Kownacki, R (on the application of) v District Court In Olsztyn Poland

On an appeal under section 26 of the Extradition Act 2003, issues not raised before the magistrates’ court should not ordinarily be entertained unless the statutory conditions for raising new issues on appeal are met. Article 3 and Article 8 objections to extradition must be balanced against the public interest in enforcing extradition and the mutual trust between Convention states. General allegations of possible ill-treatment, and difficult family or medical circumstances, will not make extradition disproportionate without striking or unusual facts demonstrating a real legal impediment to surrender.

The claimant appealed under section 26 of the Extradition Act 2003 against District Judge Evans’s decision at the City of Westminster Magistrates’ Court on 7 June 2010 ordering his extradition to Poland under two European Arrest Warrants. The warrants concerned custodial sentences for driving offences and handling stolen goods.

At the appeal hearing, the claimant relied on alleged ill-treatment in Poland and on the effect of extradition on his partner and children, including a child with health difficulties. Those matters had not been raised before the district judge. The central issues were whether the new arguments could be considered under section 27 and, if so, whether extradition would breach Articles 3 or 8 of the European Convention on Human Rights.

1. The appeal was dismissed. The claimant had not raised his Article 3 or Article 8 arguments before the district judge, although he was legally represented and could have given evidence. None of the conditions in section 27 of the Extradition Act 2003 permitting new issues to be raised on appeal was satisfied. The appeal therefore failed on that ground.

2. The court nevertheless considered the arguments on their merits. Article 3 and Article 8 rights had to be balanced against the public interest in enforcing extradition. That public interest included recognition of the mutual trust between Convention states and confidence in their procedures and ability to protect persons surrendered through extradition proceedings.

3. The alleged incident involving Polish police did not establish a sufficient basis for concluding that the claimant could not be protected from ill-treatment in Poland or that the Polish authorities’ request lacked bona fides. No striking or unusual facts showed that the extradition order was wrong.

4. The claimant’s family circumstances and concern about his child’s medical treatment attracted the court’s sympathy but did not make extradition disproportionate. The district judge had properly complied with the extradition request, and the order remained effective.

• High Court (Administrative Court): On 5 November 2010, Mr Justice McCombe dismissed the appeal against the extradition order.
• City of Westminster Magistrates’ Court: District Judge Evans ordered extradition to Poland on 7 June 2010 under two European Arrest Warrants.