Regional Court in Gdansk (Poland) v Andrzej Grzymala

This is an appeal by the Regional Court in Gdansk, Poland (“the Appellant”) against the decision of District Judge Zani (“the Judge”) dated 18 November 2024 (“the Decision” or “the Judgment”) to order the discharge of Andrzej Grzymala (“the Respondent”) under section 20 of the Extradition Act 2003 (“the 2003 Act”). Permission to appeal was granted by McGowan J on 11 April 2025.

The sole ground of appeal is that the Judge was wrong to find that the requirements of section 20 of the 2003 Act were not satisfied in the Respondent’s case.

An appeal by the requesting state against an order for discharge at the extradition hearing is governed by sections 28 and 29 of the 2003 Act. Such an appeal may be brought on a question of law or fact, with leave of the High Court. In order for such an appeal to succeed, one of the two alternative sets of conditions in section 29(3) and (4) must be satisfied. For present purposes it is section 29(3) which applies. The relevant conditions in section 29(3) are that (a) the judge ought to have decided the relevant question differently and (b) if he had decided the question in the way he ought to have done, he would not have been required to order the person’s discharge. If the Court allows the appeal, it must quash the order of discharge and remit the case to the judge.

Section 20 applies to a case where the requested person has been convicted and provides as follows:

“(1)

If the judge is required to proceed under this section (by virtue of s.11) he must decide whether the person was convicted in his presence.

(2)

If the judge decides the question in subsection (1) in the affirmative he must proceed under s.21.

(3)

If the judge decides that answer in the negative he must decide whether the person deliberately absented himself from his trial.

(4)

If the judge decides the question in subsection (3) in the affirmative he must proceed under s.21.

(5)

If the judge decides that question in the negative he must decide whether the person would be entitled to a retrial or (on appeal) to a review amounting to a retrial.

(6)

If the judge decides the question in subsection (5) in the affirmative he must proceed under s.21.

(7)

If he decides that question in the negative he must order the person`s discharge.

(8)

The judge must not decide the question in subsection (5) in the affirmative unless, in any proceedings that it is alleged would constitute a retrial, the person would have these rights –

(a)

the right to defend himself in person or through legal assistance of his own choosing or, if he had not sufficient means to pay for legal assistance, to be given free when the interests of justice so required;

(b)

the right to examine or have examined witnesses against him and to obtain the attendance and examination of witnesses on his behalf under the same conditions as witnesses against him.”

In the present case, the issue is that arising under section 20(3), namely whether the Respondent “deliberately absented himself from his trial”. If he did not, then in this case discharge under section 20(7) follows, since it is common ground the question in section 20(5) is to be answered in the negative.

The Council Framework Decision of 13 June 2002 on the European arrest warrant and surrender procedures between member states (“the Framework Decision”) provides, inter alia, as follows:

“Article 1

Definition of the European arrest warrant and obligation to execute it

1.

The European arrest warrant is a judicial decision issued by a Member State with a view to the arrest and surrender by another Member State of a requested person, for the purposes of conducting a criminal prosecution or executing a custodial sentence or detention order.

2.

Member States shall execute any European arrest warrant on the basis of the principle of mutual recognition and in accordance with the provisions of this Framework Decision.

…”

Article 4a of the Framework Decision (inserted by Council Framework Decision 2009/299/JHA of 26 February 2009) provides as follows:

“Decisions rendered following a trial at which the person did not appear in person

1.

The executing judicial authority may also refuse to execute the European arrest warrant issued for the purpose of executing a custodial sentence or a detention order if the person did not appear in person at the trial resulting in the decision, unless the European arrest warrant states that the person, in accordance with further procedural requirements defined in the national law of the issuing Member State:

In relation to the approach to section 20(3) and Article 4a of the Framework Decision, I have been referred to the following authorities: Cretu v Romania [2016] EWHC 353 (Admin) at §§32 to 37 ; Jakubowski v Poland [2022] EWHC 660 (Admin) at §17; Bertino v Italy [2024] UKSC 9 at §§54 to 56; Merticariu v Romania [2024] UKSC 10 at §§24, 26, and 27; and Marzec v Poland [2025] EWHC 232 (Admin) at §§30, 35, 46 to 52. From these authorities, I derive the following propositions.

The European Convention on Mutual Assistance in Criminal Matters 1959 (“the 1959 Convention”) provides, in its preamble, inter alia, as follows:

“Believing that the adoption of common rules in the field of mutual assistance in criminal matters will contribute to the attainment of this aim; Considering that such mutual assistance is related to the question of extradition, which has already formed the subject of a Convention signed on 13th December 1957,”

Article 1 of the 1959 Convention provides as follows:

“1.

The Contracting Parties undertake to afford each other, in accordance with the provisions of this Convention, the widest measure of mutual assistance in proceedings in respect of offences the punishment of which, at the time of the request for assistance, falls within the jurisdiction of the judicial authorities of the requesting Party.

2.

This Convention does not apply to arrests, the enforcement of verdicts or offences under military law which are not offences under ordinary criminal law.”

