Kozlow v The Koszalin District Court, Poland

In extradition cases engaging article 8, proportionality requires a fact-specific balancing exercise. The court must give substantial weight to the public interest in honouring extradition arrangements and administering criminal justice. An exceptionality test must not be applied. Nevertheless, only striking and unusual facts, or the gravest effects on family life, are likely to make extradition disproportionate. The interests of all immediate family members must be considered, and the best interests of any affected child are a primary consideration.

The appellant appealed under section 26 of the Extradition Act 2003 against an order for his extradition to Poland to serve the balance of a sentence imposed for attempted theft and theft of a vehicle. His article 3 argument was rejected below and was not pursued on appeal.

The appeal concerned whether extradition would disproportionately interfere with article 8 rights, having regard to the appellant’s established family life in the United Kingdom, his wife’s employment position and the effect on their two children. The appellant also sought to adduce further evidence concerning possible release on licence in Poland and his family circumstances.

1. The appeal was dismissed. The court upheld the extradition order.

2. Under sections 26 and 27 of the Extradition Act 2003, further evidence could justify allowing an appeal only if the statutory conditions were met. The proposed evidence could not have caused the District Judge to decide the extradition questions differently. The court could not go behind the European arrest warrant. The evidence concerning conditional release was also insufficient and indicated that the appellant would have to serve at least one further year before becoming eligible for release.

3. Article 8 was assumed to be engaged. The relevant question was whether the interference pursued a legitimate purpose and was proportionate. The legitimate purpose included the strong public interest in honouring extradition arrangements and in international co-operation in the administration of criminal justice, as described in R (Bermingham & Ors) v Director of the Serious Fraud Office [2006] EWHC 200.

4. The proportionality assessment was fact-specific. The court rejected an approach under which extradition could be disproportionate only in the most exceptional circumstances. The authorities instead required striking and unusual facts, or the gravest effects on family life, before extradition would be disproportionate: Jaso & Ors v Central Criminal Court No.2 Madrid [2007] EWHC 2983 and Norris v Government of the United States of America [2010] UKSC 9.

5. The court had to consider the interests of all members of the immediate family, following Beoku-Betts [2009] AC 115. The best interests of each directly affected child were a primary consideration, following ZH (Tanzania) [2011] UKSC 4.

6. The remaining sentence was substantial, the offences were serious, and Poland had a legitimate interest in enforcing its law concerning breach of licence conditions. Although extradition would disrupt the settled family’s life and create financial difficulty, those factors did not outweigh the public interest in extradition and crime prevention. There would therefore be no unjustifiable infringement of article 8 rights.

1. High Court (Administrative Court) — The appeal under section 26 of the Extradition Act 2003 was dismissed and the extradition order made by the District Judge was upheld.

2. City of Westminster Magistrates’ Court — District Judge Purdy ordered extradition on 15 November 2010 under section 21(3) of the Extradition Act 2003.