Sobolewski v Polish Judicial Authority

On a statutory appeal under the Extradition Act 2003, the court may admit fresh evidence where it raises an issue not previously raised, or evidence unavailable at the extradition hearing, which would have led the appropriate judge to decide a question differently and would have required discharge.

Material changes occurring after the extradition decision may therefore justify allowing an appeal. In assessing whether discharge would have been required, the court must reconsider the balance between the public interest in extradition and the countervailing circumstances, including time already served and serious deterioration in a close family member’s health. The statutory test is demanding, but it is satisfied where the updated circumstances decisively alter the balance.

The appellant appealed under section 26 of the Extradition Act 2003 from an order made by District Judge Gareth Branston at Westminster Magistrates’ Court on 17 October 2018.

The appellant had been convicted in Poland of possession and repeated sales of marijuana and had a substantial period of imprisonment outstanding. The district judge balanced the public interest in extradition against the appellant’s health, his wife’s health and their circumstances, but ordered extradition.

By the hearing of the appeal, the appellant had spent approximately a year in custody and his wife’s metastatic breast cancer had materially deteriorated. The central issue was whether the fresh evidence and changed circumstances satisfied section 27(4) of the Act.

1. Appeal allowed. The order for extradition was quashed and the appellant was ordered to be discharged immediately.

2. The district judge had made no material error in his approach or reasoning. The appeal succeeded solely because significant circumstances had changed since the extradition hearing.

3. Section 27(4)(a) of the Extradition Act 2003 was satisfied because new evidence was available concerning the wife’s current health and prognosis, and the appellant had served substantially more of his sentence. Under section 27(4)(b), those matters would have caused the appropriate judge to decide relevant questions differently.

4. The requirement in section 27(4)(c) that the judge would have been required to order discharge imposed a strong threshold. It was nevertheless met. If the district judge had known the updated prognosis and had coupled it with the period already served, he would have ordered discharge.

5. The public interest in extradition remained weighty. The offences were serious, including supply of drugs to children, and the appellant was responsible for the delay because he had been a fugitive. However, the offences were not of the most serious kind, more than 15 years had passed since their commission, the appellant and his wife had lived in England for nearly all that period, and the wife’s terminal illness and need for the appellant’s support had materially worsened.

6. The court applied the balancing approach associated with Celinski, weighing factors favouring extradition against factors militating against it. On the updated evidence, the countervailing factors outweighed the public interest in extradition.

• High Court (Administrative Court): The statutory appeal under section 26 of the Extradition Act 2003 was allowed. The Westminster Magistrates’ Court extradition order was quashed and the appellant was ordered to be discharged immediately.
• Westminster Magistrates’ Court: On 17 October 2018, District Judge Gareth Branston ordered extradition after conducting the applicable balancing exercise.