Krajewski v Circuit Court of Torun, Poland & Anor

On an appeal under the Extradition Act 2003, the prescribed time for serving a notice of appeal is mandatory and cannot be extended. Failure to serve within that period makes the appeal invalid.

Fresh evidence is admissible only where it was unavailable at the extradition hearing and would have been decisive. Legal issues not raised below may generally be raised on appeal where they arise from the evidence already before the extradition judge.

For a Category 1 territory, extradition is supported by an assumption that the requesting state can protect Convention rights. Clear and cogent evidence is required to rebut that assumption. Article 4(6) of the Framework Decision cannot itself bar extradition where it has not been implemented in domestic legislation.

The appellant brought two appeals under section 26 of the Extradition Act 2003 against orders of the City of Westminster Magistrates’ Court requiring his extradition to Poland.

The first appeal concerned an uncontested order relating to allegations of fraud and the enforcement of a Polish sentence. The court first considered whether the notice of appeal had been served within the prescribed seven-day period. It also heard the merits arguments provisionally.

The second appeal concerned an order relating to alleged breaches of employment and social-insurance legislation and alleged appropriation of entrusted property. The issues included whether the offences were extradition offences, whether passage of time barred extradition, whether Article 4(6) of the Framework Decision applied, and whether extradition would breach Convention rights.

1. The appeal against the uncontested order was irredeemably out of time. The appellant failed to prove, on the balance of probabilities, that he had served the notice of appeal on the CPS by midnight on 5 July 2010. Under Mucelli v Government of Albania [2009] 1 WLR 276, the seven-day period was mandatory and could not be extended.

2. The court nevertheless indicated that the appeal would have failed on its merits. Both alleged fraud offences were extradition offences under sections 64(2) and 65(2) of the Extradition Act 2003. The proposed fresh evidence concerning conviction in absentia did not satisfy the strict test in The Szombathely City Court & Others v Fenyvesi & Fenyvesi [2009] 4 AER 324, particularly as the former duty solicitor had not been given an opportunity to answer the allegations made against him.

3. The second appeal was dismissed. The employment-related allegation was capable of amounting, on the facts alleged, to the overlapping domestic offences identified by the extradition judge. The court distinguished Hertel v Government of Canada [2010] EWHC 2305 (Admin), which concerned uncertainty between alternative tax offences.

4. Passage of time did not bar extradition. The appellant knew of the proceedings before leaving Poland and had contributed to the delay. Article 4(6) of the Framework Decision had not been implemented in the Act and did not apply to offences for which the appellant was sought for prosecution.

5. Poland was a Category 1 territory and a signatory to the Convention. There was no clear and cogent evidence of a real risk of an unfair trial or breaches of Articles 3 or 6. Nor was the decision under Article 8 flawed; exceptionally serious interference was required.

Lord Justice Jackson agreed. Both appeals were dismissed.

1. High Court (Queen's Bench Division): both appeals against orders of the City of Westminster Magistrates’ Court dismissed. The first appeal was held invalid for late service and would also have failed on the merits; the second appeal failed on all grounds.