Extradition

Zubkova v Polish Judicial Authority: Queen’s Bench Division, Administrative Court: 4 April 2014

Appellant Lithuanian national allegedly committing offence in 1996 – Respondent judicial authority seeking appellant’s extradition to stand trial for alleged offence  – District judge ordering appellant’s extradition – Appellant appealing

The respondent judicial authority alleged that the appellant Lithuanian national had assisted an ‘armed robbery’ (the alleged offence). The alleged offence was said to have occurred in 1996 when the appellant was 19 years old. The appellant was said to have assisted others to gain entry to a flat in Poland in order to steal money and property from one of the occupiers by describing the layout of the flat and facilitating entry.

The appellant was never charged, arrested or questioned in Poland in relation to the alleged offence and she left for the United Kingdom. In 1997, a decision to charge the appellant was made and a warrant issued for her arrest. In 2005 and 2010, further warrants were issued. However, the appellant was never notified of any charge or of the possibility of being prosecuted for the alleged offence. In 2012, the judicial authority issued a European arrest warrant (the warrant) by which it sought the appellant’s extradition so that she could be tried for the alleged offence. At the time of the instant proceedings, only two of the seven original witnesses could be traced.

At her extradition hearing, the appellant said that she had been trafficked to Poland. She said that she had known the men said to have committed the alleged offence, but denied having participated in the alleged offence. She said that she had feared that the men would kill her and had therefore obtained emergency travel documents in order to escape Poland and travel to the UK. The appellant submitted, inter alia, that she was not a fugitive and that it would be unjust or oppressive under section 14 of the Extradition Act 2003 (the 2003 act) to order her extradition by reason of the passage of time. The district judge was not satisfied that the appellant was a fugitive. 

However, he concluded that it would not be unjust or oppressive to extradite the appellant as the trial judge would be in the best position to determine whether a fair trial could take place. He was also not satisfied that the appellant had been trafficked as she alleged. The district judge ordered the appellant’s extradition and she appealed.

The appellant submitted, inter alia, that the district judge had been wrong to conclude that it would not be unjust to order the appellant’s extradition by reason of passage of time under section 14 of the 2003 act.

The appeal would be allowed.

It was established law that it was possible for the issue of injustice to arise in circumstances where no one doubted the fairness of the trial expected to be received by the requested person. Further, in a case involving old allegations, it was incumbent on the judicial authority to set out sufficiently what the case against the requested person was and upon what evidence it sought to establish it.

That was necessary, not to establish a prima facie case against a requested person, but simply to make it plain to the requested person what it was that they had to do at a trial in order to establish their innocence.

The test applied by the district judge had not been quite right. It could not be doubted that the appellant would receive a fair trial in Poland and the trial judge would be in the best place to determine whether a fair trial could take place. However, that had not been determinative of the issue of injustice. In the instant case, it had been impossible to tell from the description of the offence in the warrant, in what circumstances it was alleged to have occurred.

The alleged offence had related to a very old accusation of which only the barest particulars had been given. In the circumstances, an inference that it had been unjust to require the appellant to stand trial could be drawn. It had not been sufficient to say that the appellant could always advance her denial. The appellant had no hope, for example, of obtaining evidence about the emergency travel documents. Consequently, the district judge had been wrong not to find that the appellant had established that it would have been unjust by reason of the passage of time for her to stand trial for the charge in the warrant.

Kakis v Government of Republic of Cyprus [1978] 2 All ER 634 applied.

Ben Keith (instructed by Dobsons Solicitors and Advocates) for the appellant; Nicholas Hearn (instructed by the Crown Prosecution Service Extradition Unit) for the respondent.