CO/4859/2014 
Neutral Citation Number: [2014] EWHC 4517 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION 
THE ADMINISTRATIVE COURT 
Royal Courts of Justice 
Strand
London WC2A 2LL 

Friday, 28 November 2014
 
B e f o r e: 

SIR STEPHEN SILBER 
(Sitting as a Judge of the High Court)

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Between: 
THE QUEEN ON THE APPLICATION OF BOBIS 
Claimant

v 

THE REGIONAL COURT IN GLIWICE 
Defendant 
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Computer‑Aided Transcript of the Stenograph Notes of  
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Miss M Westcott (instructed by Lansbury Worthington) appeared on behalf of the Claimant

Mr B Seifert (instructed by CPS Extradition) appeared on behalf of the Defendant
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J U D G M E N T
1.	SIR STEPHEN:  Damian Bobis appeals against a decision of District Judge Snow made on 16 October 2014 to order his extradition pursuant to a conviction European Arrest Warrant issued by the Regional Court in Gliwice Poland on 31 March 2014 and certified by the National Crime Agency on 30 May 2014.
2.	The respondent had sought the surrender of the appellant to serve three sentences for three different offences.  The first was an offence with the reference IXK593/8 on 1 October 2007 acting jointly and in cooperation with another the appellant took place in a brawl and during the brawl the other person sustained bodily injuries.  A one year sentence of imprisonment was imposed for that, becoming final on 10 July 2008.
3.	The second offence occurred  on 19 March 2008.  The appellant was found to be in possession of ten grams of amphetamine.  An eight month sentence imposed for that offence became final on 12 September 2008.
4.	The third offence, which has the reference K133/10 and which  is that on 30 March 2008 the appellant kicked the head and back of another individual.  A 15‑month sentence was imposed for that offence, becoming final on 21 January 2011.  This appeal does not  relate to or concern the other two offences but solely to this offence and thus everything I will say will only relate to that particular matter.
5.	The sole issue that arises in this case is whether the respondent has proved beyond reasonable doubt that the appellant was deliberately absent from his trial in respect of that third offence, as required by section 20(3) of the Extradition Act 2003.  The provisions of section 20 state that:
i.	"20.  Cases where the person has been convicted.
(2)	If the judge is required to proceed under this section (by virtue of section 11) he must decide whether the person was convicted in his presence.
(3)	If the judge decides the question in sub‑section (1) in the affirmative he must proceed under section 21.
(4)	If the judge decides the question in the negative he must decide whether the person deliberately absented himself from his trial. 
(5)	If the judge decides the question in sub‑section (3) in the affirmative he must proceed under section 21.
(6)	If the judge decides that question in the negative he must decide whether the person would be entitled to a retrial or (on appeal) to a review amounting to a retrial.
(7)	If the judge decides the question in sub‑section (5) in the affirmative he must proceed under section 21.
(8)	If the judge decides that question in the negative he must order the person's discharge.
(9)	The judge must not decide the question in sub‑section (5) in the affirmative unless, in any proceedings that it is alleged would constitute a retrial or a review amounting to a retrial, the person would have these rights ‑
(a)	the right to defend himself in person or through the legal assistance of his own choosing or, if he had not sufficient means to pay for legal assistance, to be given it free when the interests of justice so required;
(b)	the right to examine or have examined witnesses against him and to obtain the attendance and examination of witnesses on his behalf under the same conditions as witnesses against him."
6.	It is common ground that this appeal raises three questions for the court, namely was the appellant convicted in his presence ‑‑ which is not in issue in this case ‑‑ secondly, did the appellant deliberately absent himself from the trial and three, if returned would the appellant be entitled to a retrial.  It is the second and third issues which are in dispute in this case.
7.	My attention is drawn to the fact that section 20 was based upon article 5.1 of the Framework Direct Decision which provides that:
i.	"Where the European arrest warrant has been issued for the purposes of executing a sentence or a detention order imposed by a decision rendered in absentia and if the person concerned has not been summoned in person or otherwise informed of the date and place of the hearing which led to the decision rendered in absentia, surrender may be subject to the condition that the issuing judicial authority gives an assurance deemed adequate to guarantee the person who is the subject of the European arrest warrant that he or she will have an opportunity to apply for a retrial of the case in the issuing member state and to be present at the judgment." 
8.	That provision was deleted and replaced by a further framework decision; 2009/299/JJ introducing article 4A which is, as far as relevant, stating:
i.	"The executing judicial authority may also refuse to execute the European arrest warrant issued for the purpose of executing a custodial sentence or a detention order if the person did not appear in person at the trial resulting in the decision, unless the European arrest warrant states that the person, in accordance with further procedural results defined in the national law of the issuing member state:
(a)	in due time:
(i)	either was summoned in person and thereby informed of the schedule date and place of the trial which resulted in the decision or by other means actually received official information of the scheduled date and place of that trial in such a manner that it was unequivocally established that he or she was aware of the scheduled trial: 
ii.	And ‑ 
iii.	(ii) was informed that a decision may be handed down if he or she does not appear for the trial."

