Court of Appeal allows appeal refusing surrender where appellant lacked knowledge of in absentia trial.

THE COURT OF APPEAL

CIVIL

APPROVED – NO REDACTION NEEDED

Neutral Citation No: [2026] IECA 22

Court of Appeal Record No.: 2025/89

High Court Record No.: 2024/176

Edwards J. Binchy J. Hyland J.

BETWEEN/

THE MINISTER FOR JUSTICE

APPLICANT/ RESPONDENT

- AND -

KATHLEEN SHARINA MCCARTHY

RESPONDENT/ APPELLANT

JUDGMENT of Ms Justice Hyland delivered on the 2nd March 2026

SUMMARY

1. This is an appeal from a decision of the High Court (McGrath, Patrick J., [2024] IEHC 748) whereby he ordered the surrender of Ms. McCarthy (the “Appellant”) to the United Kingdom under a Trade and Co-operation Agreement warrant (“TCAW”) issued on 12 August 2024, arising from her in absentia conviction at Lewes Crown Court in November 2017. This appeal considers the circumstances in which a person tried and convicted in absentia in England should be surrendered under Article 601 of the Trade and Co-operation Agreement (“TCA”), with a particular focus on the state of knowledge of that person as to the trial going ahead in their absence. Such knowledge is relevant to a finding that they waived their right to be present at the trial; without knowledge of the consequences of their actions, it may be impossible to conclude a valid waiver has taken place.

2. In circumstances where there is no evidence that the Appellant was told she could be tried in absentia, and where I conclude that the evidence was insufficient to infer a knowledge on her part that she could be so tried (thus permitting a finding that she waived her right to attend her trial), I uphold the appeal and refuse the surrender of the Appellant.

LEGISLATIVE FRAMEWORK

3. The Council Framework Decision 2002/584/JHA of 13 June 2002 on the European Arrest Warrant and the surrender procedures between Member States, as amended by Council Framework Decision 2009/299/JHA of 26 February 2009 (the “Framework

Decision”) applied to the UK until 31 January 2020, the date upon which the UK exited the EU. The TCA that governs relations between the EU and the UK following Brexit contains provisions that closely resemble those in the amended Framework Decision.

4. The European Arrest Warrant Act 2003 and the European Arrest Warrant Act 2024 (the “EAWA”) give effect to the Framework Decision, as amended, and the 2024 Act amends the 2003 Act to include the TCA and TCAWs. Sections 10, 37 and 45 of the EAWA are relevant: “10.—Where a judicial authority in an issuing state issues a relevant arrest warrant in respect of a person—

(c) who has been convicted of, but not yet sentenced in respect

of, an offence in that state to which the relevant arrest warrant relates, that person shall, subject to and in accordance with the provisions of this Act, be arrested and surrendered to the issuing state.

37.—(1) A person shall not be surrendered under this Act if—

(a) his or her surrender would be incompatible with the State’s obligations under—

(i) the Convention, or

(ii) the Protocols to the Convention. 45.—(1) The High Court may refuse to order the surrender of a person under this Act if he or she did not appear in person at the proceedings resulting in the sentence or detention order in respect of which the Trade and Cooperation Agreement arrest warrant was issued, unless in the case of a European arrest warrant, the warrant indicates the matters required by points 2, 3 and 4 of point (d) of the form of warrant in the Annex to the Framework Decision as amended by Council Framework

Decision 2009/299/JHA and in the case of a Trade and Cooperation

Agreement arrest warrant, the warrant indicates the matters required by paragraph 1(i) of Article 601 of the Trade and Cooperation Agreement, as set out in the table to this section.”

5. Article 601(1)(i) of the TCA is in the following terms: “The execution of the arrest warrant may be refused:

(i) if the arrest warrant has been issued for the purpose of

executing a custodial sentence or a detention order and the

requested person did not appear in person at the trial resulting

in the decision, unless the arrest warrant states that the person, in accordance with further procedural requirements defined in the domestic law of the issuing State:

(i) in due time:

(A) either was summoned in person and thereby

informed of the scheduled date and place of the trial

which resulted in the decision, or by other means

actually received official information of the

scheduled date and place of that trial in such a

manner that it was unequivocally established that

the person was aware of the date and place of the

scheduled trial;

and

(B) was informed that a decision may be handed down

if that person did not appear for the trial;”

6. In short, the scheme applicable to persons tried in absentia is as follows. If what may be described as established safeguards exist (as identified in points 2, 3 and 4 of point

(d) in the Framework Decision and in paragraph 1(i) of Article 601), then the European Arrest Warrant (“EAW”) should be executed (see paragraphs 46 and 47 of LU, Cases C-514/21 and C-515/21, EU:C:2022:848, on the importance of ensuring that a refusal to execute is intended to be an exception which must be interpreted strictly). On the other hand, if those safeguards do not exist, then the executing judicial authority is entitled to refuse to execute the EAW. That is a genuine discretion – even if the judicial authority does not consider that the rights of the defence have been infringed it can refuse to surrender (paragraph 75 of LU) but equally it may decide to surrender – there is no obligation to refuse to execute the EAW (paragraph 76 of LU).

7. As observed in Dworzecki, Case C-108/16 PPU, EU:C:2016:346, the right to a fair trial enjoyed by a person summoned to appear before a criminal court requires that he or she has been informed in such a way as to allow him to organise his defence effectively. Article 4a(1)(a)(i) of the Framework Decision is designed to achieve that objective but does not constitute an exhaustive list of the means that can be used to that end (paragraph 43). The CJEU further noted that as the scenarios in Article 4a(1)(a)(i) were conceived as exceptions to an optional ground for non-recognition. If the executing judicial authority finds they do not cover the situation at issue, it may nonetheless consider other circumstances that enable it to be assured that the surrender of the person concerned does not mean a breach of their rights of defence (paragraph 50). At this point, the CJEU identifies that the executing judicial authority may have regard to the conduct of the person concerned and that “particular attention might be paid to any manifest lack of diligence on the part of the person concerned, notably where it transpires that he sought to avoid service of the information addressed to him” (paragraph 51). That approach is repeated in LU, with the CJEU adding another example of lack of diligence i.e. where the person seeks to avoid any contact with his or her lawyers (paragraph 78) and in Case C-569/2 IR, EU:C:2022:401. I will consider the consequences of this case law having regard to the conduct of the Appellant - who absented herself from the trial process at an early stage - later in this judgment.

