Kociukow v District Court of Bialystok (a Polish Judicial Authority)

Under Extradition Act 2003, extradition is barred where the passage of time makes surrender unjust or oppressive. Unjustness principally concerns prejudice to the conduct of the trial; oppression principally concerns hardship arising from changed circumstances, although the concepts overlap. The person resisting extradition bears the burden of establishing the bar on the balance of probabilities. Where there is a serious risk of substantial prejudice and the extraditing authority provides no explanation for the delay, the court may find extradition unjust. Once the statutory bar is established, the court has no discretion: the appeal must be allowed, the extradition order quashed and discharge ordered.

The appellant challenged an order made by District Judge Evans at Bow Street Magistrates’ Court on 6 January 2006 directing his extradition to Poland under Part 1 of the Extradition Act 2003.

The European arrest warrant concerned alleged attempted robbery and robbery committed in Poland on 18 August 1999. The appellant relied on the passage of time, arguing that the delay created serious prejudice to his defence. He also relied on Articles 6 and 8, but those grounds were accepted as unsustainable during the appeal.

The central issue was whether extradition was barred because it would be unjust or oppressive by reason of the passage of time.

1. The appeal was allowed. The order for extradition was quashed and the appellant was to be discharged. His costs were ordered to be paid out of the Central Fund for assessment in the usual way.

2. The wording of section 14 of the Extradition Act 2003 follows earlier extradition legislation. The distinction stated in Kakis v Republic of Cyprus [1978] 1 WLR 779 remained applicable: unjustness is primarily concerned with prejudice to the conduct of the trial, while oppression is primarily concerned with hardship caused by changes in the person’s circumstances. The concepts overlap and together address whether surrender would be fair.

3. The burden lay on the appellant to establish the passage-of-time bar on the balance of probabilities. The court adopted the analogy with an abuse-of-process application and the approach described in Union of India v Narang [1978] AC 247.

4. There was a very real risk that the appellant would suffer substantial prejudice in defending allegations first arising more than six years earlier. The nature of the evidence was unknown, and the risk of difficulty in dealing with identification or other evidence was substantial. The appellant was not required to prove that no good explanation for the delay existed. In the absence of any explanation from the Polish authority, there was a prima facie case calling for an answer, which remained unanswered.

5. It therefore appeared unjust to extradite the appellant by reason of the passage of time. By sections 11(3)(b) and 14, extradition was barred. Section 27 required the appellate court to allow the appeal, order discharge and quash the extradition order where the district judge ought to have decided the issue differently.

6. The case also demonstrated that authorities seeking enforcement of European arrest warrants may need to provide the English court with information beyond the warrant itself.

• High Court (Administrative Court): The appeal against the order of District Judge Evans dated 6 January 2006 was allowed. The extradition order was quashed and discharge ordered.
• Bow Street Magistrates’ Court: Ordered extradition to Poland under Part 1 of the Extradition Act 2003.