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

I examine six points.

First, the point of embarkation is to have well in mind that the appellant does not dispute that he deliberately absented himself in all matters save for the 2012 case file II K 779/12. This is not without significance in the drawing of inferences about conduct and intention. The appellant’s submission is that while he deliberately absented himself from all other trials he did not attend, he did not fail to attend the 2012 proceedings trial deliberately. This submission rests on the fact that there is no evidential basis to prove that he received the summons with the trial date that was served at his home address which he nominated to the Polish authorities. His failure is simply one of a lack of diligence as in the case of the requested person Mohammed.

It is important to note that for unequivocal waiver, there is no need for the requested person to know of a specific trial date. The test in Bertino explicitly focuses on waiver through awareness of criminal proceedings and charge. This makes obvious sense: if a person nominates an address for service of the summons containing the trial date and then deliberately avoids retrieving the summons from the address he has nominated, his claim that he has a perfect bar to extradition due to his own evasive action rings hollow. That cannot be and is not the law.

Second, the lack of diligence that the Divisional Court attributed to Mohammed’s actions was, as the court made plain, reached “not without some hesitation” (para 60). However, as the court also emphasised at para 45 in Bertino, the requested person could not be inferred to have deliberately absented himself from a failure to notify a change of address “taken in isolation”. Bertino was not charged. This appellant was. The Judge noted his oral testimony in her judgment and noted at para 37 that he said he knew he was being prosecuted for the offence, but it was hard to tell after such a long time”. She recorded at para 65 that it was “possible he knew he was being prosecuted for the case file in question, but it was hard for him to tell after such a long time”. The submission is that this is insufficient for the Judge to conclude that the section 20 test had been met. This requires a careful examination of the applicable test.

Third, each case is fact-specific, as the Supreme Court emphasised in Bertino at para 38. I therefore derive little assistance from the appellant’s comparison of his case with Mohammed’s (skeleton argument, para 44). The proper approach is to examine all the relevant circumstances of the instant case and determine whether the Bertino test is proved by the respondent. Nothing else need be done. It is to that exercise I turn.

Fourth, Limb 1 focuses on the appellant’s awareness. The fallacy in his argument is in placing great emphasis on his lack of awareness of the trial date. He chose not to be aware of that date by not retrieving the summons dated 2 August 2012 duly served at the address he nominated. That was his choice. He could either have collected the summons, or arranged for someone to do so, or notified the Polish authorities that he needed serving at a different address. There is no evidence that he took any of those simple stems and thus he remained unaware of the date set for trial on 12 September 2012 due to his actions. However, even if the fact of his being served with the trial date does not necessarily fix him with the awareness of the trial, it is not what the Bertino test demands. It requires awareness of the criminal proceedings and the nature of the case against him.

Fifth, he said at the extradition hearing in 2024 that he possibly knew about being prosecuted for the 2012 offences. He contends that this is insufficient to establish relevant element of the Bertino test. This is misconceived. He gave the Polish authorities an address for the service of summons in what is recorded as “preliminary proceedings”, which plainly mean the pre-trial stages of the criminal proceedings under the case file. It is important to note that the warrant does not speak about his being under police investigation. No argument was presented to me orally that he lacked knowledge of the 2012 charges. I have carefully reviewed the detailed and helpful skeleton argument filed on his behalf and nowhere is it suggested that he did not know of the 2012 charges. It makes little sense that he would have provided his address for service of a trial summons when he did not know the nature of the case the summons would relate to.

I mention briefly the point made on his behalf that he did not receive an adverse credibility finding like Mohammed did (Mohammed at para 60). At para 42 of her judgment, the Judge said:

“42.

The RP’s written evidence does not support what he said in oral evidence but his proof was only 15 paragraphs and general in its content. At times I found that he did not answer questions straightforwardly but when pressed gave more details and found him to be credible in what he was recalling a number of years ago and in relation to a number of cases.”

