Kotsev v The Sofia District Public Prosecutor's Office (A Bulgarian Judicial Authority)

The district judge made a finding of fact that the Appellant had deliberately absented himself from this trial, and I therefore need to start by considering the applicable principles where an appellate court is being asked to depart from a finding of fact made by a first instance court.

In Tyrakowski, supra, [37], I said:

“The approach of this Court to its task of deciding whether the district judge should have decided the case differently, particularly in the context of its evaluation of the evidence, was set out in Wiejak v Olsztyn Circuit Court of Poland [2007] EWHC 2123 (Admin), and has been acted upon regularly since then (see, eg, Government of Rwanda v Nteziryayo [2017] EWHC 1912 (Admin), para 21). In Wiejak, supra, Sedley LJ said at para 23:

"23.

The effect of sections 27(2) and (3) of the Extradition Act 2003 is that an appeal may be allowed only if, in this court's judgment, the District Judge ought to have decided a question before her differently. This places the original issues very nearly at large before us, but with the obvious restrictions, first, that this court must consider the District Judge's reasons with great care in order to decide whether it differs from her and, secondly, that her fact-findings, at least where she has heard evidence, should ordinarily be respected in their entirety.’”

This passage is an application in the extradition context of the general principle that an appellate court which does not hear evidence is often at a disadvantage in relation to the court which did hear the evidence and so had an opportunity to assess the witnesses’ demeanour, etc, as part of its fact-finding function: see Assicurazioni Generali SpA v Arab Insurance Group (Practice Note) [2003] 1 WLR 577, at [6]–[23] per Clarke LJ and [193]–[197] per Ward LJ, passages which were approved by the Supreme Court in Datec Electronics Holdings Ltd v United Parcels Service Ltd [2007] 1 WLR 1325, [46]. Accordingly, in general terms, the appellate court should defer to the trial court in relation to its findings of fact.

There is, no however, no rule that there must be absolute deference, as Sedley LJ’s use of the word ‘ordinarily’ makes clear. The degree of deference which is due to the trial court’s findings of fact will depend upon the nature and circumstances of the case. In Assicurazioni Generali SpA, supra, [15], Clarke LJ said that in appealsagainst conclusions of primary fact, the approach of an appellate court will depend upon the weight to be attached to the findings of the judge, and that weight will depend upon the extent to which, as the trial judge, the judge has an advantage over the appellate court; the greater that advantage the more reluctant the appellate court should be to interfere. It is well-recognised, for example, that an appellate court can hardly ever overturn primary findings of fact by a trial judge who has seen the witnesses give evidence in a case in which credibility was in issue: see eg Cook v Thomas [2010] EWCA Civ 227, [48].

In the present case the judge based her finding that the Appellant had deliberately absented himself on his single remark, ‘Maybe I just wanted to forget’, which the judge interpreted as meaning that he had known about his trial for the driving matter but deliberately ignored it. It seems to me that I am in no worse position than the judge was in considering whether this single remark, considered in the context of the other evidence (none of which is in dispute, for example, that the Appellant was never summonsed), is reasonably capable of bearing the meaning which the judge ascribed to it, or whether the judge was wrong in the conclusion that she reached. In other words, in the context which I am concerned, I do not consider that I am required to have a particularly high degree of deference for the judge’s finding about deliberate absence.

The burden of proving that the Appellant deliberately absented himself from his trial lay on the Respondent, as I have said, and it was required to prove it to the criminal standard. In Tyrakowski, supra, [34], I reviewed the relevant authorities and said that what had to be proved unequivocally (ie, to the criminal standard) was that the defendant had waived the exercise of his right to appear at his trial and to defend himself, or that he had sought to evade justice.

In relation to the meaning of ‘trial’, in Stryjecki v. District Court in Lublin, Poland [2016] EWHC 3309 (Admin), [50], Hickinbottom J (as he then was) provided a summary of the relevant principles as follows:

In Tyrakowski, [30], I queried, diffidently and with great respect, whether point (e) could be readily reconciled with what was said in The Court in Mures v. Zagrean  [2016] EWHC 2786 (Admin), [81], namely, that a defendant will be taken to have deliberately absented himself from his trial where the fault was his own conduct in leading him to be unaware of the date and time of his trial. However, I also said that it is not a conflict, if conflict it be, which I needed to resolve, and that remains the case.

