Nowicki v Military Court of Gydnia Poland

On an appeal against extradition, fresh evidence may be admitted where it was unavailable, and could not with reasonable diligence have been obtained, at the original hearing, and where it is potentially decisive. Evidence which merely confirms the original decision, or supports rather than undermines the lower court’s findings, is not potentially decisive. An adjournment should be refused where further investigation has no identified prospect of producing evidence capable of changing the result.

The claimant appealed against a district judge’s order for his extradition to Poland to serve an 18-month sentence imposed for assault. He contended that he had neither attended the trial nor knowingly absented himself after receiving notice of the hearing. Following the district judge’s decision, legal representatives obtained an email summarising material in the Polish court file. The central issues were whether the email satisfied the requirements for admission as fresh evidence, whether it was potentially decisive, and whether the appeal should be adjourned for further investigation.

1. Appeal dismissed. There was no adequate basis for overturning the district judge’s conclusion that the claimant had known of the hearing and had deliberately failed to attend.
2. The court applied the requirements identified in Szombathely City Court & Ors v Fenyvesi & Anor [2009] EWHC 231 (Admin). The fresh material had not reasonably been obtainable at the original hearing. The claimant had been unrepresented, and it would have been excessive to expect him, without legal assistance, to identify and obtain the relevant court-file material. This requirement was therefore satisfied.
3. The material also had to be potentially decisive. The email did not satisfy that requirement. It indicated that the claimant had not attended the hearing on 6 January 2009, but also indicated that a summons had been sent to the correct address, had been received there, and that the Polish judge was satisfied that the claimant knew of the hearing.
4. The email therefore supported, rather than undermined, the district judge’s alternative finding that the claimant had known of the hearing and deliberately absented himself. The absence of the receipt itself from the files did not materially weaken that conclusion, since the Polish judge had been satisfied that the receipt existed.
5. An adjournment was properly refused. No further evidence had been identified which had a realistic prospect of being decisive. The possibility that another person at the address had signed for the summons did not justify an adjournment, particularly when evidence from that person had been available since the district judge’s decision.

• High Court (Administrative Court): appeal from the decision of District Judge Zani dated 26 May 2011 dismissed.