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

The phrase in section 20(3) “deliberately absented himself from his trial” resonates with ECtHR case law in relation to fair trial rights guaranteed by article 6 of the ECHR. The underlying idea is to determine whether an accused person has unequivocally waived her or his right to be present at trial. Article 6 is an important right under the Convention. Lord Bingham of Cornhill recognised this at para 8 of his opinion in R v Jones [2002] UKHL 5, referring to Strasbourg authority, where he underlines the “capital importance” of the right to be present at one’s trial. However, article 6 is a qualified right. It can be waived. This is evident throughout the Strasbourg jurisprudence, and finds expression in Recital 1 to 2009 Framework Decision states that the accused may “by his own free will, expressly or tacitly but unequivocally, waive that right.”

Thus the test in section 20(3) is broadly a statutory expression of the unequivocal waiver test established by Strasbourg jurisprudence. As the Supreme Court put it at para 47 of Bertino:

“47.

The Strasbourg Court has emphasised the “capital” importance of the right of defendants to be present at their trials (Poitrimol v France (1993) 18 EHRR 130 para 35) and also that a fair hearing requires that defendants are notified of the proceedings against them (Colozza v Italy (1985) 7 EHRR 516, para 35). Moreover, as was reiterated in Sejdovic at para 89, the notification of the formal “accusation” to the defendant plays a crucial role because it is then that the defendant is put on notice of the factual and legal basis of the charges.”

I remind myself that the Supreme Court made clear in Bertino (para 58), having carefully examined the Strasbourg decisions, that the ECtHR was careful “to leave open the precise boundaries of behaviour that would support a conclusion that the right to be present at trial had been unequivocally waived”. I follow this approach. I examine the evidence holistically in determining whether the section 20 statutory test is proved by the respondent. In appellate test terms, I consider whether the Judge was wrong to conclude that it was.

Subsequent to Bertino, courts have closely considered and applied para 58 of the Supreme Court’s judgment, which has been taken as a central and authoritative expression of the law. Para 58 says:

“58.

The certified question on this issue poses a choice in black and white terms:

“For a requested person to have deliberately absented himself from trial for the purpose of section 20(3) of the Extradition Act 2003, must the requesting authority prove that he had actual knowledge that he could be convicted and sentenced in absentia?”

The Strasbourg Court has been careful not to present the issue in such stark terms although 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. As we have already indicted, in Sejdovic at para 99 (see para 38 above), on which Miss Malcolm KC relied, the court was careful to leave open the precise boundaries of behaviour that would support a conclusion that the right to be present at trial had been unequivocally waived. The cases we have cited provide many examples where the Strasbourg Court has decided that a particular indicator does not itself support that conclusion. But behaviour of an extreme enough form might support a finding of unequivocal waiver even if an accused cannot be shown to have had actual knowledge that the trial would proceed in absence. It may be that the key to the question is in the examples given in Sejdovic at para 99. The court recognised the possibility that the facts might 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 or wishes to escape prosecution. Examples given were where the accused states publicly or in writing an intention not to respond to summonses of which he has become aware; or succeeds in evading an attempted arrest; or when materials are brought to the attention of the authorities which unequivocally show that he is aware of the proceedings pending against him and of the charges he faces. This points towards circumstances which demonstrate that when accused persons put 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, they may be taken to appreciate that a trial in absence is the only option. But such considerations do not arise in this appeal, where the facts are far removed from unequivocal waiver in a knowing and intelligent way.”

Therefore, there must be what the Supreme Court terms an “unequivocal waiver” of the right to attend trial. The Bertino test has received helpful recent consideration by the Divisional Court (Holroyde LJ, Jay J) inMohammed & Oprea v Romania [2025] EWHC 1671 (Admin) (“Mohammed”). The court said about Bertino:

“45.

The failure to notify the Italian authorities of the change of address amounted to a lack of due diligence. Taken in isolation, it was not sufficient to lead to a conclusion of deliberate absence. This was because Mr Bertino had not been charged with a criminal offence and whilst he was a suspect had done nothing which might permit the inference to be drawn that he was evading the criminal process. (emphasis provided) … The Supreme Court did not address the hypothetical question of whether Mr Bertino would or might have been deliberately absent if he had been charged and then, once in this country, failed to notify the Italian authorities of his change of address. Nor did the Supreme Court address the issue of deliberate absence on the hypothesis that, instead of doing nothing, Mr Bertino whilst in this country and still a suspect, was contacted by the Italian authorities and actively misled them with the intention of evading future prosecution.

[…]

47.

Counsel subjected [paragraph 58 of Bertino] to close analysis. It is common ground that Mr Mohammed and Mr Oprea were not warned, contrary to the practice in our courts, that a trial might proceed in their absence. All the possible factual scenarios in which a Respondent is able to prove to the necessary constituents of deliberate absence cannot be presaged although a clear steer is given by para 99 of the judgment of the ECtHR in Sedjovic. What is required is (1) a knowing and intelligent awareness of the criminal proceedings and the charges being faced, and (2) an unequivocal intention (usually proved inferentially) not to participate in a trial or to escape prosecution. In extradition cases the accused person will by definition have placed himself beyond the jurisdiction of the prosecution authorities, and that by itself is insufficient to prove deliberate absence. However, once these two limbs of the para 58 test is fulfilled, the Court is then permitted as a matter of inference to conclude that the accused also knew or appreciated that for all practical purposes a trial with him present would not be practical, or that a trial in absentia would be the only practical option. In reality, unless a prosecuting authority decides no longer to proceed at all, a trial in the accused’s absence will be the only practical option. I cannot accept Mr Perry’s submission that the only correct course would be to issue an accusation warrant.”

I consider what the Divisional Court in Mohammed called the “two limbs of the para 58 test” in Bertino as a structured path to determining “unequivocal waiver”. Relying on Bertino and Mohammed, I summarise (without reformulating) the test as follows in the interests of systematic analysis: