Pogorzelski v Regional Court in Warsaw, Poland

On an appeal under section 27 of the Extradition Act 2003, the High Court reviews, rather than rehears, the District Judge’s evaluative decision on Article 8 proportionality. Intervention requires legal misdirection, an irrational or unsupported material finding, failure to consider a relevant factor, consideration of an irrelevant factor, or an irrational overall conclusion.

Delay bars extradition only where the requested person proves that extradition would be unjust or oppressive by reason of the delay. A fugitive cannot rely on delay caused by fleeing or concealing his whereabouts. For a conviction in absence, the requesting authority must establish the statutory retrial guarantee where the requested person raises an issue about it. Article 8 family hardship will rarely outweigh the substantial public interest in extradition.

The Regional Court in Warsaw issued three conviction European Arrest Warrants concerning three Polish theft-related offences. The Westminster Magistrates’ Court ordered extradition on 22 December 2014.

The appellant challenged that order on three grounds: delay under section 14 of the Extradition Act 2003 in relation to EAW 1; conviction in absence and the retrial guarantee under section 20 in relation to EAW 3; and disproportionate interference with the appellant’s and his family’s Article 8 rights in relation to all three warrants.

The central issues were whether the appellant was a fugitive, whether the evidence established an entitlement to a retrial, and whether extradition remained proportionate after the position regarding EAW 3 was determined.

1. Appeal partly allowed. The appellant was discharged from extradition under EAW 3, but the appeals concerning EAWs 1 and 2 were dismissed. Extradition therefore proceeded for Offences 1 and 2.

2. Under sections 26 and 27 of the Extradition Act 2003, the High Court could allow the appeal only if the District Judge ought to have decided a question differently and would then have been required to order discharge. On an Article 8 proportionality issue, the proper approach was review. The court should not interfere merely because it would have attached different weight to the factors.

3. Section 14 imposes a high threshold. The requested person must prove, on the balance of probabilities, that extradition would be unjust or oppressive because of the passage of time. Delay caused by fleeing or concealing whereabouts cannot be relied on. The District Judge was entitled to find that the appellant knew of his obligation to notify the Polish authorities of his address and had failed to do so. He was consequently a fugitive and could not rely on the delay in relation to EAW 1.

4. Section 20(3) requires, at a minimum, that a trial process had begun from which the appellant deliberately absented himself. The District Judge was entitled to find that deliberate absence had not been proved in relation to EAW 3.

5. Although evidence that the requesting state incorporated Article 6 and recognised European Court of Human Rights case law may support satisfaction of section 20(5), the requested person must first adduce evidence raising an issue about the retrial guarantee. The contents of EAW 3 themselves raised such an issue. The warrant stated that the conviction was final and non-appealable and struck out the confirmation of a right to retrial or appeal. The requesting authority had not proved the required guarantee, so section 20(7) required discharge.

6. The Article 8 assessment had to be conducted afresh on the basis that EAW 3 no longer applied. Extradition interfered with family life and was lawful; the question was proportionality. Applying HH v Deputy Prosecutor of the Italian Republic, Genoa [2012] UKSC 25, the public interest in extradition remained weighty. The family hardship, including the effect on the children, did not outweigh that interest on these facts.

• Westminster Magistrates’ Court: District Judge Tempia ordered extradition on 22 December 2014.
• High Court (Administrative Court): The appeal was allowed in relation to EAW 3 and dismissed in relation to EAWs 1 and 2. The appellant was discharged from extradition for Offence 3 and extradited for Offences 1 and 2.