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	England and Wales High Court (Administrative Court) Decisions
You are here: BAILII >> Databases >> England and Wales High Court (Administrative Court) Decisions >> Opalfvens v Public Prosecutor Antwerp, Belgium [2015] EWHC 2808 (Admin) (11 August 2015) URL: http://www.bailii.org/ew/cases/EWHC/Admin/2015/2808.html Cite as: [2015] EWHC 2808 (Admin)

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IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
THE ADMINISTRATIVE COURT

		Royal Courts of Justice Strand London WC2A 2LL
		Tuesday, 11 August 2015

1. MR JUSTICE IRWIN: In this case the applicant, Mr Opalfvens, seeks leave to appeal the decision of District Judge Goldspring of 19 June 2015 that he should be extradited to Belgium. Permission was refused on the papers by Supperstone J.
2. The background is as follows. On 6 August 2013 the first European Arrest Warrant was issued, the one with which we are concerned. It was certified on 20 August 2013. He was arrested on 23 January 2015, and appeared at the Westminster Magistrates' Court on the following day, where identity, the preliminaries and bail were all decided, he being released on conditional bail. There was a full hearing on 20 April, in the course of which the applicant was represented by counsel.
3. A number of issues were rapidly established so that there was no contest about them: the warrant was valid; no Article 8 point arose; and there was in point of fact one challenge only to extradition. The applicant was convicted in his absence. It was suggested that he had no unqualified right to a retrial and therefore there was an objection contrary to section 20 of the Extradition Act 2003 which should prevent his extradition. In the course of the hearing, the applicant was not called to give evidence and the Judicial Authority were put to proof on whether the requested person was indeed deliberately absent.
4. The district judge correctly considered VB and Others v Westminster Magistrates' Court [2014] UKSC 59 as to his approach to evidence and procedure, concluding properly from that case that the appropriate judge had the powers available to him or her in a summary trial, both on matters of evidential rules and as to procedure. As a consequence, it was agreed that if the IJA can raise a prima facie case as to deliberate absence, then the appropriate judge can draw an adverse inference.
5. The judge proceeded to consider section 20. Firstly, under section 20(1), was the applicant convicted in his presence? The answer, it was agreed, was no. Then under section 20(3), had he deliberately absented himself from trial? According to the statute, if the answer to that was yes, then the matter proceeds directly to section 21 and to the remainder of the decision; if no, then was [he by?] section 20(5)? By that subsection, the judge must decide whether the person would be entitled to a retrial or (on appeal) to a review amounting to a retrial.
6. It was common ground that there was under Belgian law no right to a retrial here. The critical question was: was this applicant "deliberately absent" by failing to lodge a Notice of Appeal? ("Deliberately absent" within the meaning of section 20(3).) It was agreed following authority that the trial process is continuous. It was clear on the facts that had the applicant given Notice of Appeal, he would have been able to have an appeal from the conviction. The question as to whether he was "deliberately absent" turns on the adequacy or clarity of the notice given to him stimulating his right to appeal.
7. The relevant part of the EAW reads as follows:

"TERMS

A distinction is made between the ordinary and extraordinary term to file an opposition, depending on whether or not the judgment or decree by default was served to the defendant in person.

(a) Ordinary Term of Opposition (Art 187 al 1 of the Belgian Code of Criminal Procedure)

The ordinary term to file an opposition will expire 15 days after the duly executed service of the judgment or decree by default, whether or not it was a formal service or a service to the address or place of residence or even 'to unknown residence'.

Whether or not the person served was actually notified of the decision or of the service is in this case of no importance."

The text of the EAW goes on (after a short passage I need not quote) as follows:

"(b) Extraordinary Term of Opposition (art 187 al 2 of the Belgian Code of Criminal Procedure)

If the decision by default has not been served personally, the sentenced defendant has an additional term to file an opposition.

This term is 15 days after the day on which he was notified of the service. If he was notified thereof by servicing of a European Arrest Warrant or a request for Extradition or if the ongoing term of fifteen days has not expired at the moment of his arrest abroad, he can file an opposition within a term of fifteen days after the day he was extradited or following the day he was liberated again abroad.

If it does not appear that he has been notified if the notification, he can file opposition until the terms of the preclusion of the punishment have perished.

If the decision by default could not be served personally and the person concerned is abroad, the extraordinary term will be extended pursuant to article 55 of the Belgian Judicial Code and article 3 of the royal decree no. 301 of March 30, 1936.

