Norbert Miernik v Sad Okregowy III Criminal Division In Kielce, Poland

An extradition appeal based on Article 8 ECHR will fail where the strong public interest in extradition decisively outweighs private and family life considerations, particularly where the requested person left the requesting state as a fugitive.

For dual criminality under section 10 of the Extradition Act 2003, the court must identify whether the conduct alleged would constitute an offence in England and Wales. A failure formally to record the determination does not justify relief where the judge addressed the correct question and the conclusion is clear.

A late section 20 ground will not warrant permission where the underlying facts and applicable principles were already clear and the proposed ground has no realistic prospect of success.

The appellant challenged an extradition order made by District Judge Zani on 18 December 2023. He was wanted in Poland under a conviction extradition arrest warrant concerning a 2016 fraud conviction and an outstanding six-month custodial sentence.

The appellant relied on Article 8 ECHR, dual criminality and section 10 of the Extradition Act 2003, and sought to raise a late ground under section 20 concerning absence from later Polish hearings. The central issues were whether those grounds disclosed any arguable error and whether permission to appeal should be granted.

1. Article 8. The Article 8 ground was not viable. The finding that the appellant had left Poland as a fugitive was unassailable. He knew of the proceedings, had attended a trial hearing, had been notified of the duty to communicate changes of address and had failed to do so. The judge had properly considered private and family life with the appellant’s partner and his lack of UK convictions. The public interest in extradition decisively outweighed the countervailing considerations.
2. Section 10 and dual criminality. The alleged conduct was clearly described as making a false instrument by forging proof of payment. The allegation involved dishonesty. Although the extradition judge had not expressly recorded a separate determination under section 10 of the Extradition Act 2003, he had identified the correct task, posed the right question and described the index offence as forgery. The conclusion on dual criminality was therefore clear.
3. Section 20. The proposed new ground was raised extremely late and had not been advanced in the perfected grounds. The judge had found that the appellant was properly summonsed to the August 2019 hearing. He had also found that the appellant was represented by legal-aid counsel at the July hearing and that the same counsel represented him at the later hearings. The reasoning in Bertino was materially engaged, but the issue was not one of fault and diligence. The late ground had no realistic prospect of success.
4. The appeal had no realistic prospect of success on any ground, old or new. Permission to appeal was refused.

• High Court (Administrative Court): Permission to appeal refused; the proposed appeal had no realistic prospect of success.
• District Judge Zani: Extradition ordered on 18 December 2023 after hearings on 27 March and 28 November 2023.