Grzegorz Kozubal v Regional Court In Rzeszów, Poland

On an extradition appeal, a significant change of circumstances may require the appellate court to reassess whether extradition is barred. In determining statutory proportionality under section 21A of the Extradition Act 2003, the court may consider only the specified statutory factors, to the extent appropriate. Where information about the likely foreign sentence is inadequate, domestic sentencing practice may provide a high-level, indicative assessment. Extradition may nevertheless become disproportionate where the requested person has spent substantially longer on remand than the likely sentence, even if delay was largely caused by fugitive conduct. The public interest in prosecution and treaty compliance does not invariably outweigh that consequence.

The appellant appealed under section 26 of the Extradition Act 2003 against an order of the Westminster Magistrates’ Court directing his extradition to Poland for trial for a 2007 burglary. The district judge had concluded that extradition was compatible with Article 8 of the European Convention on Human Rights and proportionate under section 21A(1)(b).

By the time of the High Court appeal, the appellant had spent more than 21 months in custody in connection with the extradition proceedings. The central issues were whether the district judge’s proportionality assessment was wrong in light of that change of circumstances and whether the Article 8 conclusion should be disturbed.

1. The appeal was allowed, the extradition order was quashed and the appellant was ordered to be discharged under section 21A(4)(b) of the Extradition Act 2003.
2. The ordinary appellate question was whether the district judge had answered the statutory question wrongly: Love v United States of America [2018] EWHC 172 (Admin) and Surico v Italy [2018] EWHC 401 (Admin). Where there was a significant change of circumstances, the court had to make its own assessment of the relevant extradition bar, applying the approach identified in Kozar v Czech Republic [2024] EWHC 2226 (Admin).
3. The district judge had correctly assessed the three factors in section 21A(3): the seriousness of the alleged conduct, the likely penalty and the possibility of less coercive measures. The burglary was more than trivial but fell at the lower end of the relevant range. Less coercive measures were inappropriate because of the appellant’s failure to cooperate.
4. Under Miraszewski v Poland [2014] EWHC 4261 (Admin), the statutory proportionality inquiry was not confined to offences identified as trivial in the relevant guidance. Miraszewski remained good law, as confirmed in Vascenkovs v Latvia [2023] EWHC 2830 (Admin). Where foreign sentencing information was insufficient, domestic sentencing practice could be used as a high-level, indicative guide, rather than as a determinative calculation.
5. On the available information, the likely penalty for the burglary, including any aggravation for fugitive conduct, would probably not be custodial in light of the appellant’s 21 months on remand. Although fugitive conduct and the public interest in prosecution were relevant, they did not prevent the conclusion that extradition had become disproportionate.
6. The Article 8 ground did not require determination. The district judge’s Article 8 conclusion was, however, not wrong on the evidence available at the extradition hearing.

• High Court (Administrative Court): [2024] EWHC 3032 (Admin) allowed the appeal, quashed the extradition order and ordered discharge under section 21A(4)(b) of the Extradition Act 2003.
• Westminster Magistrates’ Court: ordered extradition to Poland under section 21A(5) of the Extradition Act 2003.