Deliberate Absence from Trial Clarified: New Guidance on Extradition under Section 20 of the Extradition Act 2003

Introduction

This case, Karczewski v The Lord Advocate (representing the Republic of Poland), concerns an appeal against an extradition order under section 26 of the Extradition Act 2003. The appellant, a Polish national, was ordered to be extradited from Scotland to serve a sentence passed in absentia by a Polish court for domestic violence offences. The core legal questions focus on whether the appellant had “deliberately absented” himself from trial as outlined in section 20(3) of the Extradition Act 2003 and whether extradition would be compatible with his rights under Article 8 of the European Convention on Human Rights (ECHR).

The appellant argued that he did not deliberately waive his right to a trial in his presence, because he lacked adequate notice of the trial date and time. Further, he contended that the Polish authorities’ delay in pursuing the matter, especially given that he was extradited to Poland in 2015 for a different matter, weighed against his extradition. Ultimately, the Scottish High Court of Justiciary dismissed these arguments and upheld the extradition order, clarifying how the concept of “deliberate absence” should be applied in practice.

Summary of the Judgment

The High Court affirmed that an individual may be lawfully extradited if the requested court finds that the accused “deliberately absented” themselves from trial. Here, the appellant knew there were live proceedings for domestic violence charges, as he had received an indictment before leaving Poland. Despite being released on bail and later departing for the United Kingdom, the appellant never sought to clarify or update his address with the Polish authorities. The Court concluded that this amounted to “deliberate absence” under section 20(3) of the Extradition Act 2003.

The Court then proceeded to determine that extradition would be compatible with the appellant’s Article 8 rights, taking into account that he had convictions in Scotland, faced serious domestic violence charges, and had not demonstrated strong family-life factors outweighing the public interest in extradition. As a result, the High Court refused the appeal and upheld the order for extradition.

Analysis

Precedents Cited

The Court placed particular emphasis on Bertino v Italy [2024] UKSC 9, a leading Supreme Court case which addressed the meaning of “deliberate absence” and the requirements for an individual’s waiver of their Article 6 right to be present at trial. In Bertino, the Supreme Court ruled that a person should not be treated as deliberately absent unless they had unequivocally waived their right to appear, which ordinarily requires actual knowledge that they could be tried and sentenced in their absence. However, the Supreme Court contemplated exceptional “extreme” circumstances where a knowing and intelligent waiver might be inferred without an explicit warning, should the accused’s conduct demonstrate an awareness that proceedings remain live and a clear intention to evade those proceedings.

The High Court also discussed extracts from other European and domestic authorities, including the European Court of Justice case IR (C-569/20) (noted in Bertino), which explains how “deliberate absence” can include situations where the accused, in full knowledge of the proceedings, takes deliberate steps to avoid being served with official notice of the trial. The court distinguished Bertino from the instant case on grounds that the appellant here had more concrete knowledge of proceedings (having been served with an indictment) before he left Poland.

Legal Reasoning

1. Deliberate Absence (Section 20(3) of the 2003 Act): The lynchpin of the Court’s reasoning was that the appellant received the indictment in June 2012 and was aware that he was under investigation for domestic violence offences. Despite that awareness, and while subject to bail conditions, he left Poland and did not keep the authorities informed of his whereabouts. Relying on Bertino, the Court found that waiver need not always require a specific warning if the accused’s conduct is “extreme enough” to show knowledge that trial would proceed in their absence. Here, the consistent pattern of leaving Poland and remaining untraceable later demonstrated unequivocal waiver.

2. Article 8 ECHR Considerations: The High Court examined whether extradition disproportionately interfered with the appellant’s right to respect for private and family life under Article 8. The Court observed that the appellant’s family life was not so firmly established as to outweigh the public interest in extradition. His contact with his child was sporadic, and his general pattern of conduct (including recent convictions in Scotland) did not show compelling humanitarian or family-life grounds to bar extradition.

3. “Missed Opportunity” and Delay Arguments: The appellant argued that Polish authorities missed an opportunity to enforce the 2013 conviction while he was in Polish custody from 2015 to 2018 for an unrelated matter. Although the Court acknowledged that the timeline could appear “strange,” it found that once the appellant had refused to consent to serving the sentence in 2015, the authorities faced legal obstacles to enforcement without approval from the UK or the appellant himself. Moreover, the Court noted that while there may have been some delay in pursuing the arrest warrant, this factor was not sufficient to tilt the overall balancing exercise against extradition.

Impact

The Judgment clarifies that courts in Scotland will give meaningful effect to “deliberate absence” in extradition cases by assessing both the appellant’s knowledge of pending proceedings and the extent to which they appear to be intentionally evading justice. Following Bertino and European jurisprudence, courts still require awareness of the criminal process, but “actual knowledge” may be inferred in cases where the accused’s actions are sufficiently extreme or willful to avoid service. This decision also underscores that the public interest in extradition, especially for serious crimes such as domestic violence, will generally prevail against more routine or speculative Article 8 claims regarding family ties, unless a compelling case is demonstrated.

Complex Concepts Simplified

1. Deliberate Absence vs. General Lack of Diligence: “Deliberate absence” requires more than simply neglecting to open one’s mail or being unaware of a trial date. It implies a knowing and deliberate decision to evade justice. Courts evaluate whether the accused was informed of the investigation or prosecution and, if so, whether they then specifically took steps to avoid participation in the proceedings.

2. Section 20 of the Extradition Act 2003: Under this provision, if the judge concludes the requested person was deliberately absent from trial, the case proceeds to a human-rights review (section 21). If not, the judge must inquire whether the individual is entitled to a retrial. If no retrial is available, extradition shall be barred. This ensures that persons tried in their absence do not forfeit their rights to a fair trial if they were never fully aware of the proceedings.

3. Article 8 “Balancing Exercise”: When extradition is contested on grounds of family and private life, courts must weigh the interference with those rights against the public interest in enforcing cross-border justice. Delays by the requesting authority or strong evidence of deep family roots in the requested state may tip the scales against extradition, but only if they clearly outweigh the significant public interest in extraditing individuals to serve lawful sentences.

Conclusion

The High Court’s ruling reaffirms a clear legal principle: if an individual’s behaviour shows they are aware of pending prosecution and intentionally place themselves beyond the reach of the courts, they can be considered to have “deliberately absented” themselves from trial. With that established, extradition becomes neither unfair nor unjust—even if the individual contests notice and timing. This case also demonstrates that while undue delay by prosecuting authorities is a factor courts will consider, it does not necessarily prevent extradition if the public interest remains strong and the alleged fugitive’s personal and family ties are relatively limited or precarious.

Overall, this Judgment strengthens precedent by clarifying the scope of “deliberate absence” and emphasizing that Article 8 arguments must be compelling to outweigh the public interest in extradition. Practitioners should note that demonstration of actual or inferred awareness of ongoing proceedings is a critical factor, and that any attempt to evade justice risks establishing exactly the deliberate absence that will justify extradition.