Weszka v Regional Court In Poznan, Poland

In an extradition appeal, delay will not ordinarily assist a requested person who knowingly breached a suspended sentence and thereby became unlawfully at large. The requesting state must prove the terms of the sentence and the breach to the criminal standard; breach cannot be inferred merely from earlier knowledge of possible enforcement. A judge hearing an unrepresented requested person should explain the procedure and issues, facilitate the presentation of evidence and avoid entering the forensic arena. In exceptional cases, the Article 8 balance may outweigh the public interest in extradition, particularly where the request is unclear, the outstanding obligation is modest, the person is vulnerable and extradition would cause grave effects on established private and family life.

The appellant had previously been extradited to Poland, convicted of fraud and sentenced to 18 months’ imprisonment suspended for five years. The sentence was later activated in his absence after the Polish authorities said that he had failed to pay compensation. A District Judge ordered his return on a conviction warrant on 8 December 2015. The appellant, who had been unrepresented at the extradition hearing, appealed under section 26 of the Extradition Act 2003.

The appeal concerned fresh evidence, alleged factual and procedural errors by the District Judge, the appellant’s status as a fugitive, and whether extradition would be proportionate having regard to his private and family life under Article 8.

1. Appeal allowed. The District Judge’s findings were set aside and the decision was remade on the evidence before the Administrative Court.
2. The fact that a suspended sentence was activated did not establish the conditions of suspension or their breach. The requesting state had to prove both the terms of the sentencing order and the breach to the criminal standard. Here, the further information established that compensation had been a condition, but the EAW had been unclear about the sentence and the reason for activation.
3. The appellant was nevertheless unlawfully at large from July 2013. Under Wisniewski v Poland [2016] EWHC 3896 (Admin), a person may be a fugitive even without knowing that the sentence has been activated, provided that he knowingly breached a term and knew that activation was liable to follow. He therefore could not rely on delay as an independent bar to extradition.
4. The District Judge’s handling of an unrepresented foreign national did not conform to the guidance in the Equal Treatment Bench Book. The judge should have explained the procedure and the issues requiring evidence. An inquisitorial approach may require questions to clarify evidence, but does not permit the judge to challenge the account as an opposing advocate or rely on unsupported assumptions about foreign procedure.
5. The remaining issue was the Article 8 balance. The public interest in enforcing extradition arrangements was substantial, but the EAW and supplementary information failed adequately to explain the compensation obligation, the delay was significant, the appellant was 55 and in poor physical and psychiatric health, and extradition would seriously disrupt his relationship, accommodation, employment and family life. The outstanding compensation was approximately £600, and he had made subsequent attempts to pay.
6. In this exceptional case extradition was disproportionate. The appellant could not rely on oppression under section 14 of the Extradition Act 2003, but the relevant private and family-life factors nevertheless outweighed the public interest in return.

• City of Westminster Magistrates’ Court: the appellant was arrested on 29 October 2015 and the hearing proceeded in December 2015 without representation. The District Judge ordered extradition on 8 December 2015.
• High Court (Administrative Court): the appeal under section 26 of the Extradition Act 2003 was allowed on 10 February 2017. The District Judge’s findings were set aside and the extradition decision was remade.