Brzeski v Regional Court In Gdansk Poland

For the passage-of-time bar to extradition, a fugitive ordinarily cannot rely on delay occurring after flight, because its effects are treated as resulting from his own conduct. Delay before flight may be considered. The court must then identify real prejudice, injustice or oppression and a causal connection between the passage of time and the hardship relied upon. A lengthy period alone is insufficient. A retrial resulting from an appellate procedure in the requesting state is not, without more, oppressive merely because the procedure has no English equivalent. The safeguards available in a Convention state are relevant to assessing whether an unjust trial can be expected.

The appellant challenged an order made by District Judge Purdy on 15 November 2011 directing his extradition to Poland under section 21(3) of the Extradition Act 2003. The European Arrest Warrant concerned two alleged offences committed in 1999. The appellant was arrested in Poland in 2003, convicted and sentenced in 2008, then left Poland and became a fugitive. His co-defendants successfully appealed, resulting in the quashing of the convictions and the prospect of a retrial for the appellant.

Before the Divisional Court, the sole issue was whether extradition was barred by section 14 of the Act because of the passage of time. The central questions were whether pre-flight delay could be relied upon, whether the prospective retrial could constitute oppression, and whether the District Judge had applied the correct legal test.

1. Appeal dismissed. The District Judge applied the wrong approach in deciding that the appellant could not rely on any delay because he had later become a fugitive. However, his alternative conclusion that extradition would not be oppressive was correct.
2. Sections 11(1)(c) and 14 of the Extradition Act 2003 permit consideration of delay occurring before the requested person’s flight. The exclusion ordinarily applies to delay after flight, or to effects which would not have arisen but for the person’s own conduct in fleeing, concealing his whereabouts or evading arrest. The rule is drawn from Kakis v Government of Cyprus [1978] 1 WLR 779 and applied in Gomes v Government of the Republic of Trinidad and Tobago [2009] UKHL 21; [2009] 1 WLR 1038.
3. The court must identify actual injustice, oppression or material prejudice caused by the relevant passage of time. Mere lapse of almost nine years between the offences and the original judgment did not establish such prejudice. The statutory inquiry also requires a causal link between the passage of time and the unjust or oppressive circumstances relied upon, as explained in Wood v The Government of Germany [2005] EWHC 385 (Admin).
4. The prospective retrial did not result from the passage of time. It arose from the operation of the Polish appellate procedure, which quashed the appellant’s conviction when co-defendants succeeded. The fact that the procedure had no parallel in England and Wales did not make extradition oppressive. Poland could be expected to provide Article 6-compliant proceedings.
5. Oncel v HM Prison Brixton [2001] EWHC Admin 142 did not qualify the principles in Kakis and Gomes. It involved a combination of unusual factors, and the discrete causation issue had not been considered.

• High Court (Administrative Court): District Judge Purdy’s order of 15 November 2011 directing extradition under section 21(3) of the Extradition Act 2003 was challenged under section 26. The appeal was dismissed.