Article 5 of the Convention on Mutual Assistance in Criminal Matters between Member States of the European Union of May 2000 (“the 2000 Convention”) provides, inter alia, as follows:

“Sending and service of procedural documents

1.

Each Member State shall send procedural documents intended for persons who are in the territory of another Member State to them directly by post.

2.

Procedural documents may be sent via the competent authorities of the requested Member State only if:

(a)

the address of the person for whom the document is intended is unknown or uncertain; or

(b)

the relevant procedural law of the requesting Member State requires proof of service of the document on the addressee, other than proof that can be obtained by post; or

(c)

it has not been possible to serve the document by post; or

(d)

the requesting Member State has justified reasons for considering that dispatch by post will be ineffective or is inappropriate.”

I refer to the two foregoing EU Conventions on mutual assistance as “the MLA Conventions”.

Part 1 of the Crime (International Co-operation) Act 2003 addresses mutual assistance in criminal matters. Chapter 1 of Part 1 addresses “mutual service of process etc”. Within that Chapter, section 1 is headed “Service of overseas process in the UK” and “Service of overseas process”. It provides, inter alia, as follows:

“(1)

The power conferred by subsection (3) is exercisable where the Secretary of State receives any process or other document to which this section applies from the government of, or other authority in, a country outside the United Kingdom, together with a request for the process or document to be served on a person in the United Kingdom.

(2)

This section applies

(a)

to any process issued or made in that country for the purposes of criminal proceedings,

(b)

to any document issued or made by an administrative authority in that country in administrative proceedings,

(c)

to any process issued or made for the purposes of any proceedings on an appeal before a court in that country against a decision in administrative proceedings,

(d)

to any document issued or made by an authority in that country for the purposes of clemency proceedings.

(3)

The Secretary of State may cause the process or document to be served by post or, if the request is for personal service, direct the chief officer of police for the area in which that person appears to be to cause it to be personally served on him.”

In R (Ismail) v Secretary of State for the Home Department [2016] UKSC 37 the Supreme Court was considering the question of service under the Crime (International Co-operation) Act 2003 of a judgment in criminal proceedings in Egypt. The Supreme Court stated at §§45 to 47 as follows

“45.

The European Convention on Mutual Assistance in Criminal Matters 1959 is the primary European instrument providing a framework for mutual legal assistance between EU member states. This is supplemented by the European Convention on Mutual Assistance in Criminal Matters (Council Act of 29 May 2000). It provides for the sending and service of procedural documents. Article 5(1) contemplates service being effected directly by post. It provides that each member state shall send procedural documents intended for persons who are in the territory of another member state to them directly by post. Article 5(2) provides a series of exceptions whereby service may be made via the competent authority of the requested state [the judgment then set out Article 5(2) as above …]

46.

The fact that within the European Union the essentially formal and administrative nature of the exercise of serving process has been given such prominence is not irrelevant to the approach to the interpretation of section 1(3) of the 2003 Act. It would be inconsistent if service of process emanating from an EU country should be treated differently from that of a country which is outside the EU but which enjoys conventional diplomatic relations with the UK. Quite apart from this, the 2003 Act itself and the guidance issued under it clearly indicate that service of process would normally be achieved directly by post. In my opinion, this highlights the predominantly administrative element of this procedure.

47.

If service of a judgment is to be regarded as an essentially formal act (as I believe it should be) the question of whether it involves an act of sovereignty recedes in terms of importance. As the appellant has submitted, the United Kingdom plainly regards the service of foreign process as trespassing only in the most minimal way on its sovereignty. Serving a foreign judgment on a person within the UK does not involve any significant compromise on the sovereignty of this country.” (emphasis added)

The Appellant seeks the extradition of the Respondent pursuant to an arrest warrant (“AW”) issued by the Appellant on 23 September 2022. The AW was certified by the National Crime Agency on 5 October 2022.

The Respondent was arrested on 22 July 2024 and later appeared before Westminster Magistrates Court. He was initially released on conditional bail, but this was revoked when he was unable to raise the cash security. He was subsequently released on conditional bail when the Judgment was handed down. In total he has spent 4 months on remand.

The AW is a conviction warrant in respect of two fraud-related offences which took place in Marlbork, Poland in November and December 2008. The Respondent was convicted on 17 July 2018 and initially sentenced to 8 months imprisonment suspended; that sentence was subsequently activated. Taking account of time served on remand, 4 months and 5 days remain to be served. The Respondent is now aged 64.

Box D, 3.1a of the AW was ticked, and stated:

“the person was summoned in person on 11 June 2018 and thereby informed of the scheduled date and place of the trial which resulted in the decision and was informed that a decision may be handed down if he or she does not appear for the trial”. (emphasis added)

It was common ground between the parties that the Respondent was not entitled to a retrial, as box D, 3.4 was unticked.

In the CPS’s request for further information dated 26 September 2024, the following question was asked:

“Is there any evidence that Andrzej Piotr GRZYMALA has attempted to evade prosecution of the offences or execution of the sentence? If so, how has he attempted to evade prosecution of the offences or execution of the sentence?”

