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||Neutral Citation Number:  EWHC 3641 (Admin)
||Case No: Lagocki: CO/3854/2015 (APPEAL); CO/4937/2015 (JR)
Case No: Tarabanovs: CO/3741/2015 (APPEAL); CO/4965/2015 (JR)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
Royal Courts of Justice
Strand, London, WC2A 2LL
B e f o r e :
LORD JUSTICE LLOYD JONES
MR. JUSTICE COULSON
|| PIOTR LAGOCKI
||- and -
||REGIONAL COURT IN SZCZECIN, POLAND
PROSECUTOR GENERAL'S OFFICE, REPUBLIC OF LITHUANIA
|| And Between:
||REGINA on the application of
(2) VJACESLAVS TARABANOVS
||- and -
||WESTMINSTER MAGISTRATES' COURT
Mark Summers QC and Amelia Nice (instructed by Lawrence & Co.) for Lagocki
Mark Summers QC and David Williams (instructed by Saunders Solicitors Ltd.) for Tarabanovs
Gemma Lindfield (instructed by CPS Extradition Unit) for the Regional Court in Szczecin, Poland and for the Prosecutor General's Office, Republic of Lithuania
Clair Dobbin (instructed by the Government Legal Service) for the Westminster Magistrates' Court
Hearing date : 10 December 2015
HTML VERSION OF APPROVED JUDGMENT
Crown Copyright ©
LORD JUSTICE LLOYD JONES :
- There are before the court two appeals pursuant to section 26 of the Extradition Act 2003 and two applications for permission to apply for judicial review.
The extradition proceedings
- The extradition of Piotr Lagocki is sought by Poland pursuant to two conviction European Arrest Warrants ("EAWs").
- The first EAW ("EAW1") concerns convictions for offences of kidnap (2001), possession of a firearm (2001) and obtaining property by deception (2004). The EAW states that Mr. Lagocki was present at his trials. He was sentenced respectively to one year, four months and one year, six months imprisonment. The remaining sentences to be served are one year, six months (kidnap) and six months (possession of a firearm). EAW1 was issued on 3 November 2014 and certified under section 2(7) of the 2003 Act on 4 November 2014. The Applicant was arrested on EAW1 on 14 November 2014. The extradition proceedings were however adjourned pending the outcome of domestic charges pursuant to section 22 of the 2003 Act.
- The second EAW ("EAW2") concerns convictions for attempted robbery (1999) and controlling prostitutes for gain (1998-1999). Mr. Lagocki was convicted in his presence and sentenced to three years, six months imprisonment, a decision which became final on 17 October 2003. EAW2 was issued on 1 April 2015 and certified under section 2(7) of the 2003 Act on 5 April 2015. The Applicant was arrested on EAW2 on 24 April 2015 and proceedings under both EAWs were consolidated.
- Before the Westminster Magistrates' Court, Mr. Lagocki resisted extradition under Articles 3 and 8 ECHR. The extradition hearing in respect of both EAWs was set down for 28 July 2015. On 28 July 2015 the extradition hearing went ahead in his absence and an order for his extradition was made.
- Mr. Lagocki learned of the extradition order on 13 August 2015. On 14 August 2015 an application for permission to appeal against the extradition order under section 26 was lodged with the court. On 24 August 2015 Cranston J. refused permission to appeal. On 28 August 2015 Mr. Lagocki lodged an application to renew.
- On 30 September 2015 the Applicant's case was joined to that of Vjaceslavs Tarabanovs.
- In addition, by an application issued on 13 October 2015 Mr. Lagocki seeks permission to issue proceedings for judicial review against the Westminster Magistrates' Court seeking an order quashing the order for extradition and an order for a rehearing on the ground that the extradition hearing took place in his absence and is therefore a nullity.
- The extradition of Vjaceslavs Tarabanovs is sought by Lithuania pursuant to three accusation EAWs.
- The first EAW ("EAW1") concerns allegations of racketeering and extortion (2011). EAW1 was issued in 10 October 2014 and certified under section 2(7) of the 2003 Act on 17 December 2014. The second EAW ("EAW2") concerns an allegation of theft (2011). EAW2 was issued on 18 December 2014 and certified under section 2(7) of the 2003 Act on 30 December 2014.
- Mr. Tarabanovs was arrested on EAWs 1 and 2 on 5 January 2015.
- Before the extradition hearing took place, Lithuania issued a third EAW ("EAW3") concerning an allegation of robbery (2012). EAW3 was issued on 13 January 2015 and certified under section 2(7) of the 2003 Act on 21 January 2015.
- Mr. Tarabanovs was arrested on EAW3 on 29 January 2015. The proceedings on EAW3 were then joined to those on the other two warrants.
- Mr. Tarabanovs resisted extradition under Articles 3 and 8 ECHR. The extradition hearing in respect of all three EAWs was initially set down for 7 April 2015 but eventually heard on 3 August 2015 before Westminster Magistrates' Court. The hearing took place in Mr. Tarabanovs' absence and an order was made for his extradition.
