Appeal under section 26 of the Extradition Act 2003 by Jakub Karczewski against the Lord Advocate (representing the Republic of Poland) (High Court of Justiciary)

Factual and Procedural Background

The Appellant was convicted in absentia by a district court in Warsaw in December 2013 for a course of domestic violence occurring between October 2011 and January 2012, receiving a sentence of 11 months and 27 days imprisonment. The indictment was served at the Appellant's mother's address in Poland, but summonses for trial were returned unacknowledged. The Appellant left Poland for the United Kingdom in July 2012 and remained there. In 2015, a suspended sentence from an earlier conviction was activated, leading to the Appellant's extradition to Poland, where he was imprisoned from October 2015 to October 2018. Upon release, he returned to the United Kingdom, married, and had a child. The Appellant was later subject to a European Arrest Warrant (EAW) issued in February 2022 for enforcement of the 2013 sentence. He was arrested in the UK and extradition proceedings followed, culminating in a sheriff ordering extradition in October 2024. The Appellant appealed this decision under Section 26 of the Extradition Act 2003.

Legal Issues Presented

1. Whether the Appellant deliberately absented himself from his trial within the meaning of Section 20(3) of the Extradition Act 2003, thereby waiving his right to be present at trial.
2. Whether the Appellant's extradition should be barred under Section 20 on the basis of his Article 6 Convention rights related to trial in absentia.
3. Whether the public interest in extradition outweighs the Appellant's rights under Article 8 of the European Convention on Human Rights, specifically regarding family life.

Arguments of the Parties

Appellant's Arguments

• The sheriff erred in finding the Appellant was a fugitive and deliberately absented himself from trial, failing to properly apply the principles from the UK Supreme Court decision in Bertino v Italy.
• The Appellant only had notice of the indictment but not of the trial date or consequences of non-appearance; therefore, he could not have unequivocally waived his Article 6 rights.
• The sheriff incorrectly treated the issue of "missed opportunity" by the Polish authorities as resolved, ignoring relevant case law and failing to consider delay and culpability of the authorities.
• The sheriff failed to properly weigh the Appellant's Article 8 rights, including the impact on his family life, especially the relationship with his young child, and improperly shifted responsibility to the Appellant for not making enquiries about the proceedings.
• The sheriff placed excessive weight on the seriousness of the offence and insufficient weight on the fact that the Appellant was tried in absence without legal representation.

Respondent's Arguments

• The sheriff correctly applied Sections 20(1) and (3) of the Extradition Act 2003, finding the Appellant was not convicted in his presence but had deliberately absented himself from trial, thus waiving Article 6 rights.
• The sheriff properly considered the Article 8 balancing exercise, giving appropriate weight to all relevant factors including the Appellant’s fugitive status and family circumstances.
• The Appellant was a fugitive from July 2012 until extradition in June 2015, and again unlawfully at large after release in 2018, with knowledge of ongoing proceedings.
• The sheriff was entitled to reject the Appellant’s reliance on an unnamed prison official’s statement and the suggestion that the Appellant had a false sense of security regarding enforcement of the sentence.

Table of Precedents Cited

Court's Reasoning and Analysis

The court analysed the statutory framework under Sections 11, 14, 20, and 21 of the Extradition Act 2003, focusing on whether the Appellant was convicted in his presence or had deliberately absented himself from trial, and whether extradition was compatible with Convention rights. The court carefully examined the facts against the leading authority of Bertino v Italy, which clarified that deliberate absence requires an unequivocal waiver of the right to be present at trial, typically involving actual knowledge of the trial date and consequences of non-appearance.

The court found that the Appellant had knowledge of the indictment and live court proceedings, was subject to bail conditions, and deliberately absented himself by leaving Poland without ensuring receipt of summonses. This distinguished his case from Bertino, where the accused lacked such knowledge. The court accepted the sheriff’s view that the Appellant’s conduct amounted to an unequivocal waiver of his Article 6 rights.

Regarding the Article 8 balancing exercise, the court acknowledged the Appellant’s family circumstances but found his contact with his child was sporadic and that his current family situation did not present exceptional hardship beyond the normal consequences of extradition. The public interest in extradition for serious offences outweighed the Appellant’s Article 8 rights. The court also found no sufficient basis to bar extradition due to delay or "missed opportunity" by the Polish authorities, noting that the Appellant was a fugitive for a significant period and that the authorities had sought consent for enforcement during his incarceration.

The court rejected the Appellant’s arguments that the sheriff failed to properly apply the law or consider relevant factors, concluding that the sheriff’s findings were supported by the evidence and legal principles.

Holding and Implications

The court REFUSED THE APPEAL and upheld the extradition order made by the sheriff.

The direct effect is that the Appellant must be extradited to Poland to serve the outstanding sentence. The decision does not establish new legal precedent but affirms the application of established principles regarding deliberate absence from trial, waiver of Article 6 rights, and the balancing of Article 8 rights against the public interest in extradition.