Tyrakowski v Regional Court In Poznan, Poland [2017] EWHC 2675 (Admin)

[2017] EWHC 2675 (Admin)Case No CO/2088/2017
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
Venue Royal Courts of Justice, Strand, London, WC2A 2LLDate 31 October 2017
Before
MR JUSTICE JULIAN KNOWLES
Between
KRZYSZTOF TYRAKOWSKIAppellantREGIONAL COURT IN POZNAN, POLANDRespondent
Ms Emilie Pottle (instructed by JD Spicer Zeb) for AppellantMs Hannah Hinton (instructed by CPS) for RespondentHearing Hearing dates: 17 th October 2017
Judgment Approved by the court for handing down (subject to editorial corrections)

Introduction

[1]This is an appeal by the Appellant, Krzysztof Tyrakowski, with the permission of Sir Ross Cranston, sitting as a High Court judge, following a renewed permission hearing, against the decision of District Judge Jabbitt dated 26 April 2017 ordering his extradition to Poland. The Appellant is represented by Ms Pottle and the Respondent Issuing Judicial Authority is represented by Ms Hinton.[2]The Appellant’s extradition is sought in respect of two European arrest warrants (‘EAWs’) which I will refer to as EAW1 and EAW2. EAW 1 was issued on 30th July 2012 in respect of a sentence of one year and six months’ imprisonment imposed by the District Court in Poznan on 19 May 2008 in case VIII K 608/08. The conduct narrated in Box E was an offence of attempted burglary of some offices on 30 July 2007. It appears from the particulars that the Appellant was caught in the act, in that it is said he was apprehended by security guards whilst trying to break into the offices.[3]EAW2 was issued on 21 January 2013. It comprises two cases in the District Court in Poznan, namely VI K 411/08 and VI K 1120/03. The first case is an accusation case and the second case is a conviction case. The accusation case comprises allegations of fraud and theft and burglary said to have been committed between May and August 2007. The second case comprises offences of burglary committed in 2000 in which the Appellant broke into, respectively, a photo lab and an audio store. He was sentenced to three years’ imprisonment in relation to these offences.[4]The Appellant was arrested in Dorset on 16 October 2016. The extradition hearing took place at Westminster Magistrates Court on various dates in December 2016, January 2017, and April 2017. Extradition was resisted. In respect of EAW1 the Appellant resisted extradition on the grounds of s 20 of the Extradition Act 2003 (‘EA 2003’). He argued that he had not been present for his trial for these offences; that he had not been deliberately absent; and that he would not receive a retrial in Poland. In respect of both warrants he also resisted extradition on the grounds of Article 8 of the European Convention on Human Rights (‘the ECHR’). The district judge rejected both submissions.[5]Before me, Ms Pottle only challenges the judge’s findings and conclusions in relation to s 20 in relation to EAW1. Whatever the outcome of this appeal, therefore, the Appellant stands to be extradited on EAW2. She argues that the judge ought not to have concluded that the Appellant had deliberately absented himself from his trial because the EAWs did not prove that he had been summonsed in respect of the trial giving rise to EAW1, and that had the judge so concluded, he would have been bound to conclude that the Respondent had failed to prove beyond reasonable doubt that the Appellant had the re-trial rights that are required by s 20 of the EA 2003, and thus that he should have discharged the Appellant in relation to EAW1. Chronology[6]In order to understand the issues arising on this appeal it is necessary to set out the Chronology. I have taken this from the EAWs and from the Further Information (‘FI’) helpfully sent by the Judicial Authority dated 18 January 2017. I acknowledge that elements of it were dispute by the Appellant in his evidence. 8/10/2003 Appellant sentenced to 3 years on case VI K 1120/03 (the second case on EAW2) 19/12/2003 – 16/06/2004 Appellant in prison for those offences (see FI) 16/06/2005 – 25/04/2006 Appellant in prison. Conditionally released on 25/04/2006 having only served part of his sentence (see FI) May 2007- August 2007 Appellant commits offences within first case on EAW2 (VI K 411/08) 30/07/2007 Appellant commits offences on EAW1 (burglary) 30/07/2007 Appellant told to notify authorities of any change of address 21/08/2007 Appellant arrested for offences within first case on EAW2. The two cases (ie, VI K 411/08 and VIK 1120/03) are joined 22/08/2007 Appellant questioned and admits these offences 22/10/2007 Questioned on EAW1 offences and told again to notify authorities of change of address 16/11/2007 Questioned for a second time 30/11/2007 Indictment filed with court for first case on EAW2. 