Laskowska, R (on the application of) v Regional Court In Kielce

In an extradition appeal based on article 8, the interests of an affected child are a primary consideration but do not automatically prevent extradition. The court must assess proportionality in all the circumstances, including the seriousness of the offence, the sentence, delay and responsibility for it, the availability of alternative care, and the likely effect on the child. The seriousness of the offence may be assessed by reference to how it would generally be regarded domestically, provided the court does not substitute its own sentencing policy for that of the requesting state. Family hardship will rarely outweigh extradition for a serious offence, but the outcome remains fact-sensitive. Extradition was disproportionate where a young child had never been separated from the appellant, no sensible alternative care was available, the offence was relatively minor, and substantial delay had occurred.

The appellant appealed under section 26 of the Extradition Act 2003 against a district judge’s decision of 20 July 2011 ordering her extradition to Poland to serve a six-month sentence. The sentence had originally been suspended, but was activated after she left Poland and failed to maintain contact with the probation service.

The appellant was the sole carer of a young child who had never been separated from her. The appeal raised an article 8 issue concerning the proportionality of extradition, particularly in light of the child’s interests, the relatively small quantity of cannabis involved, and delay in issuing and determining the extradition proceedings. The article 8 issue had been adjourned pending the Supreme Court’s decision in HH v Deputy Prosecutor of the Italian Republic Genoa [2012] EWSC 25.

1. Appeal allowed. Extradition would be disproportionate in the circumstances and the order was set aside.
2. Following HH v Deputy Prosecutor of the Italian Republic Genoa [2012] EWSC 25, the court had to conduct an overall proportionality assessment under article 8. The child’s best interests were a primary consideration under article 24.2 of the Charter of Fundamental Rights of the European Union. They were not, however, decisive in every case. The seriousness of the offending and the importance of fulfilling extradition obligations remained relevant.
3. Hardship to children and other family members would only rarely make extradition disproportionate in cases involving serious offences. The court must nevertheless consider the individual circumstances, including the child’s age, relationship with the requested person, the availability of alternative care, and the likely developmental consequences of separation.
4. The offence involved making premises available for the division of approximately 46 grams of marijuana. It was not trivial, but was relatively minor in context. The court could take into account that the conduct would probably not have crossed the custody threshold in this jurisdiction, while exercising caution not to impose domestic views about the requesting state’s sentencing practices.
5. Delay was relevant regardless of responsibility for it. Delay attributable to the appellant could count against her, but the substantial delay attributable to the Polish authorities and the domestic proceedings was also relevant. The child had become significantly older during the delay and had never previously been separated from the appellant.
6. There was no sensible alternative care arrangement. If the child could not remain with the appellant in prison, separation would cause significant harm. Considering all the circumstances, return to Poland to serve the sentence would therefore be disproportionate.

A detailed assessment of costs was permitted.

The judgment states that the appeal was brought under section 26 of the Extradition Act 2003 against the district judge’s decision of 20 July 2011. The first issue, concerning whether the warrant disclosed an extradition offence, had previously been rejected by Mr Justice Silber. The remaining article 8 issue was determined by Mr Justice Collins.