Swiercz v The Regional Court in Poznan, Poland

On an appeal against an extradition decision, the appellate court must review whether the decision was wrong, focusing on the outcome rather than correcting every error in reasoning. Under section 21A of the Extradition Act 2003, proportionality must be assessed by reference to the specified matters, including the seriousness of the alleged conduct and the likely penalty. Seriousness is judged initially by domestic standards. The strong public interest in extradition remains relevant, but its weight varies with the nature and seriousness of the offence. In the Article 8 balance, relevant delay and the likelihood of a non-custodial sentence must be recognised. An offence which is moderately serious and unlikely to attract custody may nevertheless make extradition disproportionate when those matters are weighed against the interference with private and family life.

The appellant appealed under section 26 of the Extradition Act 2003 against a District Judge’s order for his extradition to Poland to face an accusation of fraud by false representation. The alleged conduct involved internet advertisements for a non-existent job in Germany and payments of approximately £305.34 by two complainants. The conduct occurred while the appellant was in the United Kingdom.

The District Judge rejected the appellant’s human-rights and proportionality challenges. On appeal, the issues included proportionality under section 21A, compatibility with Article 8, admission of fresh evidence, and whether the forum bar under section 19B arose. The central question was whether the District Judge’s decision that extradition was proportionate was wrong.

1. The appeal was allowed. The appellate approach was one of review. The court should not interfere merely because it would have reached a different value judgment or attached different weight to individual factors. The question was whether the District Judge’s decision itself was wrong: Polish Judicial Authority v Celinski [2015] EWHC 1274 (Admin) at [24].

2. Section 21A of the Extradition Act 2003 required consideration of compatibility with Convention rights and proportionality. In assessing proportionality, the court was confined to the specified matters: the seriousness of the alleged conduct, the likely penalty, and the possibility of less coercive measures. The guidance in Miraszewski v Poland [2014] EWHC 4261 (Admin) applied.

3. Seriousness was to be assessed initially by domestic standards. The relevant considerations included the nature and quality of the acts, culpability, and harm to the victims. Although the conduct was not trivial, it was moderately serious and, applying domestic sentencing standards, a custodial sentence was unlikely. The District Judge materially overstated the seriousness of the offending by treating custody as a likely or weighty possibility.

4. Article 8 required the competing public and private interests to be balanced. There was no legal test of exceptionality, although the public interest in extradition would commonly outweigh private and family life unless the consequences were exceptionally severe. The weight of the public interest varied with the nature and seriousness of the offence, and delay could diminish that weight while increasing the impact on private and family life: Norris v United States of America [2008] UKHL 16; HH v Deputy Prosecutor of the Italian Republic, Genoa [2012] UKSC 25.

5. The District Judge’s balancing exercise was materially flawed because she described the offending as serious and treated there as being no delay, despite the four-year interval since the conduct. Once the moderate seriousness, unlikely custodial sentence, and delay were properly considered, extradition was disproportionate.

6. The fresh evidence was not decisive and did not materially add to the evidence before the District Judge. It was therefore unnecessary to admit it: Hungary v Fenyvesi [2009] EWHC 231 (Admin).

7. The court would have granted permission on the forum-bar ground. A substantial measure of the relevant activity had been performed in the United Kingdom because the offending was conducted over the internet while the appellant remained here. The victims’ interests favoured prosecution in Poland, while the appellant’s United Kingdom connections raised essentially the same considerations as those under section 21A. Since the section 21A challenge succeeded, the forum issue was unnecessary to the disposition.

• High Court (Administrative Court): The appeal against the District Judge’s extradition order was allowed. The court held that extradition was disproportionate under section 21A of the Extradition Act 2003.
• Westminster Magistrates’ Court: The appellant was arrested under a European Arrest Warrant and appeared before the court before the extradition hearing.
• District Judge Tempia: On 10 September 2018, ordered the appellant’s extradition to Poland and rejected the proportionality and Article 8 challenges.