29/1/2008 Court orders a psychiatric evaluation 6/2/2008 Copy of decision to order an evaluation served on the Appellant. Subsequently fails to report for evaluation. Date of last personal service on the Appellant. 13/02/2008 Moves from mother’s address (according to mother) 14/03/2008 Mother advises court that son has moved out 28/04/2008 Police draw up report that Appellant had moved out for three months and whereabouts are unknown 19/5/2008 Convicted and sentenced in absentia on EAW1 offences – 1 year 6 months 20/06/2008 Domestic arrest warrant issued for offences within VI K 411/08 14/11/2008 Conditional release revoked because of EAW1 offences 20/11/2008 Proceedings on VI K 411/08 suspended 05/04/2012 Polish authorities notified that Appellant was in Irel

and

[7]Hence, by virtue of his alleged offending in the summer of 2007, the Appellant was in breach of the conditions of his early release for the 2003 sentence of which he had only served part, and was therefore liable to serve the remaining part of that sentence. As I shall explain, the Appellant disputed this and said he had served the whole of that sentence.[8]It was the Respondent’s case that in early 2008 the criminal proceedings in relation to EAW1 were ongoing; the Appellant knew they were ongoing; that since his arrest in July 2007 he had been under an obligation to notify the authorities of any change of address; but that in early 2008 he had left Poland and gone to live abroad without giving the appropriate details to the authorities. In other words, the Respondent maintained that he had voluntarily absented himself from the proceedings in Poland.[9]The Appellant gave evidence before the district judge which the judge dealt with at paragraph 11 and following of his judgment. The Appellant said that he had been told to await the outcome of the investigation and that he would receive correspondence. He was living with his mother at the time. He said that he went to the police station and told them that he was going to England and left his mother’s contact details. He said that after he left Poland he made ‘ad hoc’ enquiries with his mother whether there has been any communication and was told that nothing had been received. He also said, ‘however several months after my arrival in the UK by mother did state that the police try to get in touch a few times but after she told them about me being in the UK, nothing further transpired.’ He said that he had no knowledge of the conviction recorded in EAW1. He also maintained that he had served the whole of his 2000 sentence.[10]The judge made findings of fact at paras 35, 36 and 43. They were as follows:
“35. In terms of my findings of fact, it is clear that Mr Tyrakowski is not telling the truth, it is more than coincidental that he was facing recall to prison in relation to the outstanding term in EAW2 and the allegations in EAW1, for which he was subsequently convicted in absentia, together with the outstanding allegations in EAW2 to the latter part of 2007, at the time that he left Poland. He knew that the EAW1 offences would put him in breach of his licence conditions and that it was highly likely that he would be going back to prison. His assertions that he had served the whole sentence in EAW2 [the judge said EAW 1 but he plainly meant EAW2] are contradicted by his admission that he agreed that he was under the supervision of the probation service. The sentence may have been consolidated but I’m sure he knew he had not served the whole term. 36. His assertions that he did not know that there were charges pending is plainly untrue. I am satisfied so that I am sure, that he was questioned about the allegations and he needs a criminal proceedings had begun. I am sure that he attended court on 23 August 2007 [the judge said 2008 but this was plainly a misprint because the FI makes clear he was still in Poland in February 2008] and left Poland as his mother stated in February 2008, to specifically avoid going to prison. I’m further satisfied that he did not tell the Polish police that he was leaving the country. He sought to put himself beyond the reach of the Polish authorities. … 43. The JA bear the burden of proofing (sic) that the RP deliberately absented himself from the jurisdiction. I have made it clear in my findings of fact above that the JA had proved beyond reasonable doubt that Mr Tyrakowski left Poland knowing that the allegations were the subject of ongoing criminal proceedings and in doing so, sought to put himself beyond the reach of the Polish authorities, and to avoid participating in the trial process.”