In response to that question the Appellant provided the following information in its reply dated 14 October 2024:

“Andrzej Grzymala was familiarised with the decision to present charges on 01/06/2017 and he singed [sic] the caution informing him of the obligation to notify the authorities of any change of his home address or place of stay, to provide an address for the service of correspondence, and to name an attorney in Poland for collection of the correspondence (page 424 of the case files).

Andrzej Grzymala provided the following data: Brygida Nowicka, address: Nowy Dwor Gdanski, ul. Sienkiewicza 27/18 (page 411 of the case files).

In view of the above, all letters from the court were sent to that address. Despite being cautioned and providing the address: Nowy Dwor Gdanski, ul. Sienkiewicza 27/18, Andrzej Grzymala did not collect any correspondence, he failed to provide any other address, and he did not contact the Prosecution authorities or the Court to provide any other address.” (emphasis added)

The Respondent resisted extradition on a number of grounds, including under section 20 of the 2003 Act.

The extradition hearing itself took place on 28 October 2024 before the Judge. The Respondent was represented and gave evidence and was cross examined.

At §§18 to 36 of the Judgment, the Judge set out, and summarised in some detail, the Respondent’s evidence from his proof, as supplemented orally. This set out his education, employment and family history. He had arrived in the UK on 10 October 2009 and has been variously employed over the years. He explained his own medical history and that of his former partner (with whom he had a son).

The Judge set out the Respondent’s evidence concerning the “Poland Offence” at §§33 to 36 of the Judgment. In summary, his evidence was that, whilst the warrant indicates that he had failed to appear for the trial, he was resident in the UK at the time. He had never received a summons in person and he did not know about the date and place of the trial or given any warning of a judgment being issued if he did not appear. There were no legal proceedings that he was aware of. The only time he became aware was when he was arrested for the extradition matter. In 2017 he applied for a Polish passport whilst he was in the UK. After he had submitted that application, documents from Malbork had been sent to the consulate in London and he subsequently received a call from London prompting him to visit the consulate in person, which he did. During that process Poland would have been aware that he was living in the UK. He did not get any letters from them in the UK telling him that he had to go to court. He did not receive any communication from them at all. They had his previous details in Poland which were linked to his sister’s address in Poland. When he arrived at the consulate in London they asked questions regarding the accusations related to the documents from 2008. The Polish authorities must have been aware that he was residing the UK at that time, as he had provided them with his UK address. During his questioning at the consulate in the UK, he was not informed that he needed to tell them if he changed address in the UK. They were only interested in obtaining a Polish address for communication purposes and specifically did not want an English address. They didn’t mention sending any correspondence so he wasn’t anticipating any communication from them. They did ask him for an address in Poland and the address he provided was his sister’s address. At that time he was in regular contact with her. He went on to say that his sister had passed away in 2020. But between 2017 and 2019 he had maintained regular contact with her. He didn’t pursue the Polish authorities because he only learned of the warrant at the time of his detention for extradition. Prior to 2017 he had not been aware that the Polish authorities wanted to speak to him and they then did speak to him in 2017. He was also unaware that any proceedings were held in 2018. He did not appear in person at the trial because he was unaware that his attendance at court was required

At §§41 to 46, the Judge addressed the issue of whether the offences were extradition offences, making his section 10 ruling. At §§48 to 52 the Judge addressed, and dismissed, the Respondent’s challenge based on section 2(6)(c) of the 2003 Act; and at §§53 to 79 the Judge considered the Respondent’s challenge based on passage of time pursuant to section 14 of the 2003 Act, together with the issue of fugitivity. At §63 the Judge concluded that he was not satisfied that the Respondent was a fugitive. He went on however to reject the Respondent’s case of oppression and rejected his arguments based on section 14.

At §§80 to 93 the Judge addressed the Respondent’s challenge under section 20 of the 2003 Act, concluding at §93 that that challenge succeeded.

At §80, the Judge set out the terms of section 20 in full. At §81, he cited part of Article 5(1) of the Framework Decision concerning the guarantees to be provided to a person who has not deliberately absented himself from trial. At §82, the Judge referred to the fact that it is for the requesting judicial authority to prove beyond a reasonable doubt that the requested person has deliberately absented himself from his trial. At §83 the Judge summarised the Respondent’s challenge, namely that he was not present at his trial, was not aware of the date of his trial and had not been offered a retrial. At §84 the Judge stated that he was proceeding on the basis that the Respondent was not to be treated as a fugitive from justice, as had been conceded by counsel for the Appellant. The Judgment then continued as follows:

“85.

Cretu v Romania [2016] EWHC 353 (Admin), is a leading authority that underlines the need to take the AW at face value, unless in cases of ambiguity, confusion (or possibly in connection with an argument that the warrant is an abuse of process).

86.

Having considered the competing submissions I am satisfied that, as is promoted by the defence, this is such a case that can reasonably be said to involve involving ambiguity and confusion.

87.

