Podlas v Koszalin District Court Poland

In extradition proceedings, dual criminality may be established by a straightforward conversion of measurements used in the requesting state, provided the comparison is approached with appropriate caution. Whether a person has deliberately absented himself from a trial is a question of fact. The requesting judicial authority bears the burden of proving deliberate absence to the criminal standard. The relevant trial may be a continuing process, but it must first have been initiated. Knowledge of the process and deliberate non-attendance are required; conduct making service difficult is not, by itself, enough.

Article 8 requires a fact-sensitive balance between the requested person’s family rights and the compelling public interest in extradition. Children’s interests are a primary consideration, but they are not automatically determinative.

The appellant challenged orders made by a district judge directing his extradition to Poland under two conviction European Arrest Warrants. The challenges concerned dual criminality for a drink-driving offence, the statutory passage-of-time bar, deliberate absence from the trial for the purposes of Extradition Act 2003, section 20, and proportionality under Article 8 of the European Convention on Human Rights.

The district judge rejected each challenge and ordered extradition. The appellant appealed to the Administrative Court, including on the basis of further family and psychological evidence. The central issues were whether the drink-driving conduct constituted an extradition offence, whether the appellant was a fugitive, whether he had deliberately absented himself from the VAT-fraud trial, and whether extradition would be disproportionate.

1. Appeal dismissed. The orders for extradition under both European Arrest Warrants were confirmed.
2. In assessing dual criminality, caution is required when comparing measurements in the requesting state with those used in the United Kingdom. A simple and reliable conversion is permissible. The Polish breath measurement was equivalent to 104 micrograms of alcohol in 100 millilitres of breath and therefore disclosed conduct amounting to an offence under section 5 of the Road Traffic Act 1988.
3. The district judge was entitled to find that the appellant was a fugitive in relation to the VAT-fraud proceedings. The findings that he knew of the pending proceedings and stayed away from Poland to avoid them were open on the evidence. The burden of proof had not been shifted. Consequently, the passage-of-time bar in section 14 of the Extradition Act 2003 was unavailable.
4. Section 20(3) of the Extradition Act 2003 must be construed by reference to the trial procedures of the requesting state. The trial may be a continuing process, but a trial process must first have been initiated. The judicial authority must prove, to the criminal standard, that the requested person absented himself from that process deliberately. Deliberate absence requires consideration of the person’s state of mind. A person cannot deliberately absent himself without knowing that the process is taking place or is about to start. Steps which make service difficult do not, without more, prove deliberate absence.
5. The district judge was entitled to find that the appellant knew of the relevant court proceedings and deliberately stayed away. His absence was therefore deliberate within section 20(3), so that section 20(7) did not bar extradition.
6. Article 8 required a separate proportionality assessment for each warrant. The impact on the appellant and his family had to be balanced against the compelling public interest in extradition. The children’s interests were a primary consideration, but were not decisive. Given the seriousness of the offences and the evidence concerning the children’s care, the additional material did not alter the balance.

• High Court (Administrative Court) [2015] EWHC 908 (Admin): dismissed the appeal and confirmed the district judge’s extradition orders.
• District Judge: rejected the appellant’s challenges and ordered extradition under both European Arrest Warrants.