Beata Vileta Kos v Circuit of Wroclaw, Republic of Poland

Mrs Justice McGowan DBE:

1. The Appellant seeks to appeal against the decision of the Westminster Magistrates’ Court on 28 May 2024 to order her extradition to Poland on an accusation warrant. Permission was granted by Sheldon J on an oral renewal hearing on 4 March 2025.

2. The allegations concern four offences of fraud; they relate to a period spanning 2014 to 2015 during which the Appellant was the President of the Management Board of FF&FF Sp. z o. o. The offences charged carry maximum sentences in the range of one to 10 years’ imprisonment. The Appellant managed the running of the business, and she is said to have issued false invoices, attested false documents and filed false VAT declarations. The conduct is described as “fictious intra-community trading and carousel fraud”.

3. On 28 May 2024 District Judge Zani gave judgment following a hearing on 20 April 2024. He ordered extradition on the warrant issued by the Circuit Court of Wroclaw on 21 October 2022 and certified by the National Crime Agency on 19 August 2023.

4. The appeal is brought under , s.21 A(1)(a) of the Extradition Act 2003 (“ on the single ground that extradition would be incompatible with the Appellant and her husband’s rights under Article 8 of the European Convention on Human Rights the Act ”), (“the Convention”).

5. The Appellant’s submissions are advanced under three heads, i) That the District Judge made four errors in his judgment which undermine his decision, ii) That the deterioration in the appellant’s daughter’s health since the hearing are a material development, and iii) The combination of (i) and (ii) mean that extradition would be disproportionate.

6. In support of the second question of the daughter’s health, she makes an application to adduce fresh evidence in the witness statements of the Appellant’s daughter Klaudia Kos. That was granted by Sheldon J. He allowed the Appellant to rely on part of the witness statement of 20 June 2024 and the statements of 15 December 2024 and 3 March 2025. In addition, he allowed the filing of medical evidence in support.

7. On 14 June 2024 it is said that Klaudia Kos had a “minor heart attack”, she was admitted to hospital and has produced photographs of her being carried on a stretcher into an ambulance by paramedics and in a bed in hospital. That evidence was clearly not available at the time of the hearing. She has provided a witness statement which sets out the limitations in her accommodation and her inability to care for her father. The Hearing Evidence before the District Judge

8. The Appellant gave evidence during the hearing, in large part based on her proof of evidence which she adopted. The District Judge summarised the background evidence she gave about her upbringing and life before coming to the UK. She had originally planned to come for a short visit in 2010 to see her son but stayed. Both she and her husband worked until he had the first of four heart attacks. He is now confined to a wheelchair.

9. The Appellant has a son living near her in Leeds but he is a cocaine addict and is of no assistance to her and her husband. Her daughter, Klaudia, also lives in Leeds with her partner and son. At the time of the hearing, she was working as a cleaner. The Appellant told the court that her daughter was unable to provide daily assistance because of her work commitments.

10. The Appellant gave evidence about her husband’s dependence upon her, and her own health problems which cause her to be fatigued and breathless on occasions. Her husband is unable to care for himself and she described him as refusing to go to hospital even following a loss of consciousness.

11. She denied the alleged offending, she appeared to be saying that the theft of her documents, when her handbag was stolen during a visit to her daughter’s partner’s place of work, allowed someone associated with her ‘son in law’ to have committed the frauds in Poland in her name.

12. She gave evidence about her relationship with her husband; she denied any responsibility for a series of 17 incidents of violence during which police attended their address. She accepted that there had been incidents of drinking in the past but said she no longer drank alcohol and the police had not been called to her home in the last eight months before the hearing.

13. The Appellant’s husband also gave evidence and adopted his witness statement. The District Judge summarised his evidence in the judgment. Mr Kos told the court that all his family now live in the UK and he has no family living in Poland. He would have no-one to care for him if he returned to Poland and his wife was not available. He set out his health problems. It is not in dispute that he suffers from a number of serious health conditions and needs support and care to manage day to day. He felt that the health care package that had been offered by Social Services was insufficient, further dealings with Social Services seem to have failed as he could not provide them with his bank details in time. He told the court that ‘we lost contact with them’.

