Kaszowski v Regional Court In Rzeszow, Poland

Under section 14 of the Extradition Act 2003, the question is whether extradition would be unjust, not simply whether a fair trial might be more difficult after delay. For a Council of Europe state, the requesting court is ordinarily assumed capable of protecting the accused against an unjust trial. Extradition will be unjust only in exceptional circumstances where the requesting court would be bound to conclude that a fair trial is impossible. Where fugitive status is relied upon, the District Judge should make an express finding, since a fugitive will ordinarily be unable to rely on delay as rendering extradition unjust or oppressive.

The appellant appealed under section 26 of the Extradition Act 2003 against a decision of District Judge Zani in the Westminster Magistrates’ Court dated 23 February 2012. The District Judge ordered extradition to Poland to face a charge of assaulting a police officer arising from events in 2002.

The appellant relied on section 12, asserting that an agreement with a police officer prevented prosecution, and on section 14, arguing that the passage of time had impaired his ability to defend himself. The central issues were whether the section 12 challenge was established and whether extradition would be unjust because a fair trial could no longer be held.

1. The appeal was dismissed. The usual legal aid order was made.
2. The section 12 argument failed. The District Judge was entitled to reject the appellant’s account that he had been promised that he would not be prosecuted. The Polish judge’s letter recorded that, on release, the appellant had been presented with the charges and given information concerning his rights and obligations. That evidence was inconsistent with the alleged agreement.
3. Where fugitive status is relied upon under section 14, the District Judge should make a specific finding on whether the person is a fugitive. Although the District Judge’s reasoning was consistent with such a finding, no express finding had been made. The point was therefore considered on the assumption that fugitive status had not been established.
4. Following Kakis v the Government of Cyprus [1978] 1 WLR 779, a fugitive will ordinarily be unable to rely on delay as making extradition unjust or oppressive, because the delay has been brought about by the fugitive’s own conduct.
5. The section 14 ground nevertheless failed. The issue was whether extradition itself would be unjust, rather than whether it would now be more difficult to conduct a fair trial. Under Gomes v the Government of the Republic of Trinidad and Tobago [2009] 1 WLR 1038 and Dare v Principal Court of Santa Cruz De Tenerife [2010] EWHC 366 (Admin), a Council of Europe state should ordinarily be assumed capable of protecting the accused against an unjust trial. Extradition would be wrong only where the requesting court would be bound to conclude that a fair trial was impossible.
6. Poland’s courts were better placed to assess the availability and significance of witnesses, the alleged police-station assault, and any relevant records or other material. The lapse of approximately ten years did not establish that a fair trial was impossible.
7. The contrary suggestion in Lisowski v Regional Court of Bialystok (Poland) [2006] EWHC 3227 (Admin) should not be followed in light of the approach stated in Gomes v the Government of the Republic of Trinidad and Tobago.

1. High Court (Administrative Court): The appeal under section 26 of the Extradition Act 2003 was dismissed.
2. Westminster Magistrates’ Court: District Judge Zani ordered extradition to Poland on 23 February 2012.