- Mr. Tarabanovs learned later of the extradition order. On 7 August 2015 an application for permission to appeal against the extradition order under section 26 was lodged with the court. On 30 September 2015 his case was joined to that of Mr. Lagocki.
- In addition, by an application issued on 14 October 2015 Mr. Tarabanovs seeks permission to issue proceedings for judicial review against the City of Westminster Magistrates' Court seeking an order quashing the order for extradition and an order for a rehearing on the ground that the extradition hearing took place in his absence and is therefore a nullity.
The legal framework
- The purposes of the Council Framework Decision of 13 June 2002 (2002/584/JHA) include the following:
(1) The abolition of extradition between Member States and the introduction of a new simplified system of surrender which would make it possible to remove the complexity and potential for delay inherent in previous extradition procedures.
(2) Maintaining respect for fundamental rights and observing the principles recognised by Article 6 of the Treaty on European Union ("TEU") and reflected in the Charter of Fundamental Rights of the European Union ("the Charter") in particular Chapter VI.
- Article 1(3) of the Framework Decision provides:
"This Framework Decision shall not have the effect of modifying the obligation to respect fundamental rights and fundamental legal principles as enshrined in Article 6 of the Treaty on European Union."
- Article 6(2) TEU provides that the European Union shall respect fundamental rights as guaranteed by the European Convention on Human Rights and as they result from constitutional traditions of Member States, as general principles of Union law.
- Article 14 of the Framework Decision provides:
Hearing of the requested person
Where the arrested person does not consent to his or her surrender as referred to in Article 13, he or she shall be entitled to be heard by the executing Judicial authority, in accordance with the law of the executing Member State."
- Effect is given to Article 14 of the Framework Decision by section 9, Extradition Act 2003 which provides in relevant part:
"9. Judge's powers at extradition hearing
(1) In England and Wales, at the extradition hearing the appropriate Judge has the same powers (as nearly as may be) as a Magistrates' Court would have if the proceedings were the summary trial of an information against the person in respect of whom the Part 1 warrant was issued."
- Section 11, Magistrates' Courts Act 1980 ("MCA 1980") provides in relevant part:
"11. Non-appearance of accused: general provisions.
(1) Subject to the provisions of this Act, where at the time and place appointed for the trial or adjourned trial of an information the prosecutor appears but the accused does not,
(b) if the accused has attained the age of 18 years, the court shall proceed in his absence unless it appears to the court to be contrary to the interests of justice to do so.
This is subject to sub-sections (2), (2A), (3) and (4).
(2) Where a summons has been issued, the court shall not begin to try the information in the absence of the accused unless either it is proved to the satisfaction of the court, on oath or in such other manner as may be prescribed, that the summons was served on the accused within what appears to the court to be a reasonable time before the trial or adjourned trial or the accused has appeared on a previous occasion to answer to the information.
(2A) The court shall not proceed in the absence of the accused if it considers that there is an acceptable reason for his failure to appear.
(6) Nothing in this section requires the court to enquire into the reasons for the accused's failure to appear before deciding whether to proceed in his absence."
- Accordingly, under the MCA 1980 there exists a statutory power to order extradition in a person's absence. Indeed in the case of a person over 18 years of age the court is required to proceed in the defendant's absence unless it appears to the court that it would be contrary to the interests of justice to do so. However, the court must not proceed in the absence of the accused if it considers that there is an acceptable reason for his failure to appear. Furthermore, nothing in section 11 MCA imposes an obligation on the court to enquire into the reasons for the accused's failure to appear before deciding whether to proceed in his absence.
- Rule 17 of the Criminal Procedure Rules 2014, in force at the time of the decisions in these cases, dealt specifically with extradition and provided in relevant part:
"Exercise of magistrates' court's powers
This section has no associated Explanatory Memorandum
(2) The general rule is that the court must exercise its powers in the defendant's presence, but it may do so in the defendant's absence where—
(a) the court discharges the defendant; or
(b) the defendant is represented and the defendant's presence is impracticable by reason of his or her—
(i) ill health, or
(ii) disorderly conduct.
(3) The court may exercise its power to adjourn—
(a) if either party asks, or on its own initiative; and
(b) in particular—
(i) to allow there to be obtained information that the court requires,
(5) The general rule is that, before exercising a power to which this Part applies, the court must give each party an opportunity to make representations, unless that party is absent deliberately.
This is identical to Rule 50.3 of the Criminal Procedure Rules 2015.
- In addition, there exists outside the statute an implied power to order extradition in a person's absence, in the absence of statutory provisions to the contrary. In R v Bow Street Magistrates' Court, ex parte Government of Germany  QB 556, a case on the Extradition Act 1989, the Divisional Court held that there is an implied power to commit a person in custody or on bail in their absence. Although this discretion in the magistrates' court is rarely exercised it is available to be exercised in an appropriate case (per Lord Bingham of Cornhill C.J. at p. 562A-B, per Jowitt J. at p 562H). Similarly in R (Griffin) v City of Westminster Magistrates' Court  1 WLR 270 Collins J. held that the court has "an inherent power" to commit under the Extradition Act 2003 in the defendant's absence if it could do so without any injustice to the defendant (at ).