8. I then examine whether the conditions in Article 601 relating to knowledge that the trial could go ahead were met, and second, if they were not, whether the trial judge erred in inferring that the Appellant was aware that her trial might proceed in her absence and thus knowingly waived her right to be present at her trial.

ARTICLE 601(1)(i) REQUIREMENTS

9. Two types of information are required to be given to the requested person by Article 601(1)(i). The first requirement concerns information about the date and place of the trial: either the requested person was personally summoned and informed of the date and place, or they received such official information by other means, in a manner that unequivocally established their awareness of it.

10. The second requires that the requested person be told that a decision may be handed down if they do not appear. They are distinct and cumulative requirements. Arguably, a higher threshold is imposed in respect of the second requirement. The person must have been informed that a decision may be handed down if they do not appear for the trial. It is not clear if it is sufficient to unequivocally establish that the person was aware of this, or whether they must be personally told; however, the wording is different to that used in respect of time and place of trial information and therefore an inference might be drawn that the information must be conveyed in person. Happily, it is not necessary to decide this issue, since the evidence in this case does not establish that the Appellant was informed of the consequences if she did not appear at trial. Equally, she was neither informed in person of the time and date of her trial, nor can it be unequivocally established that she was aware of the time and date.

DECISION IN ALCHASTER

11. As established by the recent decision of the CJEU in Alchaster, Case C-202/24, EU:C:2024:649, this Court is required to take a different interpretative approach to the TCA in the context of surrender to that it takes under the Framework Decision, because the obligations of trust and co-operation differ depending on the legal instrument at issue. However, in this case, I do not consider that the differing approach makes any material difference to the resolution of this appeal. Neither party contended this was the case at the hearing of the appeal. The issue was not raised by them in the High Court and therefore, for obvious reasons, the trial judge did not consider it. This Court sought supplemental submissions on the relevance, if any, to the fact that this was an appeal governed by the TCA rather than the Framework Decision. I am satisfied, having considered those submissions, that the principles of interpretation identified in Alchaster do not impact on the determination of this appeal.

FACTUAL BACKGROUND

12. On 18 October 2016, the Appellant was charged with 17 offences of converting criminal property and 2 offences of attempting to convert stolen property and was given police bail and required to appear at Crawley Magistrates’ Court on 7 December 2016. On that date, she signed the charge sheet acknowledging that failing to appear would constitute an offence. She appeared before Crawley Magistrates’ Court on 7 December 2016, where she was represented by a solicitor. The same firm of solicitors also represented her partner, who attended court and entered a guilty plea. She was granted bail to appear at Lewes Crown Court on Trade and Co-operation Agreement on 4 January 2017 for a pre-trial preparation hearing; however, she failed to appear on that date, and a bench warrant was issued for her arrest. On 9 June 2017, defence counsel informed the court that the Appellant had not kept appointments with her solicitors. The Appellant’s case was again listed on 15 June 2017, but she failed to appear on that date. A date was set for the hearing of her case along with other co-defendants on 23 October 2017.

13. On 25 October 2017, His Honour Judge Tain decided to permit the Appellant’s trial to proceed in her absence, following an application by the prosecution under the principles set out in R v. Jones [2003] 1 AC 1 regarding the “HL check-list for trials in absence”. The judge accepted the prosecution’s argument that the Appellant had voluntarily absented herself from the trial process, noting that she had failed to attend any Crown Court hearings, had been the subject of two arrest warrants, and that police enquiries suggested she had deliberately left the jurisdiction and was likely residing in Ireland within the Traveller community, making her difficult to locate. He concluded that she had made a calculated decision to avoid trial, influenced by the strength of the evidence, the scale of the alleged transactions, and the likely sentence upon conviction.

14. The ruling emphasised that the decision was not made for convenience but after considering factors such as the interests of justice, including the need for a timely trial given the age and health of victims and the rights of co-defendants. Although there was uncertainty about her legal representation, the judge assumed she could have given instructions through her solicitor and directed that the jury be warned not to draw adverse inferences from her absence. She was convicted for 17 offences for converting criminal property contrary to s. 327(1)(c) of the Proceeds of Crime Act 2002, and 2 offences of attempting to convert criminal property contrary to the Criminal Attempts Act 1981. She is now sought so that she can be sentenced for these offences.

15. The TCAW was issued by HHJ Van Der Zwat at Lewes Crown Court on 12 August 2024, acting as an issuing judicial authority within the meaning of the EAWA and the TCA. Part (d) of the warrant box - 3.1a - was ticked indicating that the Appellant was personally summoned on 18 October 2016 and informed of the scheduled date and place of the trial which resulted in the decision and was advised that a decision could be handed down if he or she failed to appear for trial. However, as will be seen below, that information was revised during the proceedings with the provision of additional information.

16. The Appellant was arrested pursuant to the TCAW at Dublin Airport on 21 August 2024 and was remanded in custody to be produced on 4 September 2024 for the hearing and with liberty to bring a bail application.

THE PROCEEDINGS

17. On 4 September 2024, the Appellant filed a notice of motion before the High Court seeking an order granting her bail and a recommendation under the Legal Aid (Custody Issues) Scheme grounded upon an affidavit sworn on 30 July 2024 by the Appellant’s solicitor.

18. On 16 September 2024, points of objection were submitted by the Appellant’s solicitor opposing the surrender of the Appellant. On 17 September 2024, the Appellant’s solicitor swore an affidavit setting out the factual background and the basis for resisting surrender. On 25 September 2024, the Appellant swore an affidavit stating that she was unaware of any requirement to attend trial on the relevant date and had not received any notice about it. She acknowledged that the TCAW indicated a bench warrant had issued for her arrest; however, she said she had received no communication or notice concerning her case thereafter. In the same affidavit, the Appellant stated that she permanently returned to reside in Ireland some months after the birth of her youngest child in June 2016.

19. On 26 September 2024, the High Court wrote to HHJ Van Der Zwat seeking clarification on the circumstances surrounding the Appellant’s notification of her trial. Specifically, it requested confirmation of the nature of service effected on 18 October 2016, details as to what was served upon the Appellant, the date on which the Appellant was formally summonsed to appear, and any additional information demonstrating how she was made aware of the scheduled date and place of the trial and informed that a

decision could be handed down in her absence should she fail to attend.

20. The response from the UK authorities explained that on 18 October 2016 the Appellant was charged with the offences and granted bail to appear at Crawley Magistrates’ Court on 7 December 2016. She signed the charge sheet acknowledging that failure to attend could constitute an offence. At the Magistrates’ Court hearing on 7 December 2016, she was represented by a solicitor and was remanded on bail to appear at Lewes Crown Court on 4 January 2017 for a pre-trial preparation hearing. It is stated that she would have been told by the court at that time that she should attend on that date, or any other date as directed by the Crown Court, although there is no record of an explicit warning. The Appellant did not attend on 4 January 2017, and a bench warrant was issued.

21. A trial date was later fixed for October 2017, and further hearings took place in June 2017 where her solicitors confirmed they had lost contact with her. The additional information indicates that while there is no written record of her being informed that the trial could proceed in her absence, it is usual practice in such circumstances to warn defendants that failure to attend may result in the case continuing without them and a warrant being issued. Additionally, it was then stated that box 3.1a on the warrant was ticked in error, and that box 3.4 ought to have been ticked instead, which caters for a situation where the person was not personally served with the decision but will be served after the surrender and, when served, will be expressly informed of the right to a retrial or appeal and the timeframe for same. The first reply also attached the charge sheet, witness statement, skeleton arguments and ruling.

22. On 10 October 2024, the High Court identified that the issues being clarified related to the accuracy of the information in the warrant concerning the Appellant’s rights after surrender. Specifically, the High Court sought confirmation that the Appellant be personally served with the decision without delay following surrender, that she would be expressly informed of her right to a retrial or appeal allowing full participation and re-examination of the case including fresh evidence, and that she would be advised of the time frame within which such a retrial or appeal must be requested. These clarifications were stated to be necessary to ensure compliance with Article 601 of the TCA and s. 45 of the EAWA.

23. The Crown Prosecution Service (“CPS”) responded on 14 October 2024 confirming that box 3.4 was correctly completed and that the Appellant could apply to the Court of Appeal for leave to appeal out of time. A third s. 20 request was subsequently issued seeking clarification on whether the retrial or appeal constituted an entitlement or was subject to the discretion of the Court of Appeal. By reply dated 27 October 2024, the CPS confirmed that the Appellant would have the right to apply only, and that a retrial or appeal was not an automatic entitlement.

24. In circumstances where it had been made clear that a retrial or appeal would not be automatically provided, a further s. 20 request was issued seeking clarification as to whether the Appellant had been informed that, in the event of failing to attend trial, the trial could proceed in her absence, and if so, the manner in which such information was conveyed. The reply dated 26 November 2024 stated that when the Appellant appeared in court on 7 December 2016, there was no record of her being so informed, but noted that it is usual when adjourning a case to another date to warn that the case may proceed in the person’s absence and that a warrant may be issued for their arrest or both. The reply also confirmed that the Appellant was represented throughout by her solicitor.

DECISION OF THE TRIAL JUDGE

25. Judgment was given on 17 December 2024 dismissing the Appellant’s grounds of objection. The trial judge considered whether the Appellant had waived her right to be present at a trial in relation to the offences for which surrender is sought. He acknowledged at paragraph 40 that there was no direct evidence of waiver, and the question was therefore whether there was evidence from which the court could infer that she waived her right to attend at a trial. He correctly noted at paragraph 41 that a lack of diligence on the part of an accused person to make him or herself aware of the trial date was not in itself sufficient to constitute a waiver of the right to attend. He correctly identified that the onus vested on the Minister to show that it could be inferred that the Appellant chose to absent herself from the trial. He referred to the comments of Collins J. in the judgment in Minister for Justice v. Szamota [2023] IECA 143 to the effect that, following LU, a relatively broad approach is to be taken to the concept of waiver in this regard and that while it is necessary to establish that the requested person had knowledge of the criminal proceedings for the purposes of an effective waiver of the right to be present at trial, it is not always necessary to show they were aware of the date and place of trial.

26. Having considered the facts that were established by direct evidence, he concluded at paragraph 54 that the Appellant was legally represented, that she was aware there were legal proceedings against her, that she was under a continuing obligation to attend, that the usual practice was to inform defendants that the case may proceed in their absence, that she had been less than frank in the evidence she put before the court as to her knowledge of the proceedings, and that although there was no direct evidence that the case might proceed in her absence, she was so aware and made a knowing and informed choice not to attend at her trial. Accordingly, it could be inferred that she knowingly waived her right to be present at the trial and the hearing in her absence did not constitute a breach of her defence rights.

QUESTIONS CERTIFIED

27. The Order for the Appellant’s surrender to the UK was perfected on 19 March 2025. An application for a certificate granting leave to appeal was made under s. 16(11) of the EAWA and the trial judge certified that the decision involved a point of law of exceptional public importance, and it was desirable in the public interest that an appeal should be taken. The point of law comprised two questions. The first question asks whether it is a necessary precondition for an effective and unequivocal waiver of the right to attend trial that it be established the requested person was aware of the actual date and place of the trial in the issuing state and chose not to attend, or whether, applying the broader approach suggested in Szamota, such waiver may be established even in the absence of direct evidence of awareness of the trial date and place, provided the person had knowledge of the existing criminal proceedings and, in all the circumstances, it can be concluded - whether directly or by inference - that he or she chose not to attend.

28. The second question asks whether, in the particular circumstances of this case, the Court was correct to conclude that, although there was no direct evidence that the respondent was aware of the date and place of her trial, an effective and unequivocal waiver of her right to attend was established by inference, including that she was aware of the criminal proceedings against her, of her obligation to attend such proceedings, that the case could proceed in her absence, and that she made an informed choice to avoid being told of the specific date and place of her trial.

29. Although the questions were primarily concerned with knowledge of the time and date of trial, the second question includes the issue of knowledge that the case could proceed in her absence. That was the primary focus of the trial judge and of the parties at the hearing before this Court. For that reason, this judgment focuses upon that issue since a decision that the trial judge erred in concluding that knowledge of the consequences of non-attendance could be inferred is dispositive of this appeal.