Turning to the facts of the present case, the EAW said in Box D that:

“The sentence was decreed in absentia and the person was not summoned personally or informed in any other way of the trial.”

Given that there were three court hearings in the Sofia City Court for the driving matter, the TNT matter, and the merger of the sentences in March 2011, it is not entirely clear which ‘trial’ the EAW is here referring to. However, given that the burden lay on the Respondent before the district judge to prove deliberate absence, the Appellant is able to rely upon this ambiguity. The starting point, therefore, is that the Appellant was not summoned to his trial for the driving matter.

That being the case, the Respondent can only prove that the Appellant deliberately absented himself if it can prove that through some other means he knew about the place and time of his trial, and waived his right to be present, or that it was his own deliberate conduct (eg by moving abroad without leaving an address with the authorities so as to evade justice, as in Zagrean, supra), which led to his lack of knowledge about his trial.

The Appellant adopted his proof of evidence as his evidence in chief. Whilst brief, this clearly stated at [6] that he first found out about his sentences through his family in 2005. It also narrates how the Appellant left Bulgaria in 2002 and went to live in Spain.

Against that background, I do not consider that the Appellant’s single statement in his evidence, ‘Maybe I just wanted to forget’, reasonably permitted the inference which the judge drew from it, namely that, ‘The RP was aware of the legal proceedings for the driving offence and did not attend the trial …’ and thus that he was deliberately absent from it. I am satisfied the judge was wrong to reach this conclusion. There are a number of points to be made. True it is that the Appellant said in evidence that he had attended court proceedings on the driving matter. But this does not suffice to prove that he was aware of his trial. Stryjecki¸ supra, makes clear that an awareness of legal proceedings does not equate to an awareness of a trial, which is an event with a specific time and place. Hence, the second part of the judge’s finding was a non sequitur. The statement which the Appellant made is just as consistent with him being aware that there was a criminal investigation but which he hoped had ended. That, without more, does not amount to an unequivocal waiver of his right to be present at his trial.

Also, there is no evidence to suggest that the Appellant’s lack of knowledge of the date of his trial was because of his own deliberate conduct in putting himself beyond the reach of the Bulgarian criminal justice system (eg by leaving the country). There was certainly no finding of fact by the judge to that effect.

Third, as I have already said, the EAW must be interpreted as meaning that the Appellant was never summonsed to his trial.

Hence, with respect to the district judge, I do not consider that the material before her reasonably permitted her to conclude beyond reasonable doubt that the Appellant had deliberately absented himself from his trial, and I am satisfied her conclusion was wrong. The judge should therefore have found that in relation to the driving matter, the question posed by s 20(3) was to be answered negatively, and she should have gone on to decide whether the Appellant would be entitled to a retrial or (on appeal) to a review amounting to a retrial in relation to that case with the guarantees in s 20(8).

However, had the judge gone on to consider that question then she would have answered it affirmatively in relation to the driving matter, just as she did in relation to the TNT matter. Hence, I turn to the question of whether she should have answered this question differently.

It was common ground before the district judge that the Respondent bore the burden of proving to the criminal standard that the Appellant would receive a re-trial or a review amounting to a re-trial with the guarantees in s 20(8) of the EA 2003. The judge gave three reasons for concluding that the Respondent had discharged this burden:

It is accordingly necessary to consider each of these reasons in order to determine whether, separately or collectively, they provided a basis on which the judge could reasonably have been satisfied to the relevant standard that the questions in s 20(5) read with s 20(8) should be answered affirmatively. Researches by counsel have not uncovered any case where the question of re-trial rights under Bulgarian law has been considered. It was raised in Ninedays (or Ninedeys) v District Prosecutor’s Office of Varna, Bulgaria [2014] EWHC 4416 (Admin) but the point was not determined because the Court allowed the appeal on double jeopardy grounds.

I am unpersuaded that the judge’s three reasons, separately or together, provided a proper basis for the conclusion she reached.