- The issue in these proceedings is whether the power to proceed in the absence of the defendant was lawfully exercised in each case.
- The cases referred to above make clear that, applying common law principles of procedural fairness, the jurisdiction to proceed in the absence of a defendant will be rarely exercised. Thus in Ex parte Germany Lord Bingham C.J. observed:
"It is quite obvious that a committal in the absence of an accused, even if permissible, would be an event which would take place extremely rarely, not least because in most situations it would be liable to present a risk of injustice to the person whose committal was sought…" (p. 560 D)
Similarly, in Griffin Collins J. observed:
"I see no reason why in dealing with extradition cases the court should not have a similar inherent power. This would only very rarely be exercised if the defendant's representative did not consent, but I have no doubt that the power exists …" (at )
- In this regard Mr. Summers QC, on behalf of the applicants, seeks to rely on the principle of unequivocal waiver which has developed in the context of the European Convention of Human Rights. He draws attention, in particular, to the following formulations of the principle. In Millar v Dickson  1 WLR 1615 Lord Bingham observed at - that:
"…In most litigious situations the expression "waiver" is used to describe a voluntary, informed and unequivocal election by a party not to claim a right or raise an objection which it is open to that party to claim or raise. In the context of entitlement to a fair hearing by an independent and impartial tribunal, such is in my opinion the meaning to be given to the expression. That the waiver must be voluntary is shown by Deweer v Belgium (1980) 2 EHRR 439, where the applicant's failure to insist on his right to a fair trial was held not to amount to a valid waiver because it was tainted by constraint: p 465, para 54. In Pfeifer and Plankl v Austria 14 EHRR 692 there was held to be no waiver where a layman had not been in a position to appreciate completely the implication of a question he had been asked: p 713, para 38. In any event, it cannot meaningfully be said that a party has voluntarily elected not to claim a right or raise an objection if he is unaware that it is open to him to make the claim or raise the objection. It is apparent from passages already cited from cases decided by the European Court of Human Rights that a waiver, to be effective, must be unequivocal, which I take to mean clear and unqualified…" (at )
"…If knowledge of some material matter is absent, even an express intention to waive a right may readily be recognised as insufficient to constitute a binding abandonment of the right…" (at ).
- The applicants also rely on the following statement in the judgment of the Grand Chamber of the Strasbourg court in Sejdovic v Italy (2006) App. 56581/00:
"…84. …the duty to guarantee the right of a criminal defendant to be present in the courtroom – either during the original proceedings or in a retrial – ranks as one of the essential requirements of Article 6…Accordingly, the refusal to reopen proceedings conducted in the accused's absence, without any indication that the accused has waived his or her right to be present during the trial, has been found to be a "flagrant denial of justice" rendering the proceedings "manifestly contrary to the provisions of Article 6 or the principles embodied therein" …
…86. Neither the letter nor the spirit of Article 6 of the Convention prevents a person from waiving of his own free will, either expressly or tacitly, the entitlement to the guarantees of a fair trial…However, if it is to be effective for Convention purposes, a waiver of the right to take part in the trial must be established in an unequivocal manner and be attended by minimum safeguards commensurate to its importance…Furthermore, it must not run counter to any important public interest…"
- Miss Dobbin, on behalf of the Westminster Magistrates' Court, and Miss Lindfield, on behalf of the Interested Parties, object that it is well established in the jurisprudence of the Strasbourg Court that Article 6(1) ECHR, in which context the principle of unequivocal waiver has developed, has no application to extradition proceedings because they do not involve the determination of civil rights and obligations or of any criminal charge. In this regard they point in particular to the decisions of the Strasbourg court in Kirkwood v. United Kingdom (1984) 6 EHRR 373 and Monedero Angora v. Spain (Application No. 41138/05, Judgment of 7 October 2008) and to that of the Supreme Court in Pomiechowski v. District Court of Legnica, Poland  1 WLR 1604. Mr. Summers disavows any intention to challenge the conclusions in these cases. Indeed he accepts that the full panoply of Article 6 guarantees will not be applicable in extradition cases such as those with which we are concerned and that what is required by way of a fair hearing is necessarily context specific.
