Martin Jirik v District Court of Prague, Czech Republic [2025] EWHC 506 (Admin)

[2025] EWHC 506 (Admin)Case No AC-2024-LON-000729
IN THE HIGH COURT OF JUSTICE
KING'S BENCH DIVISION
ADMINISTRATIVE COURT
Venue Royal Courts of Justice, Strand, London, WC2A 2LLDate 07/03/2025
Before
HON. MR JUSTICE BOURNE
Between
MARTIN JIRIKAppellantDISTRICT COURT OF PRAGUE, CZECH REPUBLICRespondent
Émilie Pottle and Sebastian Bates (instructed by Stokoe Partnership) for AppellantAmanda Bostock (instructed by Crown Prosecution Service) for RespondentHearing Hearing date: 25 February 2025
Approved JudgmentThis judgment was handed down remotely at 10.30am on 7 th March by circulation to the parties or their representatives by e-mail and by release to the National Archives..............................HON. MR JUSTICE BOURNE
[1]This is an appeal from the judgment of DJ Sternberg dated 26 February 2024, ordering the Appellant’s extradition to the Czech Republic. On 24 July 2024 Sheldon J granted permission for the appeal to proceed on two grounds.[2]The case arises from an offence of attempted theft on 19 December 2018 when the Appellant broke into a car, causing its owner to suffer loss in the sum of about £279. On 19 November 2020 the Appellant was convicted of this offence in his absence, and was sentenced to 18 months’ imprisonment, conditionally suspended for 5 years, with supervision and a requirement to pay compensation. As the DJ said, “the Czech Judicial Authorities now seek his surrender under an Arrest Warrant issued on 28 August 2023 by Jan Kratina, Presiding Judge of the District Court for Prague 1 to conduct a hearing to consider activating the suspended sentence”.[3]I summarise some of the background facts found by the DJ. The Appellant came to the UK in June 2019. However, he then returned to the Czech Republic and was detained and questioned by the Czech authorities on 8 September 2019 and was served with a “resolution on the commencement of criminal prosecution”. He exercised his right to silence and provided a residential address in Newport and a contact address in the Czech Republic. He did not receive documents sent to his Czech address and the authorities tried to write to him at his UK address without success. The Czech Court telephoned him to inform him of proceedings but when he became aware who was calling, he hung up and did not take further calls. His trial was repeatedly adjourned because he was not present. The Czech court issued an arrest warrant for him on 18 May 2020. A search for him in the Czech Republic was not successful. He was convicted on 18 November 2020 and the sentence came into force on 26 January 2021.[4]At the extradition hearing it was not disputed that the arrest warrant complied with section 2 of the Extradition Act 2003. The DJ noted that the further information accompanying it made clear that the Appellant was sought for a hearing to consider activating the suspended sentence, as he had not complied with the conditions of supervision, and that a warrant issued for that purpose is valid under section 2, according to Murin v Czech Republic [2018] EWHC 1532 (Admin).[5]The DJ was not satisfied that the Appellant came to the UK as a fugitive, but he did find that he was deliberately absent from his trial.[6]As to that issue, section 20 of the Extradition Act 2003 provides: 20 Case where person has been convicted(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.[7]The DJ also set out guidance from Dziel v Poland [2019] EWHC 351 (Admin), paragraphs 28-30 and 37-41, explaining that there is no breach of a person’s right to a fair trial under ECHR Article 6 if he deliberately puts it beyond the ability of the court or prosecutor to inform him about his trial or the consequences of his absence.[8]The DJ found that although the Appellant knew that proceedings were ongoing against him when he left the Czech Republic after his interview and that there would be correspondence from the authorities, he took no steps to ascertain whether anything was received at his Czech address, and he deliberately avoided contact from the court. The DJ said at 18 vii:
“In so doing he displayed a manifest lack of diligence, given my findings of his knowledge of the state of proceedings against him.”
[9]Having found that the Appellant was deliberately absent from his trial, the DJ found that section 20 was satisfied, notwithstanding that it appeared that he would not be entitled to a retrial on his return to the Czech Republic. The Appellant’s case Ground 1