The period of extension is set to 15 days if the party is in a country which borders on Belgium or if he is staying in the United Kingdom, to 30 days if he is in another European country and 80 days if he is in another continent.

B1) Starting Point of the Extraordinary Term

The extraordinary term starts at the day following the day on which the condemned person was notified of the service of the judgment or decree by default. The term will only start if the decision was duly served."

8. The district judge concluded that this was good notice. He considered Podlas v Poland [2015] EWHC 908, where the Divisional Court considered section 20(3) at paragraph 23 of their judgment. The court concluded that what constitutes "the trial" is a matter of fact; that the IJA must prove to the criminal standard that the requested person absented himself deliberately; they concluded that involves consideration of the requested person's mind. The district judge extracted those principles correctly and, in my judgment, directed himself properly along those lines.
9. He then reached the following conclusions:

"18. Having read the EAW and the 2 documents providing the further evidence from the IJA and applying that information to the principles in Podlas. I am satisfied that the proceedings in Belgium can properly be described as a trial within the requesting state (see Atkinson and Another v Cyprus [2009] EWHC 1579 Admin), the trial process has been initiated and that it does not matter how he [the appellant] found out about the trial and conviction as long as he has.

...

20. Whilst making allowance for the translation of an instrument of European law I am satisfied that the EAW sets out in clear terms the rights available to the requested person, the time limit that applies and the start and end of that time period in clear and plain terms.

21. The facts in this case are very similar to those in Goatley v Netherlands [2012] EWHC 315 (Admin), and I feel bound to follow the approach of Collins J. At paragraphs 12 and 13 Collins J sets out the approach.

'12. The appellant was given the necessary information. He was given some 16 days within which he could have exercised his right of appeal should he have chosen to do so, and he had every opportunity to set aside or to apply to set aside if he could the judgment below. ...

13. It seems to me that in those circumstances it is an inevitable finding that the appellant deliberately absented himself ... and was subsequently given every opportunity when arrested on 1 October 2010 to appeal against it.'

22. I am satisfied that the IJA have proved to the Criminal standard that he has deliberately absented himself and therefore I do not have to go on to consider his retrial rights and this challenge must be rejected."

On that basis the judge ordered this applicant's extradition.

10. I agree with the conclusions of the district judge. They were not wrong. Permission is refused. His reasoning was entirely proper.
11. There is an important procedural point arising from this matter which requires to be reported so that the profession will understand it. Permission was refused in this case on paper, as I have indicated, by Supperstone J on 17 July, an order sealed on 20 July. He did so in terms much briefer but indistinguishable in their meaning from my decision. The matter was renewed by counsel who had appeared for the applicant below, Mr Jones. Under the heading "Set out below the grounds for seeking reconsideration", those acting for the applicant (it is not clear whether it was in fact Mr Jones or the solicitors) wrote this:

"The application is renewed for all of the reasons set out fully in the original grounds."

12. That is not a proper approach to a renewal of grounds under this relatively new system whereby permission must be sought in extradition cases. We must not have a system where automatic renewal is sought without proper consideration of the decision of the single judge and proper grounds for renewal being advanced. Otherwise, the system of seeking permission to appeal would be merely a wasteful formality.
13. The Criminal Procedure Rules Part 17, as affecting extradition, set out the position clearly. The relevant passages read as follows:

"Renewing an application for permission to appeal

17.22 (1) This rule applies where the High Court—

(a) refuses permission to appeal to the High Court; or

(b) gives permission to appeal to the High Court, but not on every ground identified by the appeal notice.

...

(3) Where the court refuses permission to appeal, the renewal notice must explain the grounds for the renewal.

(4) Where the court gives permission to appeal, but not on every ground identified by the appeal notice, the renewal notice must specify the excluded ground or grounds on which the appellant wants to rely and explain the grounds for the renewal."

14. It will be clear, once proper consideration is given to the rule, that renewal requires thought. The grounds for renewal must grapple with the reasons given by the single judge and set out, briefly and concisely, why it is said the judge's decision was wrong. If that is not done, the appellant may be held to have failed to lodge grounds for renewal, to have failed to have applied for renewal, and the matter may be dismissed without a renewal hearing.
15. Because of the procedural aspect of this case, I direct that an expedited transcript of this judgment should be prepared and will be served on the parties.
16. Mr Irwin, thank you for your concise and economic submissions earlier today. I know you were not involved until yesterday.
17. MR IRWIN: Thank you, my Lord.