14. In terms of family support, he agreed with the Appellant’s evidence that his son could not assist. His daughter visited periodically and would shop for them. He gave evidence that if his wife was returned to Poland he would not be able to move into his daughter’s home as the accommodation would not meet his requirements. The bathroom was not on the same floor as the room that would be his bedroom. His told the court that his daughter could not assist as she had to care for her own family and had work commitments. He also denied the accusations of domestic violence between him and his wife when they had been drinking.

15. There was evidence showing that the local police had attended the home address on many occasions following reports of disturbances. Either or both husband and wife had been drunk. The Legal Test

16. The District Judge carried out the balancing exercise under Article 8 of the Convention. It was agreed that the Appellant was not a fugitive. In favour of extradition, he found there to be a public interest in support of the UK abiding by its international extradition obligations and that the offences alleged were sufficiently serious to merit return for trial. He found that the factors against extradition were that the Appellant had lived in the UK since 2010, she was not here as a fugitive and described herself as settled. She had been in employment for most of her time here and has settled accommodation in rented premises, where she lives with her husband for whom she provides important daily care. She states that she had led a law-abiding life whilst in the UK.

17. The judge made the following findings of fact, (emphasis added). “45. Article 8 Findings: I am satisfied that : (i) The RP`s husband presently suffers from a number of health issues and that the RP provides him with important daily care and assistance. (ii) The RPs daughter lives with her partner just 4/5 minutes drive away from the RP (and husband). She also provides important regular care for her father and there is no reason to suppose that she will not continue to do so (or even increase such care) in the event that extradition were to be ordered. It is noted that the daughter has not provided a statement for these proceedings. (iii) The police have been called to – and have attended - the address of the RP and her husband on no fewer than 17 separate occasions in recent years. I reject the evidence provided by both the RP and her husband that the evidence filed by the police is inaccurate or just plain wrong. I am entirely satisfied that the police had good cause to attend on each occasion that they were called out, finding that the RP and her husband were generally abusing alcohol at the time of the police attendance (or had done so shortly prior to the arrival of the police). (iv) The RP and her husband are exaggerating the stability of their relationship. In my view – having had the opportunity to assess both the RP and her husband give live testimony – they are underplaying their issues with alcohol. Albeit the RP said that she no longer drank alcohol, this evidence was not independently corroborated (either by – say – her daughter or her GP). I am satisfied that, notwithstanding the care that the RP provides her husband with, their relationship has been littered with serious arguments which have resulted in such a large number of police callouts on a regular basis. Tensions between them often run high and, I find, spill over into arguments, anti-social behaviour and / or violence. (v) It appears that the RP and / or her husband have engaged with Social Services recently as a result of which an Occupational Therapist attended their home not long before the date of the full hearing, and made a number of helpful and necessary adjustments (including providing a bed and a chair that were more appropriate to the needs of the RP`s husband). (vi) Arrangements are in hand for the Local Authority to provide a carer either on a daily basis (2 hours per day) or twice per week. The husband appears to be currently receiving appropriate medication and has access to his local GP and / or hospital should he wish to avail himself of such facility as and when the need arises (the RP conceded in evidence that he should overcome his reluctance to go to hospital when necessary) and remain in his current address. (vii) Alternatively, as the parties` daughter has a spare bedroom in the property where she lives, it cannot be discounted that her father will re-locate there if extradition is ordered and if necessary adjustments can be made to that address (again I point out that the daughter has not provided a statement so her wishes and views are not directly known). However she has shown that she is a caring and considerate daughter who appears to have a close relationship with both her parents and, as mentioned above, provides some care to her father at present.”

18. The Judge went on to find that extradition would not be a disproportionate interference with the Appellant and her husband’s Article 8 rights. He found that the alleged offending was serious enough to merit extradition for trial and that such conduct in the UK “may well” lead to a prison sentence being imposed.

19. He accepted that hardship would be caused by her removal both to her and to her husband but went on to find that with the combination of assistance coming from Klaudia Kos, the family’s GP and Social Services, the husband’s needs could be met. He found on the evidence that whilst not ideal, Mr Kos “may have to move in” with his daughter and her family. There was a spare bedroom at her property.