In Box D, 3.1a of the AW, it is stated that the RP was summoned in person on 11.6.2018. However, in the RFFI, in response to a direct question from the Crown as to whether he has tried “to evade prosecution of the offences or execution of the sentence”, there was no mention of him having been summoned personally and subsequently failing to appear at trial.

88.

The FI stated that the RP was presented with the charges in June 2017 (which dovetails with the RP’s account of having been interviewed at the Polish Consulate in the UK), that he was required to provide them with an address in Poland, that letters were sent to his Polish address, and that he never collected any post from the address.

89.

As indicated heretofore, during the course of the full hearing the Crown retreated from its earlier position and conceded that it was unable to demonstrate to the criminal standard that the RP was to be treated as a fugitive. It appears that this latter position was taken as it had become unclear where, when and how he was actually summoned in person (notwithstanding what was set out in the AW).

90.

The RP gave clear and, in my view, compelling evidence that he had been asked to attend the Polish Consulate and that he did so. Once there he was interviewed and asked – inter alia – to provide an address in Poland for the receipt of documentation in respect of this matter.

91.

I accept his evidence that that he immediately contacted his sister in Poland for her agreement (which was given) for her address to be nominated by him to the authorities. This information from the RP confirms the suggestion by the IJA that he was presented with the charges in June 2017.

92.

I also agree with the defence submission that according to the principle of territorial sovereignty under international law, Polish law enforcement cannot approach a subject on another state’s territory to enforce Polish law (as they appear to have done here in 2017). As mentioned elsewhere in this document, the Framework Decision was created to facilitate lawful extradition proceedings and requires the arrest and surrender of an individual to another member state to proceed through a system of arrest warrants (Article 1(1) FD).

93.

Having given this challenge careful consideration I am satisfied that the IJA has failed to prove that the RP was summoned “as envisaged by article 4a(1)(a)(i) FD” and that accordingly his challenge raised under s. 20 of the 2003 Act must succeed and this request for surrender must fail.”

(bold: judgment emphasis; underline: emphasis added)

The Judgment then went on to consider two further grounds of challenge. At §§94 to 116, the Judge considered, and dismissed, the Respondent’s challenge under Article 8 ECHR. Finally at §§117 to 120 the Judge addressed, and dismissed, the Respondent’s challenge under section 25 of the 2003 Act. The Judgment concluded as follows:

“121.

Conclusion:

I have carefully considered the submissions made by the parties to these proceedings and I accede to the s.20 challenge presented on behalf of the Requested Person for reasons explained heretofore.

122.

I therefore Order that the Requested Person be discharged from these proceedings in accordance with s. 21(2) of the 2003 Act.”

Pursuant to the direction of McGowan J when granting permission to appeal, the parties put forward the following “Point of Agreement and Disagreement”:

“1.

The Appellant and the Respondent agree on the following

matters:

(1)

It was conceded by the Appellant that it was unclear where the Respondent was first made aware of the charges and interviewed, whether this took place in Poland or in the Polish Consulate in the UK.

(2)

The Appellant conceded that it could not be proven that the Respondent was a fugitive.

(3)

The Appellant did not put it to the Respondent in cross-examination that he was summoned in Poland. He put to the Respondent that he was summoned on 11.6.18, to which the Respondent replied: No.

(4)

It is unclear where the Respondent was personally summoned on 11.6.18.

(5)

The Appellant did not concede that it was unclear how and when the Respondent was summoned.

2.

The Appellant and Respondent disagree on the following matters:

(1)

Whether the Appellant conceded that it was unclear where the Respondent was personally summoned.”

In the course of oral argument before me Mr Squibbs confirmed his acceptance that it was unclear where the Respondent was personally summoned in June 2018 and not merely where the Respondent was presented with the charges in June 2017.

The Appellant submits that the Judge was wrong to find that the requirements of section 20 of the 2003 Act were not satisfied in the Respondent’s case. The Judge made four particular errors, any one of which renders the Decision wrong.

No “ambiguity or confusion”

The Appellant submits that the AW contained a clear statement at box D, 3.1a that the Respondent had been summoned in person on 11 June 2018. Applying §§24, 26 and 27 of Merticariu this was a clear statement which the Judge was bound to find discharged the Appellant’s burden in respect of section 20. The Judge was wrong to find (at §86) that this was a case which involved “ambiguity and confusion”. Secondly, the fact that the Further Information did not mention the Respondent having been summoned personally was not a reason to find that there was ambiguity and confusion. The Further Information and the AW did not contradict each other. It was entirely understandable that the Further Information did not refer to the personal summons because the purpose of that document was to provide additional information to the court. Contrary to §89 Judgment, the Appellant did not concede at the hearing that it became unclear where, when and how the Respondent was summoned in person. The only concession which had been made was that it could not be proved that the Respondent was a fugitive because it is unclear where he was when he was first made aware of the charges in 2017. Further the Judge’s concern surrounding where, when and how the Respondent was summoned were either answered or irrelevant. There was no requirement for the Appellant to explain “how” or “where” the Respondent was summoned. Box D, 3.1a does not ask those questions. Moreover, the Judge was wrong to rely upon the Respondent’s evidence as to how he was informed of the charges because §24 Merticariu makes clear that evidence should not be received related to whether the statement at box D, 3.1a is accurate. In any event the Respondent’s evidence cited by the Judge refers to him becoming aware of the charges in 2017 and not his personal summons on 11 June 2018.

