Pawel Kalandyk v District Court in Gdansk (Poland)

For the purposes of section 20 of the Extradition Act 2003, the relevant hearing is ordinarily the proceeding resulting in conviction and sentence. A later hearing activating a suspended sentence is not relevant merely because the person was absent, unless it changes the nature or amount of the sentence. Where activation depends on a subsequent conviction in absentia, the conviction may require examination only if it was the sole basis for the activation and warrant.

Deliberate absence requires an unequivocal, effective, knowing and intelligent waiver of the right to attend. Actual knowledge that the trial would proceed in the person’s absence is not invariably required. Extreme conduct showing a calculated decision to place oneself beyond the authorities may establish waiver.

The appellant challenged an order for his extradition to Poland to serve a 15-month prison sentence imposed in 2015 and later activated. He had attended two hearings in the original trial but was absent when sentence was imposed. He was subsequently convicted in Poland in absentia of further driving offences, and the suspended sentence was activated after the Polish court also considered German convictions and non-payment of compensation.

The District Judge ordered extradition. Permission to appeal was granted on the issue whether the appellant had been tried in a legally relevant sense in his absence and, if so, whether he had deliberately absented himself to the criminal standard. The appeal concerned the scope of section 20 of the Extradition Act 2003, particularly in light of LU & PH.

The appeal was dismissed. The appellant was not entitled to discharge, and there was no remaining bar to extradition.

1. Relevant hearings. A conviction warrant is founded on conviction and sentence. A suspended-sentence activation hearing is not a legally relevant trial for section 20 purposes where it merely revokes suspension within the original sentence. It would be different if the later decision altered the nature or quantum of the sentence.
2. Application of Ardic and LU & PH. The court followed the general approach in Ardic and held that LU & PH did not make activation hearings themselves relevant. LU & PH was narrowly construed as concerning a subsequent conviction in absentia which was necessary for the issue of the warrant, and therefore did not require investigation where the activation had independent grounds.
3. Here, the 2016 Polish conviction was not the sole or principal basis for activation. The activating court had also relied on German convictions and failure to pay compensation. The court therefore distinguished LU & PH and had no need to determine its wider limits.
4. Deliberate absence. Applying Bertino, deliberate absenting requires an unequivocal, effective, knowing and intelligent waiver. Mere lack of diligence or fugitivity is insufficient, but extreme conduct may establish waiver without proof of actual knowledge that a hearing would proceed in absence.
5. The appellant knew of his suspended sentence, admitted the later Polish offending, left Poland without notifying the authorities, and deliberately remained outside the jurisdiction to avoid penal consequences. The court was sure that he had unequivocally waived his right to participate in the subsequent proceedings.

• High Court (Administrative Court): appeal against the District Judge’s extradition decision dismissed.
• District Judge: extradition ordered after a hearing on 27 July 2023, with written reasons dated 24 August 2023.
• Permission to appeal: Sir Peter Lane granted permission on the section 20 absence-from-trial issue and admitted fresh evidence.