The Supreme Court held that a person convicted in his absence, whose conviction remains binding and enforceable but who has an unqualified right to a retrial after surrender, is treated as convicted and unlawfully at large, not as merely accused, under the Extradition Act 2003. Delay before conviction therefore does not start the statutory passage-of-time bar, although it can still be weighed under article 8 of the European Convention on Human Rights. Mr Konecny’s appeal against extradition to the Czech Republic was dismissed.
Mr Karel Konecny, a Czech national, was convicted in his absence on 12 May 2008 by the District Court in Brno-Venkov of three fraud offences alleged to have been committed between November 2004 and March 2005 and to involve approximately £120,000. He was sentenced to eight years’ imprisonment. The Regional Court in Brno confirmed the conviction on 23 July 2008. He had never been arrested or questioned, told that he was sought, or restricted from leaving the Czech Republic.
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On 17 April 2013 the District Court issued a European arrest warrant based on what it described as an enforceable judgment. The warrant said that, after surrender, Mr Konecny would have a right to a new process under section 306a of the Czech Code of Criminal Procedure. If he applied within eight days of delivery of the conviction, the first-instance court would revoke it and repeat the hearing. A letter of 17 March 2017 confirmed an unqualified right to a complete retrial. The warrant was certified on 2 March 2017 and he was arrested the same day.
Why his status mattered
Section 14 of the Extradition Act 2003 bars extradition only where the passage of time would make it unjust or oppressive. For someone accused, time runs from the alleged offence. For someone alleged to have been convicted, it runs from when he became unlawfully at large. As the judgment explains, “unjust” is directed mainly to prejudice in the conduct of a trial, and “oppressive” to hardship caused by changes in circumstances.
Mr Konecny said that a conviction which he could have set aside as of right was not final, so he should be treated as accused. That would have brought in delay since 2004, including possible unfairness at a retrial. District Judge Ashworth held that the conviction provisions applied, considered section 14 only from 12 May 2008, and found neither injustice nor oppression. He nevertheless considered the longer delay under article 8, but held that the public interest in extradition outweighed Mr Konecny’s private and family life. He ordered surrender. Sir Wyn Williams upheld that approach and dismissed the appeal, while certifying the question whether such a person is “accused” under section 14(a) or “unlawfully at large” under section 14(b).
Conviction despite a right to retrial
Lord Lloyd-Jones, with whom Lord Kerr, Lord Hodge, Lady Black and Lord Kitchin agreed, rejected the submission that EU law required this warrant to be treated in every respect as a warrant for prosecution. The Court of Justice decision in Proceedings concerning IB did not say that. It treated a person sentenced in absence, who could still seek a retrial, as comparable to a person sought for prosecution for one particular purpose: a condition about returning to serve a sentence in the executing state. Enforceability, not irrevocability, determines when a European arrest warrant may be issued.
Older English cases on convictions “in contumacy” also did not apply. Under earlier extradition legislation, a person whose foreign conviction could be reopened as of right had sometimes been treated as accused. Part 1 of the 2003 Act and the European arrest warrant scheme deal expressly with absence from trial. Section 20 asks whether the person was convicted in his presence, deliberately absented himself, or would be entitled to a retrial or equivalent review with specified defence rights. If the retrial right is established, the judge proceeds under section 21 to consider human rights, still treating him as unlawfully at large. The Act does not recategorise him as accused or send the case down the accusation route in section 21A.
The Court said that the accusation/conviction distinction is a matter of EU law and that the 2003 Act should, so far as possible, be read consistently with the Framework Decision. The relevant facts are characterised by their status and effect under the requesting state’s law. Statements by the requesting judicial authority are ordinarily accepted, although evidence may contradict them. A conviction may count although it is not irrevocable, provided it is binding and enforceable there. A right to a retrial is not systematically inconsistent with that status.
The gap in section 14
Lord Lloyd-Jones accepted that this reading can disadvantage the requested person. Section 14 excludes delay before conviction, so prejudice at the later retrial and changes in circumstances during that earlier period may fall outside the statutory bar. He described this as a deficiency in the drafting which Parliament should consider. He rejected an alternative reading that would keep a person “accused” for section 14 unless he had absconded from a conviction in which he was required to participate.
Until amendment, article 8, applied under section 21, can deal with delay that makes extradition disproportionate. That balance is not confined to the section 14 periods. A risk of prejudice at the retrial can be considered, and disproportionality is a lower threshold than injustice or oppression.
The result on these facts
The warrant referred to an enforceable judgment and a legally effective conviction, effective until revoked, and there was no contrary evidence of Czech law. The District Judge therefore correctly treated this as a conviction case and followed sections 10, 11, 14, 20 and 21. It was common ground that Mr Konecny had not been convicted in his presence, had not deliberately absented himself, and would have a retrial meeting section 20(8).
There was no direct evidence that Mr Konecny had known of the proceedings, so he was not treated as a fugitive. The courts nevertheless found that the delay after conviction did not make extradition unjust or oppressive.
In the article 8 balance, the District Judge did take account of delay since the alleged offences, some 12 to 13 years earlier, and the unexplained failure to find Mr Konecny while he lived openly in another member state. Public-interest factors still prevailed. Sir Wyn Williams regarded the delay as powerful and might have been more troubled by it, but could not say that the decision was wrong. Lord Lloyd-Jones agreed: the whole period had been considered under article 8, and Mr Konecny had not been disadvantaged by the section 14 classification.
Verdict: The Court unanimously dismissed the appeal. The enforceable Czech conviction made this a conviction case despite the right to a retrial. The passage of time and article 8 arguments did not prevent extradition.
Source: Konecny v District Court in Brno-Venkov, Czech Republic [2019] UKSC 8