[11]Accordingly, the judge found that the Appellant had deliberately absented himself from his trial in May 2008. He therefore held that did not need to consider whether the Appellant would receive a retrial in Poland (see s 20(4)). Accordingly, he rejected the s 20 bar in relation to EAW1. (I should make clear, as the judge noted at para 38 of his judgment, that s 20 was only relied on in relation to EAW1 because the Appellant was given notice of his re-trial rights in relation to the conviction case on EAW2 in 2003 but did not exercise them, as EAW2 makes clear).[12]On this appeal, Ms Pottle behalf the Appellant maintains that the judge was wrong to reject the s 20 argument. In her Perfected Grounds of Appeal (which stood as her Skeleton Argument) and her oral submissions she emphasised, rightly, that deliberate absence and the right to a re-trial (where that has to be proved) both have to be proved by the Judicial Authority to the criminal standard (see s 206 and Nebak v. Regional Court, Bydgoszcz, Poland [2012] EWHC 417 (Admin), para 7). She submits that there is no, or no sufficient, evidence that the Appellant was ever summonsed to his trial (see paras 14, 15 and 16 of the Perfected Grounds of Appeal) and that without such evidence there was no basis for concluding that the Appellant was deliberately absent from his trial, it being a necessary precondition for deliberate absence that there was first a summons. Therefore, she submits that the judge should have considered the question of retrial as required by s 20(5) and s 20(8) and, had he done so, he would have concluded that the appellant would not receive a retrial.[13]Ms Pottle makes two main points in support of these submissions. Firstly, she points out there whereas in EAW2 in relation to the 2003 conviction case it is clearly indicated in Box D in that ‘the person was summonsed in person in 15/09/2003 and thereby informed of the scheduled date and place of the trial …’, in EAW1 by contrast the equivalent wording has been crossed through, and instead the warrant states that the person was notified of the decision convicting him on 10/06/2008, together with his right of re-trial, but he did not exercise that right. She goes on to point out that later in Box D, it is made clear that the ‘notification’ referred to was the sending of the judgment to the address which the Appellant had given in Poland, but the document was returned as ‘not collected’, that a process of re-notification was then was gone through, following which the decision was deemed to have been served.[14]In relation to absence of re-trial rights, she points to the fact that EAW2 says that he did not exercise his re-trial rights in time, and that the FI is ambiguous to an unacceptable degree because it says, after recapping on what was said in the warrant as to service of the notification in 2008, ‘The requested person may now only apply for a re-trial within 30 days of becoming aware of his conviction in case VIII K 608/08.’ She says it is not clear when the 30 day period starts to run, and that because these proceedings have been going for some time, he has known of his conviction for some time, and thus that the 30 day period may already have expired.[15]Ms Hinton on behalf of the Respondent submits that the judge was right to reach the conclusion he did for the reasons he gave. She says the judge was right to conclude that the Appellant, by leaving Poland without making arrangements for documents to be sent to him, deliberately absented himself from the trial. She says that the judge’s finding at para 36 of his judgment, that ‘He sought to put himself beyond the reach of the Polish authorities’ is unimpeachable. She says that it can be inferred that there must have been a summons (in the sense of a court issued document notifying the defendant of the date, time and place of his trial, because issuing summonses for the purposes of trial is what courts do, and there is no reason to suppose the Polish court in this case would have done anything but follow its normal procedure). Moreover, she points to the FI and to the fact that the Respondent in that document says that a number of letters were sent to the Appellant’s address in Poland after 6/2/2008 (the last time there was personal service upon him). She says it is a plain inference that can be drawn that amongst those ‘letters’ would have been the summons for the trial. Section 20 of the EA 2003[16]Unlike in this jurisdiction, where trials in absentia are comparatively rare, in many other jurisdictions they are not. However, proceeding to a trial in the absence of a defendant carries with it a risk of injustice. It is obviously unjust to imprison a defendant on the basis of a conviction obtained in his absence at a trial he could not have attended because he did not know about it. Indeed, in Othman v. United Kingdom (2012) 55 EHRR 1, para 259, the European Court of Human Rights cited such a situation as being a rare example of a ‘flagrant denial of justice’ which would be sufficient to bar extradition under Article 6 of the European Convention on Human Rights (‘the ECHR’).[17]Section 20 of the EA 2003 is intended to ensure that a defendant in extradition proceedings who has been convicted in his or her absence but who did not have an opportunity to appear at his/her trial is not extradited unless s/he is guaranteed a fair trial in his presence in the Category 1 requesting state. The judge is required to proceed under s 20 if the defendant is alleged to be unlawfully at large after conviction of an extradition offence (s 11(4)). The effect of s 20 is that if a defendant was convicted in his or her absence and if s/he did not deliberately absent himself or herself from his trial, and if s/he would not be entitled to a re-trial or, on appeal, a review amounting to a re-trial, then the court must discharge him or her.[18]Section 20 provides:
“(1) 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. (2) If the judge decides the question in subsection (1) in the affirmative he must proceed under section 21. (3) If the judge decides that question in the negative he must decide whether the person deliberately absented himself from his trial. (4) If the judge decides the question in subsection (3) in the affirmative he must proceed under section 21. (5) 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. (6) If the judge decides the question in subsection (5) in the affirmative he must proceed under section 21. (7) If the judge decides that question in the negative he must order the person’s discharge. (8) The judge must not decide the question in subsection (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 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.”
