Bierowka, R (on the application of) v District Court In Krakow, Poland

Under section 27 of the Extradition Act 2003, the court hearing an appeal against extradition must allow the appeal or dismiss it. It has no power to make extradition conditional on the requested person serving any sentence in the United Kingdom. A request to adjourn surrender because the requested person hopes that proceedings in the requesting state will shortly end favourably does not ordinarily justify delaying the appeal. The relevant decision is for the requesting state’s courts, and the statutory discretion to delay surrender is not exercised merely on optimistic expectation.

The appellant had been convicted of fraud in Poland and was wanted under four European arrest warrants after a suspended sentence was made immediate. The Westminster Magistrates’ Court ordered extradition and found no statutory bar or incompatibility with the European Convention on Human Rights.

On appeal under section 26 of the Extradition Act 2003, the appellant argued that extradition should be conditional on his serving any sentence in the United Kingdom. He also sought an adjournment because a hearing was expected in Poland at which he hoped to have the sentence set aside. The court considered whether those remedies were available and whether the appeal should be delayed.

1. The appeal was dismissed. The court declined to determine two technical objections: whether a sealed notice of appeal had been served within seven days, as considered in Mucelli v Albania [2009] 1 WLR 276, and whether points not raised below could be advanced on appeal, as discussed in Szombathely City Court and Others v Fenyvesi [2009] EWHC 231 Admin. The substantive issues were sufficient to dispose of the appeal.

2. The argument that the suspended sentences had been activated in the appellant’s absence was abandoned in light of Sawko v Circuit Court in Gorzow Wielkopolski, Poland [2011] EWHC 68 Admin. Bean J stated that he agreed with that judgment.

3. The court had no power to order that extradition be subject to the appellant being allowed to serve any sentence in the United Kingdom. Section 27 required the court either to allow the appeal against extradition or to dismiss it. Sections 37 and 52 contained provisions concerning return after extradition, but did not authorise the condition sought.

4. Article 4(6) of the 2002 Framework Decision did not assist because the United Kingdom had not undertaken to execute the sentence or detention order under domestic law. Article 5 permitted surrender subject to a condition of return only where that procedure was provided for by the law of the executing state. The 2008 Framework Decision was not yet in force and, in any event, allowed rather than required implementing provisions. Kozlowski and Wolzenburg did not alter that conclusion.

5. The court refused to adjourn under section 36. It was for the Polish courts to determine any application to set aside the sentence. The statutory discretion to delay surrender was not to be exercised simply because the fugitive hoped, or optimistically expected, that the requesting state’s court would decide in his favour.

Westminster Magistrates’ Court: ordered extradition to Poland on four European arrest warrants, finding no bar to extradition and no incompatibility with the European Convention on Human Rights.

High Court (Administrative Court): dismissed the appeal under section 26 of the Extradition Act 2003.