The Appellant’s case

[10]The first ground of appeal is based on section 2 of the 2003 Act.[11]The Respondent relies on the warrant as a conviction warrant. Under section 2(5), a conviction warrant must contain the following information:
“(a) The person in respect of whom the Part 1 warrant is issued has been convicted of an offence specified in the warrant by a court in the category 1 territory, and (b) The Part 1 warrant is issued with a view to his arrest and extradition to the category 1 territory for the purpose of being sentenced for the offence or of serving a sentence of imprisonment or another form of detention imposed in respect of the offence.”
(emphasis added)[12]The Appellant’s counsel, Émilie Pottle, relies on the fact that the extradition request does not specify any sentence and the further information dated 23 January 2024 confirms that the Appellant is sought merely for a hearing to determine whether his suspended sentence should be activated. The outcome could be that he will not be imprisoned at all. In those circumstances, she submits that section 2 is not satisfied. The request is not for extradition for the statutory purpose, but for a different and invalid purpose.[13]As I have said, the DJ ruled that the warrant was valid because of the authority of Murin. However, Ms Pottle submitted(1) that that case was wrongly decided, or otherwise(2) that the reasoning in Murin, construing section 2 in the light of the EAW Framework Decision, is out of date and can no longer stand now that extradition with EU countries is effected under the different terms of the Trade and Co-operation Agreement (“TCA”).[14]Miss Pottle referred to the Explanatory Notes to the 2003 Act, which explained that the UK’s extradition law was being reformed in order to improve judicial co-operation between nations. They also stated that the Act included provisions implementing EU legislation found in the Council Framework Decision of 13 June 2002 on the European arrest warrant (“the Framework Decision”). She pointed to the fifth recital to the Framework Decision, which stated:
“The objective set for the Union to become an area of freedom, security and justice leads to abolishing extradition between Member States and replacing it by a system of surrender between judicial authorities. Further, the introduction of a new simplified system of surrender of sentenced or suspected persons for the purposes of execution or prosecution of criminal sentences makes it possible to remove the complexity and potential for delay inherent in the present extradition procedures. Traditional cooperation relations which have prevailed up till now between Member States should be replaced by a system of free movement of judicial decisions in criminal matters, covering both pre- sentence and final decisions, within an area of freedom, security and justice.” security and justice leads to abolishing extradition between Member States and replacing it by a system of surrender between judicial authorities. Further, the introduction of a new simplified system of surrender of sentenced or suspected persons for the purposes of execution or prosecution of criminal sentences makes it possible to remove the complexity and potential for delay inherent in the present extradition procedures. Traditional cooperation relations which have prevailed up till now between security and justice.”

cooperation relations which have prevailed up till now between

[15]Miss Pottle also referred to Article 1 of the Framework Decision, defining an arrest warrant:
“The European arrest warrant is a judicial decision issued by a Member State with a view to the arrest and surrender by another Member State of a requested person, for the purposes of conducting a criminal prosecution or executing a custodial sentence or detention order.”
Member State with a view to the arrest and surrender by another Member State of a requested person, for the purposes of conducting a criminal prosecution or executing a custodial sentence or detention order.”

