Olszewski v Circuit Court In Katowice Poland & Anor

In an extradition appeal, warrants must be construed as a whole. Ambiguous introductory wording does not invalidate an accusation warrant where its substance clearly identifies the request as one for prosecution.

Under section 14 of the Extradition Act 2003, delay does not by itself establish injustice or oppression. Injustice ordinarily requires evidence sufficient to rebut the presumption that a fellow member state will provide a fair trial compliant with Article 6. Oppression requires an assessment of all the circumstances, including the requesting state’s efforts, any reliance on representations, the seriousness of the allegations, and the purpose of extradition.

Mr Olszewski appealed under section 26 of the Extradition Act 2003 against District Judge Riddle’s order of 7 October 2010 requiring his extradition to Poland.

Poland sought his surrender under two European Arrest Warrants concerning alleged offences committed in 2001 and 2002. The appellant relied on delay, the loss of a potentially relevant witness, his family and employment circumstances, his return visits to Poland, and his contention that he had not deliberately fled prosecution. He also challenged the warrants’ compliance with section 2 and opposed the admission of late evidence from the Polish authorities.

The central issues were whether the warrants were valid accusation warrants and whether extradition would be unjust or oppressive under section 14.

1. The appeal was dismissed. The District Judge had been entitled to order extradition.
2. The late evidence from Poland was excluded. Extradition proceedings require expedition. Material intended to be relied upon at a later hearing must be produced promptly, and leave is required for its admission. ([8]-[10])
3. The warrants were valid. Although their opening wording referred both to prosecution and to execution of a custodial sentence or detention order, each warrant had to be construed as a whole. The absence of an enforceable judgment, the reference to maximum sentences, and the description of the person as accused showed that both were accusation warrants. The phrase indicating that the appellant was under suspicion did not alter that conclusion. ([13]-[15])
4. The section 14 injustice ground failed. The ordinary position is that a fellow member state will provide a fair trial compliant with Article 6. That presumption is rebuttable, but the lapse of time and possible evidential difficulties did not rebut it on the evidence available. ([16])
5. The oppression ground also failed. The court considered the delay, the steps taken by Poland by 2005, the absence of any finding that the appellant had been positively led to believe that he would not be prosecuted, his non-fugitive status, his family circumstances, the seriousness of the allegations, and the purpose of extradition. The facts were materially different from Kovac [2010] EWHC 1957 (Admin), where the unexplained delay was substantially longer. The approach in Gomes & Goodyer [2009] UKHL 21 was relevant and had to be respected. ([17]-[26])
6. The District Judge’s factual finding that the appellant had not been lulled into a false sense of security could not be challenged as a matter of law. The appeal was therefore dismissed. The appellant’s legally aided costs were directed to detailed assessment. ([24], [27]-[32])

• High Court (Administrative Court): In [2011] EWHC 186 (Admin), the appeal against the extradition order was dismissed.
• District Judge: District Judge Riddle ordered extradition on 7 October 2010.