Location of summons irrelevant

The Judge was wrong to consider (as he appeared to do at §§92 and 93 Judgment) that it was relevant where the Respondent was personally summoned. First, box D, 3.1a does not require a judicial authority to state where a request to persons is personally summoned. Merticariu confirms that where the statement in that box is provided, that statement discharges the judicial authority’s burden under section 20 of the 2003 Act. Secondly, as made clear by Jakubowski and Bertino, the purpose of section 20 is to protect an appellant’s Article 6 rights (i.e. to ensure that no one is surrendered where there has been a breach of their fair trial right to be present at the hearing). The relevant question for the purposes of section 20 is whether a requested person has had the opportunity to exercise their right to be present at the hearing (or has waived that right). This does not require enquiry related to the location where a requested person is personally summoned. Moreover Jakubowski and Marzec demonstrate that a requested person need not be summoned at all in order for the requirements of section 20 (3) to be satisfied.

If the Respondent had been abroad, he could have instructed a lawyer to represent him. See box D, 3.2. There is no reference there to a need for any summons. There is no special relevance to where someone is summoned. Nor is there a need for the summons to comply with any procedure at all, given that it is clear that a requirement of section 20 can be satisfied even without a summons.

No breach of international law

In any event the Judge was wrong to find that the Polish authorities had acted in breach of international law. The Judge should have applied the principle of “mutual confidence and recognition” in respect of the Appellant which was entitled to a presumption that it acted in good faith and would not breach its international obligations.

In respect of the evidence relating to the location where the Respondent was presented with the charges and summoned, first, in relation to being made aware of the charges, the Judge did not have extensive evidence of how the Respondent was made aware of the charges in 2017. There was simply insufficient evidence to rebut the presumption that Poland acted in accordance with its international obligations. Secondly and in any event the Respondent was summoned not in 2017 but on 11 June 2018. The only evidence that the Judge had in respect of that personal summons was box D, 3.1a. The court had no information as to where, or the circumstances in which, the Respondent was personally summoned. The court therefore had no evidential basis whatsoever to find that the summons was in breach of international law. As to the suggestion that the Respondent was never asked in cross-examination that he was summoned in Poland, in cross-examination the Respondent denied that he had been summoned in person in 2018 at all.

In any event the principle of mutual trust and confidence and the presumption that Poland, as a signatory to the ECHR, would comply with its international obligations should have weighed heavily in the case. Oral evidence given by the Respondent was insufficient to outweigh that presumption. A bold finding that Poland breached international law should not have been made without giving the Polish authorities the opportunity to provide an account.

Even if the service of documents did occur in the UK, it cannot properly be inferred that there has been a breach of international law. As noted in Ismail, mutual legal assistance is not required for the service of documents by post. Ismail makes clear that the service of documents “trespasses only in the most minimal way on its sovereignty”. To find that service of the summons in the UK (if that occurred) would amount to a breach of international law was an unjustifiable inference on the available evidence.

Even if it is not clear that as a matter of general principle it is permissible in international law for prosecution authorities to serve criminal proceedings on defendants in the UK, in the case of Europe there are specific convention provisions which permit this to happen. These other provisions are referred to in the Ismail decision at §45. Ismail establishes that a summons can be sent by post and to do so is not a breach of international law.

Failure to obtain further information

Finally, if the Judge was right to find that there was “ambiguity or confusion” in relation to the AW and was right to be concerned about whether Appellant had breached international law, the Judge was wrong to discharge the Respondent. Rather he should have requested further information.

First, Merticariu and Cretu make it clear that where there is ambiguity or confusion in the arrest warrant then the correct course is to seek further information. The Judge should not simply have discharged the Respondent. Secondly further support for this approach can be found in USA v Assange [2021] EWHC 3313 (Admin) at §§42 to 45.

The Respondent submits that the Judge did not err in discharging the Respondent under section 20 of the 2003 Act and that therefore the appeal should be dismissed.

Ambiguity, confusion or abuse of process

This was a case of ambiguity, confusion or possibly an abuse of process and therefore falls within the exception formulated in Cretu at §35. Ambiguity or confusion is a lower bar than inconsistency.

First, the Judge was entitled to take into account the Further Information provided by the Appellant: Cretu §37. He was right to find (at §§86 and 87) that the Further Information contradicted what was on the AW, creating confusion or ambiguity. The sending of letters to the Polish address is a very different matter from a personal summons and that creates confusion. The answer given in the Further Information does not simply add to the information already given. This aspect of ambiguity is a sufficient ambiguity because the Appellant is unable to prove that the Respondent was served in accordance with Article 4a.

Secondly the Judge was entitled to find that it was unclear where the Respondent was personally summoned because the Appellant’s position at the hearing was that it was unclear whether he was summoned in Poland or in the UK. That gave rise to further ambiguity and confusion.

