Jaroslaw Pofelski v. Her Majesty’s Advocate [2016] HCJAC 77

Extradition appeal:- Here the appellant sought leave to appeal against a decision of the sheriff at Edinburgh who ordered the extradition of the appellant to Poland under the Extradition Act 2003. It was contended on behalf of the appellant that in relation to charges relating to conduct in 2003 and 2004 he had been held in custody between 2004 and 2006 and again between 2007 and 2009 for around 4 years in total and it was submitted on the appellant’s behalf that to extradite him would breach his right to a fair trial within a reasonable time protection under Article 6 of the European Convention on Human Rights. Here the court refused to grant leave to appeal. The court stated that it may only allow an appeal on the basis advanced here if the conditions in section 27(3) or (4) of the Extradition Act 2003 are satisfied, namely, that the sheriff ought to have decided a question before him in a different way, such that would require discharge of the appellant and, secondly, that an issue is raised, or there is evidence available that was not raised or available at the extradition hearing, and which would have resulted in the sheriff deciding a question before him differently. Here the court noted that no argument had been advanced before the sheriff in relation to the issue of delay and the only issue addressed was section 14 of the 2003 Act, namely, that it would be unjust or oppressive to extradite the appellant by reason of the passage of time. In addition, the court noted that the appellant sought to rely on information that was available at the hearing befroe the sheriff but had not been led. Further, the court noted that there was no evidential basis to support the position advanced on behalf of the appellant in relation to the second period of custody referred to. The court reiterated that the test to be applied where an accused contends that his Article 6 rights would be infringed were he to be extradited to another member state of the Council of Europe was whether there was a risk that the accused would suffer a flagrant denial of justice in the state where the accused was to be extradited to. The court described the test of a flagrant denial of justice as a high one and one that is not easily met. The court observed that member states of the Council of Europe are presumed to be able to ensure compliance with Article 6 rights and to be able to protect accused persons from unfair trials.