Member State of a requested person, for the purposes of conducting a

[16]Since the UK left the EU, the Framework Decision has ceased to underpin the arrangements for extradition between the UK and EU countries. Those arrangements are now governed in international law by Title VII of the TCA between the UK and the EU which came into force on 1 May 2021. Article 598 defines an “arrest warrant” in terms effectively the same as those of Article 1 of the Framework Decision. It is preceded by these two Articles:
“Article 596 Objective The objective of this Title is to ensure that the extradition system between the Member States, on the one side, and the United Kingdom, on the other side, is based on a mechanism of surrender pursuant to an arrest warrant in accordance with the terms of this Title. Article 597 Principle of proportionality Cooperation through the arrest warrant shall be necessary and proportionate, taking into account the rights of the requested person and the interests of the victims, and having regard to the seriousness of the act, the likely penalty that would be imposed and the possibility of a State taking measures less coercive than the surrender of the requested person particularly with a view to avoiding unnecessarily long periods of pre-trial detention.”
Objective Article 597

Principle of proportionality

[17]Miss Pottle described these changes as a re-balancing, moving the emphasis away from enforcement and towards proportionality whilst the purposes of extradition itself have remained the same.[18]With that introduction, she submitted that ground 1 should succeed on the basis of the plain wording of section 2. It would be open to the Czech authorities to have the hearing to decide whether to activate the suspended sentence (and to send the Appellant a summons so that he could attend voluntarily if he wished) and then, if the decision is to activate, to seek his extradition to serve the sentence, but there is no power to extradite him just for a hearing which could end without him being imprisoned.[19]In support of her criticism of Murin, Miss Pottle relied on Polakowski v Westminster Magistrates’ Court [2021] 1 WLR 2521 in which applicants contended that, notwithstanding the terms of the 2003 Act, there was no continuing basis in international law for their extradition at the end of the transitional period following Brexit. Rejecting the argument, Dame Victoria Sharp P explained at [15-18] that the starting point for the legal analysis was the applicable statute namely the 2003 Act. Before the UK left the EU it was only exceptionally, where domestic law was unclear or failed properly to implement EU law, that it was necessary to look to the underlying EU law. Now that EU law only had such continued effect in the UK as it was given by domestic legislation, and where the ongoing relationship was the subject of the TCA which was not part of UK law save to the limited extent that it was incorporated by statute, it was “even more important that any legal question involving rights or obligations said to be derived from EU law should now be approached in the first instance through the lens of domestic law”.[20]Whilst the present case turns on different arguments from those in Polakowski, Miss Pottle contends that the domestic legislation must have the same primacy. And it should be applied with precision because of the impact of extradition on the rights of requested persons (see Office of the King’s Prosecutor, Brussels v Cando Armas [2006] 2 AC 1 HL at 16G-H). That being so, section 2(5) should be given its clear meaning, in preference to a more generous interpretation reflecting the Framework Decision objectives as was applied in Murin.[21]I return to Murin below. Miss Pottle’s submission, in a nutshell, is that Green J was wrong to interpret the extradition system as necessarily covering cases where activation of a suspended sentence was being considered, given that the system does not apply to cases not involving custodial sentences. And the Framework Decision did not compel that interpretation because its definition of an arrest warrant is in the same limited terms as are used in section 2.[22]In the alternative, Miss Pottle submits that the part of Green J’s reasoning which was based on the Framework Decision is no longer applicable in any event. She points out that the courts have held that the 2003 Act must, where necessary, be given an interpretation conforming with the EU instruments underlying it, including the TCA. See Badea v Romanian Judicial Authority [2022] EWHC 1025 (Admin)at paragraph 24 (iii), (iv) and (vi), where counsel submitted that it did not matter that the provisions of the Act were enacted prior to the TCA, because Part 1 of the TCA had been maintained with the purpose of giving effect to the objective of Title VII of the TCA, and at paragraph 41 where Fordham J accepted his submissions in principle. Therefore, differences between the provisions of the Framework Decision and of the TCA could give rise to a change in the interpretation of the implementing sections of the 2003 Act.[23]Miss Pottle also relied on Cretu v Local Court of Suceava, Romania [2016] EWHC 353 (Admin) at [34], where the Divisional Court (Burnett LJ and Irwin J) interpreted section 20 of the 2003 Act so as to be in conformity with the new article 4a(1)(a)(i) of the Framework Decision which had been added by a further Framework Decision (2009/299 JHA). See, in particular, [13] where the Court overturned a previous decision which had held that section 20(3) of the 2003 Act could not be construed in light of the 2009 Framework Decision because it pre-dated it and because the latter had not been given the force of law in the UK.[24]Miss Pottle invited me to reject the contrary view expressed by Swift J in Vascenkovs v Latvia [2023] EWHC 2830 (Admin) at [16], pointing out that the judgment does not refer to either Badea or Cretu (although Ms Bostock, who appeared in Vascenkovs, told the Court that both cases were cited in argument).[25]As a further answer to the point made in Vascenkovs, Miss Pottle also referred to section 29 of the European Union (Future Relationship) Act 2020 which provides:
“(1) Existing domestic law has effect on and after the relevant day with such modifications as are required for the purposes of implementing in that law the Trade and Cooperation Agreement … so far as the agreement concerned is not otherwise so implemented and so far as such implementation is necessary for the purposes of complying with the international obligations of the United Kingdom under the agreement.”
[26]So Miss Pottle’s primary position is that no conforming interpretation is needed because the terms of section 2 are clear. But even if Murin correctly identified an interpretation conforming to the Framework Decision, that interpretation is no longer the correct one now that the legislation is underpinned by the TCA.

