AC-2024-LON-003550 - [2025] EWHC 2831 (Admin)

Article 4a provides materially:

“Article 4a

Decisions rendered following a trial at which the person did not appear in person

1.

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 requirements 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 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”

The relevant passage of the Divisional Court’s judgment in Cretu is at paras 34-35:

“34.

In my judgment, when read in the light of article 4a section 20 of the 2003 Act, by applying a Pupino conforming interpretation, should be interpreted as follows:-

…

“An accused must be taken to be deliberately absent from his trial if he has been summoned as envisaged by article 4a paragraph 1.(a)(i) in a manner which, even though he may have been unaware of the scheduled date and place, does not violate article 6 ECHR”

35.

It will not be appropriate for requesting judicial authorities to be pressed for further information relating to the statements made in an EAW pursuant to article 4a save in cases of ambiguity, confusion or possibly in connection with an argument that the warrant is an abuse of process. The issue at the extradition hearing will be whether the EAW contains the necessary statement. Article 4a is drafted to require surrender if the European arrest warrant states that the person, in accordance with the procedural law of the issuing Member State, falls within one of the four exceptions. It does not contemplate that the executing state will conduct an independent investigation into those matters. That is not surprising. The EAW system is based on mutual trust and confidence. Article 1 of the 2009 Framework Decision identifies improvement in mutual recognition of judicial decisions as one of its aims. It also contemplates surrender occurring very shortly after an EAW is issued and certified. To explore all the underlying facts would generate extensive satellite litigation and be inconsistent with the scheme of the Framework Decision. Article 4a provides additional procedural safeguards for a requested person beyond the provision it replaced in the original version of the Framework Decision, but it does not call for one Member State in any given case to explore the minutiae of what has occurred in the requesting Member State or to receive evidence about whether the statement in the EAW is accurate. That is a process which might well entail a detailed examination of the conduct of the proceedings in that other state with a view to passing judgment on whether the foreign court had abided by its own domestic law, EU law and the ECHR. It might require the court in one state to rule on the meaning of the law in the other state. It would entail an examination of factual matters in this jurisdiction, on which the foreign court had already come to conclusions, but on partial or different evidence. None of that is consistent with article 4a of the Framework Decision.”

In passing, I note Ms Beatty’s point that the present warrant was executed after the United Kingdom withdrew from the European Union on 30 December 2020, and the position is therefore governed by TACA rather than the Framework Decision. However, Article 601(1)(i) of TACA is materially identical to article 4a of the FD. As such, the case law pertaining to article 4a remains highly persuasive when interpreting the requirements of both Article 601(1)(i) of TACA and section 20 of the Act.

Having set out the background, I can deal with the article 4a point briefly. It is not suggested that there is an abuse of process. The appellant frames his objection on the basis of ambiguity, although “confusion” may also cover the objection. The question under article 4a is whether the warrant states that the appellant was informed of the trial in accordance with the “further procedural requirements” in the law of the issuing Member State, here Poland.

While the appellant was not summoned in person, the warrant states in terms that the appellant received notification “by other means”. This was by service of the summons at the address he had nominated to the Polish authorities. The further extract from the warrant states that the summons is “deemed served” by service at his nominated address. This is the procedural requirement under the Polish process. The ambiguity identified by the appellant is said to be that the warrant states his awareness of the trial was “unequivocally established” and yet the warrant also states that he did not collect the summons and so could not be aware of the trial date. This objection does not engage with the deeming effect of service at nominated address. The point of this Polish procedure is to cater for individuals who decline to engage with criminal proceedings. There is no argument presented to me that the Polish deeming arrangements are not in accordance with the ECHR and no authority to that effect has been placed before the court. A refusal to collect a summons cannot by itself frustrate or subvert lawful proceedings. There must be a mechanism for proceedings to progress in face of non-cooperation of the accused. This analysis is supported by Recital 8 of the 2009 Framework Decision, which provides, as material (and cited by the Divisional Court in Cretu at para 27):

“In accordance with the case law of the European Court of Human Rights [“ECtHR” or “Strasbourg Court”], when considering whether the way in which the information is provided is sufficient to ensure the person’s awareness of the trial, particular attention could, where appropriate, also be paid to the diligence exercised by the person concerned in order to receive information addressed to him or her.”

At para 31 of Cretu, the Divisional Court proceeded to cite from the ECtHR:

“A leading decision of the Strasbourg Court on this topic is Collozza and Rubinat v Italy (1985) 7 EHRR 516 which 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. The Strasbourg Court applies a principle that depends upon “unequivocal waiver”.”

To my mind, there is no ambiguity nor confusion in the arrest warrant. The two differing passages relate that the appellant had the requisite awareness of the trial by reason of the Polish procedural deeming arrangements. There is no argument presented to me that Poland’s procedural arrangements are in contravention of the Convention. I note what Burnett LJ said in Cretu at para 32:

“The Framework Decisions do not contemplate an investigation by the courts of one Member State into the circumstances in which a court of another Member State decided to proceed in the absence of an accused. Still less could it be consistent with the concept of mutual confidence that courts in one Member State should be making findings on past compliance with article 6 ECHR in the courts of the other Member States.”

Poland proceeded to trial on the case file in question having served a summons in accordance with Polish procedure. It is difficult to know what it should have done when the judicial authorities had served the summons for trial at the address the appellant nominated. As such, in accordance with Cretu, the Judge was entitled to take the arrest warrant at face value and rely on it. She was not wrong to do so.

Therefore, Ground 2 fails for this reason. However, I have considered the section 20 deliberate absenting argument in the event a different view is taken on this conclusion. I now set out my reasoning.