SUBMISSIONS OF THE PARTIES

30. The Appellant argues that the High Court erred in ordering her surrender in circumstances where she was tried in absentia and where there is no evidence that she was aware of the date and place of her trial, that she had ever mandated a lawyer, or that she was advised the trial might proceed in her absence. The Appellant submits that Article 601 TCA and ss. 10, 20, 37 and 45 EAWA are engaged. She argues that the statutory framework requires clear evidence that the requested person was properly informed of the trial date and warned of the consequences of non-attendance, or that the arrest warrant contains the guarantees specified in Article 601 TCA. In this case, the trial date was fixed in her absence, and she was not warned that the trial might proceed without her. Accordingly, she could not make any informed decision, and there is no proper legal basis for a finding of “unequivocal waiver”. The requesting authority has not demonstrated such waiver to the criminal standard required.

31. The Appellant further contends that the High Court failed to have proper regard to the principles clarified by the Supreme Court in Minister for Justice v. Zarnescu [2020] IESC 69 and by this Court in Minister for Justice v. Szlachikowski [2024] IECA and Szamota. She contends that her trial breached Article 6 ECHR, which goes to the heart of the EAWA and its prohibition on surrender in such circumstances.

32. The Appellant submits that even if other obstacles were overcome, the absence of any warning as to the consequences of non-attendance is fatal to the surrender application. This omission negates any possibility of an informed decision and renders the second certified question otiose. She contends that, on the facts, it was not open to the High Court to find an unequivocal waiver of her right to attend trial, and the requesting authority has failed to prove such waiver to the criminal standard as required.

33. The Respondent accepts that there is no direct evidence that the Appellant was expressly informed of the consequences of failing to appear; however, this is not fatal to the making of an order for surrender. The Respondent submits that, as clarified by the Supreme Court in Zarnescu and by this Court in Szamota and Szlachcikowski, while it must be shown that a requested person was aware of the consequences of nonattendance, there is no absolute requirement for evidence that the Appellant was so informed. This requirement can be established by other means, and the High Court was correct in its conclusion that the evidence in this case demonstrates such awareness.

34. The Respondent relies on several features of the evidence to support this conclusion. First, on 18 October 2016, the Appellant was charged and bailed to appear at Crawley Magistrates’ Court on 7 December 2016, signing a charge sheet acknowledging that failure to attend would constitute an offence. Second, the Appellant did attend on 7 December at Crawley Magistrates’ Court and was represented by a solicitor. Third, she was represented by the same firm of solicitors acting for her partner, who attended court to plead guilty. Fourth, the Appellant was granted bail to appear at Lewes Crown Court on 4 January 2017 for a pre-trial preparation hearing. A CPS letter dated 30 September 2024 confirms that she would have been told by the court to attend on that date or any other date as directed by the Crown Court, and this has not been disputed. Fifth, on 9 June 2017, defence counsel informed the court that the Appellant had not kept appointments with her solicitor. Sixth, the Appellant’s case was listed on 15 June 2017, when she failed to appear. The CPS letter of 30 September 2024 states that she failed to attend despite having been made aware of the date, and again this has not been disputed.

35. The Respondent further submits that the Appellant’s contention that there is no evidence she was informed that her trial might proceed in her absence is incorrect. Additional information dated 26 November 2024 confirms that the usual practice is to inform defendants that the trial may proceed in their absence if they fail to appear. While this is of less weight than an individualised averment, it is precisely the type of evidence identified as relevant in Szlachcikowski and may properly be considered as part of the fact-specific assessment envisaged by the case law. Taken together, these factors establish that the Appellant was aware of the consequences of non-attendance and that the High Court was correct to order her surrender. The Respondent also relied upon the case of IR in support of the argument that the Appellant’s conduct justified surrender.

ANALYSIS

Applicable Case Law

36. The applicable standard of review to be applied to the decision of the trial judge falls into what I will characterise as the intermediate category of appellate review described by Murray, J. in AK v US [2022] IECA 65, i.e. where the appellate court is addressing alleged errors by a trial judge in the findings made based on affidavit or documentary evidence alone, or where a court is reviewing secondary findings of fact not dependant on oral evidence, such as inferences from admitted facts or those proven otherwise than by way of oral testimony. That test is as follows. The approach of the court is to be somewhat deferential. The appellant must show that the trial judge clearly erred in a material respect. However, following Northern Bank v. Charlton [1979] IR 149, the appellate court can rely on its own judgment as to whether the trial judge was correct or not. (In my view, it is preferable not to describe this standard as “error of principle”, as this risks confusion with the first category of review identified by Murray J., i.e. the standard applicable to findings of pure law where the appellate court simply forms its own view untrammelled by any finding reached by the trial court).

37. The core questions in this appeal are whether the Appellant can be said to have waived her right to be present at her trial. If so, then surrendering her will not be treated as undermining her rights of defence, despite her conviction in absentia. In this context, this means I must consider whether the Appellant had sufficient knowledge of the consequences of her non-attendance on 4 January 2017 and thereafter, and specifically, whether she knew that she could be tried in her absence. Because I am focusing upon knowledge of the consequences of non-attendance, I consider in some detail the decisions in R v. Jones, Bertino v. Public Prosecutor's Office, Italy [2022] EWHC 665 (Admin), Szlachikowski and in the judgment of the ECtHR of 1 March 2006, Sejdovic v. Italy, CE:ECHR:2006:0301JUD005658100 given that these cases are all concerned with the issue of the consequences of non-attendance. I will also consider the decisions in IR and LU as they focus upon conduct of the accused and the extent to which that can be treated as waiver, even absent a knowledge of their right to be present at their trial.

38. The first decision in time is that of the House of Lords in R. v. Jones. This is not a case concerned with surrender at all: rather it was an appeal against a conviction that had been imposed in absentia. Nonetheless it is highly relevant to the questions raised by this appeal since it considers in some detail the level of knowledge required to establish a waiver in respect of the consequences of non-attendance. It also appears to have established the principles applicable in English law as to when a trial should be held in the absence of the accused; the decision of HHJ Tain summarised above refers to an application by the prosecution under the principles set out in R v. Jones.

