Kazaniecki v Regional Court In Torun, Poland & Anor

Under the Extradition Act 2003, proportionality requires careful consideration of any realistic less coercive alternative to extradition. An unresolved request under section 21B may make extradition disproportionate and should be addressed before the extradition decision is made.

In an Article 8 assessment, the public interest in extradition remains strong, but the additional interest in preventing the United Kingdom becoming a safe haven does not arise where the requested person is not a fugitive. Delay must be assessed by reference to all the circumstances, including culpability, prejudice, family impact and the risk of further delay. For a non-fugitive, the stringent approach applicable to fugitives cannot be imposed.

The appellant challenged an order made by District Judge Ikram at Westminster Magistrates’ Court on 30 June 2016 for his extradition to Poland to stand trial for fraud. The alleged offences occurred in 2004, but the European Arrest Warrant was not issued until 2016.

The appeal concerned the judge’s treatment of an unresolved request under section 21B of the Extradition Act 2003 for investigation or interview in the United Kingdom, the proportionality of extradition under section 21A and Article 8, and whether the passage of time made extradition unjust or oppressive under section 14.

1. Appeal allowed. The magistrates’ judge had erred in failing to address the appellant’s outstanding section 21B request. Section 21A(3)(c) required consideration of the possibility of less coercive measures. While that possibility remained open, the conclusion that extradition was proportionate was wrong. The request should probably have led to an adjournment under section 21B(4).
2. The Article 8 assessment was materially flawed. The public interest in bringing accused persons to trial and honouring extradition obligations remained very high, as explained in Polish Judicial Authority v Celinski [2015] EWHC 1274 (Admin), but the additional public interest in deterring fugitives from treating the United Kingdom as a safe haven did not arise. The appellant was not a fugitive. The judge also failed to give proper weight to the appellant’s wife’s mental illness, the less coercive alternative, the length and causes of the delay, the prejudice caused by the death of a potential defence witness, and the risk of further delay in Poland.
3. The judge’s approach under section 14 was also wrong. The reference in Kakis v Government of Cyprus [1978] 1 WLR 779 to exceptional circumstances applied to fugitives. For a non-fugitive, the court must make an overall assessment of whether extradition would be unjust or oppressive. Injustice focuses principally on whether a fair trial remains possible, while oppression concerns hardship arising from changed circumstances, with some overlap.
4. The appellant could not establish that a fair trial was impossible, so the injustice limb was not made out. However, considering the unexplained delay, the appellant’s settled family and working life in the United Kingdom, his health, the impact on his wife and daughter, the unresolved section 21B request and the prospect of further systemic delay, extradition would be oppressive within section 14.
5. The extradition order was quashed and the appeal allowed.

• Westminster Magistrates’ Court: District Judge Ikram ordered extradition to Poland on 30 June 2016.
• High Court (Administrative Court): The appeal was allowed under section 27 of the Extradition Act 2003. The extradition order was quashed.