The Court of Appeal has dismissed Tomasz Skwierczynski’s appeal against an order for his surrender to Poland under a European Arrest Warrant, finding that his appeal against a conviction in absentia cured any defect in the original proceedings.
In a judgment delivered by Mr Justice Hedigan on 27 June 2018, the court answered affirmatively a question about whether surrender could be ordered where a person’s circumstances did not fit the exceptions listed in section 45 of the European Arrest Warrant Act 2003, if the court was satisfied that surrender would not breach defence rights.
Poland sought Skwierczynski’s surrender to serve the remaining five months and 28 days of a six-month sentence imposed in 2007 for attempting to take a hammer drill from a car. He had been tried and convicted in his absence. The High Court ordered surrender in October 2016, holding that notice of the conviction and the appeal process meant his defence rights had not been breached.
Skwierczynski argued that section 45 set out mandatory conditions for surrender after an in-absentia trial, and that none had been met. He also disputed that he had received a full appeal on the merits. The information from Poland had changed: the warrant initially said he had not appealed, while later information said he had appealed and the appeal had been dismissed. He argued that the record did not establish the appeal’s scope or whether he had notice of, or attended, an appeal hearing.
The Minister for Justice and Equality submitted that the appeal had remedied any unfairness from the original trial. The Court of Appeal relied on European court decisions concerning appeals following in-absentia convictions. It said the evidence showed Skwierczynski had a right to appeal, and found no basis to overturn the High Court’s finding that he had appealed and that it had been dismissed. The court also noted that he acknowledged his signature on a receipt for the judgment and appeal instructions, despite previously swearing that he had not been served with the judgment.
The court said the argument that the appeal excluded legal issues was hypothetical. It agreed that it would be “absurd” to permit surrender where an appeal remained available on return but prohibit it where an appeal had already been taken. The court also declined to delay its judgment pending a separate reference concerning Poland, finding that the issues referred would not affect its decision.
The appeal was dismissed. The ruling addressed the certified legal question and the challenge to the existing surrender order; it did not impose a new sentence.