39. Mr. Jones was charged with robbery of a post office in 1997. He was committed on bail for trial at the Crown Court along with a co-accused, was arraigned and pleaded not guilty and a trial date was fixed but vacated and replaced with a different trial date of 1 June 1998. On 1 June 1998, Mr. Jones did not surrender for trial, and a warrant was issued for his arrest. His legal representatives withdrew. The trial was relisted to commence on 5 of October 1998 and was adjourned to the following day. Mr. Jones had not been arrested by that date and had not surrendered. As observed in the judgment of Lord Bingham, the initial reaction of the judge at the hearing “based on instinct and long experience” was that a trial could not begin in the absence of a defendant whatever the reason for his absence and the trial judge showed obvious reluctance to embark on the trial in those circumstances. However, having regard to the large number of witnesses, he decided that the trial could go ahead, concluding that Mr. Jones had deliberately frustrated the attempt of the prosecuting authorities to have the case concluded. The trial proceeded. Mr. Jones was convicted for conspiracy to rob and was sentenced to 13 years imprisonment. He was then apprehended and sought to appeal his conviction. He was present at the appeal and was represented and his sentence was reduced to 11 years. Following that decision, a question of general public importance was certified to the House of Lords as to whether the Crown Court could conduct a trial in the absence, from its commencement, of the defendant.

40. All the Law Lords agreed that this was permissible although only in rare and exceptional cases, particularly where a defendant is unrepresented, and concluded that this did not infringe a defendant’s rights under Article 6 of the ECHR. However, views differed on whether Mr. Jones could be said to have waived his rights to be present. Both Lord Hoffmann and Lord Rodger concluded no waiver could be said to have taken place, with the other Law Lords considering that there was waiver but that in any case, even if that were not the case, they were satisfied that the defendant’s Article 6 rights were protected, having regard inter alia to the appeal process.

41. I will spend a little time considering Lord Rodger’s reasoning on waiver, since it was later endorsed by the ECtHR when the Jones case was considered by that Court. Lord Rodger, asking whether it could be said that the appellant had waived his right to be present at the trial, observed that such an inference could be drawn only if one could be satisfied that the appellant not only knew that the trial was due to take place when he would be absent but also knew that it could take place even though he was not there and was not represented (paragraph 51). He noted that in a US case, Taylor v. United States 414 US 19 (1973), the Supreme Court felt able to draw such an inference in a case where the defendant had absconded during his trial leaving behind a judge, jury and witnesses ready to continue. However, Lord Rodger was of the view that no such inference could be drawn in the circumstances of the instant case. Insofar as the right to be present was concerned, he noted as follows:

“So far as the first is concerned, it is sufficient perhaps to notice that the initial reaction of the very experienced judge, Judge Holloway, was that no trial could take place in the absence of the defendants. He had never heard of such a thing and neither had the colleagues whom he consulted. An official at the Criminal Appeals Office thought that it might be possible - but he could not put his finger on a case. It would, I believe, be rash to attribute to the appellant greater knowledge of the arcana of English criminal procedure than Judge Holloway and his colleagues actually possessed. Doubtless, the appellant would have been aware that, if eventually brought to justice, he would be punished for absconding to avoid trial. But I see no proper basis for going further and assuming that he would actually have known that he was liable to be tried and sentenced in his absence. I am accordingly unable to draw the

conclusion that the appellant had unequivocally waived his right to be present at any trial.” (paragraph 52)

42. However, he concluded that taking the whole of the proceedings, both first instance and appeal, into account, the defendant’s Article 6 rights were not infringed. Lord Hoffmann agreed, noting that waiver requires consciousness of the rights which have been waived and there was nothing to show that Mr. Jones must have known that if he did not turn up on the date set for trial, it would proceed in his absence and without representation.

43. Lord Bingham took a different view on whether there had been waiver, noting that although there was no direct evidence to show the appellant knew what the consequences of his absconding would be, there was nothing to suggest a belief on his part that the trial would not go ahead in his absence or that although absent he would continue to be represented. His decision to abscond in flagrant breach of his bail conditions could reasonably be thought to show such a complete indifference as to what might happen in his absence as to support the finding of waiver. Nonetheless he noted the reservations expressed by Lord Rodger and Lord Hoffmann concerning the finding of waiver and recognised the force of their reasoning, indicating that, even if the Court of Appeal were wrong to make the finding of waiver and he himself was wrong to accept it, he would hold that the appellant enjoyed his Convention right to a fair trial for the reasons given by Lord Rodger.

44. The Jones case subsequently went to the ECtHR (Jones v United Kingdom [2003] 37 EHRR CD 269). When discussing waiver, the Court noted that, for such a waiver to be effective for Convention purposes, it must be clearly established. It further held that before an accused can be said to have implicitly, through his conduct, waived an important right under Article 6, it must be shown that he could reasonably have foreseen the consequences of that conduct.

45. The Court noted that the applicant was aware of the date set for the start of his trial and deliberately chose not to attend but pointed out that, as observed by Lord Rodger, at the time of the applicant’s trial it was not clearly established under English law that it was possible to try an accused in his absence throughout. In an important passage the Court observed that “the applicant, as a lay man, cannot have been expected to appreciate that his failure to attend on the date set for the commencement would result in his being tried and convicted in his absence and in the absence of legal representation. It cannot be said, therefore, that he unequivocally and intentionally waived his rights under Article 6”.

46. Nonetheless, given that following his arrest the applicant was permitted to appeal against conviction despite the expiry of the relevant time limit, was present at the hearing before the Court of Appeal, had full legal representation, had the entitlement to apply to have new evidence put before the Court of Appeal, but chose not to request the admission of new evidence, his complaint under Article 6 was held to be manifestly ill-founded as the proceedings, taken as a whole, were fair.

47. The case of Bertino was decided by the English Supreme Court in 2024. The requirements of Article 4a(1)(a)(i) of the Framework Decision had not been met.

