Szubryt v District Court In Kielce, Poland

In an extradition case engaging Article 8, the court must balance the interference with private and family life against the legitimate aim of honouring extradition treaties. That aim attracts great weight. An exceptionality test is impermissible, but the facts must be striking and unusual before extradition will be disproportionate. Temporary separation during a prison sentence may weigh less heavily than permanent separation. The court may consider the impact on the extraditee’s spouse and children. Where the person became unlawfully at large by deliberately evading sentence, section 14 of the Extradition Act 2003 ordinarily provides no answer, subject only to most exceptional circumstances. If the Article 8 case fails on the same facts, the section 14 challenge fails as well.

The claimant appealed against an order made by District Judge Nicholas Evans at the City of Westminster Magistrates’ Court on 30 December 2008, directing his extradition to Poland under a European arrest warrant. Extradition was sought so that he could serve an 18-month sentence imposed in 1997. The claimant relied on psychiatric evidence concerning his wife’s severe recurrent depression and the possible effect of his absence on her and their two children.

The appeal raised oppression under section 14 of the Extradition Act 2003 and compatibility with Article 8 of the Convention. The central questions were whether the passage of time or the effect of extradition on the family made extradition unjust, oppressive or disproportionate.

1. Appeal dismissed. The court accepted, for the purpose of the appeal, the claimant’s favourable case that extradition would probably cause a significant deterioration in his wife’s mental state and might lead to hospitalisation, together with an increased risk of suicide.
2. Under section 14 of the Extradition Act 2003, passage of time bars extradition only where extradition would be unjust or oppressive by reason of that passage. The District Judge had found that the claimant deliberately fled Poland to avoid serving his sentence. Applying the approach in Kakis v Government of the Republic of Cyprus and its reaffirmation in Gomes v Government of the Republic of Trinidad and Tobago, a person who has evaded justice generally cannot rely on prejudice or changed circumstances caused by the passing years. A bar remains possible only in most exceptional circumstances.
3. The Article 8 issue required an assessment of proportionality. The legitimate aim of honouring extradition treaties attracts great weight. Following the approach stated in Jaso v Central Criminal Court (No 2) Madrid, there is no exceptionality test, but striking and unusual facts are required before extradition will be disproportionate.
4. The court proceeded on the assumption that the effect on the claimant’s wife and children could be considered, consistently with the approach in Beoku-Betts v Secretary of State for the Home Department. The interference was temporary, lasting while the claimant served an 18-month sentence. Even on the claimant’s evidence, the risks to his wife and the likely impact on the children fell well short of the Article 8 threshold. The children’s position added relatively little weight.
5. Since the Article 8 claim failed, and the claimant accepted that the section 14 claim could not succeed if Article 8 failed, the appeal was dismissed. The claimant was granted detailed assessment of his legally aided costs. Bail continued on the existing terms.

• High Court (Administrative Court): The court dismissed the appeal against the extradition order made by District Judge Nicholas Evans at the City of Westminster Magistrates’ Court on 30 December 2008.