20. The District Judge also balanced the fact that these were allegations, that time had passed since the date of offending, that the appellant had been under a curfew pending the proceedings. Further he took account of the “Brexit Uncertainty” point about her return to the UK after the conclusion of all criminal proceedings in Poland.

21. The Judge set out and considered the test of proportionality under s.21 A(1)(b) of the Act and took the view that the offences alleged were so serious that notwithstanding the opposing factors, extradition would not be disproportionate in this case.

22. He also considered the Appellant’s own health problems under s.25 of the Act and found that earlier medical treatment and continuing medication meant that extradition would not be unjust or oppressive. Grounds of Appeal

23. Mr Hyman, who did not appear in the court below, argues that the Judge made four errors of fact in his judgment the cumulative effect of which require this court to re-open the balancing exercise.

24. In Ground 1, based on Article 8, it is submitted that the Judge undervalued the impact of her extradition on the Appellant’s husband. It is argued that for the following reasons the Judge underestimated the impact on him of the withdrawal of care if the Appellant was no longer present in the home.

25. Firstly, he submits that the Judge was in error in the way in which he dealt with the evidence about the police being called to Appellant’s home to deal with incidents of domestic disharmony. It is submitted that the conclusions that the couple “exaggerated the stability” of their relationship and were “underplaying their issues with alcohol” were unnecessary and should not have carried any weight in the determination of the balancing exercise. Mr Hyman submitted that the Judge used his findings on these points to underplay the importance of the relationship with her husband to the Appellant.

26. Secondly, he submits that the Judge was in error to find that there was any positive aspect to the engagement of the Local Authority with Mr Kos. He argues that the provision of a suitable chair and bed is not sufficient to meet the impact of extradition and is nothing more than basic compliance with its statutory duty to make provision for a person disabled by health conditions.

27. Thirdly, it is said that the District Judge was in error to find that Klaudia Kos would be able to assist her father if the Appellant was extradited. It is submitted that the Judge found that she was in a position to assist and that finding was a material part of his reasoning. It is accepted that Klaudia Kos, who did not give evidence, was at court and could have been called as a witness.

28. Fourthly, it is submitted that whilst the Judge dealt with the delay in the case, he did not include it as a factor in the balance weighing against extradition. Mr Hyman points out that six or seven years had passed after the offences before the domestic warrant was issued and about 10 years before the warrant seeking extradition was issued. It is argued that the length of delay lessens the public interest in extradition. More importantly he argues that Mr Kos’ health problems have come to the fore during that passage of time.

29. The main thrust of this appeal centres on the evidence that might be given by Klaudia Kos, the daughter of the Appellant. The evidence that Klaudia Kos could give deals with two different areas, the first is her own health problems and the fact that she became ill about a month after the hearing in her mother’s case. The second part of her evidence would deal with the accommodation available at her home and whether it is, or could be, suitable for Mr Kos.

30. It is argued that the weight of the impact on her husband is supported by the length of time the Appellant has been subject to a curfew and the delay in the proceedings diminish the weight to be given to the public interest in extradition and increase the impact on her private and family life. Response

31. On behalf of the Respondent, Mr Cadman, who did conduct the case in the Magistrates’ Court, argues that the judgment is a well-reasoned and articulated explanation of findings of fact properly reached. It is argued that there was no good reason for there not to have been a statement from Klaudia Kos but that in any event it would not have altered the position. Both the Appellant and her husband gave evidence about the unsuitability of the daughter’s home as a place of residence for him. The daughter’s more recent health problems would not have caused the court to reach a different conclusion. It was clear that the health authorities were going to increase their involvement as the Appellant would not be able to continue to care for him, even with her daughter’s assistance.

32. He submits that the appeal fails in the absence of the “fresh evidence”, that there was no good reason for not calling the daughter at the hearing, and in any event, the new material would not have cause the Judge to have decided the case differently.

33. The Respondent relies on the fact that the Judge did consider the length of time spent on curfew and concluded that it did not “tip the balance”. Additionally, it is pointed out that delay was not argued in the proceedings below but in any event, the overall delay in the proceedings, on the facts of the case, did not make extradition disproportionate with her Article 8 rights. Legal Framework

34. Section 27 (4) of the Act provides the framework for the hearing of appeals. (4) The conditions are that— (a) an issue is raised that was not raised at the extradition hearing or evidence is available that was not available at the extradition hearing; (b) the issue or evidence would have resulted in the judge deciding the relevant question differently; (c) if he had decided the question in that way, he would not have been required to order the person’s discharge.

