Janusz Zimer v Regional Court in Szczecin, Poland

For conduct to constitute an extradition offence under section 65(3) of the Extradition Act 2003, it is sufficient that some of the conduct occurred in the category 1 territory. The defendant need not have been physically present there throughout. For digitally mediated coercive or controlling behaviour, the requirement may be met where either the defendant was in that territory when some conduct occurred or the victim was there when its intended effects were felt. The conduct must satisfy the statutory requirement of repeated or continuous behaviour. A warrant stating that persistent conduct occurred both within and outside the territory, together with supporting evidence, may establish the territorial requirement to the criminal standard. Fresh evidence will be admitted only if it was unavailable below with reasonable diligence and would have produced a different result.

The appellant appealed against a District Judge’s order dated 27 September 2023 requiring his extradition to Poland under a conviction warrant. The warrant concerned an 18-month sentence for persistent coercive and controlling behaviour, including abusive communications, threats and publication of intimate images.

The appellant argued that the conduct occurred in Berlin or the United Kingdom, rather than Poland, so that it was not an extradition offence under sections 10 and 65(3) of the Extradition Act 2003. He also sought to adduce fresh evidence concerning the parties’ residence and related matters. The central issues were whether fresh evidence should be admitted and whether the Judicial Authority had proved to the criminal standard that some conduct occurred in Poland.

1. Appeal dismissed. The District Judge was wrong to treat conduct occurring in Berlin as satisfying section 65(4), because section 76A of the Serious Crime Act 2015 was not in force when that conduct occurred. That error did not invalidate the extradition order because the warrant also covered conduct occurring in Poland.
2. The fresh evidence was refused under the test in Szombathely City Council v Fenyvesi [2009] EWHC 231 (Admin). The evidence had to have been unavailable below with reasonable diligence and, if admitted, had to be capable of producing the appellant’s discharge. The evidence was not decisive. The divorce document had also been available at the original hearing.
3. Under section 65(3) of the Extradition Act 2003, applying King’s Prosecutor (Brussels) v Cando Armas [2005] UKHL 67, it was sufficient that some of the conduct complained of or relied upon occurred in Poland. Physical presence of the appellant in Poland was not required for every episode. Conduct could occur there if the appellant was present when an episode took place or if the victim was there when its intended effects were felt.
4. The relevant conduct under section 76(1)(a) of the Serious Crime Act 2015 was repeated or continuous controlling or coercive behaviour. In this context, repeated meant more than once. Although the communications were digital and could have been sent across jurisdictions, the warrant expressly stated that persistent conduct occurred in Berlin and Mysliborz.
5. The warrant, the connection of Mysliborz with both parties, and the appellant’s admission that he was in Poland on 5 March 2017 when he posted the victim’s naked photographs established to the criminal standard that at least two episodes occurred in Poland. Section 65(3)(a) was therefore satisfied, and the conduct constituted an extradition offence for sections 10 and 65(3) purposes. The approach in Matwiejow v Regional Court in Tarnobrzeg (Poland) [2019] EWHC 2207 (Admin) was distinguishable because the warrant there placed the relevant conduct in England.

• High Court (Administrative Court): Appeal against the District Judge’s extradition order dismissed. The finding that Berlin conduct satisfied section 65(4) was wrong, but the order was upheld because sufficient conduct occurred in Poland.
• District Judge: On 27 September 2023, ordered extradition to Poland.