Wisniewski, R (on the application of) v Regional Court in Elblag

Extradition is not barred merely because a conviction was obtained with the participation of a judicial assessor lacking security of tenure, contrary to Urban v Poland. The relevant question is whether the defect produced a flagrant breach or denial of Article 6 rights. A custodial sentence does not automatically make the breach flagrant. The nature of the procedural defect, rather than the consequences of the sentence, is decisive. Where there is no evidence that the assessor was incompetent, improperly influenced or otherwise prejudiced the defendant, the defect does not justify refusing extradition. The principle of finality also supports maintaining concluded convictions where the domestic constitutional and human-rights courts have rejected general reopening.

The claimant appealed under section 26 of the Extradition Act 2003 against a district judge’s decision to order his extradition to Poland to serve three terms of imprisonment imposed for theft, assault and attempted drug dealing, and battery causing bodily harm.

Each conviction involved a Polish judicial assessor. The claimant argued that the assessors lacked the security of tenure required by Article 6 of the European Convention on Human Rights. The European Court of Human Rights had considered the issue in Urban v Poland, where it accepted that the institutional defect did not generally require reopening concluded cases. The central issue was whether the assessor defect made the convictions a flagrant denial of justice so that extradition should be refused.

1. The appeal was dismissed. The claimant’s convictions and sentences were not excluded from consideration merely because judicial assessors had participated in the determining courts.

2. The participation of assessors without the necessary security of tenure constituted an institutional defect relevant to Article 6, but it did not establish a flagrant breach or denial of justice in every case. The court considered the nature of the defect more important than the consequences of the conviction. The imposition of imprisonment did not automatically establish flagrancy.

3. The claimant provided no evidence that the assessors were incompetent, subject to ministerial pressure, improperly influenced, or otherwise biased in the particular proceedings. There was therefore no conceivable suggestion of prejudice beyond the absence of security of tenure.

4. The reasoning in Urban v Poland supported the conclusion that finality and legal certainty could justify maintaining convictions reached under the former institutional arrangements. The absence of any available Polish reopening remedy did not assist the claimant where the underlying defect had caused no particular prejudice.

5. The court distinguished the reasoning relied on from Abu Qatada. That case concerned alleged use of evidence obtained through torture, a defect of a fundamentally different nature. It did not establish an automatic relationship between a prison sentence and a flagrant breach of Article 6.

6. The claim failed. The judgment was directed to affect other extradition cases raising the same assessor argument, and the usual order was made.

The judgment states that the appeal was brought under section 26 of the Extradition Act 2003 against a district court judge’s decision ordering extradition to Poland. The lower court’s citation is not stated in the judgment.