- Nevertheless, Mr. Summers does contend that the principle of unequivocal waiver forms a part of domestic law which this court is required to apply. He reaches this conclusion by two principal routes. First, he submits that Article 14 of the Framework Decision, which confers an entitlement to a hearing, must by virtue of Preambles (10), (12) and (13) and Article 1(3) be read subject to ECHR standards. Here, he relies in particular on the review of the status of human rights in the EAW scheme by Advocate General Sharpston in Case C-396/11 Criminal proceedings against Radu  QB 1031, in particular at - and -. Secondly, he relies on Article 47, EU Charter which is the counterpart of Article 6(1) ECHR but which does not include the limiting reference to the determination of civil rights and obligations or of any criminal charge. Here we note that all parties before us claim that the decision of the CJEU in Case C-168.13 Jeremy F v. Premier Ministre  2 CMLR 19 supports their respective submissions. On these grounds Mr. Summers submits that the principle of unequivocal waiver is directly applicable to the extradition proceedings with which we are concerned.
- For reasons set out later in this judgment I consider that it is not necessary for this court to decide these fascinating issues of EU law. For present purposes, I am prepared to assume, without deciding the point, that the principle of unequivocal waiver applies to the proceedings with which we are concerned.
Judicial review: Lagocki
- Mr. Lagocki seeks permission to bring proceedings for judicial review on the ground that the decision of the District Judge to proceed to a hearing in his absence was procedurally improper and unfair and therefore a nullity.
- The extradition hearing was listed before Designated District Judge ("DDJ") Zani at Westminster Magistrates' Court on 28 July 2015. Mr. Lagocki was not produced. DDJ Zani asked for enquiries to be made of the prison staff as to why he was not at court. The court was provided with a document signed by Mr. Lagocki which read:
"Re non-appearance at City of Westminster Mag Court
I A 8427 D.M. Logocki have been made aware today … that I should be appearing at court today. I have informed staff that I am declining to attend court today for the following reason."
This was followed by the handwritten words "Says he's sick". The document was signed by Mr. Logocki and witnessed by a prison officer named Johnson.
- DDJ Zani then asked that enquiries be made directly of HMP Wandsworth. At 11.44 a.m. Rebecca Hooper, Hub Manager at HMP Wandsworth sent the following email to the court:
"Mr. Lagocki claimed he was unwell this morning and was therefore unable to attend. Our healthcare assessed Mr. Lagocki as fit to attend court but he then refused to attend instead. He was made aware that by refusing the case could be heard in his absence but still refused to attend. Our reception contacted the cells at Westminster to make them aware of this. I think it's important to note that the cells at Westminster refuse to accept prisoners under restraint …"
- DDJ Zani considered the matter and concluded on the basis of the evidence before him that Mr. Lagocki had chosen deliberately to absent himself from the hearing. Counsel and solicitors who had represented Mr. Lagocki up to this point then withdrew on the ground that they were without instructions. However, Miss Nice of counsel indicated to the judge before her withdrawal the challenges to extradition she would have raised had she remained. The judge proceeded with the hearing and, having dismissed the arguments raised under Articles 3 and 8 ECHR, ordered extradition.
- In his detailed written judgment he gave his reasons for his decision to proceed in the absence of Mr. Lagocki. He referred to the note and the email received by the court. He continued:
"As far as I am aware, the requested person has not been (nor is he currently) being held in the prison hospital, but is on the normal wing location for remanded prisoners. Having considered the contents of the email from Wandsworth Prison aforesaid, I am entirely satisfied that the requested person had chosen to deliberately absent himself from the full hearing. Miss Nice took instructions from her solicitors and chose to withdraw from the proceedings, though she remained in court while the case proceeded."
- Mr. Summers, entirely realistically, accepts that it is not open to him to challenge on Wednesbury grounds the judge's conclusion that Mr. Logocki had deliberately chosen to absent himself from the hearing. On the factual material before the judge, that conclusion was certainly open to him. The signed note and the email were evidence which demonstrated that Mr. Logocki had chosen not to attend court, notwithstanding that he had been warned that the hearing might go ahead in his absence. Furthermore, there was no evidence before the court that Mr Lagocki was prevented from attending court on health grounds. The only evidence in that regard was the statement in the email that healthcare had assessed him as fit to attend court.
- However, Mr. Summers submits that the court failed to undertake a proper enquiry into the reasons for the applicant's absence from court and that, in all the circumstances, this failure made the decision to proceed in his absence procedurally unfair. Here he draws attention to Mr. Lagocki's medical history and submits that given what the court knew or should have known about his medical condition and the difficulties he experienced in attending court, the court should have gone further in investigating his non-attendance. Moreover, he submits that had the court done so it would have discovered that the applicant was seriously unwell and prevented for that reason from attending court.
