CO/10107/2012 
Neutral Citation Number: [2013] EWHC 699 (Admin)

IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION 
THE ADMINISTRATIVE COURT 
Royal Courts of Justice 
Strand
London WC2A 2LL 

Friday, 8 March 2013
 
B e f o r e: 

MR JUSTICE MITTING
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Between: 
RAFAL ROMANSKI 
Appellant

v 

DISTRICT LAW COURT IN TARNOBRZEG, POLAND 
Respondent 
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Computer‑Aided Transcript of the Stenograph Notes of  
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Mr Martin Henley (instructed by Guney Clark and Ryan) appeared on behalf of the Appellant
Mr Myles Grandison (instructed by the Crown Prosecution Service) appeared on behalf of the Respondent
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J U D G M E N T
1.	MR JUSTICE MITTING:  By a conviction European Arrest Warrant, issued by a judge of the District Court at Tarnobrzeg, on 3 October 2011, the extradition of the appellant was sought to serve sentences for three offences.  The warrant was certified by SOCA on 30 July 2011.  The appellant was arrested on 14 August 2012 and his extradition ordered in an uncontested hearing by District Judge Purdy on the same day.  The District Judge discharged him on three offences of insulting a police officer on the basis that there was no equivalent offence in the law of England and Wales.  No issue arises as to that part of his decision.
2.	The extradition of the appellant was sought to serve sentences imposed for six offences.  All were imposed at the Regional Court of Tarnobrzeg.  First, a sentence of ten months' imprisonment was imposed on 10 June 2010 for an assault committed on 20 October 2004.  Secondly, a sentence of one year and eight months' imprisonment was imposed on 17 January 2011 for an assault by beating of police officers on 8 November 2009, and for an assault by threat on a police officer on the same day.  No issue arises as to those two convictions or sentences.  The third sentence was one year's imprisonment, less two days, for an assault on police officers in execution of their duty committed on 19 May 2010.  This appeal concerns that part of the warrant.  
3.	Although no issue was taken upon it at the hearing before District Judge Purdy, Mr Grandison for the requesting authority has rightly not objected to the issue being taken on appeal.  In turn Mr Henley, for the appellant, has rightly not objected to the admission of further evidence from the requesting judicial authority in the form of a letter of 9 January 2013.
4.	Mr Henley founds himself squarely on the words of the warrant.  He submits that they demonstrate that the appellant was convicted in his absence and that he would not be entitled to a retrial, or to a review amounting to a retrial, under section 20(5) of the Extradition Act 2003.  Consequently I must order his discharge in respect of that offence.
5.	The requesting authority accepts that the warrant makes it clear that he is not entitled, as of right, to a retrial or to a review amounting to a retrial, but submits that the appellant deliberately absented himself from his trial, so that under subsections (3)and (4) of section 20 his extradition should be ordered.
6.	Box D of the decision headed "Decision rendered in absentia" states the following:  
"During the preparatory proceedings in the above‑mentioned case Rafal Romañski was directly instructed on his obligation to notify the court on changing his address of residence or stay prior to or during the hearing (a document of 20th May 2010 that was personally signed by Rafal Romañski).   Regional Law Court in Tarnobrzeg sent a notification about the date and time of the hearing ‑ 14th October 2010 to the address of permanent residence of the accused.  The accused did not collect the Court's letter (despite the fact that a letter of notice was left for him twice by the postman) and did not appear at the hearing on the date and time as notified.  Therefore, acting on the basis of article 139.1 of the Criminal Proceedings Code, Regional Law Court in Tarnobrzeg came to the conclusion that the accused was properly notified about the date and time of the hearing but did not appear thereat voluntarily; therefore, acting on the basis of article 479.1 of the Criminal Proceedings Code, the Court held the hearing in simplified mode on 14th October 2010 and pronounced a sentence in absentia against Rafal Romanski..." 
The warrant went on to explain that the sentence became "illegally valid" on 17 November 2010.
7.	On the basis of that wording Mr Henley submits that the judge, completing the European Arrest Warrant, has clearly accepted that the appellant was convicted in his absence and did not know about the date and time fixed for the final hearing in the case on 14 October 2010, at which sentence was pronounced.  That information has been supplemented by a different judge of the court by a letter of 9 January 2013.  He says that:  