As to the judge’s first reason, she placed emphasis on a quote from the EAW in which the word ‘renewed’ was used in relation to what would happen to the Appellant’s criminal proceedings if he were extradited, and she also referred to the further information. I do not consider that too much weight can be attached to this word. The word used in the legislation which the judge quoted was ‘re-opened’, and so there is nothing particularly significant about the work ‘renew’, which represents a gloss on the statutory language. More significantly, the issue is not, as Mr Grandison rightly pointed out, whether there will be new proceedings of some form. The question is whether the re-trial/review will afford the Appellant the specific procedural rights in s 20(8). The fact that criminal proceedings can be re-opened, or subjected to a review in some way, does not compel the inference that, for example, prosecution witnesses can be required to give their evidence again: see eg Lodhi v Governor of HMP Brixton [2001] EWHC 178 (Admin), [71] – [83] for an example of a review which did not entitle the examination of witnesses even though the original contumacious conviction fell away by operation of law.

So far as the further information is concerned, which the judge relied on as providing support, there is nothing expressly stated within it about re-trial rights in Bulgaria. Paragraph 4 simply states:

“In case that the Bulgarian citizen Asen Vitomirov Kotsev is surrendered to the Republic of Bulgaria in connection to the European arrest warrant that has been issued against him, his rights and interests shall be secured in strict compliance with Bulgarian legislation.”

This, it seems to me, is simply a statement that the law will be complied with in the event of extradition. It is far too general to be of assistance to the Respondent, because it obviously begs the very question which has to be answered: what re-trial rights, if any, will the Appellant have under Bulgarian law if he is extradited ?

Hence, the first reason given by the judge does not provide any support for the conclusion that s 20(5) read with s 20(8) should be answered affirmatively.

I turn to the judge’s reliance on the Bulgarian legislation which she quoted. As the judge noted, neither party placed any evidence before her as to the meaning or effect of this legislation. In these circumstances it is necessary to consider whether it was open to the judge to embark upon her own exploration of the Bulgarian Criminal Procedure Code. I do not consider that it was. In Mucelli v Secretary of State for the Home Department [2012] EWHC 95 (Admin), [50], Cranston J with whom Toulson LJ agreed said in an appeal where the court was concerned with re-trial rights under Albanian law:

“At the outset I underline the point my Lord, Toulson LJ, made in the course of argument: the court’s assessment of Albanian law and practice must turn on an evaluation of the expert evidence. Toulson LJ drew on his experience in the Commercial Court, where English lawyers were sometimes tempted to offer their own interpretation of foreign law. There, as here, that temptation must be resisted. The obvious reason is that neither the English lawyer nor the English court can have a full understanding of the context of foreign constitutional and statutory instruments or judicial decisions. The experts have that understanding. Their views may be in conflict and the court may have to reconcile them but not primarily through its own interpretation of the foreign law materials.”

The district judge relied upon Puceviciene, supra, [61]-[62], as support for her approach. That decision of the Divisional Court presided over by Lord Thomas CJ (sitting with Burnett LJ (as he then was) and Ouseley J) involved a number of conjoined appeals and is the leading authority on s 12A of the EA 2003, which specifies the necessity for requesting judicial authorities from Category 1 territories to have made sufficient progress by way of a decision to charge and try a defendant before that person can be extradited from the UK under an EAW. In my judgment, those paragraphs do not support the proposition that district judges are free to consider provisions of foreign law relating to re-trial rights unaided by any assistance from the issuing judicial authority as to the meaning of the legislation and, crucially, how it will apply to the particular defendant in question. In order to understand why this is so as a matter of principle, it is necessary to quote [57] – [63] of Puceviciene, a section of the judgment headed ‘The court’s consideration of the evidence’, the evidence in question relating to the issue of whether the two required decisions have been taken in the requesting state:

“57.

The decision for the judge will be a decision on the evidence presented to him. It will be highly fact sensitive.

58.

As was made clear in Kandola, the statement of the judicial authority as to the making of the decisions should be accepted by the judge, unless there is clear evidence of bad faith or impropriety. The judge conducting the extradition hearing should therefore not in general question the statement of the judicial authority without such evidence of bad faith or impropriety. In the light of (1) the principle of mutual confidence and recognition and (2) the fact that the procedural system of the state and the decisions made are being explained by a judicial authority in that state, clear evidence is essential if the statement is to be questioned. Assertion will not do.

59.

It is to be hoped that if a sufficient explanation along the lines suggested at paragraphs 52-56 is given to the requesting judicial authority, the answer given by the judicial authority will be sufficient in the overwhelming majority of cases. But that may not always be the case.