[19]Hence, the first question for the judge to consider is whether the defendant deliberately absented himself from the trial. If s/he did so, then that is the end of the enquiry under s 20. Section 20(4) reflects the fact it is not unfair to extradite someone for the enforcement of a sentence against them if the court is sure s/he has chosen not to attend their trial through voluntary choice. That is the position under English law in relation to domestic criminal trials, although the discretion to commence or continue a trial in that situation has to be exercised, as the House of Lords said in R v. Jones (Anthony) [2003] 1 AC 1, with the utmost care.[20]As I have said, it is for the judicial authority to prove to the criminal standard that he had deliberately absented himself.[21]Section 20 has been considered in this context in three recent cases, namely Cretu v. Local Court of Suceava, Romania [2016] 1 WLR 3344; The Court in Mures v. Zagrean [2016] EWHC 2786 (Admin); and Stryjecki v. District Court in Lublin, Poland [2016] EWHC 3009 (Admin). Before considering these cases it is necessary to consider the developments in EU law which underlie them.[22]The Council Framework Decision of 13th June 2002 on the European arrest warrant and the surrender procedures between Member States (2002/584/JHA) (‘the EAW Framework Decision 2002’) created the EAW scheme of return within the EU. It contains a number of optional grounds on which an executing judicial authority may refuse to execute an EAW. In 2009 an amendment was made to the EAW Framework Decision 2002 by the Council Framework Decision 2009/299/JHA of 26th February 2009 (‘the EAW Framework Decision 2009’) to add an additional ground of non-execution where the defendant has been convicted in his or her absence. As the Recitals to the EAW Framework Decision 2009 make clear, the purpose of the amendment was to bring clarity and consistency to an area where there had been inconsistent approaches in the various EU criminal Framework Decisions applying the principle of mutual recognition of judicial decisions, which is one of the key principles underlying the operation of the EAW scheme.[23]In summary, Article 4a of the EAW Framework Decision 2002, inserted by the EAW Framework Decision 2009, provides that an executing judicial authority may refuse to execute an EAW for a defendant who was absent from their trial unless the EAW states that the defendant “(a) in due time:(i) either was summoned in person and thereby informed of the scheduled 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; and(ii) was informed that a decision may be handed down if he or she does not appear for the trial; or (b) being aware of the scheduled trial, had given a mandate to a legal counsellor, who was either appointed by the person concerned or by the State, to defend him or her at the trial, and was indeed defended by that counsellor at the trial; or (c) after being served with the decision and being expressly informed about the right to a retrial, or an appeal, in which the person has the right to participate and which allows the merits of the case, including fresh evidence, to be re-examined, and which may lead to the original decision being reversed: (i) expressly stated that he or she does not contest the decision; or (ii) did not request a retrial or appeal within the applicable time frame; or (d) was not personally served with the decision but: (i) will be personally served with it without delay after the surrender and will be expressly informed of his or her right to a retrial, or an appeal, in which the person has the right to participate and which allows the merits of the case, including fresh evidence, to be re-examined, and which may lead to the original decision being reversed; and (ii) will be informed of the time frame within which he or she has to request such a retrial or appeal, as mentioned in the relevant European arrest warrant.” “ and and[24]The EAW Framework Decision 2009 accordingly amended the pro forma EAW annexed to the EAW Framework Decision 2002 so that the issuing judicial authority can indicate which of the four conditions is satisfied, so that that the executing judicial authority can be sure that extradition would not be unfair notwithstanding that the defendant had been convicted in his or her absence.