Ground 2

[27]The second ground of appeal is based on section 20 of the 2003 Act and the decision of the Supreme Court in Bertino v Public Prosecutor’s Office, Italy [2024] UKSC 9, [2024] 1 WLR 1483, a decision handed down after the DJ’s decision in the present case. Although the DJ did not have the benefit of Bertino, the question is whether his decision was nevertheless right or wrong.[28]Section 20(3) requires the Court at the extradition hearing to decide whether the requested person “deliberately absented himself from his trial”. If that condition was not satisfied in this case, then it is agreed that the Appellant was bound to be discharged, because it is not contended that he would have a right of re-trial if extradited.[29]In Bertino theSupreme Court decided that the phrase “deliberately absented himself from his trial” must be understood as being synonymous with the concept in Strasbourg jurisprudence of an accused unequivocally waiving his right to be present at his trial for the purposes of ECHR Article 6. On the facts of Bertino, the test was not satisfied where the requested person had left Italy knowing that he was under investigation but not that there would be a prosecution, let alone a trial. The prosecution had to show that when he waived his rights, he could reasonably foresee that the trial would proceed in his absence. The absence of legal advice was a relevant factor. Ordinarily (see [54]) “the accused must be shown to have appreciated the consequences of his or her behaviour. That will usually require the defendant to be warned in one way or another.” At [55] Lords Stephens and Burnett rejected “a general manifest lack of diligence which results in ignorance of criminal proceedings” as supporting a conclusion of deliberate absence from trial. At [58], “ordinarily it would be expected that the requesting authority must prove that the requested person had actual knowledge that he could be convicted and sentenced in absentia”, but “behaviour of an extreme enough form might support a finding of unequivocal waiver” even without actual knowledge. Examples given were where an accused stated that he did not intend to respond to summonses, or succeeded in evading an attempted arrest, or when materials “unequivocally show that he is aware of the proceedings … and of the charges he faces”, or “putting themselves beyond the jurisdiction of the prosecuting and judicial authorities in a knowing and intelligent way with the result that for practical purposes a trial with them present would not be possible”.[30]Miss Pottle pointed to evidence that, when the Appellant was questioned in the Czech Republic, the investigation was incomplete. There was no evidence of his receiving any advice or any warning of what would happen if he did not co-operate, and no evidence that he knew when a trial would be or that it could proceed in his absence. His behaviour, she submitted, was not sufficiently “extreme” to fall within the categories contemplated in Bertino. The Respondent’s case Ground 1