Accordingly, the District Court dealing with the request was required to apply the applicable domestic law, being s. 20(3) of the Extradition Act 2003, which requires the judge to consider whether the person requested had deliberately absented himself from his trial. The facts of Bertino were particularly problematic for the requesting State, since the requested person had not been told of the charges against him before he left Italy. The requested person was alleged to have groomed a 14-year-old girl in Italy. On being told of the allegation, he went to the police station and signed a document confirming he was under investigation. That document obliged him to give notice of any change of his domicile. He left Italy and moved to the UK without providing an updated address. When the authorities served him with the summons (which included a warning that non-attendance without lawful impediment would lead to a judgment in absentia), they knew he was no longer at the address that had been given. They made unsuccessful attempts to trace him. He was convicted following a trial in his absence in Italy and sentenced to one year of imprisonment. His surrender was sought from England.

48. The High Court upheld the finding of the District Court that he had deliberately absented himself from his trial in Italy and should be surrendered. That was appealed to the Supreme Court. Ultimately, the Supreme Court refused to surrender him, concluding that a person who had left Italy while under investigation there, but who had not been officially informed that he was being prosecuted, or notified of the time and place of his trial, had not deliberately absented himself. The Supreme Court held that the phrase “deliberately absented himself from his trial” should be understood as being synonymous with the concept in the Strasbourg jurisprudence that an accused has unequivocally waived his right to be present at the trial (see paragraph 45).

49. The facts of Bertino were quite different to those in the instant case. Nonetheless, the observations of the Supreme Court in respect of the question of reasonable foreseeability and waiver are useful in this context. Giving the judgment of the Court, Lord Stevens and Lord Burnett reviewed case law of the ECtHR following Jones, and referred to the case of Sejdovic, noting that the Court had left open the possibility of finding an unequivocal waiver of the right to be present if the facts are strong enough without the accused having been told that the trial could proceed in his absence. However, they noted that in Sejdovic, the ECtHR had held surrender would infringe the rights of the defence, given that the argument for waiver was based on no more than the applicant’s absence from his usual address (in circumstances where he had not been charged with any offence), coupled with an assumption that the evidence against him was strong. At paragraph 54 they addressed the requirements for a valid waiver: “It is apparent from these cases that the standard imposed by the Strasbourg Court is that for a waiver to be unequivocal and effective, knowing and intelligent, ordinarily the accused must be shown to have appreciated the consequences of his or her behaviour. That will usually require the defendant to be warned in one way or another. A direct warning was expected from the judges in the exclusion cases. The Amended Framework Decision, reflecting an understanding of the obligations imposed by Article 6 , requires the summons to warn the accused that a failure to attend might result in a trial in absence…”

50. They acknowledge that conduct of the accused might impact on the question of a valid waiver, noting that Sejdovic demonstrates that, when accused persons put themselves beyond the jurisdiction of the prosecuting and judicial authorities in a knowing and intelligent way, with the result that for practical purposes a trial with them present would not be possible, they may be taken to appreciate that a trial in absentia is the only option. Ultimately, unsurprisingly on the facts, they concluded such considerations did not arise on the facts before them.

51. Finally, I turn to the decision of the Court of Appeal in Szlachcikowski where the question of a person’s knowledge of the consequences of non-attendance was considered in some detail. This appeal concerned a request not in fact covered by the EAWA i.e. a request from a Polish court to the Irish court to consent to the execution of two sentences of imprisonment imposed by the requested person on separate dates. The person had been tried and sentenced in absentia in respect of the two offences. Despite it not being covered by the EAWA, both the High Court and the Court of Appeal considered whether the requirements of Article 4a of the Framework Decision had been complied with. From paragraph 50 onwards, there is a detailed discussion of the question of a person's knowledge of the consequences and the case law on this topic. Edwards J. considers the decision of the Supreme Court in Zarnescu, as well as the

decision of the Court of Appeal in Szamota. Both Zarnescu and Szamota were more concerned with the knowledge of the requested person as to the place and date of trial than knowledge of the consequences of non-appearance, whereas Szlachcikowski focused upon the latter issue. For that reason, I have focused upon Szlachcikowski. Edwards J. further addresses the judgment of the House of Lords and of the ECtHR in Jones and the Supreme Court in Bertino, discussed above. At paragraphs 53 to 57, Edwards J considers a series of cases involving Russia before the ECtHR, noting that the ECtHR had found that a waiver of the right must constitute a knowing and intelligent relinquishment of a right (paragraph 54).

52. Having reviewed the case law, Edwards J. observes that it is not necessary in every case for evidence to be adduced that the requested person was expressly advised of the potential consequences of not turning up for his trial and that awareness of consequences could be established in other ways (paragraph 72). However, he noted that the information in the case was totally silent on the question of ensuring the requested person would be aware of the potential consequences of not turning up and there was no evidence of any warning having been given as to consequences, although there was evidence of details of the time and date of the trial being sent to him at the address provided. He observed that there was not even evidence as to the usual practice in that regard, even if there was no one who could testify to what had actually occurred.

53. An argument was made that the requested person had a prior criminal record and previous experience of the Polish criminal justice system. Edwards J. rejected that argument, pointing out that there was no evidence that the requested person had ever been tried in absentia on a previous occasion or that anyone known to him was tried in absentia or that he was previously warned of the consequences of not turning up for his trial. He concluded there was no evidence, either direct or by inference, that the requested person, knowing the consequences of his act, had renounced his entitlement to be present in person or to be represented. He concluded that it did not follow from the fact that the requested person had absented himself deliberately that he necessarily appreciated or must reasonably have foreseen that by doing so he was relinquishing his right to be present in person and that he could be tried in absentia.

54. Edwards J. was at pains to emphasise that in an appropriate case, a court should be able to infer the necessary awareness; but he observed that the High Court judge was faced with an evidential deficit and was correct not to speculate (paragraph 74). In conclusion, Edwards J. held that for a waiver to be unequivocal and effective, the accused must be shown to have appreciated the consequences of his or her behaviour and that the High Court correctly concluded on the evidence before her that she could not be so satisfied.

