RADOSLAW KORZYNSKI v REGIONAL COURT OF BIALYSTOK (POLAND)

For the purposes of extradition safeguards concerning trials in absentia, a substituted custodial sentence imposed after breach of a community sentence may raise a reasonably arguable question distinct from activation of a suspended custodial sentence.

However, proof of deliberate absence does not require the prior issue or attempted service of a summons where such steps would be futile. A requested person’s deliberate evasion, including moving abroad without leaving an address and thereby placing himself beyond the requesting state’s reach, may establish a manifest lack of diligence and mean that surrender would not breach fair trial rights.

The appellant faced extradition to Poland under a mixed extradition arrest warrant concerning a series of frauds. Extradition had been ordered by District Judge Goldspring on 9 July 2021, and permission to appeal had been refused on the papers by Sir Ross Cranston on 15 November 2021.

The renewed application concerned one constituent matter. The appellant had received a community sentence in his absence and, following breach of its conditions, a distinct substituted custodial sentence. The central issues were whether the Extradition Act 2003 section 20 safeguards applied to the later hearing, and whether the evidence could establish deliberate absence through manifest lack of diligence without a summons or attempted service.

1. Permission refused. The renewed application raised a single point concerning one constituent element of the extradition request. Success would not have discharged the extradition arrest warrant as a whole.
2. The appellant’s premise was reasonably arguable. A distinct custodial sentence imposed after breach of a community sentence might differ materially from activation of a previously imposed suspended custodial sentence. The reasoning in Ardic, including its focus on the custodial sentence imposed and the decision determining the custodial sentence to be served, did not necessarily resolve the issue.
3. The appellant nevertheless had to show a reasonably arguable basis for the consequence sought under section 20. Proposition (vi) in Stryjecki was treated as remaining available for present purposes, despite later cases having cast doubt upon it. Proposition (vii) remained applicable where the requested person’s own deliberate conduct caused his lack of knowledge of the time and place of trial.
4. A summons, or an attempt to serve one, was not a prerequisite to establishing manifest lack of diligence. The extradition safeguards protect fair trial rights and cannot require steps known to be utterly futile. Kotsev demonstrated that, even where there was no summons, deliberate conduct placing the requested person beyond the reach of the requesting state could establish the relevant lack of diligence.
5. The evidence and the extradition judge’s findings provided no realistic prospect of a different conclusion at a substantive hearing. The appellant had agreed to the community sentence, evaded compliance, became uncontactable, moved to the United Kingdom deliberately to avoid his responsibilities, and had not left an address with the authorities. His lack of knowledge of the later hearing resulted from his own deliberate conduct and did not involve a breach of fair trial rights.

The arguability of the legal premise therefore could not justify permission to appeal.

• High Court (Administrative Court): permission to appeal refused on the renewed application.
• Extradition hearing: District Judge Goldspring ordered extradition on 9 July 2021.
• Permission stage: Sir Ross Cranston refused permission on the papers on 15 November 2021. A stay concerning the section 2 issue in Wozniak fell away after the Divisional Court’s final determination.