The Respondent’s case

[31]The Respondent’s counsel, Amanda Bostock, pointed out that it would not be in the Appellant’s interests if the hearing to decide whether to activate the suspended sentence took place in his absence, followed by extradition to serve the sentence if it is activated. It would be fairer to give him the opportunity of putting his case.[32]Instead, Miss Bostock contended that in the present case the warrant was issued for the Appellant’s extradition “for the purpose of being sentenced for the offence”, that being a reasonable description of the proposed hearing to decide on activation. She pointed out that extradition need not result in a person’s imprisonment, as in cases of accusation warrants where the extradited person may be acquitted at trial.[33]Miss Bostock also reminded me that Murin is precisely on point, unlike any other case to which I have been referred. She submitted that it was correctly decided, noting also that when the High Court certified an issue of law in that case, the Supreme Court refused permission to appeal. She contended that the reasoning in Murin was not dependent on the Framework Decision, and instead that the Court was satisfied that section 2 did not leave a gap into which non-activated suspended sentences could fall. In the absence of any change to section 2 itself, she contended that its meaning cannot have changed. She also reminded me that the court in Murin relied on the decision of the Supreme Court in Goluchowski [2016] 1 WLR 2665 at [30], where Lord Mance said neither the Framework Decision nor the 2003 Act showed any consciousness of the possibility of prison sentences which did not take immediate effect, but that “that cannot mean that they are not covered” and that courts must make the system work.[34]Contrary to Miss Pottle’s submissions, Miss Bostock also urged me to follow Vascenkovs, where Swift J held at §16 that the TCA has not changed the Act’s approach to proportionality because there has been no amendment and the TCA post-dates the Act. In that case too the High Court certified an issue of law and the Supreme Court refused permission to appeal.[35]Miss Bostock also relied on Polakowski for the proposition that the starting point is the 2003 Act and that it is not necessary to resort to the TCA for a proper construction of it. In any event, she submitted, there is no basis for concluding that anything in the TCA has changed the meaning of section 2. Still less should that conclusion be drawn from Article 598 which is just a definitions clause.

Ground 2

[36]As to ground 2, Miss Bostock contended that the Appellant’s case over-simplifies the decision in Bertino. She says that Bertino emphasises that an accused must be “aware of the existence of the criminal proceedings” as opposed to (in that case, unlike this one) only aware of an incomplete investigation. She relies on the fact that he was served with the “resolution” and interviewed as an accused. He was aware he was going to be brought to trial and his evidence to the contrary was rejected by the DJ. On the DJ’s findings Miss Bostock submits that, in the language of Bertino, the Appellant had “put himself beyond the jurisdiction of the prosecution and judicial authorities in a knowing and intelligent way with the result that for practical purposes a trial without him present would not be possible” so that he “may be taken to appreciate that a trial in absence [was] the only option”.[37]Miss Bostock therefore submitted that (as in the CJEU case of IR which was cited with approval in Bertino at [39]), the Appellant in the present case took “deliberate steps to avoid receiving officially the information regarding the date and place of the trial”. His conduct can be judged in light of his numerous previous convictions in the Czech Republic, suggesting that he knows how the prosecution system works. She also invited me to presume that the Czech Republic, as an EU state, will have acted fairly.[38]Therefore, Miss Bostock contended, this is indeed a case where, per Bertino at [58], “the facts … provide an unequivocal indication that the accused is aware of the existence of the criminal proceedings against him and of the nature and the cause of the accusation and does not intend to take part in the trial”, and therefore that this is not an “ordinary” or “usual” case where the prosecution has to prove that the requested person was warned of the possibility of being tried in their absence. Discussion Ground 1