Relevance of Appellant’s conduct

55. Turning now to the issue of the Appellant’s conduct, at the hearing of the appeal, counsel for the Minister placed some emphasis on the decision in IR, arguing that properly interpreted, it supported an argument that the Appellant’s waiver ought to be treated as sufficient due to her conduct in absenting herself from the trial process. The reference made under Article 267 in IR is concerned both with Directive 2016/343 on the strengthening of certain aspects of the presumption of innocence and of the right to be present at the trial in criminal proceedings, and the Framework Decision. At paragraph 52, the CJEU repeated the well-established principles applicable to waiver i.e. that Article 6 does not prevent a person from waiving either expressly or tacitly the entitlement to the guarantees of a fair trial and that a waiver of the right to take part in the trial must be established in an unequivocal manner and be attended by minimum safeguards. At paragraph 53, it observed as follows: “It is clear, in particular, from that case-law that such a waiver may be found where it is established that the accused person has been informed of the existence of the criminal proceedings against him or her, is aware of the nature and the cause of the accusation, and does not intend to take part in the trial or wishes to escape prosecution (see, inter alia, ECtHR,

1 March 2006, Sejdovic v. Italy, CE:ECHR:2006:0301JUD005658100,

§ 99, and ECtHR, 23 May 2006, Kounov v. Bulgaria,

CE:ECHR:2006:0523JUD002437902, § 48). Such an intention may,

inter alia, be found where the summons to appear could not be served on account of a change of address which the accused failed to communicate to the competent authorities. In such a case, the person concerned cannot invoke a right to a new trial (see, to that effect, ECtHR, 26 January 2017, Lena Atanasova v. Bulgaria, CE:ECHR:2017:0126JUD005200907, § 52).”

56. Later in the judgment, considering the facts of that case, the CJEU observed that a person could be denied the right to a re-opening of their case under the Directive where they had been convicted in absentia if it is apparent from precise and objective indicia that they received sufficient information to know they were going to be brought to trial and, by deliberate acts and with the intention of evading justice, prevented the authorities from informing him or her officially of that trial (paragraph 58).

57. I have considered whether the decision of the Appellant to fail to appear in the Crown Court on 4 January 2017, and to leave the address she was residing at without providing a new address, can be taken to be conduct intended to evade justice of the type referred to in IR and in LU, and, as such, justify a conclusion that her rights of defence will not be breached should she be surrendered.

58. But the Minister’s argument in this respect ignores the centrality of the obligation to inform a person requested that the trial will go ahead without them in their absence, and the corresponding necessity of ensuring that any waiver of their right to attend the trial is only implied where it is clear that they were aware the trial could go ahead without them. In Sejdovic, the ECtHR observed as follows: “87. The Court has held that where a person charged with a criminal offence had not been notified in person, it could not be inferred merely from his status as a “fugitive” (latitante), which was founded on a presumption with an insufficient factual basis, that he had waived his right to appear at the trial and defend himself (see Colozza, cited above, § 28). It has also had occasion to point out that, before an accused can be said to have implicitly, through his conduct, waived an important right under Article 6 of the Convention, it must be shown that he could reasonably have foreseen what the consequences of his conduct would be (see Jones, cited above).”

59. Sedjovic was specifically referred to in the passage from IR cited above. If read in isolation, that passage might suggest that it is sufficient to establish a waiver if a person knows of the nature of the proceedings against them, and demonstrates their intention to escape prosecution by, inter alia, failing to communicate a new address – in other words, the fact situation in this case. But in my view that passage must be read in the light of Sedjovic, which in turn references the obligation articulated in Jones to ensure that the person could reasonably have foreseen the consequences of the conduct. Moreover, the summary in Bertino of the case law of the ECtHR on waiver of the right to be present at trial following Sedjovic is illuminating: “It is apparent from these cases that the standard imposed by the Strasbourg Court is that for a waiver to be unequivocal and effective, knowing and intelligent, ordinarily the accused must be shown to have appreciated the consequences of his or her behaviour. That will usually require the defendant to be warned in one way or another. A direct warning was expected from the judges in the exclusion cases. The Amended Framework Decision, reflecting an understanding of the obligations imposed by Article 6, requires the summons to warn the accused that a failure to attend might result in a trial in absence...”

60. To accept the Minister’s submission based on IR, one would have to disregard a core aspect of the reasoning in Sedjovic, as well as the case law of the ECtHR that came after, including the statement in Sibgatullin (Application No 143/05, Judgment 24 April 2012) at paragraph 47 that “there can be no question of waiver by the mere fact that an individual could have avoided, by acting diligently, the situation that led to the impairment of his rights”. The Minister has not put forward any basis for suggesting why this Court should ignore that case law.

61. Moreover, the obligation to ensure that the person could reasonably have foreseen the consequences of the conduct is particularly pronounced in the context of a conviction in absentia of an Irish person in the UK where neither of those jurisdictions generally hold trials in the absence of the accused. In Ireland, trial in absentia is highly unusual, and normally will only occur where a trial has commenced and the accused has, for example, absconded during the trial. In this case, the trial went ahead in the Appellant’s absence: but only after there was a hearing on this point and HHJ Tain decided to go ahead having applied the guidelines derived from the Jones case. But the Jones case itself makes it quite clear that it is an exceptional jurisdiction to be exercised only in limited circumstances.

62. Bearing those considerations in mind, I have concluded that the correct interpretation of the CJEU and the ECtHR case law is that, for a person to be treated as unequivocally waiving their right to be present at their trial, they must be aware that the trial may go ahead in their absence. Where that knowledge has not been communicated directly, it is necessary to consider whether, on the facts, that knowledge can be implied. This is the case even where the lack of awareness arises due to a lack of them absenting themselves from the trial process at an early stage. I am conscious that this interpretation may appear to reward a person for deliberately absenting themselves from the trial process; but I am satisfied that the case law in this area requires this approach. Moreover, provided the requesting State ensures the accused is informed at an early stage of the proceedings that the trial is likely to go ahead in their absence if they do not participate in the prosecution, then this obligation is unlikely to cause difficulties in practice.

Finding of Inference

63. I turn now to consider whether the trial judge erred in law in concluding that such knowledge could be inferred by implication on the facts of this case and that the Appellant should therefore be treated as having unequivocally waived her right to be present. The trial judge correctly identified the appropriate question as being whether there was evidence from which an unequivocal waiver could be inferred. He notes at paragraph 50 that she was aware that criminal proceedings were being pursued against her in respect of the matters because she was charged with the offences and bailed to appear at the Magistrates Court, she attended an answer to her bail on 7 December 2016 when she was bailed to appear at Lewes Crown Court on 4 January 2017 and was aware of her obligation to attend at that next hearing. He points out she was represented by a solicitor, she failed to maintain contact with her solicitor, that her husband who did attend at his trial was represented by the same solicitor, and that evidence has been given of the usual practice of the court to inform a defendant inter alia that the case might proceed in their absence, although no record of the usual warning is recorded on the prosecution file.

