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

This ground focuses on a single Polish case file, the same 2012 matter as examined in Ground 1 (II K 779/12). The argument falls into two parts. First, that the Judge was wrong at para 65 of her judgment to conclude that the arrest warrant was sufficiently clear for the purposes of the Framework Decision (“FD”) to be taken at face value. As such, the Judge was wrong in her conclusion that he must be taken to be deliberately absent from his trial as he has been summoned in accordance with article 4a paragraph 1.(a)(i) of the FD in a manner which, even though he may have been unaware of the scheduled date and place, does not violate article 6 ECHR.

The appellant submits that the arrest warrant contains ambiguity. As such, there must be a proper examination of whether the respondent has proved that the appellant deliberately absented himself from his trial; the warrant cannot be taken at face value. The Judge ought to have concluded that the section 20 test has not been proved. The appeal should be allowed on this ground.

The respondent counters that the Judge was correct to find that article 4a was satisfied. There is thus no need to consider section 20. But if so, the Judge was correct that the appellant deliberately absented himself from trial.

Section 20 provides:

“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.”

The relevant parts of the relevant warrant are:

“* b. the person was not summoned in person but by other means actually received official information of the scheduled date and place of the trial which resulted in the decision, in such a manner that it was unequivocally established that he or she was aware of the scheduled trial, and was informed that a decision may be handed down if he or she does not appear for the trial in cases: Il K 779/12, VIII K 1583/14, II K 271/16”

The warrant continues (in summary) that on 2 August 2012 the Appellant was summoned in writing to his address given in preparatory proceedings. He did not collect the correspondence and it was deemed served. He had an obligation to notify the court of change in address and that letters sent would be deemed served.

There are two relevant paragraphs in the lower court’s judgment, paras 37 and 65:

“37.

In respect of reference II K 779/12 Box D confirms the RP did not attend the trial but was summonsed in writing on 2nd August 2012 to the trial on 12th September 2012 and informed that a decision may be handed down if he did not appear. It was sent to an address the RP provided in the preparatory proceedings. He was also informed on 16th June 2012 that he had to notify any change of address exceeding seven days. The RP’s written evidence does not deal with what he knew about each of the proceedings, but he was questioned by Ms Beatty in respect of each of the judgments. In respect of this one he said he knew he was being prosecuted for the offence, but it was hard to tell after such a long time but when it was put to him there was an obligation on him to notify a change of address he refuted that saying that he was a free man and there was no obligation to do so. He said no documents were sent to him.

…

65.

I do not agree with Ms Herbert’s submissions in respect of this judgment. The AW states that the warrant was served by other means informing the RP of the date of the trial and that it could go ahead without him being present. As Ms Beatty submits that should be read as stated at [Cretu v Romania [2016] EWHC 353 (Admin) (“Cretu”)] at 35 but the endorsement ought to be taken at face value. Furthermore, her argument in respect of this being I case falling within paragraph 58 of Bertino [Bertino v Italy [2024] UKSC 9 (“Bertino”)] is persuasive because the warrant says the RP was notified of his obligation to provide an address for service and to notify any change of address lasting longer than seven days on 16th June 2012. He then failed to collect summonses for his trial and a copy of the sentence pass there is no evidence to suggest that this was not served correctly on him and in respect of Ms Herbert’s submission that there is no evidence the RP new of the investigation before being summonsed that was not his evidence when he said under cross examination that it was possible he knew he was being prosecuted for the events but it was hard for him to tell after such a long time.”

I examine the article 4a point first, then the rival arguments on section 20.