MF, R (on the application of) v Regional Court In Gdansk, Poland

In an extradition case involving Article 8, proportionality must be assessed by reference to the individual circumstances, including the interests of dependent children and other family members. There is no separate exceptionality test. Nevertheless, extradition fulfils important international obligations and will ordinarily remain proportionate where comparable domestic offending would attract immediate custody. The interests of a child may prevail only in rare cases. For a conviction warrant, the seriousness of the offending is ordinarily assessed by reference to the sentence imposed abroad, absent clear evidence justifying a different conclusion. A fugitive may rely on delay only where the requesting state’s culpability makes that appropriate.

The claimant appealed under section 26 of the Extradition Act 2003 against a district judge’s order for her return to Poland to serve consecutive custodial sentences totalling two and a half years. The convictions concerned sexual exploitation of minors.

The claimant relied on the effect of extradition on her 13-year-old daughter and her elderly, seriously ill father, and on the delay before the Polish authorities issued the arrest warrants. The central issues were whether return would be disproportionate under Article 8 of the Convention and whether delay constituted oppression.

1. The appeal was dismissed. Return to Poland was not disproportionate under Article 8, and delay did not make return oppressive.
2. The approach requiring a quite exceptionally compelling feature before extradition could be disproportionate was no longer correct in light of HH [2012] UKSC 25. The court had to examine the individual facts, including the interests of dependent children and other family members, while recognising that extradition fulfils international obligations.
3. The interests of children receive particular weight, but extradition should only be avoided in very rare cases where, allowing proportionately for those interests, a comparable domestic court would nevertheless impose immediate custody. The court must not substitute its own assessment for that of the foreign sentencing court concerning the seriousness of the offending or the sentence.
4. Because this was a conviction warrant, the custodial sentences imposed in Poland were strong evidence of the gravity of the offences. In the absence of clear evidence about the circumstances of the offending, the court could not go behind the foreign court’s assessment.
5. The claimant’s daughter could be cared for by local authority or foster arrangements, although this was plainly second best. Her interests therefore did not outweigh the public and international interests in extradition. The position of the claimant’s adult father was less compelling in this context, and alternative care or hospital treatment was available.
6. Under the approach in Kakis v Government of Cyprus, a fugitive will ordinarily find it difficult to rely on delay. The possibility remains where the requesting state is culpable for an excessive lapse of time, but that exception did not arise on the facts.

The judgment was directed to be anonymised to protect the claimant’s daughter’s identity.

• District judge: On 22 March 2012, ordered the claimant’s return to Poland under two conviction warrants.
• High Court (Administrative Court): The appeal under section 26 of the Extradition Act 2003 was dismissed.