60.

In the appeal by Mr Savov, we were provided with an English translation of the Czech Code of Criminal Procedure as it was thought necessary to explain the information provided by reference to the Code and as Mr Savov had introduced his own evidence on Czech law. The translation was provided without difficulty as it had been published by Wolters Kluwer – see paragraph 143 below.

61.

From information provided to us, it appears that some other states have provided translations of their codes; the text of the German code can be found at the website of the European Judicial Network. If such are available, they will inevitably be of assistance to judges in determining disputed questions.

62.

Whereas translations of Codes may on occasions be helpful, we envisage that the provision of expert evidence from lawyers should be very rare indeed. The appeal of Mr Savov is an example of an appeal where such evidence was called. It should not have been. It is no part of the function of the extradition court to embark upon an investigation of the legal niceties in the jurisdiction of the requesting judicial authority. It should not seek to resolve apparent conflicts of opinion about the meaning of foreign law. The judicial authority's description of its own law and procedure should, under the scheme of the Framework Decision, be accepted at face value. The evidence in Mr Savov's case went into matters that were not matters that should have been explored: see paragraphs 167-168. It did not begin to provide a basis for an allegation of impropriety or bad faith. Our courts rely on the rule that such allegations should not be advanced unless there is a proper basis for making them. There was none in that case. Absent the clearest evidence of impropriety or bad faith, it is not the function of the court to examine the conduct or correctness of the decision of the requesting judicial authority or the prosecutor (see paragraph 213) or whether the prosecutor could have pursued a different method of proceeding (see paragraph 209). These are questions to be determined in the courts of the requesting state after extradition.

63.

Finally, it is with regret that we must add that the court will be astute to reject any attempt to use documents obtained by a requested person without lawful authority. We declined to admit such evidence filed on behalf of Mr Savov (for reasons set out at paragraph 196 below).”

In my judgment, these paragraphs establish the following propositions:

Applying these principles mutatis mutandis to s 20, they establish that a clear statement from the issuing judicial authority that a defendant convicted in his absence will receive a re-trial/review and will have the rights specified in s 20(8) should be accepted and should not be impugned by defence expert evidence save where bad faith etc is alleged. Also, where such a statement is made, then the judge can have recourse to the relevant provisions of foreign law in English in order to understand the assurance given by the issuing judicial authority. However, these paragraphs do not in my judgment support the course the judge took in this case, which was to try and interpret for herself what the Bulgarian legislation meant, unaided by any clear statement from the issuing judicial authority about what would specifically happen to the Appellant in the circumstances of his case and the legal basis for such a statement. All that there was in the EAW was a bare narrative of the general effect of the provisions in question using the word ‘renew’ rather than the statutory word, ‘re-opening’. District judges should bear in mind what was said in Mucelli, supra, [50], and in the event that an EAW does not specifically assert that the defendant will get a retrial/review with the guarantees in s 20(8), they should seek further information from the issuing judicial authority pursuant to the power in Article 15(2) of the EAW Framework Decision (2002/584/JHA). If such an explicit statement is made, then if a foreign criminal code is available in English, the judge is able to look at it as an aid to understanding such a statement.

But in my judgment district judges should not attempt to decide questions of foreign law for themselves, unaided by any assistance from the issuing judicial authority. The question of re-trials is a notoriously difficult topic which has given rise to numerous cases where this Court has had to grapple with the meaning and effect of foreign law: see eg, in relation to Italy: Gradica v Public Prosecutor's Office attached to the Court of Turin [2009] EWHC 2846 (Admin); Ahmetaj v Prosecutor General Attached to Court of Appeal Genoa [2010] EWHC 3924 (Admin); Rexha v Officer of the Prosecutor, Court of Rome [2012] EWHC 3397); Nastase vOffice of the State Prosecutor, Trento, Italy [2012] EWHC 3671 (Admin); in relation to Romania, Da An Chen v Romania [2006] EWHC 1752 (Admin);  in relation to Hungary, Benko v Law Enforcement Division of Veszprem County Court, Hungary [2009] EWHC 3530 (Admin); and in relation to Albania, Government of Albania v Bleta [2005] 1 WLR 3576; Mucelli v Government of Albania [2008] 1 WLR 2437; Bogdani v Government of Albania [2008] EWHC 2065;  R(Bulla) v Secretary of State for the Home Department [2010] EWHC 3506 (Admin); Mucelli v Secretary of State for the Home Department [2012] EWHC 95 (Admin). These cases illustrate in a practical way the difficulties which foreign legislation can cause and hence why district judges should not try and decide foreign law for themselves without clear assistance from the issuing judicial authority, who can be taken to be expert in the law of their country. Another difficulty is that (as I know from my own experience) foreign laws are often available in English in a number of different translations, and sometimes those translations differ. The district judge may not know which, if any, of the available translations is the correct or authoritative one.

