivocally waived the right to be present. A manifest lack of diligence is insufficient.

The appellant appealed an order by District Judge Sternberg dated 26 February 2024 ordering his extradition to the Czech Republic. He had been convicted in his absence of attempted theft and sentenced to 18 months’ imprisonment, suspended for five years. The Czech authorities sought surrender for a hearing to determine whether the suspended sentence should be activated.

Permission to appeal was granted on two grounds: whether section 2 of the Extradition Act 2003 permitted extradition for an activation hearing; and whether the appellant had deliberately absented himself from trial under section 20.

1. Section 2(5)(b) of the Extradition Act 2003 permitted extradition for a hearing to determine whether a suspended sentence should be activated, although the outcome might be that no imprisonment followed. Murin v Czech Republic was correctly decided and was followed.
2. The Trade and Cooperation Agreement did not require a different construction. Following Polakowski v Westminster Magistrates’ Court, domestic law was the appropriate starting point. This was not a case requiring the type of conforming interpretation considered in Cretu v Local Court of Suceava, Romania.
3. Under section 20(3), applying Bertino v Public Prosecutor’s Office, Italy, deliberate absence required proof to the criminal standard of an unequivocal waiver of the right to be present at trial. Ordinarily, this required actual knowledge that conviction and sentence could occur in absence, or sufficiently extreme knowing and intelligent conduct from which such knowledge and waiver could be inferred.
4. The appellant’s conduct demonstrated a manifest lack of diligence, but the evidence did not show knowledge of the time and place of trial, a warning that trial could proceed in absence, or conduct sufficiently extreme to establish waiver. Refusing to speak by telephone was insufficient in isolation.
5. The appeal succeeded on ground 2. The appellant was discharged.

• High Court (Administrative Court): Appeal from District Judge Sternberg’s judgment dated 26 February 2024. Ground 1 failed; ground 2 succeeded and the appellant was discharged.
• Permission to appeal: Granted by Sheldon J on 24 July 2024.