Zengota v The Circuit Court of Zielona Gora, Poland & Ors

The passage-of-time bar in section 14 of the Extradition Act 2003 is exceptional. Ordinary hardship caused by extradition is insufficient. The requested person must show a causal link between the passage of time and oppressive changes in circumstances.

In multiple-offence proceedings, oppression and fugitive status must be assessed separately for each offence or set of proceedings. That assessment is not conducted in isolation. The seriousness and pattern of offending, and any existing extradition order, may reduce the oppressive effect of surrender for additional offences. A fugitive generally cannot rely on the passage of time, and culpable delay by the requesting state matters only in a borderline case where the requested person is not to blame.

These were appeals, with permission from Ouseley J, against two extradition orders made by District Judge Goldspring. The first order, dated 6 November 2015, concerned four European Arrest Warrants; the second, dated 9 November 2016, concerned two further warrants. One warrant was withdrawn during the proceedings.

The appellant relied on section 14 of the Extradition Act 2003, arguing that delay since the alleged offending or convictions made extradition oppressive. The central issue was whether oppression and fugitive status had to be determined separately for each offence or warrant, or whether the court could assess the overall circumstances collectively.

Both appeals were dismissed. The court held that the passage-of-time bar in section 14 of the Extradition Act 2003 is not easily satisfied. Hardship ordinarily inherent in extradition is insufficient. The requested person must establish oppressive effects caused by the passage of time and relevant changes in circumstances. The seriousness of the offending is relevant.

1. A fugitive cannot normally rely on the passage of time, save in the most exceptional circumstances. Fugitive status must be proved by the requesting authority to the criminal standard. The approach in Kakis v. Government of the Republic of Cyprus [1978] 1 WLR 779 and Gomes v. Government of the Republic of Trinidad and Tobago; Goodyer v. Government of the Republic of Trinidad and Tobago [2009] UKHL 21 was treated as establishing hard-edged rules. The more flexible approach described in La Torre v. Italy [2007] EWHC 1370 (Admin) could not dilute them.
2. The Extradition Act 2003 (Multiple Offences) Order 2003 requires separate consideration of each offence. A finding that the requested person is a fugitive in one set of proceedings cannot be transferred to another. Nevertheless, the assessment is not isolated. The relevant periods, knowledge, status of the proceedings, gravity of the offences and the overall circumstances may be considered together.
3. In the first appeal, the District Judge should have made separate fugitive findings. He was nevertheless entitled to find that the appellant was a fugitive for EAW 3, applying Wisniewski v. Regional Court of Wroclaw, Poland [2016] EWHC 386 (Admin). EAW 2 had been withdrawn. On a fresh assessment, extradition under EAWs 1 and 4 was not oppressive. The offending formed part of a serious pattern of fraud, the hardship was inevitable, and no culpable delay was shown.
4. The same conclusion applied to EAWs 5 and 6. The District Judge was entitled to consider the earlier extradition order and the overall pattern of offending. Consistently with Kalemba v. Regional Court of Gdansk, Poland [2015] EWHC 1880 (Admin) and Zakrzewski v. Regional Court in Warsaw, Poland [2015] EWHC 3393 (Admin), the earlier order diminished any additional oppressive effect. Section 14 did not bar extradition.

1. High Court (Administrative Court) — [2017] EWHC 191 (Admin). On 10 February 2017, Cranston J dismissed both appeals against the extradition orders.
2. District Judge Goldspring — extradition orders made on 6 November 2015 in respect of EAWs 1–4 and on 9 November 2016 in respect of EAWs 5–6. EAW 2 was subsequently withdrawn by order of the High Court dated 3 November 2016.