In fact at the hearing, according to Ms Willocx’s note, the Appellant accepted that it was unclear where the Respondent was personally summoned in 2018 (as well as it being unclear as to where he was presented with charges in June 2017).

The fact that it was unclear where the Respondent was personally summoned is also demonstrated by the Appellant’s position that the Respondent was not a fugitive. If the Respondent had been personally summoned in Poland in 2018 and then came to the UK he would have been a fugitive. There would have been no reason for the Appellant to concede that he was not a fugitive just because he had been informed of the charges at an earlier occasion in 2017 in the UK. The reason why the Appellant conceded that the Respondent was not a fugitive was because it was unclear whether the personal summons took place in Poland or in the UK and thus whether he was already beyond the reach of the Polish jurisdiction at that time.

Where the requested person is abroad and is then sent a letter to his address in the requesting state, the case law establishes that that person cannot be expected to voluntarily put themselves within the reach of the requesting state, even if they know of the letter. They are therefore not a fugitive and it was on this basis that the Appellant conceded that in the present case the Respondent could not be a fugitive: see Pillar-Neumann [2017] EWHC 3371 (Admin) at §§68 to 72.

Thus, the Judge was entirely correct to find (at §89) that it had become unclear where, when, and how the Respondent was summoned. The AW and the Further Information were thus contradictory as to whether he was summoned in person or via email. This created confusion as to where these possible summonses took place.

Finally the Judge was also entitled to take into account the Respondent’s own evidence as there was already ambiguity and confusion because of the contradictions between the AW and the Further Information and because of the Appellant’s own positional location. He did not need to rely on the Respondent’s evidence to come to this preliminary conclusion.

In summary, as regards ambiguity it is for the judicial authorities to prove to the criminal standard that the Respondent was deliberately absent. However in this case the Appellant cannot prove that any summons had taken place. That is sufficient. It was enough for the Judge to find that it was unclear where, when and how it had happened. It follows that the Appellant cannot prove that the Respondent was deliberately absent.

In summary, the international law argument only arises if the Court does not accept the Respondent’s first proposition. Furthermore, if the Court were to accept that the Respondent was personally summoned in June 2018 then the Appellant cannot prove that he was summoned in Poland and a personal summons outside Poland is in breach of international law.

The Judge was right to consider that it was relevant where the Respondent was summoned because if it took place in the UK, such personal summons would not have been “as envisaged by Article 4a (1)(a)(i) FD” as required by Cretu at §34 (ii).

Article 4a has to be read consistently with the entirety of the Framework Decision. It does not allow service of summons abroad because Article 1 sets up a system for surrender of requested persons using accusation warrants.

There is no such thing as a lawful personal summons in the UK by Polish authorities, because that would directly circumvent an accusation warrant in extradition proceedings and all the protections afforded to requested persons by the Framework Decision. The Framework Decision was created precisely to facilitate lawful extradition proceedings. It requires the arrest and surrender of an individual to another member state to proceed through a system of arrest warrants. It does not allow for any other means by which the Polish authorities can require a requested person to surrender to their jurisdiction in order to be prosecuted nor do the MLA Conventions so allow. A personal summons by Polish law enforcement in the UK would be internally inconsistent with other articles in the Framework Decision and its overarching purpose.

A Polish officer cannot enter the UK to enforce Polish law. The relevant convention here is the EC Convention on Extradition 1957 and the Framework Decision. Whilst there are also mutual legal assistance conventions they do not deal with the surrender of persons and their summoning to trials. The only relevant exception here is the Framework Decision and it does not provide any other option but for formal extradition proceedings. Circumvention by Polish officers serving a summons is inconsistent with public international law, and the conventions which have been created. The Convention that was in issue in Ismail does not apply to extradition. Anything to do with extradition is not covered by the MLA Conventions. Article 5 of the MLA Convention 2000 refers to service of procedural documents in the MLA context, and not to summonses to attend one’s own trial. Further even assuming it does apply to extradition, Article 5 allows service by post, but not in a case where personal service is required. Further section 1(3) of the Crime (International Co-operation) Act 2003 cannot apply where the service has to be personal. Any personal service must be by police officer and not by a letter.

It is neither here nor there that box D, 3.1a does not require the requested judicial authority to state where someone was summoned. The AW, which is modelled on the Framework Decision, does not start from the premise that requesting states regularly violate international law and therefore need explicitly to confirm that they did not breach another state’s territorial sovereignty by personally summoning individuals on foreign territory. The AW simply does not envisage a situation where the requested person could have been summoned on another state’s territory, because then an accusation warrant would have been used. The cases of Jakubowski and Bertino are not relevant to this case.

Quite clearly a summons served personally would be a violation of a person’s Article 6 ECHR rights. The Appellant’s position means that if someone decides not to voluntarily travel to another jurisdiction (following service of the summons) to be prosecuted and instead waits for them to use the formal extradition process, they would have waived their right to be present at their own trial and will be convicted in their absence without a trial. All the protections of the requested person set out in the 2003 Act and the Framework Decision would be denied if you were allowed to summon requested persons on UK territory without using formal extradition proceedings. It also violates the UK’s sovereignty over who it decides to extradite.