35. The application of the statutory test was considered by a Divisional Court in Szombathely v Fenyvesi The court did not favour a liberal construction of the provision; the intention of Parliament was clear. The court provided the definitive guidance on the interpretation of [2009] 4 All ER 324 . section 27(4) at {32-35}. 32.In our judgment, evidence which was "not available at the extradition hearing" means evidence which either did not exist at the time of the extradition hearing, or which was not at the disposal of the party wishing to adduce it and which he could not with reasonable diligence have obtained. If it was at the party's disposal or could have been so obtained, it was available. It may on occasions be material to consider whether or when the party knew the case he had to meet. But a party taken by surprise is able to ask for an adjournment. In addition, the court needs to decide that, if the evidence had been adduced, the result would have been different resulting in the person's discharge. This is a strict test, consonant with the parliamentary intent and that of the Framework Decision, that extradition cases should be dealt with speedily and should not generally be held up by an attempt to introduce equivocal fresh evidence which was available to a diligent party at the extradition hearing. A party seeking to persuade the court that proposed evidence was not available should normally serve a witness statement explaining why it was not available. The appellants did not do this in the present appeal.

33. The court, we think, may occasionally have to consider evidence which was not available at the extradition hearing with some care, short of a full rehearing, to decide whether the result would have been different if it had been adduced. As Laws LJ said in The District Court of Slupsk v Piotrowski [2007] EWHC 933 (Admin) at paragraph 9, section 29(4)(a) does not establish a condition for admitting evidence, but a condition for allowing the appeal; and he contemplated allowing fresh material in, but subsequently deciding that it was available at the extradition hearing. The court will not however, subject to human rights considerations which we address below, admit evidence, and then spend time and expense considering it, if it is plain that it was available at the extradition hearing. In whatever way the court may deal with questions of this kind in an individual case, admitting evidence which would require a full rehearing in this court must be regarded as quite exceptional.

34. Section 29(4) of the 2003 Act is not expressed in terms which appear to give the court a discretion; although a degree of latitude may need to be introduced from elsewhere. As Latham LJ said in Miklis, there may occasionally be cases where what might otherwise be a breach of the European Convention on Human Rights may be avoided by admitting fresh evidence, tendered on behalf of a defendant, which a strict application of the section would not permit. The justification for this would be a modulation of section 29(4) with reference to section 3 of the Human Rights Act 1998 . But such Human Rights Act considerations do not extend for the benefit of judicial authorities seeking the enforcement of a European Arrest Warrant for whom section 29(4) is of no avail if they are unable to come within its clear terms. This apparent imbalance between defendants and judicial authorities arises from the fact that a defendant may have the benefit of Human Rights considerations which the judicial authorities do not. We say this without overlooking the decision of a division of this court in Bogdani v Albanian Government [2008] EWHC 2065 (Admin) , where the court admitted in the interests of justice a further explanation of Albanian statutory law to assist in its construction in an appeal which raised an issue under section 85(5) of the 2003 Act – see paragraphs 45 and 46 of the judgment of Pill LJ. The court at an earlier hearing had contemplated the admission of this material without objection at that stage. Technically evidence of foreign law is regarded as evidence of fact in this jurisdiction. But we doubt whether such evidence was a significant parliamentary concern underlying section 29(4) . The court would naturally wish to be properly informed as to relevant legal principles of the law of a foreign state.

35. Even for defendants, the court will not readily admit fresh evidence which they should have adduced before the district judge and which is tendered to try to repair holes which should have been plugged before the district judge, simply because it has a Human Rights label attached to it. The threshold remains high. The court must still be satisfied that the evidence would have resulted in the judge deciding the relevant question differently, so that he would not have ordered the defendant's discharge. In short, the fresh evidence must be decisive.”