"Rafal Romanski acted as follows: he appeared at the interrogation on 20th May 2010 and testified (the citation was sent to the suspect's address of permanent residence); then, in July 2010, the suspect changed his place of residence (he left for another city and then actually left Poland) and failed to give his new address, thereby he consented to the criminal proceedings and also the litigation being conducted in absentia (without his presence).  Rafal Romanski was aware that the Court would administer him a penalty for the offences in case II K 667/10 as he pleaded guilty of the offences while giving evidence on 20th May 2010; he also stated then that he would voluntarily submit to the penalty."  
It is on the basis of that letter, taken together with what is said in the warrant itself, that Mr Grandison, for the requesting authority, submits that the appellant deliberately absented himself from the trial.
8.	Polish criminal procedure is based on the civil law system.  It is apparent from the letter of 9 January 2013 that the appellant's interrogation on 20 May 2010, at which he testified, must have taken place before an investigating judge.  The use of the word "testify" is otherwise incomprehensible, as is the assertion in the letter that he "pleaded guilty of the offences" while giving evidence on that date.  
9.	Mr Henley submits, and I accept, that I must be wary of drawing an analogy between a common law procedure in which a defendant is convicted upon pleading guilty, even though he may not then be sentenced, and a civil law procedure in which the trial begins with a process of interrogation and investigation, conducted by an Investigating Judge, and ends with a decision to impose a sentence; a decision which itself later becomes final by the elapse of time.
10.	I do not take the statements made in the letter of 9 January 2013, therefore, to amount to an assertion that the appellant was convicted in his presence when he "pleaded guilty of the offences" before the Investigating Judge on 20 May 2010.  I accept Mr Henley's submission that the trial process was only completed when the hearing "in the simplified mode" took place on 14 October 2010 and resulted in the pronouncing of the sentence of imprisonment, to which I have referred.
11.	The question which I have to answer under section 20(3) and (4) is whether or not on those facts I can be sure that the appellant deliberately absented himself from his trial.
12.	Mr Henley submits first, but by no means exclusively, that for me to be sure that the appellant deliberately absented himself from his trial I must be sure that he received notification of the date and time of the final hearing on 14 October 2010, and having received that deliberately decided not to attend.  I do not accept that submission.  An individual can deliberately absent himself from a trial that he knows is inevitable, even though he may not know its precise date, by making it impossible for him to attend the trial by, for example, leaving the country in which the trial is to take place and leaving no means by which the judicial authorities can notify him of the date of the trial.
13.	On the facts of this case I am satisfied that the appellant appeared and confessed at a preliminary part of the proceedings, which resulted in his sentence on 20 May 2010, and that at that hearing he was notified of his obligation to notify the court of changing his address at any time before the proceedings concluded.  I am therefore sure that by deliberately changing his place of residence without giving that notification to the court, and by then leaving Poland, he deliberately absented himself from the remainder of the proceedings that resulted in his sentence.  It is not necessary for the purposes of section 20(3) and (4) that an accused person should, in those circumstances, know the precise date upon which proceedings against him will be concluded, because it is his own decision which has made it impossible for the authorities to notify that to him.
14.	Silber J reached a similar conclusion for similar reasons in Skward v District Court in Legnica, Poland [2012] EWHC 2816 (Admin) (see his conclusion at paragraph 26).  I agree with it and apply a similar test here.
15.	Mr Henley makes a further submission based upon the judgment of the Strasbourg Court in Sejdovic v Italy (2006) 42 ECHR 360 in which it held that a contracting state was obliged to guarantee to everyone charged with a criminal offence the right to defend himself in person; to examine or have examined witnesses and to have the free assistance of an interpreter if he cannot understand or speak the language used in court: rights which he could not exercise without being present (see paragraph 81).  The court acknowledged in paragraph 86 that those rights could be waived "either expressly or tacitly", but the waiver must be established "in an unequivocal manner and be attended by minimum safeguards commensurate to its importance".  The court held that in paragraph 87 the mere fact that an applicant was a fugitive did not provide a sufficient factual basis for reaching that conclusion.