Since the Appellant has accepted that it was possible that the Respondent was summoned in the UK, it was therefore unable to demonstrate beyond reasonable doubt that he had been summoned as envisaged by Article 4a(1)(a)(i) FD, as a UK summons would never be in accordance with the Framework Decision. The Judge was therefore correct to come to this conclusion at §93 Judgment.

The principle of “mutual confidence and recognition” and the related presumptions relied on by the Appellant would not alter this decision. Those presumptions might be relevant if the Appellant had denied that the summons took place on UK territory and the Respondent was seeking to prove that it did. However it was conceded by the Appellant that a summons on UK territory was possible and the principle of mutual confidence recognition did not require the Judge to close his eyes to a potential violation of sovereignty, the Framework Decision and the 2003 Act.

Further information

The Judge was not wrong to proceed to discharge the Respondent without first adjourning to obtain further information on this point. First, a decision to accept late evidence is a discretionary case management decision by a lower court, with which the appellate court will be very slow to interfere. In this case the Respondent served his proof of evidence, detailing his account about the interview at the Polish Consulate, on 24 September 2024. The Appellant had the opportunity to request any further information. When the Appellant first conceded at the Extradition Hearing that the Respondent could have been summoned in the UK and received pushback from the Judge and the Respondent that that would violate international law, at that point they could have requested an adjournment to obtain further information. But they did not. Similarly after the hearing the Judge granted the Appellant the opportunity to make further written submissions. The Appellant could have taken the opportunity to ask for an adjournment to request further information. In summary the Appellant had every chance to obtain the necessary evidence to meet the burden of proof under section 20.

As regards the cases referred to by that Appellant, first in Merticariu at §27 the Supreme Court made no findings as to whether the judge should adjourn the case of its own motion to allow the CPS to obtain further information in cases where they find that there is ambiguity or confusion. Secondly the case of Assange is not in point. It was dealing with late assurances about prison conditions and not with whether a judge of his own motion should adjourn proceedings to allow the CPS to obtain further information under section 20 when no request for an adjournment has been made. None of the authorities cited provide a legal basis to argue that when the CPS finds that their legal argument has failed, the judge should adjourn judgment of his own motion to allow them to obtain further information to argue the point again.

First, as accepted by the Appellant in argument, “summoned in person” in Box D, 3.1a requires the physical service of the summons on the Respondent and does not cover the sending or handing to the Respondent’s sister of a letter. If that had been what was being referred to in the AW, it would have been addressed in other parts of box D, 3.1, and in particular box D, 3.1b. Thus I am satisfied that what box D, 3.1a in this case is referring to is physical service on the Respondent himself of the summons. Further, I agree that ambiguity and/or confusion” sets a lower bar than direct contradiction or inconsistency.

Secondly, the starting point is what is stated in the AW. In my judgment, in the present case, on its face the statement in box D, 3.1a alone is not ambiguous or confused, and certainly if one assumes that the place where a summons is served in irrelevant (as to which see paragraph 69 et seq below).

On the other hand, when considered together with what is stated in the Further Information, the AW is ambiguous and/or confused. The Further Information is not merely additional information supplementing what is stated in the AW at box D, 3.1a. In the present case, there is certainly at the very least ambiguity or confusion. In fact in this case, I consider that there is contradiction, or at least inconsistency, between the AW and the Further Information. The AW states that there has been physical service of a summons on the Respondent in June 2018. Yet, in response to a direct question as to whether the Respondent had tried to evade prosecution of the offences or execution of the sentence, nothing was mentioned about him being summoned personally and then failing to appear. Instead the Authority stated that the Respondent was presented with the charges in June 2017. That was consistent with the Respondent’s own account of being interviewed at the Polish Consulate in the UK which the Judge found to be credible; and that he was required to provide an address. Moreover, the Further Information stated, and relied upon the fact, that letters were sent to the Polish address of his sister and that he never collected any post from the address. That account directly contradicts the AW which indicated a very different procedure, namely personal summons.

That then raises the key question in this case: in considering whether there is ambiguity or confusion and whether the Appellant has discharged the burden of proof, should the Court consider the AW alone or the AW in conjunction with the Further Information. The case law does not directly address the situation where the AW itself is not ambiguous or confused, but where there is in fact before the court of the requested state further information which renders the AW ambiguous or confused.

Merticariu §§24, 27 and Cretu §35 (paragraph 7 (5), (6) and (8) above) suggest that the Court should look at the AW alone and not seek further information unless the AW has ambiguity or confusion. However, on the other hand, Merticariu § 27 and Cretu §37 (paragraph 7(9) above) make clear that if there is further information available to the court, the court should take that information into account “in seeking to understand what has been stated in the AW”. In my judgment, it would be artificial for the Court to ignore evidence before it provided by the requesting state. In the light of the last sentence of §27 of Merticariu I conclude that Judge was right to take into account the Further Information. Further, for the reasons given in paragraph 62 above, I conclude that the Judge was right to conclude (at §86) that there was “ambiguity or confusion”.

