Komar v District Court of Torun, Poland

Under section 21A of the Extradition Act 2003, proportionality is a separate bar from human-rights compatibility. The court must consider only the seriousness of the alleged conduct, the likely penalty and the possibility of less coercive measures. The requested person bears an evidential burden to identify appropriate alternatives. Where such measures are raised with the requesting judicial authority, it must consider them and give some explanation for rejecting them where the circumstances plainly require it. The reviewing court will generally respect that explanation. Historic delay does not establish oppression without evidence of a substantially greater difficulty in obtaining a fair trial than the ordinary hardship of extradition. A European supervision order cannot postpone surrender under an existing European arrest warrant.

The appellant appealed, with leave, against District Judge Blake’s order of 21 May 2015 for his extradition to Poland under a European arrest warrant. He was sought for prosecution for alleged VAT-invoice fraud committed between 2001 and 2003. The appeal concerned the validity and purpose of the warrant, oppression or injustice caused by delay under section 14 of the Extradition Act 2003, interference with private and family life under article 8 of the European Convention on Human Rights, and proportionality under section 21A.

The appellant relied on possible alternatives to extradition, including withdrawal of the warrant subject to security, temporary transfer, an Iron Letter and a European supervision order. The central issue was whether extradition was disproportionate because less coercive measures were available.

1. Appeal dismissed. The European arrest warrant was clearly issued for the purpose of prosecution. Read as a whole, boxes B and C indicated that the appellant had not been convicted. The references to a trial and a sentenced person were explained by the context and by mistranslation. The court adopted a cosmopolitan approach to the interpretation of an EAW.
2. The high threshold for oppression under section 14 was not reached. Although the delays were troubling and some might have been culpable, the relevant question was the effect of the delay and intervening events, rather than a simple allocation of blame. The seriousness and complexity of the alleged fraud, and the absence of evidence of a degree of difficulty amounting to oppression beyond ordinary extradition hardship, were decisive.
3. The article 8 balancing exercise was properly conducted. Delay was relevant, but the seriousness of the allegations and the reduced impact on adult children and a financially independent wife meant that the public interest in extradition outweighed the interference with private and family life.
4. Section 21A imposed a separate proportionality bar. The extradition was proportionate having regard to the seriousness of the alleged conduct, the likely penalty and the evidence that the appellant would most likely not be held in custody if returned.
5. The possible alternatives had been raised with the Polish authorities and each had been addressed. Temporary transfer was said to be impracticable because of the domestic warrant. Withdrawal subject to security was unaffordable. An Iron Letter had been refused. A European supervision order could not delay surrender under an existing EAW, by virtue of article 21(1) of the Framework Decision on pre-trial supervision.
6. Where a less coercive measure is reasonably applicable and is raised with the requesting authority, that authority must consider it and provide some explanation for rejection where the circumstances plainly call for one. The Polish authority had done so. It was generally inappropriate for the English court to question those reasons, consistent with mutual respect between judicial authorities.

• High Court (Administrative Court) — Komar v District Court of Torun, Poland, [2015] EWHC 2547 (Admin): appeal dismissed and extradition order upheld.
• Westminster Magistrates’ Court — District Judge Blake ordered extradition on 21 May 2015.