Zawila v Polish Judicial Authority

In an extradition appeal, nearly two decades' delay was a powerful factor in assessing proportionality. Where the requested person was not a fugitive, the offence was low-level and the person had established a settled family life, the interference with private and family life could be disproportionate under Article 8. Delay alone was not determinative, but could diminish the public interest in extradition and increase its impact on family life. Injustice under section 14 required clear proof of actual prejudice; fading memories or hypothetical prejudice were insufficient.

The appellant challenged an order made by District Judge Gozée on 26 April 2019 directing his extradition to Poland for prosecution for alleged fraud and false-document offences committed in 2000. He relied on sections 14 and 21A of the Extradition Act 2003, and Article 8 of the European Convention on Human Rights.

The appeal concerned the effect of the lengthy delay, the appellant's personal and family circumstances, whether he was a fugitive, and whether extradition would be unjust, oppressive or disproportionate. The appellant also relied on new evidence concerning his health.

1. The appeal was allowed on Article 8 grounds. The appellant's new evidence was given no weight under section 27(4)(b) of the Extradition Act 2003, since it would not have affected the district judge's decision.

2. The judicial authority had conceded that the appellant was not a fugitive for section 14 purposes. It was therefore wrong to treat him as someone who had knowingly placed himself beyond the reach of legal process. That concession was relevant both to section 14 and to the Article 8 proportionality assessment.

3. The district judge had also treated a later conviction for similar conduct as aggravating the seriousness of the extradition offence, although the later offence could not represent an escalation of the conduct charged in the EAW.

4. The period of approximately 19 years since the alleged offence was not determinative by itself. It was nevertheless a powerful factor which deserved considerable weight. The delay diminished the public interest in extradition and increased the impact on the appellant's private and family life.

5. Applying the principles in HH v Deputy Prosecutor of the Italian Republic, Genoa [2012] UKSC 25 and Polish Judicial Authorities v Celinski [2015] EWHC 1274 (Admin), the balance favoured the appellant. He was not a fugitive, the alleged fraud was low-level, and it had occurred nearly two decades earlier. Extradition would therefore be a disproportionate interference with his and his family's Article 8 rights.

6. The court rejected the injustice argument under section 14. Clear proof of actual prejudice was required. General assertions that memories fade and hypothetical prejudice depending on the defence were insufficient. Council of Europe countries could readily be assumed capable of protecting an accused against an unjust trial.

7. For similar reasons, the court stated that it would have found extradition oppressive under section 14 and disproportionate under section 21A, although the appeal was allowed on Article 8 grounds.

• High Court (Administrative Court) — The appeal against the extradition order was allowed on Article 8 grounds.
• District Judge Gozée — On 26 April 2019, ordered extradition to Poland and rejected the appellant's arguments under section 14, Article 8 and section 21A of the Extradition Act 2003.