Sawko, R (on the application of) v Circuit Court In Gorzow Wielkopolski, Poland

Extradition will be disproportionate under Article 8 only where interference with family life is exceptionally grave. A perceived risk from non-state actors engages Article 3 only where there is clear evidence that the requesting state is unwilling or practically unable to provide protection. A person convicted in his presence cannot rely on a later activation of a suspended sentence, in his absence, as a fresh conviction requiring discharge under section 20 of the Extradition Act 2003, particularly where he can challenge the activation in the requesting state. General assertions about prison conditions in a Category 1 country do not establish a real risk of Article 3 ill-treatment. On an appeal under section 27, the High Court may allow the appeal only where the statutory conditions are satisfied and the appellant would consequently have to be discharged.

The claimant appealed under section 26 of the Extradition Act 2003 against District Judge Riddle’s order of 1 September 2010 requiring his extradition to Poland under section 21(3). He had been convicted in his presence in Poland and received a suspended sentence. After he left Poland, the sentence was activated in his absence.

He relied on Articles 3, 6 and 8 of the Convention. He argued that extradition would separate him from his wife and child, expose him to attack because of the nature of his offending, deny him a retrial or effective challenge to the activation decision, and expose him to unacceptable prison conditions. The central issues were whether any statutory bar or Convention breach required his discharge and whether the appeal satisfied section 27.

1. Appeal dismissed. The statutory and Convention grounds did not satisfy the conditions in section 27 of the Extradition Act 2003. Had the additional arguments been raised before the District Judge, they would not have required a different decision or the claimant’s discharge.
2. Article 8 did not prevent extradition. Applying Norris v Government of the United States of America [2010] UKSC 9, only the gravest interference with family life could outweigh the public interest served by extradition. The claimant’s family circumstances did not reach that threshold. The decision in King v United Kingdom 9742/07 provided a further illustration that separation from a spouse and children did not necessarily make extradition incompatible with Article 8.
3. A feared risk from non-state actors could support an Article 3 objection only on clear evidence that the requesting state was unwilling or practically unable to provide protection. No such evidence existed concerning Poland.
4. Section 20 did not require discharge. The claimant had been convicted in his presence, and the later activation of the suspended sentence did not alter the statutory analysis. In any event, evidence showed that he had an available appeal in Poland and was actively pursuing it. The reasoning in Baksys v Ministry of Justice of the Republic of Lithuania [2007] EWHC 2838 (Admin) was materially engaged, but the evidence here resolved the uncertainty identified in that case.
5. There was no Article 6 flagrant denial of justice because the claimant could challenge the activation decision in Poland. Nor was there evidence that imprisonment in Poland would inevitably create a real risk of Article 3 ill-treatment. Poland was a Category 1 country under the statutory regime, and the court continued to repose confidence in its Convention safeguards.
6. The court had jurisdiction under section 27 to allow or dismiss the appeal only on the statutory conditions. Those conditions were not met, so the appeal was dismissed.

• High Court (Administrative Court): On 13 January 2011, the appeal from the extradition order was dismissed. The matter had previously been adjourned by a Divisional Court to enable an interpreter to attend.
• District Judge Riddle: On 1 September 2010, ordered extradition to Poland under section 21(3) of the Extradition Act 2003.