- In an addendum to his proof of evidence Mr. Lagocki challenges the truthfulness of the account given by Rebecca Hooper in her email. He contends that he did not refuse to attend the hearing and that he was not informed that the hearing could proceed in his absence. He states that on 26 July 2015 he had a panic attack, went to drink some water, hit his face against the sink, "broke my nose" and became unconscious. He was found on the floor by his cell mate the following morning. He had cut his nose and had some bruising. He had another two or three panic attacks over the next few days but is not sure precisely when. He stayed in his cell on 26 and 27 July. He does not recall speaking to anyone on the morning of 28 July nor does he recall seeing a doctor or a nurse. His cellmate told him that he had signed a form for the court but he could not remember signing it. His cellmate also told him that a nurse had come to see him to check his pulse but he did not know if that was on 28 July or another day. His cellmate had also told the member of the prison staff that he wanted to attend the hearing but his condition prevented it and asked for him to see a doctor. Mr. Lagocki says that he did not recall being told that his extradition hearing could go ahead in his absence. He states:
"I asked my cellmate many times whether there was anyone coming to the cell to inform me about the consequences of not attending the hearing and he confirmed that the only person who had come to the cell was a prison guard who wanted me to sign a form to say that I was not going to the court. My cellmate said that the prison needed the form to explain to the court why I could not attend the hearing."
- He also relies on a statement by his cellmate Krystof Mazurek who states that on the evening of 26 July 2015 he found Mr. Lagocki unconscious on the floor of their cell, with his face covered in blood. Mr. Lagocki was unable to remember what had happened. He was seen by a nurse who checked his blood pressure. The next day Mr. Lagocki "started acting weird again". He was seen by an officer. On 28 July at 6.00 a.m. an officer came and said that he had to go to court. Mr. Mazurek states that he told her that he had been sick for the last three days and was waiting to see a doctor. The officer returned later with a piece of paper and she said it was an excuse note for the court. He had passed it to Mr. Lagocki who signed it. Mr. Lagocki was not conscious of what he was signing as he was still sick. The officer did not advise them about the consequences of not going to court. He was sure that nobody else came to see him that day.
- Although section 11(6), Magistrates' Courts Act 1980 provides that nothing in that section requires the court to enquire into the reasons for the accused's failure to appear, the judge very properly caused enquiries to be made as to the reason for the applicant's absence. This took place in two stages. When the applicant was not produced the judge asked for enquiries to be made of the prison staff as to why he was not at court. He received an explanation but then went further and asked that further enquiry be made of HMP Wandsworth. It was only after he had a response to this further enquiry from the prison, which included the statement that the applicant had been assessed as fit to attend court but still refused to attend, that the judge took his decision to refuse an adjournment. I consider that procedural fairness did not require the judge to cause any further investigations to be made as to the reason for the applicant's non-attendance.
- It is not clear how it is suggested that the judge could have discovered more about the applicant's medical condition without granting an adjournment. Moreover, had he gained access to the applicant's medical records he would have discovered that the applicant had a history of complaining of claustrophobia and panic attacks both before and after his committal to HMP Wandsworth. These claims had not gone unquestioned, however. His medical records show that on 9 December 2014 a mental health nurse at the prison concluded that there was currently no compelling evidence to suggest that he was suffering from claustrophobia. In addition, on occasion, his symptoms were found to be associated with drinking alcohol. Nevertheless, special provision was made following his request on 4 December 2014 so that he would not have to travel to court in a normal prison van. It is not suggested that a claustrophobic fear of travelling in a normal prison van was responsible for his non-attendance on 28 July 2015.
- Mr. Lagocki's explanation of his failure to attend court is thoroughly equivocal. He has produced no medical evidence to support his case. Moreover, his medical records are inconsistent with his case. They show that on 26 July he was seen by the nurse in his cell. He was complaining of difficulties in breathing having been locked in the whole day and requested that the door be opened. He was angry and shouting. He had been advised to move to the top bunk near the window but he refused stating that opening the door was the only thing that worked. There is no reference to his having been found unconscious on the floor of his cell. There is no record of any medical attention thereafter, save for the issue of regular medication, until 6 August when he failed to attend an appointment with the nurse. (I note, however, that on 4 July he had been seen by a nurse and healthcare assistant complaining of having been punched in the left eye and suffering from giddiness and a nose bleed. He was moved to another wing for observation overnight but chose to return to his cell because he was claustrophobic in a cell on his own.)
- The account given by Mr. Lagocki and Mr. Mazurek is unconvincing. By contrast, the note and the email considered together provide contemporaneous evidence of a refusal by Mr. Logocki to attend court despite his having been warned that the hearing might go ahead in his absence. There has been no application for Ms. Hooper to be cross examined on the truthfulness of her email. The evidence which is now produced before this court does not support the contention that had DDJ Zani caused further enquiries to be made he would have discovered that the applicant had not attended because he was seriously ill.
- Mr. Summers then submits that the court proceeded without proper proof of the applicant's knowledge of the consequences of non-attendance. Here Mr. Summers points to the fact that both the applicant and his cellmate state in evidence produced for this application that no such warning was given. I have explained earlier in this judgment why I find their accounts unconvincing and why the contemporaneous evidence of the email is to be preferred. The email stated expressly that the applicant had been warned that, if he refused to attend, the case could be heard in his absence. (A suggestion before us that Mr. Lagocki's English might have prevented him from understanding any such warning was not pursued in the light of his evidence that he has been living in the United Kingdom since November 2005.) Moreover, the applicant would have been well aware of the nature and significance of the extradition hearing, that if it went ahead in his absence he would not be able to testify and that it might result in an order for his return to Poland.
