Konecny v District Court in Brno-Venkov, Czech Republic [2019] UKSC 8

A Czech national convicted in absentia of fraud challenged his extradition under an EAW, arguing he should be treated as 'accused' rather than 'convicted' because he had an unqualified right to retrial. The Supreme Court dismissed the appeal, holding he was properly categorised as convicted.

Facts

The appellant, Mr Karel Konecny, a Czech national, was convicted in his absence on 12 May 2008 by the District Court in Brno-Venkov of three offences of fraud committed between November 2004 and March 2005, involving approximately £120,000, and was sentenced to eight years’ imprisonment. The conviction was confirmed by the Regional Court in Brno on 23 July 2008. A European Arrest Warrant (EAW) was issued on 17 April 2013, certified by the NCA on 2 March 2017, and the appellant was arrested the same day. The EAW confirmed that upon surrender the appellant would have an unqualified right to be retried pursuant to section 306a of the Czech Code of Criminal Procedure. The appellant had never been arrested, questioned, informed of being sought, or subjected to travel restrictions in relation to the offences.

District Judge Ashworth ordered extradition, treating the case as a conviction case under section 14(b) of the Extradition Act 2003, thereby restricting consideration of the passage of time to the period from 12 May 2008. Sir Wyn Williams dismissed the appeal to the High Court, which certified a point of law of general public importance.

Issues

The certified question was whether an individual convicted in absentia, where the conviction is not final because of an unequivocal right to retrial after surrender, should be treated as ‘accused’ under section 14(a) of the 2003 Act, or ‘unlawfully at large’ under section 14(b), for purposes of the passage of time bar.

Arguments

Appellant

Mr Summers QC submitted that only persons finally convicted fall within the conviction category, and all others must be treated as accused. He advanced two bases: (1) EU law, relying principally on Proceedings concerning IB (Case C-306/09), required such persons to be treated as sought ‘for the purposes of conducting a criminal prosecution’ under article 1(1) of the Framework Decision; (2) domestic law, invoking the principle of contumacious convictions developed under earlier English extradition statutes, required the appellant to be treated as accused. He further argued this categorisation disadvantaged the appellant by restricting the relevant passage of time and preventing consideration of injustice concerning any retrial.

Respondent

The respondent contended the statutory scheme treated the appellant as a convicted person unlawfully at large, requiring progression through sections 11(4), 20 and 21 rather than section 21A.

Judgment

Lord Lloyd-Jones (with whom Lord Kerr, Lord Hodge, Lady Black and Lord Kitchin agreed) dismissed the appeal.

EU law

The Court rejected the appellant’s reading of IB. The CJEU had not held that a warrant based on a conviction in absentia with a right to retrial must be treated as a prosecution warrant for all purposes; rather, it had extended the application of article 5(3) by analogy. Tupikas (Case C-270/17PPU) confirmed that enforceability, not finality, is decisive in determining when an EAW may be issued. The dichotomy between accusation and conviction warrants under the Framework Decision was maintained.

Domestic law

The Court held that the principle of contumacious convictions developed under earlier legislation has no application under Part 1 of the 2003 Act. Section 20 makes comprehensive provision for cases of conviction in absentia without requiring or permitting such a person to be treated as accused. Section 68A defines ‘unlawfully at large’ so as to encompass the appellant. The step-by-step statutory scheme, as emphasised in Sonea and Istanek, is incompatible with the appellant’s case; those authorities are preferred over Bikar, Janiga and Ruzicka to the extent of any inconsistency. Caldarelli was distinguished as the Italian conviction there was neither final nor enforceable.

Principles for characterisation

A person may properly be regarded as convicted if the conviction is binding and enforceable under the law and procedure of the requesting state. Finality in the sense of irrevocability is not required; a convicted person with a right to retrial may still be properly treated as convicted. Statements in the EAW will ordinarily be taken at face value.

Disadvantage and section 14

The Court acknowledged substance in the complaint that treating a person with a right to retrial as convicted restricts consideration of passage of time under section 14 to the period since conviction, potentially excluding significant pre-conviction delay. This was described as a deficiency in statutory drafting warranting legislative consideration. However, article 8 ECHR (via section 21) provides an appropriate and effective alternative means of addressing passage of time, including risk of prejudice at any retrial, under the lower threshold of disproportionality.

Application

The District Judge correctly characterised the EAW as a conviction warrant and considered the entire period of delay within the article 8 balance. While the Court expressed that it might itself have been more troubled by the delay, it could not conclude that the decision below was wrong.

Implications

The decision confirms that under Part 1 of the 2003 Act, a person convicted in absentia with an unqualified right to retrial in the requesting state is properly characterised as a convicted person unlawfully at large, not as an accused person. This requires the court to proceed through sections 11(4), 20 and 21 rather than section 21A. The earlier common law principle of contumacious convictions has no role under the EAW scheme.

The ruling has significant practical consequences for requested persons relying on the section 14 passage of time bar: delay prior to conviction in absentia cannot be invoked under section 14, although it may be factored into the article 8 proportionality assessment under section 21. The Court signalled that section 14 requires legislative reconsideration. The decision matters particularly to extradition practitioners, requested persons in in absentia cases, and issuing judicial authorities, clarifying that statements in the EAW concerning the binding and enforceable nature of a conviction will ordinarily be determinative. The judgment also reinforces the step-by-step statutory approach, the high level of mutual trust between member states, and the limited scope for domestic courts to re-characterise foreign criminal procedure contrary to the requesting authority’s description.

Verdict: Appeal dismissed. The appellant was correctly characterised as a convicted person unlawfully at large under section 14(b) of the Extradition Act 2003, and his extradition to the Czech Republic was upheld.

Source: Konecny v District Court in Brno-Venkov, Czech Republic [2019] UKSC 8