Discussion

[39]Murin was an extradition case from the Czech Republic raising precisely the same point of statutory construction as the present case. There, as here, the Czech Republic sought the return of a person to face proceedings to decide whether or not to activate a suspended sentence of imprisonment (in that case because of further offending). As in this case, it was argued that that does not fall within the terms of section 2(5)(b).[40]In the Divisional Court, Green J, with whom Singh LJ agreed, rejected that argument for several reasons: (1) At [23]:
“In my view the extradition system creates a seamless mechanism governing the return of persons who are sought to face trial or serve a sentence and it does not countenance particular types of sentence imposed following conviction falling outwith the extradition regime. Section 2(5)(b) of the EA 2003 provides no basis for creating an exception in the words: the Part 1 warrant is issued with a view to his arrest and extradition to the category 1 territory for the purpose of being sentenced for the offence or of serving a sentence of imprisonment or another form of detention imposed in respect of the offence. The assumption is that in every case the requested person will be sought either to be sentenced or to serve a sentence. It is not contemplated that there are interstices between the two into which certain types of sentence following conviction would fall.”
And, at [24-26], there was no basis in the Framework Decision “for the proposition that there is a category of criminal judgment which falls outside of the regime”. If it had been intended to have an exception for requests for the extradition of convicted persons sought to face a hearing to determine whether a prior (suspended) sentence should be activated, it would have been “expressly designated” and “a reasoned basis for the exception would have been given”. (2) At [30-31], the argument “collides with the basic purpose behind the Framework Decision and, it follows, the EA 2003” which was “by the establishment of a simplified and effective system for the surrender of persons convicted or accused of having infringed criminal law, to facilitate and accelerate judicial co-operation with a view to contributing to the objectives set for the European Union to become an area of freedom, security and justice” (see Ardic (Case C-571/17PPU) EU:C: 2017:1026 at [69]). The omission of people facing a hearing to decide whether a suspended sentence should be activated would leave a “gaping hole in the extradition system”. (3) The suggested argument ran counter to, or was not raised in, other CJEU cases on the subject of proceedings to execute a prior sentence. (4) At [36], “the extradition system is based upon principles of international comity, mutual respect and a high level of confidence between the member states : cf recital (11) of the Framework Decision” and “One aspect of this is the acknowledgment that criminal justice systems will vary in their procedures and approach and indeed nomenclature.” (5) At [39], the phrase “unlawfully at large” in section 68A of the EA 2003, was not relevant to the analysis of section 2(5).[41]The Appellant referred me to Coral Reef Ltd v Silverbond Enterprises Ltd and another [2016] EWHC 3844 (Ch) at [47-48] where David Foxton QC (as he then was) explained that a High Court Judge is not bound by decisions of other High Court Judges though the modern practice is to follow such a judgment unless the judge is convinced that it is wrong and that, for this purpose, “a divisional court sitting with two High Court judges has the same status as a High Court judge sitting alone”. I was also referred to an article (Lewis Graham writing in King’s Law Journal on 27 July 2023), according to which some courts have suggested an approach of “heightened comity” whereby a single judge will exercise greater caution when considering whether to depart from a decision of a two-judge panel.[42]I am not persuaded that the decision in Murin was incorrect. Whilst there is a tension between the wording of section 2(5)(b) and the type of warrant in the present case, it is well established that the Court should construe extradition legislation, where possible, so as to give effect to a system which has to accommodate the varied requirements and practices of numerous other countries. Given that section 2(5)(b) does include cases where the requested person is to be sentenced and therefore will not necessarily receive a custodial sentence, I see no reason of principle why it should not extend to a case of an activation hearing where more than one outcome is possible.[43]Nothing in the TCA dissuades me from that view. Following Polakowski, it seems to me that the “lens of domestic law” is sufficient to identify the correct answer. This is not a case of the Cretu kind where a “conforming interpretation” leads to a different conclusion.[44]The point in issue having been decided by Murin, ground 1 must fail.

