Beata Vileta Kos v Circuit of Wroclaw, Republic of Poland

On an extradition appeal, fresh evidence is admissible only where it was unavailable at the extradition hearing and would have caused the relevant question to be decided differently, so that discharge would have followed. Evidence available through reasonable diligence cannot ordinarily be relied upon to repair omissions at the first hearing.

In assessing Article 8 proportionality, the court must examine the actual findings and reasoning of the extradition judge. A decision is not flawed because it considers the quality of a family relationship, provided that the proportionality conclusion rests on the available care arrangements and the evidence as a whole. Later evidence is immaterial where it would not have altered the result.

The appellant appealed under section 21A of the Extradition Act 2003 against the Westminster Magistrates’ Court’s order of 28 May 2024 for her extradition to Poland on an accusation warrant concerning four alleged fraud offences.

The sole ground was incompatibility with the appellant’s and her husband’s rights under Article 8 of the Convention. Permission to appeal had been granted, and fresh evidence was admitted concerning the appellant’s daughter, including a subsequent episode of ill-health and evidence about the suitability of her accommodation to care for the appellant’s husband.

The central issues were whether the statutory conditions for relying on fresh evidence were met and whether the District Judge had made errors requiring the Article 8 proportionality assessment to be reopened.

1. The appeal was dismissed. The statutory test in section 27(4) of the Extradition Act 2003 requires the issue or evidence not to have been raised or available at the extradition hearing, and requires that it would have resulted in a different decision on the relevant question, such that discharge would have followed.
2. The guidance in Szombathely v Fenyvesi [2009] 4 All ER 324 was applied. The threshold is strict. Evidence is unavailable only where it did not exist or could not have been obtained with reasonable diligence. The daughter’s evidence about her accommodation was available at the original hearing and was substantially covered by the evidence of the appellant and her husband.
3. The daughter’s later ill-health was unavailable at the original hearing, but it was not decisive. The District Judge had not based his conclusion on a finding that she would provide full-time care or necessarily accommodate her father. His reasoning rested on continuing support from the daughter, together with assistance from the GP and social services.
4. The approach in Hamasalih v Public Prosecutor’s Office, Bolzano Court of Law, Italy [2025] EWHC 593 (Admin) was also applied: sections 27 and 29 govern whether the appeal should be allowed, rather than merely the admissibility of fresh evidence.
5. The District Judge was entitled to assess the evidence about the relationship, alcohol use and police attendances. Those findings did not improperly determine the availability of care. The District Judge had considered the curfew, delay, the seriousness of the allegations and the available support, and the fresh evidence would not have caused a different proportionality conclusion.
6. The potential effect of extradition on an innocent family member was a relevant Article 8 consideration, as recognised in Norris v Government of the USA [2010] UKSC 9 at paragraph 65. It did not, on the facts found, make extradition disproportionate.

• Westminster Magistrates’ Court: On 28 May 2024, District Judge Zani ordered the appellant’s extradition to Poland.
• High Court (Administrative Court): Permission to appeal was granted on 4 March 2025. The appeal was dismissed.