AC v Polish Judicial Authority

Under Extradition Act 2003, s.13, general evidence of discrimination against a protected group does not bar extradition without evidence linking the warrant, punishment or detention to the protected characteristic.

In assessing Article 8 rights in an extradition case, the court must balance the severe effect on children against the public interest in extradition, having regard to mutual confidence between Member States, the seriousness and circumstances of the offending, the person’s conduct in evading sentence, and available care arrangements. A severe impact on children is not necessarily disproportionate.

The appellant, a Polish Roma woman and primary carer of five children, appealed against District Judge Rose’s decision ordering her extradition to Poland to serve a suspended sentence activated after a further offence.

She argued that extradition was barred by racial discrimination under s.13 of the Extradition Act 2003 and would disproportionately interfere with her and her children’s Article 8 rights. The Divisional Court also considered applications to admit further evidence and the relevance of the children’s rights under the UN Convention on the Rights of the Child.

1. The appeal was dismissed. There was no sufficient evidential basis for a bar under s.13 of the Extradition Act 2003. Although there was evidence of ill-treatment of Roma in Poland and of discrimination against members of the appellant’s family, nothing showed that the warrant had been issued, or that the appellant might be punished or detained, because she was Roma.

2. The court applied the principles stated by Lady Hale in HH v Deputy Prosecutor of the Italian Republic, Genoa [2012] UKSC 25, as summarised in JP v The District Court at Usti nad Labem, Czech Republic and JE-H & IE-H v Government of Australia [2012] EWHC 2603 (Admin). The children were likely to suffer severe disadvantage because the appellant was their primary carer and could not readily visit them from prison in Poland.

3. That disadvantage was outweighed by the public interest in extradition. The court respected the high level of mutual confidence between Member States. It also considered that the offending, although relatively minor and committed when the appellant was seventeen, was aggravated by her leaving Poland after sentence deferral had been granted to enable arrangements for her children. The passage of time therefore carried no weight in her favour.

4. The existence of the appellant’s sister as a potential carer, together with the absence of evidence explaining why care arrangements had not been made during the extended period available, was material. The court concluded that the appellant had seriously abused the period of grace granted by the Polish courts.

5. Further evidence was admitted because the appeal had been delayed pending the Supreme Court’s decision in HH. In the ordinary case, the stricter approach in Szombathely City Court v Fenyvesi [2009] EWHC 231 could have been applied.

6. Article 3 of the UN Convention on the Rights of the Child did not permit the court to reconsider the sentence imposed on the appellant. Its relevance was confined to the rights of her children in the extradition assessment.

• District Judge Rose: ordered the appellant’s extradition to Poland on 14 September 2011.
• High Court (Administrative Court): dismissed the appeal against that decision.