In my judgment, as a result of this unresolved ambiguity or confusion, the Appellant could not prove to the criminal standard that any personal summons had taken place at all, and thus that the Respondent had been summoned “as envisaged by Article 4a (1)(a)(i) FD” i.e. regardless of the place of the summons and regardless of international law arguments. For this reason alone, the Judge’s conclusion at §93 Judgment was correct and the appeal falls to be dismissed. I turn to deal with the remaining arguments briefly.

Assuming that the Respondent was personally summoned in June 2018 I am satisfied that it is unclear where he was personally summoned (whether in Poland or the UK). First because it appears strongly that that was conceded by the Appellant at the hearing before the Judge; secondly because the concession by the Appellant that the Respondent was not a fugitive was consistent only with that position; and thirdly and in any event because in the course of the hearing before me, the Appellant conceded that it was so unclear.

On this basis, the Respondent submits (and the Judge took the view) that this constituted a further ambiguity or confusion in the AW and that if service had taken place in the UK, it amounted to a breach of territorial sovereignty and international law. The Appellant submits that this was irrelevant and/or there was no breach of international law.

On these points, I am not convinced by the Respondent’s arguments.

First there is no requirement in box D, 3.1a of the TACA warrant for the place where a summons is served to be identified (nor when or how it was served, other than it being required to be personal service).

Secondly, assuming in the present case, the personal summons was served in the UK, I am not satisfied that such conduct by the Polish authorities amounts to a breach of UK territorial sovereignty. First, as regards the Respondent’s arguments about the integrity of the system for arrest warrants under the Extradition conventions, there is a fundamental difference in kind between a summons to appear in court and an arrest warrant. A summons is a request to attend a court at a time and place and does not of itself have any coercive effect; on the other hand, an arrest warrant involves the coercive power of the state to physically detain under compulsion for the purpose of forced attendance. Box D, 3.1a is concerned primarily with the giving of notice to the requested person. The question under section 20(3) and box D, 3.1 generally is whether the requested person has had ample notice/knowledge of the proceedings, in the context of the issue of “deliberate absence from trial” and not whether he has been arrested. I do not consider that personal service of a summons to attend criminal proceeding amounts to circumventing the arrest warrant procedure in the extradition regime in the Framework Decision and the 2003 Act.

As regards the MLA Conventions, assuming that the summons is a “procedural document” coming within the terms of those Conventions, service pursuant to those provisions is required to be by post or, in some circumstances by personal service by the chief officer of police (see section 1(3) of the Crime (International Co-operation) Act 2003). Assuming there was personal service in June 2018, it is not known how this was effected, and whether service was otherwise than through the chief officer of police. However these are enabling provisions. The question still arises that, if the summons is a “procedural document” such that prima facie these MLA provisions apply, and if, in fact, service was effected otherwise than by the methods prescribed by those provisions, whether that amounted to a breach of UK territorial sovereignty and thus a breach of international law. I am not satisfied that it did. There is nothing in the MLA 1959 Conventions to say that service by other methods is prohibited. Section 1 of the Crime (International Co-operation) Act 2003 provides that there is a power of the Secretary of State to effect service. It applies only where the Secretary of State receives a request to serve (section 1(1)). It does not mean that all service has to be through the Secretary of State. In Ismail the Supreme Court found that service in the UK of a judgment of the Egyptian Appeal Court in a criminal matter is to be regarded as an essentially formal act and that the United Kingdom regards the service of foreign process as trespassing only in the most minimal way on its sovereignty. Serving a foreign judgment on a person within the UK does not involve “any significant compromise on the sovereignty of this country.” For these reasons, service of a summons (or a judgment) of a foreign state which of itself does not have any directly coercive effect is not in my judgment an infringement of UK sovereignty. (I add that I accept the Appellant’s further argument: even if service otherwise than as provided for by the MLA Conventions and/or the Crime (International Co-operation) Act 2003 (by post or through police etc) would be a breach of sovereignty, in the present case there was insufficient information before the Court as to how personal service (in the UK) in June 2018 was effected in order to make a clear finding of such breach of sovereignty – given the presumption of compliance in Poland’s favour.)

For these reasons, I do not agree with the Judge’s conclusion at §92 of the Judgment.

As regards the suggestion that the Judge should have adjourned the case to allow the Appellant to obtain further information, I accept the Respondent’s submissions (paragraph 59 above) that the Respondent had ample opportunity to obtain such further information prior to the Decision; and that the Judge’s omission in not doing so was a discretionary case management issue. Secondly, I derive no further assistance on this issue from the Assange case cited by the Appellant which was dealing with the entirely different issue of assurances from the requesting state.

In the light of my conclusion at paragraph 65 above, I am not satisfied that the Judge ought to have decided the relevant question under section 20 of the 2003 Act differently; this appeal is therefore dismissed.

Finally I am grateful to counsel for their presentation of the case and the quality of the argument.