But even if it had been open to the district judge to consider unaided the provisions of Bulgarian law, ie parts of Articles 422 and 423 of the Criminal Procedure Code, she could not properly have been satisfied on the basis of their text alone that the Appellant would have a rightto a re-trial/review let alone one that would afford him the rights under s 20(8). That is because the provisions in question appear to make the re-opening of the case contingent on there having been a ‘guarantee’ (the word used in the legislation) given to the requested state that that will occur. No such guarantee has been given in this case. I do not regard what is stated in the EAW to be a guarantee. It is just a statement about the existence of provisions of Bulgarian law. Hence, these legal provisions taken by themselves to do not amount to any proper basis for the conclusion which the judge reached. They make the re-opening of the case conditional. They do not establish that the Appellant has the right to a re-trial/review. There is a fundamental difference between the two. As Irwin J (as he then was) said in Bohm v Romanian Judicial Authority [2011] EWHC 2671 (Admin), [5], in relation to re-trials, if the answer to the defendant’s entitlement to a re-trial under the foreign law is ‘no’ or ‘perhaps’ or ‘in certain circumstances’, then that would not be enough to meet the statutory test that the defendant has a ‘right’ to a re-trial/review. The most that can be said in relation to the Appellant is that he might have his case re-opened (whatever that might entail), if such a guarantee had been provided in his case in advance, however it has not been. I therefore reject the judge’s second basis for her conclusion. In saying this, I have not overlooked authorities such as Nastase, supra, [45], in which the Court said that the fact that a defendant might have to satisfy domestic procedural requirements to obtain a re-trial did not mean that s 20 was not complied with (‘The existence of procedural steps does not remove the entitlement to a retrial. Rather, the Italian authorities must be permitted to regulate their own proceedings by imposition of their own rules.’) The situation here is different. Bulgarian law appears to require as a condition precedent before a case can be reopened that a guarantee has been given by the Bulgarian state. That has not occurred and on the materials which are before me, and which were before the district judge, it is therefore difficult to see how the Appellant’s case could be re-opened. It is not a question of the Appellant merely having to comply with procedural formalities

I turn to the judge’s final reason, namely that Bulgaria is signatory to the Convention and she could therefore be sure that the renewed proceedings would comply with Article 6. I asked counsel to address this question in additional written submissions following the hearing.

In my judgment the position is not as straightforward as this. The fact that a requesting state is a signatory to the Convention is not of itself sufficient to show that a defendant will receive a re-trial which complies with s 20(5)(8) (or s 85(5)(8), the equivalent provision in Part 2 cases). If it were, then it would have been a complete answer to the appeals that I listed earlier in this judgment, all of which related to countries that were signatories to the Convention. An analysis of those cases demonstrates that on occasion countries have had to amend their criminal law (even after many years of being signatories to the Convention) in order to bring it into line with Article 6. For example, as the Court noted in Rexha, supra, [47], the relevant provisions of Italian law were amended following the decision in Sejdovic v Italy, Application No. 5681/00, 1 March 2006 (Grand Chamber) which addressed the right of persons convicted in absentia to obtain a fresh determination of the merits of the charge against them. Italy signed the Convention in 1952 and ratified it in 1955. Hence it took over 50 years for it to bring this aspect of its criminal law into line with the Convention.

I accept the argument of Mr Grandison in his additional submissions that the relevance of a requesting state being a signatory to the Convention is more nuanced than simply assuming from that that s 20 will be complied with. It is capable of supporting a finding that s 20(5)(8) will be satisfied, but as an aid to the construction and interpretation of evidence or statements made by the requesting state, especially if they are ambiguous. For example, in Benko, supra, there was a detailed letter from a Hungarian judge explaining Hungarian law in detail and confirming that at the re-trial the appellant would be able to confront witnesses. However, the appellant argued that it was unclear that he would receive free legal assistance, but this Court relied on Hungary’s status as a signatory to the Convention to resolve this ambiguity in its favour.