37. That guidance was considered in Hamasalih v Public Prosecutor’s Office, Bolzano Court of Law, Italy As Swift J makes clear at {15}, [2025] EWHC 593 (Admin) . sections 27 and 29 of the Act govern the appeal and whether it should be allowed, rather than simply dealing with the admissibility of fresh evidence.

38. The court also considered the effect on close family members of extradition as addressed in Norris v Government of the USA at {65}, “ [2010] UKSC 9 Indeed, in trying to envisage a situation in which interference with article 8 might prevent extradition, I have concluded that the effect of extradition on innocent members of the extraditee's family might well be a particularly cogent consideration. If extradition for an offence of no great gravity were sought in relation to someone who had sole responsibility for an incapacitated family member, this combination of circumstances might well lead a judge to discharge the extraditee under section 87 of the 2003 Act .” Discussion

39. Not only was the evidence about the daughter’s accommodation available at the time of the hearing, it was effectively given by the Appellant’s husband. That might explain why whilst the daughter was actually present in court, it was not felt necessary to call her. He told the court that although there was a spare bedroom it was not suitable as it was not on the same floor as the bathroom.

40. The evidence about the daughter’s subsequent episode of ill-health was not available, but it is clear that the Judge’s decision was not based upon the fact that Klaudia Kos could or would take on the day to day care of her father.

41. The evidence before the court was that Klaudia Kos made a valuable contribution by “visiting twice a week”, that allowed the Appellant some little time for herself. I do not understand there to be any suggestion that the daughter could not continue to visit her father and provide care and support by her visits. As the Judge went on to say that “there is no reason to suppose that she will not continue to do so (or even increase such care).” Klaudia Kos is not incapacitated and could, as the Judge found, continue to provide some level of support and care.

42. The Judge found that the Local Authority were providing increasing levels of assistance, he went on to observe that “alternatively” the daughter had a spare room and the possibility of her father moving to her home “could not be discounted”. He went to find that with the “help from his daughter, GP and social services” the husband’s needs could be met.

43. It is clear that the Judge’s findings were not based on the fact that the daughter would take her father into her home and provide full-time care, rather that she would continue to support him in combination with the Local Authority and GP. He raised the possibility of her providing accommodation but did not reach his conclusions on a finding of fact that she would provide such care. That is to over-state the position.

44. Mr Hyman argued that the Judge was wrong to place reliance on the difficulties in the marital relationship between the Appellant and her husband. The Judge, having heard the evidence, was entitled to find that the police had been called to the home many times, that both spouses abused alcohol and that each was exaggerating the stability of their relationship. That was not a finding that he was not entitled to reach, he was bound to consider the accounts given by the witnesses. It is not correct to say that his findings on the availability of future care for the husband were dependant on, or unduly influenced by those findings. The Judge’s findings were that the care provided by the GP and social services would meet the husband’s needs supported by the support available from his daughter.

45. The Judge heard the witnesses and it was clearly not felt necessary to call Klaudia Kos at the hearing. The only new evidence is her account of her medical condition some little time after the decision. There is no medical evidence in support of that, simply photographs of her on her way and in hospital. Taking the account of her condition at its height, she would have difficulty caring fer her father. The limitations in her accommodation were dealt with in evidence in the Magistrates’ Court.

46. The decision was not based on the fact that the Appellant’s husband would move in with his daughter if his wife was extradited. That was a possible eventuality, the Judge said that her father “may have to move in with her”, not that he would. In any event it is clear that the Appellant, or anyone else caring for him, would be increasingly dependant on assistance offered by social services and that the engagement would increase as his physical dependence became greater. The Appellant would not be able to continue unaided.

47. There was no reason given for the decision not to call the daughter in the proceedings but, in any event, almost all the evidence she could give was given by others. The evidence was available; it is not fresh and quite clearly the admission of the “new” material would not have caused the judge to reach a different conclusion.

48. The Judge conducted a full and thorough examination of the factors weighing in favour of and against extradition. The time spent on curfew was considered. Delay would not have been a determining factor in the case and the Judge had well in mind the relevant dates and the seriousness of the allegations.

49. Taking all the relevant factors in to account, it is not the case that, the evidence of Klaudia Kos would have caused the Judge to decide the case differently. Accordingly, the appeal is dismissed.