Sebastian Szwarc v Circuit Court Gliwice (Poland)

In an extradition appeal, the wider double-jeopardy bar applies where the requested conduct is founded on the same or substantially the same facts as conduct dealt with in earlier proceedings. The comparison concerns the underlying state of affairs, including what the prosecutor knew or ought reasonably to have known when the first proceedings ended. Differences in legal classification, quantities, or the seriousness of the later allegation are not conclusive. Where the offending cannot be severed from conduct already dealt with, extradition must be barred.

The appellant appealed against a District Judge’s order for his extradition to Poland to stand trial for alleged drug trafficking between January 2005 and July 2006. He had previously been convicted in Poland in 2008 of supplying drugs during an overlapping period. The appeal challenged the sufficiency of the arrest warrant, the statutory double-jeopardy bar, delay under section 14 of the Extradition Act 2003, and compatibility with article 8 of the European Convention on Human Rights.

The District Judge held that the warrant was sufficiently particularised, that the later conduct was different, and that extradition was not barred. The central issue on appeal was whether the later charges were founded on substantially the same facts as the 2008 offending.

1. Appeal allowed. The appellant was discharged. The alleged conduct in the warrant was based, on the balance of probabilities, on substantially the same facts as the 2008 offending.
2. Section 2(4)(c) of the Extradition Act 2003 requires sufficient particulars of the alleged conduct, time, place and applicable law. The warrant and further information were sufficiently clear for the double-jeopardy issue, but their generality remained material when that issue was examined.
3. The wider double-jeopardy principle applies where later extradition proceedings are founded on the same or substantially the same facts as earlier proceedings. The relevant facts are those known, or reasonably knowable, to the prosecutor when the earlier proceedings concluded. Different legal classifications, greater quantities or a more serious formulation of the later allegation do not by themselves establish different facts.
4. The earlier convictions concerned supply, which necessarily implied possession and obtaining. The later allegation concerned purchase for onward supply. The overlapping period, location and drugs, the appellant’s unchallenged evidence about buying larger quantities for onward supply, and the possibility that both allegations concerned the same supply chain meant that the later conduct could not safely be treated as distinct. The Polish prosecutor’s response addressed only whether the conduct was identical, not whether it was substantially the same.
5. The conduct could not be severed because the earlier conviction included supply in unspecified amounts and the warrant was broadly particularised. The court therefore ordered discharge.
6. The court did not determine the delay and article 8 grounds in detail. It identified consequential errors requiring reassessment, including whether the appellant had been lulled into believing that all proceedings had ended and whether the authorities ought to have known of the wider offending earlier.

1. High Court (Administrative Court) — [2024] EWHC 1337 (Admin): appeal allowed and the appellant discharged.
2. District Judge — order for extradition to Poland; no citation stated. The High Court held that the District Judge had wrongly concluded that the later conduct was different from the conduct underlying the 2008 conviction.