But being a signatory to the Convention is not in and of itself proof that s 20(5)(8) or s 85(5)(8) will be complied with. This was made clear in Bulla, supra, [25], where Sullivan LJ said:

“25.

For the sake of completeness I should mention that Mr Jones, in paragraph 32 of his note on his further evidence, invited the court to consider the fact Albania was part of the ECHR, and that so far as one can rely on the constitutional court decision, the ECHR has pre-eminent status in Albanian law. Of themselves, those facts are not a sufficient guarantee the appellant will receive a retrial on returning to Albania. The mere in fact that Albania is party to the ECHR is not sufficient to enable this court to be sure that this particular appellant will be granted, as a matter of right, a retrial in respect of a matter of which he was convicted in his absence.”

I turn to the passage in Tous v District Court in Nymburk, Czech Republic [2010] EWHC 1556 (Admin) relied on by Mr Smith in support of his contention that the judge was correct in her approach to the Convention. In that case Cranston J said [12]-[13]:

“12.

The upshot of Murtati v Albania [2008] EWHC 2856 (Admin) and other authorities such as Gradica v Deputy Public Prosecutor of Turin, Italy [2009] EWHC 2846 (Admin) is that, in cases where a person has been tried in his absence, evidence that Article 6 has been incorporated into the law of the requesting state and that that state recognises the case law of the European Court of Human Rights supports a finding that the requirement of section 20(5) of the 2003 Act is satisfied. The statutory safeguard in section 20(8) is satisfied where the requesting state can show that its law complies with Article 6. For a requested person to succeed in an argument that he should be discharged under section 20, he must show that subsequent proceedings would not comply with Article 6.

13.

As far as the burden of proof is concerned, it is on the judicial authority to satisfy the court about answering the questions in section 20 in the affirmative and it must do that to the criminal standard (section 206). However, in my view, the requested person must adduce some evidence at least which raises an issue that the guarantee in section 20(5) might not be met in the requesting state. It is not for the requesting state to prove affirmatively in the absence of such evidence that the guarantee will not be met. Support for that comes from the decision of Baksys v Lithuania [2007] EWHC 2838 (Admin).”

I would make the following observations on these paragraphs.

First, they do not establish that being a signatory to the Convention without more is sufficient to show compliance with s 20. It is capable of supporting that conclusion, in conjunction with other evidence. Hence, what Cranston J said is in line with what I have held to be the proper approach.

Second, so far as [13] is concerned, I would respectfully disagree with it so far as it suggests that the Appellant bears some sort of evidential burden of proof in relation to s 20(5)(8). That is for two main reasons. First, there is nothing in the language of s 20(5)(8) to suggest that the defendant must adduce evidence suggesting that they will not be complied with before the issuing judicial authority is required prove that the defendant will get a retrial/review that complies with s 20(8). Section 20 places a straightforward legal burden on the issuing judicial authority. The way in which s 20 is drafted is to be contrasted with s 12A (the provision at issue in Puceviciene, supra). That section expressly places an evidential burden on the defendant to adduce material suggesting that either the decision to charge or the decision to try has not been made, before the issuing judicial authority is required to prove that they have been made: see s 12A1(a).

My second reason for doubting the correctness of [13] of Tous is the 2009 Framework Decision  (ie, Council Framework Decision 2009/299/JHA), which introduced Article 4A into the EAW Framework Decision and which introduced an amended EAW form. In summary, Article 4A introduced an optional ground for refusing to execute an EAW if the defendant did not appear in person at his trial, unless the EAW states that the defendant, in accordance with further procedural requirements defined in the national law of the issuing Member State specifies that one of the conditions then set out in Article 4A is satisfied. These include, in Article 4A(1)(d), that the defendant was not personally served with the decision imposing the custodial sentence, but he will be personally served with it without delay after the surrender and will be expressly informed of his right to a retrial, or an appeal, in which the person has the right to participate and which allows the merits of the case, including fresh evidence, to be re-examined, and which may lead to the original decision being reversed, and will be informed of the time frame within which he or she has to request such a retrial or appeal. The EAW pro forma was amended following the 2009 Framework Decision so that there is space for the issuing judicial authority to tick a box on the EAW indicating which of the Article 4A conditions applies. Hence, it is now a requirement of the EAW Framework Decision, where the extradition is sought of a person convicted in absence at a trial from which they were not deliberately absent, for the EAW to specify that the defendant will receive these re-trial rights. As the Court in Cretu, supra, made clear at [31] – [34] (emphasis added):

“31.