This is not the same as saying she accepted what he said about this particular case file. The “possibly” being prosecuted does not sit easily alongside his having provided an address in the preliminary proceedings for the service of a trial summons, and together these plainly amount to a safe inference to the criminal standard that he knew of criminal proceedings (for Bertino Limb 1).

The appellant criticises the Judge’s finding about awareness of trial dates at para 42 as being only “general”:

“However, I am satisfied so I am sure from the evidence that I have set out from the judicial authority and from the RP’s in respect of some of the cases that he was aware of the trial dates and failed to attend and by doing so he knowingly and deliberately put himself beyond the reach of the legal process.”

The submission is that due to its generality, it cannot amount to a finding that he knew of the 12 September 2012 trial date for case file II K 779/12. The submission fails to engage with the Bertino test to support a section 20 bar. It is awareness of criminal proceedings that is crucial. As explained, it is clear that this element of Limb 1 is established.

Overall, I am quite satisfied that Limb 1 is proved on the material before the Judge.

Sixth, as to Limb 2, the question is one of intention. The issue is whether it can be inferred to the criminal standard that the appellant had no intention to take part in the trial and/or wished to escape prosecution. He knew of the criminal proceedings. He failed to collect the summons at the address he provided to the Polish judicial authorities where notification about his trial in those criminal proceedings could be served. He failed to notify any change of address. He plainly disengaged from the proceedings. In such circumstances, there can be no doubt but that Limb 2 is proved.

It is submitted that “all he did wrong was not notify a change of address”. That does not reflect the established facts. I recognise that the deliberate absenting test is different from the requirements of fugitivity and here they are directed at different matters (essentially, waiver of article 6 rights versus the significance of “passage of time” for section 14 of the Act). The appellant has demonstrated a strong and consistent pattern of being firmly intent on evading Polish criminal justice. It is recorded in Box D of the arrest warrant that the appellant failed to attend five trials. In addition to these proceedings, he was absent from II K 9/18, VIII K 1583/14, II K 271/16 and II K 1187/15. It is noteworthy that the section 20 argument originally advanced in respect of II K 1187/15 was abandoned in the skeleton argument (para 38). Therefore, it is safe to conclude that the appellant has deliberately absented himself from four other trials. This has not been disputed. In the appellant’s perfected grounds of appeal dated 12 November 2024, he had previously sought to mount a section 20 challenge in respect of case file II K 1187/15 (the driving offence) on the basis that he did not deliberately absent himself. The relevant “trial” for statutory purposes was the appeal and not the first instance trial as that was where the ultimate decision was made. It took place on 3 August 2018. However, the appellant no longer submits that a section 20 bar applies to that warrant. In other words, it is no longer disputed that he deliberately absented himself from the trial.

Further, when he came to the United Kingdom in 2015, having not attended the September 2012 trial, he accepts that he was a fugitive from Polish justice. Therefore, he accepts that he was evading Polish justice and deliberately placing himself beyond the reach of the Polish judicial authorities. While subsequent behaviour cannot definitively determine earlier behaviour, it is capable of being evidence in support of an inference. It is capable of being an evidential signpost. This is a simple cross-admissibility of evidence point. A primary finder of fact is not artificially restricted to only using previous or contemporaneous conduct to support inferences. One may look at everything and draw such inferences as are appropriate about patterns of behaviour and states of mind, whether from earlier, contemporaneous or later conduct, so long as due allowance for weight is made.

The task of this court is to assess whether the Judge’s decision at para 76 to reject the section 20 argument for II K 779/12 was wrong. It was not. The Judge’s conclusion that the absence from the September 2012 trial “falls within” para 58 of Bertino is not wrong. It was undoubtedly right. This is because a clear and convincing sufficiency of evidence exists to prove to the criminal standard that the appellant deliberately absented himself from his September 2012 trial.

The section 20 submission fails.

Ground 2 fails on both bases advanced: article 4a and section 20.