The meaning of 'deliberately absent'

In extradition proceedings, questions may arise relating to the requested person’s purported deliberate absence from a criminal trial. In March, the UK Supreme Court (UKSC) handed down two decisions which clarify important tests to be met in these circumstances.

In Bertino v Public Prosecutor’s Office, Italy [2024] UKSC 9, the appellant had allegedly committed a criminal offence in Italy in 2015. A few months later, after speaking with the police, he moved to the UK. A prosecution was commenced in June 2017, and he was summonsed to appear in court shortly afterwards. The summons included a warning that non-attendance without ‘lawful impediment’ would ‘lead to a judgment in absentia’, but he did not receive the summons. In January 2019, the requesting judicial authority traced him to the UK. A European Arrest Warrant (EAW) was issued, with the prescribed form recording that the appellant did not appear in person at his trial, without providing further specific details.

The district judge determined that the requesting state had discharged its burden of proving to the criminal standard that the appellant deliberately absented himself from trial, that he was not entitled to a retrial, and that he should be extradited. His appeal to the High Court led to the following point of law of general public importance being certified by Swift J: for a requested person to have deliberately absented himself from trial for the purposes of section 20(3) of the Extradition Act 2003 (the act), must the requesting authority prove that he has actual knowledge that he could be convicted and sentenced in absentia?

The UKSC was also asked to answer a second question: where the requesting authority asserts that it can be demonstrated by inference that a requested person could reasonably foresee that he could be convicted and sentenced in absentia, must the inference be the only reasonable inference?

The UKSC unanimously allowed the appeal, holding that: a requesting judicial authority must demonstrate to the criminal standard of proof that the requested person had unequivocally waived their right to be present at trial in a ‘knowing and intelligent’ way. It is only then that a judge can be satisfied that a requested person was ‘deliberately absent from trial’ within the meaning of section 20(3).

The result is that the requesting state has a high bar to meet when seeking to rely on knowing absence as a ground for seeking extradition under section 20(3). They will likely need to show that the requested person has been formally charged (or the equivalent), informed of the time and place of their trial and, further, told that the trial could go ahead in their absence. The state of mind of the requested person will be an essential part of any assessment.

Meanwhile, Merticariu v Judecatoria Arad, Romania [2024] UKSC 10 concerned the interpretation of section 20(5) of the act, which requires the judge at an extradition hearing to decide whether a requested person, convicted in their absence, would be entitled after extradition to a retrial (or (on appeal) to a review amounting to a retrial) in the requesting state. The parties disagreed on whether there must be an entitlement to a retrial (not dependent on any contingency) or whether it is sufficient for there to be a right to apply for a retrial.

The appellant was sought by the Romanian authorities under an EAW issued in 2019 to serve a sentence imposed for a burglary committed in 2016. An order was made for his extradition following a hearing in August 2020. He appealed to the High Court on three grounds, including that the district judge had erred in finding, pursuant to section 20(5), that the appellant was entitled to a retrial upon his surrender to Romania.

Chamberlain J at the High Court ruled that he was ‘bound by judicial comity’ to follow the reasoning of the Divisional Court in BP v Romania [2015] EWHC 3417 (Admin), which held that section 20(5) would be satisfied ‘even if the right to a retrial is conditional on a finding by a court in the requesting state that the requested person was not deliberately absent from their trial’.

On further appeal, the following two points of law were stated to be certified by the UKSC: (1) would a requested person be entitled to a retrial or (on appeal) to a review amounting to a retrial where the law of the requesting state confers a right to retrial which depends on a finding by a judicial authority, in the requesting state, as to whether the requested person was deliberately absent from his trial?; and (2) would a requested person be entitled to a retrial or (on appeal) to a review amounting to a retrial where it is not possible for a judge to say that a finding of deliberate absence by a judicial authority, in the requesting state, is ‘theoretical’ or ‘so remote that it can be discounted’?

The UKSC unanimously allowed the appeal. It held that to establish that a requested person would be entitled to a retrial or (on appeal) to ‘a review amounting to a retrial’ on return to the requesting state, the entitlement must not be dependent on any contingency, except for purely procedural matters such as making an application in the manner and in the time prescribed in the requesting state.

The UKSC focused on the statutory interpretation and its view was that the natural and ordinary meaning of the words in section 20(5) are plain: ‘The judge must decide whether the requested person is “entitled” to a retrial or (on appeal) to a review amounting to a retrial. [The law] does not require the judge to decide a different question, namely whether the requested person is “entitled to apply for a retrial”.’ The UKSC went on to state: ‘An entitlement to a retrial cannot be contingent on the court in the requesting state making a factual finding that the requested person was not present at or was not deliberately absent from their trial.’

Both decisions serve as a reminder of the importance of challenging the standard of proof and seeking further information from the requesting state. Further, they underline the importance of challenging case law such as BP v Romania where the interpretation of legislation can be said to have crept beyond any acceptable scope of statutory interpretation.

Áine Kervick is senior associate, criminal litigation, Kingsley Napley LLP