[25]However, Cretu, supra, and Zagrean, supra, make clear that it is not the case that only if one or more of the four specified conditions is satisfied that an EAW can be executed. In Cretu, supra, at para 34(ii) Burnett LJ (as he then was) said that a defendant must be taken to be deliberately absent from his trial if he has been summoned as envisaged in a manner which, even though he may have been unaware of the scheduled date and place, does not violate Article 6 of the European Convention on Human Rights. Earlier, at paras 30 and 31 he had said that the provisions of the EAW Framework Decision 2009 had to be interpreted in accordance with the jurisprudence of the Strasbourg Court in relation to cases where a trial proceeded in the absence of an accused who may not have been aware of the date of the trial but was himself responsible for his state of ignorance. Thus, in Colozza and Rubinat v. Italy (1985) 7 EHRR 516 the Strasbourg court held that an accused had a right to be present and take part in criminal proceedings, but that a trial in absentia could be acceptable if the state had diligently but unsuccessfully given the accused notice of the hearing.[26]In Zagrean, supra, the appellant had given an incorrect address to the police before leaving Romania, with the result that he had not been aware of his trial. At paras 77 and 78 the Court said that:
“77. The overall objective of Article 4a(1) of the Framework decision is to ensure the right to a fair trial by a person summoned to appear before a criminal court by requiring that he has been informed in such a way as to allow him to organise his defence effectively. The list in Article 4(a)(1)(i) is designed to that end so that if one or more of the conditions set out there are satisfied, an executing judicial authority under an EAW must extradite the requested person, even if he did not appear in person at the trial resulting in the decision. 78. However, Article 4a(1)(a)(i) does not constitute an exhaustive list of how the end is to be achieved, since the conditions set out in that provision are satisfied if the person concerned was actually given official information of the date and place fixed for his trial by other means. The key question is whether surrender would lead to a breach of the extraditee’s fair trial rights.”
[27]In Zagrean, supra, the Court was asked to reconsider the decision in Cretu, supra, in light of the decision of the CJEU in C-108/16 PPU, Openbaar Ministerie v. Dworzecki, 24May 2016, in which it had been held that it was not sufficient compliance with Article 4a for the issuing judicial authority to prove that a summons had been left with a relative in order to prove the defendant ‘actually’ received the summons. There had to be proof that he had personally received it.[28]At paras 80 – 81 the Court said:
“80. Notwithstanding the specific result in Dworzecki, it is clear to us that even if none of the exceptions in the list in Article 4a(1)(i) apply, an executing judicial authority may take into account other circumstances that enable it to be assured that the surrender of the person concerned will not mean a breach of his fair trial rights. The exceptions in Article 4(a)(1)(a) are exceptions to an optional ground for non-surrender. 81. Moreover, the CJEU was also clear that the executing judicial authority can have regard to the conduct of the person concerned, what the court described in paragraph [51] as a manifest lack of diligence on his part, notably where it transpires that he sought to avoid service of the information the court sent. Thus the approach in Cretu in interpreting section 20 remains good: a requested person will be taken to have deliberately absented himself from his trial where the fault was his own conduct in leading him to be unaware of the date and time of his trial. Finally, we are clear that the emphasis in Cretuon the wording of the EAW, and the significance of the statements made within it as to the facts of the requested person’s absence, accord with the decision in Dworzecki, in particular in paragraph [34].”