16.	Mr Henley submits that applying that test all that I can be sure about is that the appellant was a fugitive and not that he deliberately absented himself from his trial.  I do not accept that submission on the facts, which I have identified.  This appellant was present at the start of the proceedings, "pleaded guilty", was notified of his obligation to notify the court of any change of address, and knew that there would be a further part of the proceedings in which the court would inevitably, or almost inevitably, proceed to sentencing.  He is not simply a fugitive, but someone who has deliberately absented himself from his trial, for the reasons which I have given.
17.	Having reached that conclusion it is inevitable that this appeal must be dismissed, and I do dismiss the appeal.  However, before leaving the case I must make an observation about the amendment to the Framework Decision, pursuant to which the Extradition Act 2003 was enacted, by the Council Framework Decision 2009/299/	JHA of 26 February 2009.  That inserts a new Article 4A into the original Framework Decision, which permits an executing judicial authority to refuse to execute a European Arrest Warrant, issued for the purpose of executing a custodial sentence, if the person did not appear in person at the trial resulting in the decision, and if he was in due time not summoned and 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 the trial in such a manner that it was unequivocally established that he or she was aware of the scheduled trial.
18.	As Lord Mance explains in Assange v The Swedish Judicial Authority [2012] UKSC 22, the only permissible aid to the construction of section 20 of the 2003 Act is the principle that an English court construing an English statute, intended to give effect to an international treaty, must do so in a manner constant with the obligations of the United Kingdom under that treaty.  It necessarily follows that where, as here, the treaty is subsequently amended, but the legislation is not, it is not a permissible aid to construction to look to the amendment to qualify or read down the plain words of section 20(3) and (4).  For the reasons I have given this appeal is dismissed. 
19.	MR HENLEY:  My Lord, clearly I think that the last comments that you made about the operation of the 2009 Framework Decision do raise a matter of general public importance.  Clearly I have had no prepared question and I would want time to frame it.  I would ask whether my Lord is minded to certify a question on that particular point, because of course the conclusions that you drew in the main body of your judgment may have been different if you had applied the 2009 Framework Decision.  Obviously you have not indicated whether it was one way or the other.  Clearly it is important as to whether section 20 can be, or ought to be, interpreted in the light of the 2009 treaty and whether it should be because it is EU legislation, as opposed to simply an international treaty, and obviously I would have to research that much more thoroughly. 
20.	MR JUSTICE MITTING:  I think you will find that the point has been put beyond argument by the Supreme Court in Assange, that the other Justices agree with Lord Mance's observations on that point and it simply is no longer a live issue.  Furthermore, the article only provides that the executing judicial authority may refuse to order extradition in those circumstances.  It does not oblige them to do so.
21.	MR HENLEY:  Yes, my Lord, but if you have not applied that to your thinking, then clearly it would have opened the possibility of a different outcome.  Clearly that could be the case.  My recollection of Assange, and I have actually relied on Assange in my skeleton in this regard ‑‑ 
22.	MR JUSTICE MITTING:  I had to look at it relatively recently, which is why I mentioned the point, although I forgot the name of the case foolishly.  It is clearly one of those that ought to stick in the mind. 
23.	MR HENLEY:  It seems to me that Assange has not settled that point.  The point that I put to you in argument, of course, is, "Well section 20 was already amounted to that and amounted to that sort of prohibition."  It is an argument about section 20 and the interpretation of section 20.
24.	MR JUSTICE MITTING:  That, I think, is the more promising way of putting it.  I still do not think it is open any longer to doubt.  I think section 20(3) and (4) are perfectly clear.  I really do not think that given that the question is always to be answered on a fact‑specific basis that it gives rise to any wider question of any public importance.
25.	MR HENLEY:  I hear what my Lord says, but I think there is sufficient interesting argument and discussion this morning that I think that I ought to put it in writing.
26.	MR JUSTICE MITTING:  I am not going to shut you out now and treat you as having made an oral application, which I have refused.  I will allow you to put it in writing, but you should not be optimistic about the answer.
27.	MR HENLEY:  I will take note of that, my Lord.
28.	MR JUSTICE MITTING:  Are there any other applications? 
29.	MR HENLEY:  Sorry, obviously a formal public funding order.  
30.	MR JUSTICE MITTING:  Yes. Is there a statutory time limit for making the application? 
31.	MR HENLEY:  It is fourteen days from today, including today.