27th February 2019
The Supreme Court has given judgment in the case of Konecny v District Court in Brno Venkov, Czech Republic UKSC 2017/0200.
The appeal considered whether or not an individual can properly be described as an accused person when he had been convicted but the conviction is not final because he has an unequivocal right to a retrial. The Court found that, given that the EAW system, which is founded on the high level of mutual trust and confidence between member states of the EU, a court will give considerable weight to the description given by the requesting judicial authority. In these circumstances, as a matter of EU law, it is not right to characterise a person with such a right to a retrial as an accused person. This is because EU law, by means of the EAW Framework Decision draws a dichotomy between accusation and conviction EAWs. Whilst the Framework Decision does not have direct effect national legislation should be interpreted in conformity with its terms. If a conviction is binding and enforceable the person should be regarded as convicted. In any event it is not a requirement that a conviction is final or irrevocable as the person may have a right to a retrial. But this will depend on the law of the member state. Domestic jurisprudence on this issue which predated the Extradition Act 2003 did not assist because it is inconsistent with the statutory scheme.
However the court agreed that such a person with a right to retrial is unable to rely on the passage of time since the commission of the offence, for the purposes of Section 14 of the Act. The Court suggested that until Parliament has amended this provision Article 8 of the ECHR can provide an appropriate and effective alternative means of addressing the passage of time in relation to injustice or oppression.