[29]In Stryjecki v. District Court in Lublin, Poland [2016] EWHC 3309 (Admin), para 50, Hickinbottom J (as he then was) provided a summary of the principles established in Cretu, supra, and Zagrean, supra, which I paraphrase:a. It is for the requesting judicial authority to prove, to the criminal standard, that the requested person has ‘deliberately absented himself from his trial’.b. ‘Trial’ is not a reference to the general prosecution process, but rather the trial as an event with a scheduled time and venue which resulted in the decision.c. The EAW system is based on trust and confidence as between territories. Consequently, where the EAW contains a statement from the requesting judicial authority as required by para 4A(1)(a) of the EAW Framework Decision 2002, that will be respected and accepted by the court considering the extradition request, unless the statement is ambiguous (or, possibly, if there is an argument that the warrant is an abuse of process). If the statement is unambiguous, the court will not conduct its own examination into those matters, nor will it press the requesting authority for further information.d. If the statement in the EAW is ambiguous or confused (a fortiori, if there is no statement at all), then it is open to the court considering the request to conduct its own assessment of whether the requested person was summoned in person or, by other means, actually received official information of the scheduled date and place of that trial, on the evidence before it, the burden being born by the requesting authority to the criminal standard.e. ‘Summoned in person’ means personally served with the relevant information. If there has not been such service, generally the requesting authority must unequivocally establish to the criminal standard that the person actually received the relevant information as to time and place. It is insufficient for the requesting authority to show merely that the domestic rules as to service of such a summons were satisfied, if it is not established that the person actually received the trial information.f. Establishment of the fact that the requested person has taken steps which make it difficult or impossible for the requesting state to serve the requested person with documents which would have notified him of the fact, date and place of the trial is not in itself proof that the requested person has deliberately absented himself from his trial.g. However, where the requesting authority cannot establish that the person actually received that information because of ‘a manifest lack of diligence’ on the part of the requested person, notably where the person concerned has sought to avoid service of the information so that his own fault led the person to be unaware of the time and place of his trial, the court may nevertheless be satisfied that the surrender of the person concerned would not breach his rights of defence.[30]I would query, diffidently and with great respect, whether point (f) can be readily reconciled with what was said in Zagrean, supra, at para 81, namely ‘… a requested person will be taken to have deliberately absented himself from his trial where the fault was his own conduct in leading him to be unaware of the date and time of his trial.’ However that is not a conflict, if conflict it be, which I need resolve in this judgment.[31]In Stryjecki, supra, for the reasons set out in para 52 Hickinbottom J was not satisfied that surrender would not breach the appellant’s rights of defence. He held there was insufficient evidence of actual service of the summons (as opposed to deemed service under Polish law). The judge reached this conclusion despite finding that the appellant had moved to the UK when he was in breach of a suspended sentence for a theft offence for which he was facing trial, and had failed to comply with various requirements of his suspended sentence, including notifying the authorities of his change of address and not keeping in contact with his probation officer. His evidence before the district judge (as recorded at para 11) was that he had come to the UK in 2000 in order to take up a job that his brother had arranged for him. He said in his evidence before the district judge that he had written a letter to his probation officer after he had moved to the UK. Hickinbottom J was prepared to accept that the letter had been written and received, although there was no evidence to that effect (see at para 11).[32]A different conclusion was reached in Zagrean, supra, in relation to the conjoined appeal of Sunca. Mr Sunca had provided a false address and then left Romania (para 82). The court held that these facts were ‘ample evidence from which the district judge could properly conclude that Mr Sunca had waived his right to be tried in person and was deliberately absent from the subsequent trial’ (para 83).[33]The differing outcomes in Stryjecki, supra, and Mr Sunca’s case demonstrate that ultimately, everything depends on the facts. One explanation for the different results might be that there was not a clear finding in Mr Stryjecki’s case that he moved to England intentionally to avoid proceedings in Poland, whereas in Mr Sunca’s case that inference could be drawn because he intentionally misled the police about his address and then left the country. Analysis[34]The authorities I have discussed make clear the relevant test in determining whether the surrender of a defendant who has been absent from his trial, but in respect of whom none of the conditions in Article 4A are made out on the EAW, is whether surrender would be a breach of the rights of their defence. That test, in turn, is to be determined on whether it has been unequivocally established (which, under English law, means proved to the criminal standard) that the defendant waived the exercise of his right to appear at his trial and to defend himself, or that he was seeking to evade justice: see Colozza, supra, at para 28.