Piotrowski v The District Court of Slupsk, Poland

Under section 14 of the Extradition Act 2003, passage of time does not create an automatic bar to extradition. The appellant must show that extradition would be unjust or oppressive in the particular circumstances. “Unjust” principally concerns prejudice to the fairness of the trial, while “oppressive” concerns hardship caused by changes in the appellant’s circumstances. Delay attributable to the appellant cannot ordinarily support the objection, although culpable delay by the requesting state may be relevant. The court must assess concrete evidence of prejudice, including the continuing availability and reliability of evidence. Where fresh evidence shows that no section 14 case is made out, the appellate court may allow the judicial authority’s appeal and remit the extradition matters to the district judge.

These were statutory appeals under Part 1 of the Extradition Act 2003 against orders made by District Judge Evans at Westminster Magistrates’ Court on 14 November 2006.

The appellant challenged his extradition to Poland on charges of murder and attempted murder. The Polish judicial authority challenged his discharge on four further charges, including participation in an armed gang and violent assaults. The district judge had ordered extradition on charges 1 and 2 but discharged the appellant on charges 3 to 6 under section 14, relying on Kociukow. The central issue was whether extradition would be unjust or oppressive by reason of delay.

1. Outcome. The appellant’s appeal was dismissed in relation to charges 1 and 2. The judicial authority’s cross-appeal was allowed in relation to charges 3 to 6 under section 29(4)(a) of the Extradition Act 2003. Those matters were remitted to the district judge with a direction to proceed as if no section 14 case had been established. The appellant was remanded in custody on charges 3 to 6.
2. Applicable approach. Section 14 requires a fact-sensitive assessment of whether extradition would be unjust or oppressive because of the passage of time. The court adopted the distinction stated in Kakis v Government of the Republic of Cyprus [1978] 1 WLR 779: injustice is directed primarily to prejudice in the conduct of the trial, while oppression concerns hardship caused by changes in the appellant’s circumstances. The concepts may overlap. There is no fixed cut-off point. The appellant bears the burden of showing the objection.
3. Charges 1 and 2. The relevant period was principally the period after April 2004. Earlier delay could not fairly be treated as culpable delay by Poland. Much of the later delay resulted from the appellant leaving Poland without notifying the authorities and failing to co-operate with the summonses. The court therefore rejected the suggestion that the requesting state had caused culpable delay. The alleged loss of defence evidence did not establish concrete prejudice: some witnesses were discredited or had recanted, other evidence remained available, and testimony from the first trial could be read at the retrial. No injustice or oppression was shown.
4. Charges 3 to 6. The district judge had followed Kociukow, but the present court distinguished that decision on the facts as now established. The authenticated material showed that the evidence supporting these charges emerged only in late 2004 and early 2005, after which the charges and European Arrest Warrant were pursued without undue delay, apart from an unexplained and marginal period before arrest. The mere age of the allegations did not establish prejudice. There were no concrete facts preventing a fair trial.
5. The court cautioned that requesting states should not routinely be expected to include in a European Arrest Warrant factual material beyond what the Act requires, since that would frustrate the European Arrest Warrant system.

• High Court (Administrative Court). The court dismissed the appellant’s appeal against extradition on charges 1 and 2, allowed the judicial authority’s cross-appeal on charges 3 to 6 under section 29(4)(a) of the Extradition Act 2003, and remitted those matters to the district judge.
• Westminster Magistrates’ Court. On 14 November 2006 District Judge Evans ordered extradition on charges 1 and 2 but discharged the appellant on charges 3 to 6 under section 14 of the Extradition Act 2003.