Chodorek v District Court of Kielce, Poland

In an extradition appeal, the court must assess the statutory bars as the primary decision-maker where the relevant points were not argued below. Conduct involving withdrawals from an ATM beyond an agreed overdraft facility may constitute theft, but dishonesty and the intention permanently to deprive must be proved to the criminal standard. An earlier High Court decision on materially similar conduct should be followed unless clearly wrong. Extradition of a fugitive to serve the balance of a sentence engages a strong public interest, but that interest may be outweighed by the disproportionate impact on Article 8 rights, particularly where the remaining sentence is short, delay is substantial and extradition would seriously affect a dependent family member’s health.

The appellant challenged an order made by District Judge Baraitser on 29 June 2016 for his extradition to Poland. The order concerned the outstanding balance of a sentence imposed in 2000. The appeal raised two issues: whether the conduct described in the European Arrest Warrant constituted an extradition offence under Extradition Act 2003, and whether extradition would be a disproportionate interference with the appellant’s and his family’s rights under Article 8 of the European Convention on Human Rights.

The issues had not been properly advanced before the District Judge. The High Court therefore considered them as primary decision-maker.

1. The appeal was allowed and the appellant was discharged.

2. Under sections 10 and 65(3) of the Extradition Act 2003, the respondent bore the burden of proving to the criminal standard that the conduct described in the European Arrest Warrant and further information would constitute an offence under the law of the relevant part of the United Kingdom.

3. The court was bound by Dansk Regional Court v Ulatowski [2010] EWHC 2673 (Admin) unless satisfied that it was clearly wrong. The court was not so satisfied. The principles concerning a bank’s ability to honour a payment or provide overdraft facilities, discussed in Barclays Bank Limited v WJ Simms Son & Cooke (Southern) Limited [1980] 1 QB 677, did not establish that ATM withdrawals exceeding an agreed overdraft could never amount to theft. Adamczewski v District Court in Jelenia Gora, Poland (2014) EWAC 2958 was consistent with that conclusion.

4. Although the appellant deliberately made withdrawals in breach of his overdraft agreement, the imprecise description of the alleged deception and the respondent’s inadequate answers left a significant uncertainty as to whether he had acted dishonestly. The court therefore could not be satisfied that the conduct constituted theft.

5. Article 8 required a proportionality assessment, applying the principles identified in Norris v Government of the United States of America (no.2) [2010] UKSC 9, HH v Deputy Prosecutor of the Italian Republic, Genoa 2 [2012] UKSC 25 and Celinski and Others v Polish Judicial Authority [2015] EWHC 274. There was a constant and weighty public interest in extraditing convicted fugitives to serve their sentences. In this case, that interest was outweighed, just, by the likely serious deterioration in the appellant’s wife’s health, the short balance of the sentence, the appellant’s later repayment of the bank debt and the substantial delay, for part of which the respondent bore responsibility.

6. It would be comparatively rare for Article 8 to render disproportionate the extradition of a fugitive to serve the balance of a sentence. On the evidence in this case, however, extradition would be disproportionate.

• High Court (Administrative Court): allowed the appeal against the extradition order made by the District Judge on 29 June 2016 and discharged the appellant.