[35]It is quite right, as Ms Pottle submits, that EAW1 does not indicate that the Appellant was summonsed, but instead indicates that it is the condition in Article 4A(1)(c) that is the basis for returning him despite his absence at trial. It is also true that that condition cannot suffice because the decision of the court to convict him never actually reached the Appellant personally, as the narration in para 2 of Box D of EAW1 makes clear. Therefore, there was no knowing and voluntary waiver by the Appellant of the right to seek a re-trial.[36]However, I am satisfied that the judge’s conclusion that the Appellant was deliberately absent from his trial for the purposes of s 20 was correct. As I have set out above, at paras 35, 36 and 43 the judge found, having heard and seen the Appellant give live evidence, that he had not told the truth. The judge was sure that the Appellant had deliberately left Poland to avoid proceedings there so as to avoid taking part in the trial process. That was a finding that he had waived his right to be present at any trial. There can be no doubt that the Appellant knew that proceedings were ongoing, As EAW1 records, following his arrest for the offence in EAW1 the Appellant ‘was advised of his duty to appear before the authorities whenever summoned in the course of criminal proceedings and to inform the authority in charge of proceedings of every change of address or residence for longer than 7 days. The requested person failed in that duty.’[37]The Appellant’s state of mind when he left Poland, and whether it was his intention to evade his trial in Poland, was a matter of fact for the district judge to determine on the evidence he heard. The approach of this Court to its task of deciding whether the district judge should have decided the case differently, particularly in the context of its evaluation of the evidence, was set out in Wiejak v. Olsztyn Circuit Court of Poland[2007] EWHC 2123 (Admin), and has been acted upon regularly since then (see, eg, Government of Rwanda v. Nteziryayo [2017] EWHC 1912 (Admin), para 21). In Wiejak, supra, Sedley LJ said at para 23:
“23. The effect of sections 27(2) and (3) of the Extradition Act 2003 is that an appeal may be allowed only if, in this court's judgment, the District Judge ought to have decided a question before her differently. This places the original issues very nearly at large before us, but with the obvious restrictions, first, that this court must consider the District Judge's reasons with great care in order to decide whether it differs from her and, secondly, that her fact-findings, at least where she has heard evidence, should ordinarily be respected in their entirety.”
[38]I see no basis for differing from the district judge’s conclusion in relation to what the Appellant’s intention was in leaving Poland, namely, that it was to avoid his trial. I do, however, need to deal with Ms Pottle’s submission that even if that were the case, because of the absence of any evidence that he was summonsed to his trial (according to her Perfected Grounds of Appeal at para 16 there is ‘no dispute’ that the Applicant was not summonsed), he cannot have been deliberately absent because in all cases the defendant needs to be summonsed, even if s/he has, by his/her actions, manifested a clear intention not to attend the trial come what may, summonsed or not.[39]It seems to me that I can leave determination of that question for another day. I can see some force in the submission, based on the authorities. But I am satisfied in this case that the Appellant was appropriately summonsed to his trial, notwithstanding that Box D does not indicate as such. Firstly, it is the norm for a summons to be issued in Poland, as in every country. Defendants on bail plainly have to be given notice in some form as to their trial date, and there is nothing to suggest that would not have happened here. Second, and perhaps more cogently, para 2 of Box D, which I have already quoted, says that the Appellant ‘… was advised of his duty to appear before the authorities whenever summoned in the course of criminal proceedings’ (my emphasis). Third, the FI states that after the Appellant was last seen in Poland in February 2008 a number of letters were sent to his address. From this I readily infer that one of the ‘letters’ must have been the summons notifying him of his date and time of his trial, and that he never received it because of his own choice to decamp to England to avoid taking part in that process.[40]That conclusion therefore makes it unnecessary to consider whether the Appellant has the right to a re-trial in Poland. I read the FI as suggesting that it would, because I would have expected the Judicial Authority who wrote the FI to have made clear that the 30 days referred to had already expired if that were the case. But as I have said, that is not something which I need to definitively resolve because I conclude that the judge was correct to determine that the Appellant had deliberately absented himself from his trial.[41]It follows that this appeal is dismissed.

Cited in 11 later judgments

and 2 more of the most senior