District Court in Krakow, Poland v Pawlikowska-Zawada

For the purposes of section 14 of the Extradition Act 2003, a person becomes unlawfully at large when an appeal is dismissed and the sentence becomes enforceable, whether or not the person knows the outcome. Where a convicted person leaves the jurisdiction after appealing, does not establish the result, and thereby remains beyond the authorities’ reach, the resulting period generally cannot be relied upon as making extradition unjust or oppressive. Oppression requires more than ordinary hardship, family life, illness or delay. Under section 21, the court must balance the interference with Convention rights against the public interest in extradition, including the seriousness of the offending and responsibility for the passage of time.

The District Court in Krakow sought the respondent’s extradition under a European Arrest Warrant to serve the outstanding part of a sentence imposed for 18 fraud offences. The respondent had been convicted, appealed, left Poland without learning the outcome, and remained in the United Kingdom for many years.

The Westminster Magistrates’ Court discharged her under section 14 of the Extradition Act 2003, finding extradition oppressive by reason of the passage of time. It stated that, alternatively, extradition would be disproportionate under section 21 and Article 8 of the Convention. The issues were whether the respondent could rely on the period after dismissal of her appeal and whether extradition was oppressive or disproportionate.

1. Appeal allowed. The order discharging the respondent was set aside and the case was remitted to the District Judge, if available, or another district judge, to proceed under sections 14 and 21 as required by the Extradition Act 2003.
2. Under section 14, the respondent became unlawfully at large when her appeal was dismissed and the sentence became enforceable. That applied irrespective of whether she knew that the appeal had failed: Wisniewski v Poland [2016] EWHC 386 (Admin), [2016] 1 W.L.R. 3750.
3. The fugitive principle applied by analogy. A person who knows that imprisonment will follow if an appeal fails, leaves the jurisdiction, makes no sufficient effort to discover the result, and thereby remains beyond the authorities’ reach cannot generally rely on events occurring after dismissal of the appeal. The absence of a legal obligation to report a change of address did not alter that conclusion. The respondent’s genuine belief that the appeal had succeeded was immaterial and had no objective or reasonable basis.
4. The District Judge had also erred independently in finding oppression. Oppression under section 14 is not established by ordinary hardship. The respondent’s family life, post-traumatic stress disorder, the passage of time and the alleged lack of enforcement steps did not meet the high threshold, particularly given the seriousness and number of the fraud offences and the authorities’ attempts to locate her.
5. For Article 8 purposes, the District Judge had correctly identified the need to balance the competing factors but had failed to attribute proper weight to the respondent’s responsibility for the passage of time and the authorities’ immediate action once her location became known. Extradition would not have been a disproportionate interference with family life. The application to rely on further evidence was not determined because the appeal could be resolved without it.

• Westminster Magistrates’ Court: on 9 July 2018, the District Judge ordered the respondent’s discharge under section 14 of the Extradition Act 2003 and indicated that she would alternatively have discharged her under section 21.
• High Court (Administrative Court): appeal allowed under sections 28 and 29; the discharge order was set aside and the matter remitted for reconsideration.