64. The matters that appeared to tip the balance in favour of surrender were first that the affidavit sworn by the Appellant was evasive, since it did not mention a number of key points such as being charged with the offences being bailed to appear at the Magistrates Court on 7 December, her attendance at that court and her further bail for 4 January or indeed the fact that she was legally represented. Second, the trial judge emphasised that she did not explicitly say she was not informed of her obligation to attend court and of the possibility of the case proceeding in her absence, either in her original affidavit, or after the various answers to the s. 20 request, including the one of 26 November 2024 where it was stated that a defendant is normally told that if they do not attend the case might proceed in their absence.

65. In summary, he concluded that although there was no direct evidence of her being aware the case might proceed in her absence, from the cumulative information available he concluded she was so aware and made an informed choice not to attend at her trial. In those circumstances the hearing of her trial in her absence did not constitute a breach of her defence rights.

66. I cannot agree that the fact of legal representation is sufficient to draw an inference that she was told by her solicitor the trial might proceed in her absence. As may be seen from Jones, it is not common in the UK to hold trials in absentia. It appears from that

decision that it was only in 2003 that the House of Lords clarified that a person could be tried in absentia even where the trial had not commenced. Moreover, the fact that it is not a common process is demonstrated by the fact that, in this case, an application had to be made by the prosecution for the trial to go ahead in absentia and a detailed ruling was given on the application, applying the principles derived from the Jones

decision. As noted above, two of the five judges in Jones considered that a trial in absentia was not reasonably foreseeable by an accused given the rarity of that occurrence. The ECtHR adopted the reasoning of Lord Rodger in this respect in its judgment.

67. In those circumstances, I can find no basis to infer that the Appellant’s solicitor must have informed her of the possibility that she would be tried in absentia if she did not participate, without having any evidence at all in that respect.

68. Nor do I consider the fact that her husband was a co-accused who turned up at the trial, pleaded and was convicted, to be relevant to her state of knowledge as to the consequences of not appearing at the Crown Court or thereafter. The question as to what information or assumptions were shared between her and her husband in this regard must be in the realm of speculation and, in my view, the trial judge erred in taking this factor into account. Equally, the general lack of candour on the Appellant’s part in the affidavit sworn by her in these proceedings relied upon by the trial judge is not in my view sufficient to infer knowledge of the consequences of non-participation. I have addressed the case law above on how non-participation or a lack of diligence on the part of the requested person is to be treated. The case law does not envisage the general approach of the requested person in the context of an application to surrender being taken into account when considering her likely state of knowledge as to the consequences of non-participation.

69. Finally, I wish to address the most important evidence: the information from the requesting authority of November 2024 identifying that normally a person is told two things, first that they are liable to be arrested if they do not turn up at the Magistrates’ Court and second that the trial is likely to go ahead in their absence. It is true that in Szlachcikowski, Edwards J. observed that no evidence had been adduced even as to the usual practice of informing persons that the trial might be ahead in their absence. The Minister relied upon that observation as suggesting that such evidence would be sufficient. But no decision was made on that issue as no such evidence had been presented. In my view, that comment was simply part of the factual circumstances identified by Edwards J. to emphasise the complete dearth of evidence in that case.

70. Here, where the height of the evidence is that usually the accused would be told of the possibility of the trial going ahead in their absence, with no further elaboration or evidence to indicate what happened here, that alone cannot be considered sufficient to allow an inference to be drawn as the requisite knowledge of the Appellant. The fact that a person is normally told certain information does not assist in understanding whether this Appellant was provided with the information on the relevant date.

71. However, the trial judge did not simply rely on this information but buttressed his

conclusion by the lack of any averment from the Appellant controverting that statement by indicating, for example, that she had not been so informed. His approach requires me to consider the obligation of a requested person in these circumstances. May an inference be drawn from the Appellant’s failure to respond to the information that she would normally have been told of the consequences of non-attendance? It is common case that the burden of proof lies on the requesting State. A trial judge is of course permitted to draw an inference from a decision not to respond to an averment. In these EAW cases of trial in absentia, where the question of the level of knowledge of the person requested may be significant, there is an onus on the requested person to set out the position as to knowledge clearly.

72. I do not accept the submission of counsel for the Appellant that she had no obligation in this regard. Nor do I accept as relevant that this information was only provided by the requesting State on 26 November 2024, and she had already sworn her affidavit in September 2024. There is an obligation on the requested person to respond to new information that comes from the requesting court, and if they fail to do so, an adverse inference arising from the new information provided may be drawn.

73. Nonetheless, I have already concluded there is no other material on which to draw an inference that she knew the trial would go ahead without her. In those circumstances, with some hesitation, I conclude the Appellant’s silence in the face of information that accused persons in her situation are normally told that a trial may go ahead in their absence, is an insufficient basis to infer unequivocal waiver. That silence might have been the result of many factors: a lack of recall of the detail of the hearing, a failure to avert to the significance of the new information or a momentum in getting the matter on for hearing that mitigated against the filing of a new affidavit. To infer the requisite knowledge solely and exclusively on a failure to respond to the material proffered very late in the day by the requesting authority would in my view be disproportionate, particularly where the burden rests on the requesting authority to establish that a person should be surrendered.

74. For these reasons, I cannot agree with the conclusion of the trial judge that the Appellant waived her right to be present for her trial, as the evidence he relied on was insufficient to infer that it was reasonably foreseeable by her that she would be tried in her absence. Accordingly, the Appellant succeeds in her appeal.

CONCLUSION

75. In the circumstances I will allow the appeal and make an order refusing to surrender the Appellant. If there are any applications in respect of costs, they may be made in writing within 10 days of the date of this judgment, with any reply to be made within a further 10 days. Since this judgment is being delivered remotely, Edwards and Binchy JJ. have authorised me to indicate their agreement with it.