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". The question whether to proceed with a trial in the absence of an accused in the court of a Convention state would involve an inquiry which was heavily fact specific. So too, would any subsequent complaint to the Strasbourg Court of a breach of article 6.

32.

However, in the context of a request to surrender a convicted person to a Part 1 country to serve a sentence, in my judgment no such inquiry is called for. The requesting judicial authority is expected to convey the relevant information in the EAW itself. If the information meets the requirements of article 4a that would provide the evidence upon which the executing Judicial authority would act. The trial has, of course, already taken place. The decision whether to proceed in the accused's absence has been made. It may have involved a conclusion that a trial in absentia is compliant with article 6 or (as is the case in some jurisdictions) have proceeded in the full knowledge that if the accused were convicted but was later found, he would be entitled to a retrial. 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.

33.

The United Kingdom was one of the co-sponsors of the 2009 Framework Decision. The view of the Government was that it was unnecessary to amend the 2003 Act to implement the 2009 Framework Decision because "section 20 deals with convictions in absence" – See "Decision pursuant to Article 10 of Protocol 36 to the Treaty on the Functioning of the European Union, July 2013" Cm 8671 at para 95.

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:-

i)

"Trial" in section 20(3) of the 2003 Act must be read as meaning "trial which resulted in the decision" in conformity with article 4a paragraph 1.(a)(i). That suggests an event with a "scheduled date and place" and is not referring to a general prosecution process, Mitting J was right to foreshadow this in Bicioc.

ii)

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;

iii)

An accused who has instructed ("mandated") a lawyer to represent him in the trial is not, for the purposes of section 20, absent from his trial, however he may have become aware of it;

iv)

The question whether an accused is entitled to a retrial or a review amounting to a retrial for the purposes of section 20(5), is to be determined by reference to article 4a paragraph 1(d).

v)

Whilst, by virtue of section 206 of the 2003 Act, it remains for the requesting state to satisfy the court conducting the extradition hearing in the United Kingdom to the criminal standard that one (or more) of the four exceptions found in article 4a applies, the burden of proof will be discharged to the requisite standard if the information required by article 4a is set out in the EAW.

iv)

The question whether an accused is entitled to a retrial or a review amounting to a retrial for the purposes of section 20(5), is to be determined by reference to article 4a paragraph 1(d).

v)

Whilst, by virtue of section 206 of the 2003 Act, it remains for the requesting state to satisfy the court conducting the extradition hearing in the United Kingdom to the criminal standard that one (or more) of the four exceptions found in article 4a applies, the burden of proof will be discharged to the requisite standard if the information required by article 4a is set out in the EAW.”

In light of this passage, and particularly the parts I have emphasised, [13] of Tous can no longer be regarded as accurately stating the law.

For all of these reasons, I reject the third basis which the judge found justified her conclusion that the questions in s 20(5)(8) should be answered affirmatively.

It follows that the judge should have answered the question in s 20(5) in the negative and should have discharged the Appellant.

In Zdziaszek, supra,the Court of Justice of the European Union considered whether Article 4A of the EAW Framework Decision applied in relation to proceedings at which sentences were merged, a process which is a feature of many continental criminal justice systems, and thus whether extradition could be refused where the conditions in Article 4A were not satisfied in respect of a defendant who was absent during that phase of the criminal process. The Court held that it did so in the following circumstances ([:

“87.

In that regard, it is apparent from the case law of the European Court of Human Rights that the guarantees laid down in article 6 of the Human Rights Convention apply not only to the finding of guilt, but also to the determination of the sentence: Dementyev v Russia CE:ECHR:2013:1128JUD004309505, para 23. Thus, compliance with the requirement of a fair trial entails the right of the person concerned to be present at the hearing because of the significant consequences which it may have on the quantum of the sentence to be imposed: Kremzov v Austria (1993) 17 EHRR 322, para 67.

88.