- Similarly, applying the criteria on unequivocal waiver developed in the jurisprudence on Article 6 ECHR, on the assumption that they may have some application, I am satisfied for the same reasons that the waiver was established in an unequivocal manner. The judge found, and was entitled to find, that the waiver had been voluntary, informed and unequivocal. In particular, Mr. Lagocki could reasonably have foreseen what the consequences of his conduct would be.
- Mr Summers next draws attention to Rule 17.3 of the Criminal Procedure Rules 2014 which deals with the exercise of magistrates' courts' powers in extradition proceedings. He submits that the general rule there stated requires the court to exercise its powers in the defendant's presence and that the exceptions stated there do not apply. It is certainly correct that by the time the court exercised its jurisdiction to make the extradition order Mr. Lagocki was no longer represented. However, Rule 17.3 (and Rule 17.5) are expressed as general rules which clearly admit of discretionary exceptions. In the circumstances of this case and, in particular, on the basis of the evidence before the judge, there existed a compelling justification for departing from "the general rule" for the reasons the judge gave in his judgment.
- Furthermore, Rule 17.5 expressly provides that, while the general rule is that before exercising a power to which Part 17 (i.e. extradition) applies the court must give each party an opportunity to make representations, that does not apply if the party is absent deliberately.
- Mr. Summers complains that the judge failed to have regard to Rule 17 when making his ruling refusing an adjournment. The fact that the ruling does not refer to Rule 17 does not mean that the judge failed to have regard to it. Moreover, the reasons given by the judge for the exercise of his discretion show that it was entirely in conformity with the scheme and substance of Rule 17.
- Finally, in this regard, Mr. Summers draws attention to the court's failure to communicate the extradition order or any information as to the outcome of the hearing to Mr. Lagocki and submits that this renders the hearing unfair and the order a nullity. The court has confirmed that a copy of the judgment was not sent to this applicant. I consider that the magistrates' court was at fault here and that it should have sent a copy of the order to this applicant at HMP Wandsworth. The court was aware that he was in custody and now unrepresented and would also have been aware of the short time limits for an application to appeal the decision. Furthermore, I consider that he should have been sent at least a brief summary of the reasons for the decision. Nevertheless, in my view this is a discrete matter and is irrelevant to the issue as to the lawfulness of the decision to refuse an adjournment. It is relevant, however, to the application for permission to appeal the order out of time and is considered below in that context.
- In the circumstances as the judge reasonably found them to be, he was entitled under the statutory scheme to proceed in the absence of Mr. Lagocki. He had been served with the EAWs (section 11(2), MCA). The judge could properly conclude that it was in the interests of justice to proceed (section 11(1)(b), MCA) and that there was no reasonable excuse for the requested person's absence (section 11(2)(a), MCA).
- The decision of the judge to proceed in the absence of Mr. Lagocki cannot be characterised as unfair. He had been made aware that the hearing on 28 July was that on which the court would be asked to make an order for his extradition. He had also been made aware that, if he refused to attend, the court might proceed in his absence. Having regard to the statements of principle in Ex parte Germany and in Griffin, I agree that a committal in the absence of the defendant should rarely be appropriate. However, the court was entitled to respond as it did to what I consider to be a deliberate attempt to frustrate the extradition process.
Judicial review: Tarabanovs
- Mr. Tarabanovs seeks permission to bring proceedings for judicial review on the ground that the decision of DDJ Purdy to proceed to a hearing on 3 August 2015 in his absence was procedurally improper and unfair and therefore a nullity. Mr. Summers accepts that the circumstances of his case are different from those of Mr. Lagocki's.
- On 23 July 2015 the extradition hearing was listed before DDJ Ikram. Mr. Tarabanovs did not attend. Enquiries revealed that he had "signed" as unable to attend due to food poisoning and that it was too early to verify if this claim was true. The extradition hearing was adjourned to 3 August 2015.
- On 24 July 2015 the matter was again listed before DDJ Ikram. A production order had been sent to the prison but Mr. Tarabanovs once more failed to attend. The reason given was that he would not attend court until his asylum application had been resolved by the immigration surgery at HMP Wandsworth. The matter was adjourned to 29 July 2015 for review and a production order for Mr. Tarabanovs was made.
- On 29 July 2015 Mr. Tarabanovs did not attend. DDJ Bayne directed that he be warned that, in light of the history of the case, if he did not attend the extradition hearing on 3 August 2015 it was almost certain that the matter would proceed in his absence. Mr. Summers accepts that that warning was conveyed to Mr. Tarabanovs by his solicitors.
- On 3 August 2015 the extradition hearing was listed before DJJ Purdy. Mr. Tarabanovs failed to attend once again. The CPS outcome sheet records:
"[Requested person] refused to get on van, stating he wishes to make immigration app[lication]. Court show us a piece of paper signed by RP to that effect.
