Lisowski v Regional Court of Bialystok (Poland)

For the passage of time to bar extradition, the accused must show on the balance of probabilities a serious risk of injustice or oppressive hardship. Injustice is concerned principally with prejudice to the conduct of the trial. The court must make its own decision under the Extradition Act 2003. Convention membership and mutual trust do not, without evidence about the requesting state’s procedures and safeguards, remove the court’s duty to assess the risk. Where unchallenged evidence demonstrates an obvious risk that a fair trial cannot occur, extradition should be barred. The passage of time cannot ordinarily be relied upon where it was caused by the accused fleeing, concealing his whereabouts or evading arrest, but that exception requires a proper factual basis.

The claimant faced extradition to Poland to stand trial for two alleged frauds arising from events in 1995 and 1996. A European Arrest Warrant was issued in 2004, and a District Judge ordered extradition after concluding that the Polish investigation had been expeditious and that any prejudice was speculative.

The claimant appealed under sections 26 and 27 of the Extradition Act 2003. The central issues were whether the passage of time created a serious risk of injustice, whether safeguards in Poland could be taken into account, and whether the claimant had caused the delay by evading justice.

1. The appeal was allowed and the extradition order was quashed. The claimant was discharged.
2. Under section 14 of the Extradition Act 2003, the claimant bore the burden of proving on the balance of probabilities that extradition would be unjust or oppressive by reason of delay. Applying [1978] 1 WLR 779, injustice principally concerns prejudice to the conduct of the trial, while oppression concerns hardship arising from changes in the accused’s circumstances.
3. For injustice, the appropriate question was whether there was a serious risk of injustice. The claimant’s evidence showed that essential witnesses and documents might no longer be available and that memories of events more than ten years old were likely to have materially deteriorated. That evidence was not countered by the respondent and demonstrated an obvious, rather than speculative, risk of prejudice.
4. The court accepted for present purposes that protections under Polish law could be relevant and that the courts of the requesting state might be best placed to determine abuse of process issues, consistently with [2004] 1 WLR 1979. However, the requesting state had to provide some evidence that there was a proper basis for rejecting an abuse of process application. The court could not simply leave the issue to the Polish court.
5. The claimant could not rely on delay caused by fleeing, concealing his whereabouts or evading arrest: [1978] 1 WLR 779. But there was no finding that he had deliberately concealed himself, and the evidence, including his open return to Poland in December 2005, did not support such a conclusion.
6. The case was distinguishable from Dziedzic v Government of Germany [2006] EWHC 1750 (Admin), where information about the proposed evidence enabled the court to conclude that adequate safeguards could be provided. The alternative oppression argument therefore did not require determination.
7. Keene LJ agreed and added that Poland’s status as a party to the European Convention on Human Rights was relevant but not determinative. Section 14 required this court to make its own decision, and Convention compliance could not be assumed without further evidence.

• High Court (Administrative Court): allowed the appeal from the District Judge’s extradition order, quashed that order and discharged the claimant.