Ground 2

[45]Ground 2 turns on the evidence and findings of fact. Applying what is now known to be the correct approach of Bertino, did the Respondent prove to the criminal standard either(1) that the Appellant had actual knowledge that he could be convicted and sentenced in his absence or(2) that he put himself beyond the jurisdiction of the authorities in a knowing and intelligent way with the result that an in-person trial would not be possible?[46]The relevant facts in the present case (which differ materially from those in Bertino) are:(1) Since June 2019 the Appellant has lived and worked openly in the UK.(2) Nevertheless, on 8 September 2019 he was in the Czech Republic and was detained and interviewed by the Czech authorities. He exercised the right of silence. He was given a “resolution on the commencement of criminal prosecution”. From that time he “knew that he was an accused person” and that “correspondence would be sent to him” (judgment paragraph 18 vii).(3) On that date, “a time limit was set for inspecting the file after the end of investigation”.(4) At the same time he gave the authorities a contact address in the Czech Republic, but he did not pick up any documents delivered to that address and it transpired that nobody knew him at that address.(5) At the same time he gave the authorities a residential address in the UK, an (apparently correct) e-mail address and a contact telephone number.(6) The Appellant then returned to the UK and did not do so as a fugitive i.e. in the attempt to put himself beyond the reach of the proceedings.(7) The Czech authorities tried, using the mutual legal assistance system, to deliver a summons to the UK residential address. The attempt was not successful, but there is no further information as to why that was.(8) The summons was also sent to the email address which the Appellant had provided. According to the further information, “no attempt to deliver the summons was successful”.(9) The Czech authorities made several calls to the contact telephone number provided. The Appellant answered one of the calls and, when he knew who was calling, hung up and then did not answer further calls.(10) He “took no steps to ascertain whether there had been any contact from the Czech prosecutor or Court … and he deliberately avoided contact from the Court” (judgment paragraph 18 vii).[47]This is a more borderline case than Bertino, but I conclude that the evidence and findings were not sufficient to surmount the criminal standard of proof. The Respondent did not show that the Appellant unequivocally waived his right to be present at his trial.[48]The evidence did not establish and/or the DJ did not find either that the Appellant knew the time and place of his trial or that he was warned that a trial could proceed in his absence.[49]The DJ was amply justified in finding a “manifest lack of diligence” on his part, but in Bertino it was decided that that would not suffice to show an unequivocal waiver.[50]Instead, what was needed was sufficiently “extreme” conduct which could allow a Court to infer that he knew he could be tried in his absence and was waiving his right to appear, specific examples being stating that he would not respond to a summons or evading arrest. The Supreme Court also referred to non-specific “knowing and intelligent” conduct of a kind which would make an in-person trial impossible. There was no discussion in the judgment of whether conduct such as ignoring an email would be sufficient.[51]The closest the Respondent came to surmounting the burden was with the evidence that the Appellant refused to speak to them by telephone. In my judgment, however, that in isolation cannot be understood as an unequivocal waiver of the right to be present at a trial.[52]Otherwise, the problem is a lack of evidence about the attempts to serve the summons.[53]Giving an ineffective service address in the Czech Republic cannot, in my judgment, be seen as an attempt to evade service. That is because the Appellant at the same time gave apparently correct contact details in the UK, and also because there is no evidence that there was any proper address for service in the Czech Republic which he could have given.[54]It is not known why the summons could not be served via mutual assistance, or what happened to the summons which was sent to the UK residential address which he gave, or what happened to the summons which was sent by email. Nor does the evidence show whether those summonses contained any warning of the possibility of trial in absence.[55]As I have said, the question of law is whether these facts are sufficiently “extreme” to differentiate this from a more usual case where it is proved that a suspect has been told about a trial or warned of the possibility of trial in his absence, and to permit the inference of an unequivocal – or “knowing and intelligent” – waiver.[56]I conclude that, applying the criminal standard, the DJ was right to characterise the facts as a case of “manifest lack of diligence”. There was ample reason, including the Appellant’s criminal record, to suspect that his conduct was more “knowing and intelligent” than that, but suspicion is not proof.[57]On the law as it was understood at the time, the DJ’s decision in respect of section 20 was entirely logical. However, with the benefit of the judgment in Bertino, it can be seen that his conclusion was legally erroneous.

Conclusion

[58]The appeal therefore succeeds on ground 2, and the Appellant will be discharged.