David Williams conceded that RP's solicitors warned RP that if he did not attend matter would proceed in his absence. David Williams states that prison ought to bring RP using reasonable force on another occasion, course of action which prison staff should use even if case heard in his absence in order that decision can be given in his presence.
DJ: RP on proper notice that we can proceed in his absence so all parties agree can deal with hearing in RP's absence and can go on to order extradition."
Mr. Williams then developed his application for an adjournment, referring to section 11, MCA. The CPS outcome sheet records:
"DJ: Seems to me that although I hear what is said these proceedings are to be considered analogous to summary trial and proper to construe the Act in that way. Having chosen not to attend it is perfectly proper to proceed in absence and if appropriate to make an order for surrender in absence.
DW not able to speak to those who instruct but decided he must withdraw.
We proceed in absence."
- The judge's handwritten note of the hearing states:
"Refused to attend extradition hearing. Signed note from HMP. Refuses to attend as wants to claim asylum. Agreed aware requested person on notice will proceed in absence. Both advocates agree shouldn't proceed in absence to actual order albeit can hear the case. Counsel for requested person feels professionally bound to withdraw as have the solicitors. See ex tempore ruling below."
- The associate also made a note of the proceedings but it begins after the ruling to refuse an adjournment was made.
- On 6 October 2015 Mr. Williams produced a note on the hearing. He states that on arrival at court he discovered that Mr. Tarabanovs had not been produced. The case was called on and initial enquiries as to the reason were inconclusive. At that stage DJ Purdy indicated that he intended to deal with the case and order extradition (if that was his decision) in Mr. Tarabanovs' absence. Mr. Williams says that given the lack of instructions he asked the court to consider some submissions in principle. He made submissions about adjourning to see if the prison could arrange to bring him using reasonable force and whether there was a power under section 11 MCA to proceed. In principle DJ Purdy was clear he would consider extradition cases in the absence of the Requested Person but he did not set out the basis for doing so. Mr. Williams accepts that the judge was not referred to Ex parte Germany or to Griffin. Mr. Williams says that he has no note of DDJ Purdy deciding to proceed in absence on the basis of the previous warning communicated to Mr. Tarabanovs. He continues:
"It was suggested at some point during the morning that the appellant had refused to attend, communicated by the Legal Advisor / Court Associate. It may have been on the basis of information from the prison but I was not provided with a copy of any note or email from the prison.
I was not in court for any decision about deliberate absence (although DJ Purdy had given the impression he thought that the appellant was so absent during the earlier submissions). He did not say so explicitly from my recollection."
- No note signed by Mr. Tarabanovs stating that he refused to attend has been produced for the purpose of these proceedings. Mr. Summers questions whether in fact there was such a note and suggests that the judge may have been confused because such a note was produced on an earlier occasion. However, I am satisfied that such a note was produced to the court on 3 August. It is referred to in the CPS outcome sheet and in the judge's note of the proceedings. Moreover, Mr. Williams accepts that he was not in court throughout the proceedings and that it was suggested at some point that Mr. Tarabanovs had refused to attend and that this may have been on the basis of information from the prison. The court proceeded on the basis that Mr. Tarabanovs was deliberately absent and was clearly entitled to make this finding.
- Mr. Williams and his instructing solicitors withdrew from the case. The hearing proceeded, the judge considered the issues raised on Articles 3 and 8 ECHR and ordered extradition on the three warrants.
- In my view this is a case of repeated, deliberate refusals to attend at court. On the court's direction Mr. Tarabanovs was advised following his failure to attend the hearing on 29 July that it was almost certain that the extradition hearing on 3 August would proceed in his absence if he failed to attend. In the event, he failed to attend and the reason given, namely that he was awaiting the outcome of his asylum application, was the same as the reason given for his failure to attend on 24 July. He refused to attend on 3 August in full knowledge of the likely consequences. This was a further deliberate attempt to frustrate the court's process.
- In these circumstances the judge was entitled under the statutory scheme to proceed in the absence of Mr. Tarabanovs. He had been served with the EAWs (section 11(2), MCA). The judge could properly conclude that it was in the interests of justice to proceed (section 11(1)(b), MCA) and that there was no reasonable excuse for the requested person's absence (section 11(2)(a), MCA).
- Furthermore, there was no procedural unfairness in proceeding with the extradition hearing and making an extradition order. Mr. Tarabanovs knew that at the hearing on 3 August the court would be asked to make an order for his extradition. He had also been made aware on the direction of the court that, if he refused to attend, the court would almost certainly proceed in his absence. The court was clearly entitled to respond as it did in order to protect its process and to meet a deliberate attempt to frustrate the extradition process.
- On the assumption for present purposes that the principle of unequivocal waiver developed in the jurisprudence on Article 6 ECHR may have some application here, I am satisfied for the same reasons that Mr. Tarabanovs waived his right to attend the hearing. The waiver was clearly voluntary, informed and unequivocal. In particular, Mr. Tarabanovs was on express notice as to the probable consequences of his conduct.
