Mylinski v District Court in Opole, Poland (A Polish Judicial Authority)

In an extradition appeal, the court must consider whether a conviction occurred in the accused’s absence and, if so, whether the accused deliberately absented himself. The reason for deliberate absence is immaterial to that issue. Article 8 may prevent extradition only in exceptional circumstances. Although the court may assess the claim against a lower threshold where a higher appellate decision is pending, the appeal should be dismissed if the claim fails even on that more favourable basis. Family hardship and children’s residence or education in the United Kingdom must be weighed, but serious offending abroad and the availability of continued family life in either country may justify extradition.

The appellant appealed under section 26 of the Extradition Act 2003 against an order for his extradition to Poland to serve the remaining part of a four-year sentence for robbery and firearm offences. He disputed his guilt and the circumstances of his departure from Poland, and argued that extradition would disproportionately interfere with his wife’s and children’s family life under Article 8. The court had to determine whether the conviction was in absentia, whether the appellant had deliberately absented himself, and whether Article 8 nevertheless required refusal or adjournment of the appeal.

1. Disposition. The appeal was dismissed.
2. The appellant’s challenge to the conviction could not be examined in the extradition proceedings. The conviction and the request for his return were matters for the Polish authorities.
3. Under section 20 of the Extradition Act 2003, the court had to consider whether the conviction occurred in the appellant’s absence and, if so, whether he deliberately absented himself. The warrant was not required by section 2 to state that the conviction was in absentia. On the evidence, the appellant knowingly failed to attend the retrial while represented by a lawyer. Any reason for that deliberate absence was immaterial.
4. Article 8 had to be considered. Following Norris v Government of the United States (No 2) [2010] 2 AC 487, the ordinary threshold was very high. Since the Supreme Court was due to reconsider that approach in HH, the court considered the claim on the assumed lower standard. If the claim might have succeeded on that basis, an adjournment would have been appropriate.
5. Even on the lower standard, extradition was not disproportionate. The court considered the hardship to the wife and children, the children’s education and residence in the United Kingdom, the possibility of their remaining here, and the possibility of resuming education in Poland. Those considerations did not outweigh the public interest in returning a person convicted of serious offences committed abroad.

The appellant appealed to the Administrative Court under section 26 of the Extradition Act 2003 against the district judge’s extradition order dated 19 August 2011. The Administrative Court dismissed the appeal.