APPEAL COURT, HIGH COURT OF JUSTICIARY
Lord Reed Lord Mackay of Drumadoon Lord Brodie	[2009] HCJAC 79 Appeal No: XC379/09 OPINION OF THE COURT delivered by LORD REED in NOTE OF APPEAL UNDER SECTION 26(1) OF THE EXTRADITION ACT 2003 by KRZYSTOF WARPECHOWSKI Appellant; against HER MAJESTY'S ADVOCATE Respondent: _______

Act: Bovey QC; Govier; John Pryde & Co, SSC, Edinburgh

Alt: Sheldon; Crown Agent

3 September 2009

[1] In this appeal under section 26 of the Extradition Act 2003 the appellant was granted bail by this court on 18 June 2009. The court imposed a number of conditions, including that he appear at the appointed time at every diet, that he notify any change of address to the Sheriff Clerk, Edinburgh, and that he report to West Bell Street Police Office, Dundee, every Wednesday commencing on Wednesday, 24 June 2009.

[2] The appeal was set down for a hearing on 18 August 2009. On that date the appellant failed to appear. Counsel for the appellant informed the court that the appellant had been made aware of the hearing. Counsel could offer no explanation for the appellant's non-attendance, since contact had been made with him only the previous day. The court continued the diet until 1 September 2009 and granted a warrant for the appellant's apprehension and detention.

[3] On 1 September 2009 the appellant again failed to appear. Counsel for the appellant informed the court that, following the previous diet, the appellant had been contacted by those acting for him on his mobile telephone on 25 August. He was made aware that he was required to attend court on 1 September. Arrangements had been made for him to meet his solicitor at Edinburgh Sheriff Court, a place with which he was familiar. It was believed that he was residing somewhere in the Glasgow area. Counsel for the Lord Advocate informed the court that the appellant was no longer at his domicile of citation and had ceased to report to the local police station as required by the bail condition that we have mentioned. The court continued the diet to a further hearing on 3 September 2009 and granted a further warrant for the appellant's apprehension and detention.

[4] Today the appellant has again failed to appear. Counsel has informed us that the appellant attended a consultation on 27 July 2009 when he was told of the diet to be held on 18 August. Between 18 and 25 August numerous attempts were made to contact the appellant on his mobile phone. Those calls had gone unanswered or had received a "number unobtainable" signal, apart from one call on 25 August when the solicitor had been able to speak to the appellant and had told him that he required to be at court on 1 September. Counsel said that there had been very frequent attempts to make contact with the appellant since then, but none had been successful.

[5] Counsel indicated his willingness to present the appeal on behalf of the appellant, but recognised that there was a question whether the court should hear him. There is plainly a question whether counsel can be said to be instructed on behalf of the appellant in any meaningful sense in a situation where contact cannot be made with the appellant. But it appears to us that a more fundamental issue arises. In the circumstances that we have described, it is reasonable to infer that the appellant is in wilful disobedience of the orders of the court and can indeed be described as a fugitive from justice. In such circumstances the court will not entertain submissions in support of his appeal. A party cannot be permitted to avail himself of the process of the court, thereby seeking to avoid or in any event delay his extradition in accordance with the order appealed against, while at the same time deliberately disobeying the orders made by the court in that process.

[6] In these circumstances we are unwilling to hear counsel further on behalf of the appellant.