- The objection founded on the failure to have regard to the Criminal Procedure Rules fails for the same reason as in the case of Mr. Lagocki.
- Finally, Mr. Tarabanovs complains that he did not receive any document from the court informing him of the outcome of the extradition hearing. As in the case of Mr. Lagocki, I consider that Mr. Tarabanovs should have been sent a copy of the extradition order and at least a brief summary of the reasons for the decision. Nevertheless, I consider this a discrete matter which is irrelevant to the lawfulness of the decision to refuse an adjournment. In the case of Mr. Tarabanovs, his application for permission to appeal against the extradition order was lodged in time.
Conclusion on applications for permission for judicial review.
- For these reasons I would refuse permission to apply for judicial review in both cases.
Application by Lagocki for permission to appeal out of time. Section 26(5) Extradition Act 2003.
- On 14 August 2015 solicitors acting for Mr. Lagocki lodged an application for permission to appeal against the order of DDJ Zani made on 28 July 2015. The proposed grounds of appeal were that the judge erred in holding that the applicant's rights under Articles 3 and 8 ECHR would not be infringed if he were extradited. The application acknowledged that it was made out of time. However, it was submitted that where an extradition order is made in the absence of the appellant, time for lodging the appeal should not run from the date of the hearing but from the date the appellant receives the decision. It was also submitted that the appellant had done everything reasonably possible to ensure that notice of appeal was given as soon as it could be pursuant to Rule 17.19 Criminal Procedure Rules. Furthermore, it was submitted that, strictly, there was no need to appeal the decision because it was ultra vires as there is no provision in the Extradition Act 2003 or any other legislation to permit an extradition order to be made in the absence of the appellant.
- The application was considered by Cranston J. on the papers on 14 August 2015. In refusing the application he referred to Szegfu v. Court of Pecs, Hungary  EWHC 1764 (Admin) and considered that it was clearly necessary for the appellant to give a comprehensive explanation for the delay given the District Judge's explanation that the appellant in effect refused to attend court. No explanation had been provided.
- The application is now renewed on the basis of further witness statements. In this regard reliance is placed upon section 26(5) Extradition Act 2003 which provides:
"(5) But where a person gives notice of application for leave to appeal after the end of the permitted period, the High Court must not for that reason refuse to entertain the application if the person did everything reasonably possible to ensure that the notice was given as soon as it could be given."
- The factual basis of the renewed application is as follows. First, Mr. Lagocki provides his account of events leading up to the hearing on 28 July. His account and that of his cellmate have been addressed earlier in this judgment. Secondly, an account is given of the procedural steps following that hearing. Reference is made to the failure of the magistrates' court to notify Mr. Lagocki of the order for his extradition. It is said that during the week following the hearing Mr. Lagocki contacted his solicitors to find out what was happening to his case. His solicitor was not available. On 13 August he contacted his solicitors once again and was informed that an extradition order had been made. He stated that he wished to appeal it. His solicitors were able to take limited instructions before the telephone line cut out. Based on these instructions, his solicitors prepared and lodged an appeal on the following day, 14 August 2015. It is said that, thereafter, the first opportunity to take further instructions was on 20 August and the first available conference at which a statement could be finalised and signed was on 26 August.
- I consider that the court should have served on the applicant a copy of the extradition order and at least a brief summary of the reasons for the decision. Given the very short time allowed for the lodging of an application for permission to appeal, that should have been done immediately. It is unfortunate that it was not done in this case. I understand that the procedure of the Westminster Magistrates' Court has now been revised so as to require a copy of the order to be supplied to an absent requested person.
- In order to come within section 26(5) the applicant has to show that he did everything reasonably possible to ensure that the notice was given as soon as it could be given. Here, Miss Lindfield, on behalf of the requesting authority, objects that the reason why the applicant was not aware of the order was because of his failure to attend the hearing and that, accordingly, he cannot be considered to have done everything reasonably possible to ensure that notice was given as soon as it could be given. However, I consider that the court's failure to notify this applicant of the order for his extradition was the substantial cause of the delay.
- Nevertheless, before the court could give permission to issue and serve the appeal out of time, it would have to be persuaded that there was an arguable case that the judge erred in deciding that here would be no breach of the applicant's Article 3 and 8 rights. This part of Mr. Lagocki's case was not developed in written submissions or at the hearing before us. Nevertheless, I have considered DDJ Zani's ruling and the proposed grounds of appeal. I am not persuaded that the applicant has been able to point to any arguable ground of appeal. In these circumstances I would refuse permission to appeal out of time.
Application by Tarabanovs for permission to appeal
- Mr. Tarabanovs' application for permission to appeal was lodged in time and has been referred to this court. However, in his oral submissions Mr. Summers accepted that if Mr. Tarabanovs' application for judicial review were unsuccessful there would be no grounds of appeal. I agree and accordingly would refuse permission to appeal.
MR. JUSTICE COULSON:
- I agree.
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