9.	The law on these matters has been considered first by King J in the case of R(Pawel Czekala) v the District Court in Bydgoszcz Poland [2010] EWHC 1895 (Admin) in which King J adopted a statement of principle, which is again set out in paragraph 28 of the appellant's skeleton: 
i.	"... these authorities hold that to make a finding that the appellant deliberately absented himself from his trial the court must satisfy itself that the requested person has made a clear conscious decision not to attend his trial foreseeing that the consequence of this decision will be that the trial takes place in his absence.  Normally, such a decision can only be properly said to have been taken where the requested person is aware of the date and place of the hearing since only then will the requested person reasonably foresee that his conduct will have the consequence of him not being present at his trial.  Nevertheless, if the requested person's conduct clearly and unequivocally demonstrates that the requested person does not intend to take part in his forthcoming trial, the court may infer that the requested person has deliberately absented himself."

10.	Miss Westcott, who appears for the appellant, submits that the basic approach which should be adopted was explained  by Mitting J when dealing with article 4A in Bicioc v Romania [2014] EWHC 628 (Admin) where he explained at paragraph 15: 
i.	"In the light of these considerations, I am satisfied that the proper interpretation of section 23 [20(3)] of the 2003 Act requires at a minimum that a trial process must have been initiated from which the appellant has deliberately absented himself.  It is not enough that he should be arrested in circumstances in which a trial is likely or even inevitable.  He will in those circumstances undoubtedly be a fugitive and will not be able to rely on the passage of time to resist extradition, but that is all.  The structure within which cases of this kind should be dealt within the member state is, in my judgment, that set out in the 2009 framework decision.  As it happens, our law is capable of being aligned with it and was for several years thought to be so aligned.  It should revert to that position.  On the District Judge's findings, adverse though they were to the appellant, he did not deliberately absent himself from his trial.  What happened was that he made it difficult or impossible for the prosecuting authorities to serve him with the documents which would have notified him of the fact, date and place of the trial.  If he had been entitled unequivocally to a right of retrial or to have his case reheard on the merits of the appeal his extradition could have been ordered.  It is only because it is for the time being accepted that Romanian law does not give him that right that I must allow this appeal." 
11.	Miss Westcott accepts that the information provided at paragraph D of the European Arrest Warrant may be supplemented by further information in receivable format.  The evidence in this case is to be found first in the European Arrest Warrant and then in Further Information.  
12.	Section D is headed "please indicate whether the person concerned appeared in person at the time the decision was issued", and it is said in relation to case three that:
i.	"The accused Damian Bobis was duly informed about the date of the hearing, completed the judicial procedures.  A registered letter had been sent to [the accused person's current address].  The post notified him of the delivery twice but the letter was not collected from the Post Office within the deadline."
13.	This was then the subject of further information which was provided by the court on 19 September 2014 and it explains that originally the enforcement of the sentences of imprisonment was conditionally suspended.  It is noteworthy that the files to which it refers were each of the three cases which are the subject of the European Arrest Warrant.  The document itself then goes on to set out at paragraph 4:
i.	"The sentenced person failed to collect the letters addressed to him.  The facts determined by the court indicate that he left for Great Britain and the court made efforts through the police to establish the sentenced person's place of staying, but the information indicated his stay abroad."