This is the case with respect to specific proceedings for the determination of an overall sentence where those proceedings are not a purely formal and arithmetic exercise but entail a margin of discretion in the determination of the level of the sentence, in particular, by taking account of the situation or personality of the person concerned, or of mitigating or aggravating circumstances: Eckle v Germany (1982) 5 EHRR 1, para 77 and Dementyev’s case, paras 25–26.

89.

Furthermore, it is irrelevant in that regard whether the court concerned has jurisdiction to increase the sentence previously imposed: Ekbatani v Sweden (1988) 13 EHRR 504, para 32 and Hermi v Italy (2006) 46 EHRR 46, para 65.

90.

It follows that proceedings giving rise to a judgment handing down a cumulative sentence, such as that at issue, leading to a new determination of the level of custodial sentences imposed previously, must be regarded as relevant for the application of article 4a(1) of Framework Decision 2002/584, where they entail a margin of discretion for the competent authority within the meaning of para 88 of the present judgment and give rise to a decision which finally determines the sentence.”

I agree with Mr Smith that there is no evidence but that what occurred in the Appellant’s case was simply an arithmetical exercise in which the two sentences were merged into a single sentence, that being the longer of the two imposed on him, and that no exercise of discretion was involved. This seems clear from Box C of the EAW which refers to the merger process as resulting in the Appellant being ordered to serve the ‘final and heaviest custodial sentence imposed …’ Therefore it seems to me that the principle in Zdziaszek is not engaged on the facts of this case, and hence I reject this additional ground of challenge on the material currently before me.

Mr Smith submitted that if I ruled in the Appellant’s favour then I should not allow the appeal and quash the order for extradition but should allow the Respondent the opportunity to supply further information on the question of re-trial rights in Bulgaria. He said I had the power to request further information under Article 15(2) of the EAW Framework Decision. However, this only applies to the executing judicial authority, which in England and Wales is a District Judge (Magistrates' Court) designated by the Lord Chancellor: FK v Stuttgart State Prosecutor's Office, Germany [2017] EWHC 2160 (Admin), [20] But I have an inherent power that is analogous to request further information for the purposes of an appeal: Ibid, [39]. Such a course is sometimes taken after an appeal has been heard in this Court in order to allow the issuing judicial authority to supply information or undertakings as an alternative to the Court allowing a defendant’s appeal: see eg Grecu v Cornetu Court (Romania)[2017] EWHC 1427 (Admin), [49]-[52], where the Court permitted the Romanian authorities to supply a further undertaking about prison conditions because, among other reasons, ‘there is the greatest incentive to foster the extradition system’.

I have not found this a straightforward question. In my view the deficiencies in the EAW and the further information about re-trial rights were glaring. They should have been dealt with by further information well in advance of the hearing before the district judge. The EAW was not even in the format prescribed by the 2009 Framework Decision despite being issued in 2011. The Appellant has been in custody for a considerable period of time in the UK, which is not where he is domiciled. These are matters which weigh in favour of allowing the appeal here and now.

On the other hand, the offences in the EAW are plainly very serious, involving as they do conduct which caused the death of a young person and the possession of lethal quantities of explosives. It is highly likely that if the appeal were allowed the Appellant would be quickly re-arrested either here or in Spain on a fresh EAW.

There is, as the Court noted in Grecu, supra, and as the CJEU also said in Criminal Proceedings against Bob-Dogi [2016] 1 WLR 4583 a need to facilitate the working of the EAW scheme, the latter case emphasising that information should generally be sought before return on an EAW is refused. On that basis, I am prepared to allow the Respondent a short period of time in which to supply such information as it considers necessary in order to prove to the criminal standard that if the Appellant is returned to Bulgaria he will receive a re-trial or a review amounting to a re-trial with the procedural rights specified in s 20(8). As part of its duty of candour, the Respondent must also make clear whether the merger process I have referred to was indeed simply a non-discretionary arithmetical exercise, or whether it involved the exercise of discretion, and if the latter, whether the Appellant has the right to have the merger set aside and his overall final sentence re-determined in his presence.

The Respondent must supply any further information, together with written submissions on its impact on the appeal within 14 days of the handing down of this judgment.

The Appellant is to supply any submissions in response 14 days thereafter. I will then determine the final outcome of the appeal on the basis of that written material.