14.	It was noted in paragraph 8 that:
i.	"The sentenced person was obliged to notify the court of any change of his place of residence or any stay exceeding a period of seven days until the completion of the enforcement proceedings.  He was instructed in writing about the above obligation during his hearing at the police station when he acknowledged receipt of the letter of instruction.  With regard to the case of reference [X133/10] the sentenced person was represented by the public defender.  The defender in the name of the sentenced person appealed against his sentence to the regional court but the sentence was confirmed.  Therefore at the present there are no grounds to reexamine the case."

15.	The way that the District Judge dealt with that is on the second page of his judgment.  He explains at paragraph 8 of the document which I have referred to:
i.	"The appellant had been informed during this hearing that he must notify the court of any change in his place of residence or stay for a period exceeding seven days."

16.	He accepts that the appellant could not recall whether he was given that instruction.  But the District Judge noted that further information is unfortunately ambiguous; it doesn't state whether the obligation applied to both files or just one.  
17.	The District Judge then approached matters on that basis:  
i.	"That being said, I approach the further information on the basis of mutual trust and respect.  The judge who provided the further information would have been aware of an obligation to inform me if the obligation only applied to one file.  The fact that he or she has not done so satisfies me that the obligation applies to both files.  As a consequence I am satisfied that when he left the address and came to the United Kingdom he did so in breach of that obligation in respect of file 133/10.  If he was unaware of the hearing date as a consequence of his departure, then his failure to notify them with his knowledge of the proceedings in particular, and his familiarity of the Polish criminal justice system, then the only conclusion is that he was deliberately absenting himself from his trial.  If he was still in Poland at the time of the hearing, then according to his evidence he would have lived at the registered address at which the two registered letters were sent, notifying him of the hearing by which he failed to collect.  In the light of his knowledge of the particulars of this case and understanding of the Polish criminal justice system from his past experience, he would have been aware of the likely content of the letters and was deliberately seeking to frustrate the process by failing to collect them.  In other words he was deliberately absenting himself from the hearing.  I am sure that he did deliberately absent himself from his trial and therefore the requirements of section 20 are met."
18.	The case for the appellant, put ably by Miss Westcott, is that firstly the European Arrest Warrant did not demonstrate deliberate absence to the criminal standard,as it merely said that the requirements had been met.  The further information is said to confuse rather than clarify the effects, and it is pointed out that the District Judge found it unclear whether the letter was referring to one or two of the sentences, while the header gave the reference for all three.  It is said that the applicant's obligation after the sentence are largely irrelevant, but he was permitted to move to the United Kingdom.  She says that it was neither clear that the appellant was made aware of any specific obligations about the case nor that he was in breach of it.  It is also pointed out, because he was represented by the public defender, that he gave his lawyer instructions at first instance or was aware of the delivery date.  It is said that the respondent could have provided a much greater detail but had not done so, therefore it is said that it had not discharged the burden.
19.	This is by no means an easy question to resolve, but I have reached the conclusion that the approach of the District Judge was correct; he was entitled to look at matters in the way that he did and to reach the conclusion that he did.  I have borne in mind what was said by Mitting J in Bicioc [2014] EWHC 628 (Admin) at paragraph 15, where he says:
i.	"In the light of those considerations I am satisfied that the proper interpretation... requires at a minimum that a trial process must have been initiated from which the has appellant deliberately absented himself.  It is not enough that he should be arrested in circumstances in which a trial is likely or even inevitable."

20.	To my mind the judge has explained, exactly why he has taken the view that this test has been satisfied and I consider that to be correct.
21.	Even if I was wrong on that point, there is still the additional point about the right of retrial.  In the Bicioc case it was accepted that Romanian law did not give the appellant that right.  
22.	In the present case, matters are slightly more confused because although there is a reference to the right of retrial.  The European Arrest Warrant crosses large chunks of that out in section D.  But what one would have needed in this case would have been some principles of the relevant legal system to have been put forward.  I need not consider at this stage on whom the burden would have rested on that.  
23.	Thus the position that finally emerges is that notwithstanding the able submissions of Miss Westcott, this appeal must be dismissed.  Thank you very much.