Grudkowska v Circuit Court of Torun, Poland

In extradition cases engaging Article 8 rights, the interests of affected children must be treated as a primary consideration. The court must balance those interests against the public interest in extradition, including international comity and the enforcement of criminal justice. Particular attention is required where the person sought is the sole or primary carer. The court should consider the likely effect of separation, arrangements for the children’s care, available measures to maintain contact, and alternative means of satisfying the public interest. Extradition will nevertheless ordinarily be proportionate where the comparable offending would probably attract an immediate custodial sentence in the United Kingdom. The English court must assess proportionality itself, even where the requesting state did not do so.

The appellant appealed against an order of the Westminster Magistrates’ Court directing her extradition to Poland under a conviction European Arrest Warrant. She had been sentenced in Poland to consecutive terms of 10 months and 14 months’ imprisonment for two offences of driving while intoxicated. The sentences had initially been suspended and were later activated.

The appellant was the primary carer of two young children living in England. She argued that extradition would disproportionately interfere with the children’s Article 8 rights. The central issue was whether the children’s interests outweighed the public interest in extradition.

1. Appeal dismissed. Extradition would not be a disproportionate interference with the children’s Article 8 rights.
2. Following HH v Deputy Prosecutor of the Italian Republic, Genoa [2012] 3 WLR 90, the court had to balance the children’s Article 8 rights against the public interest in extradition. The children’s interests were a primary consideration and had to be at the forefront of the analysis.
3. The court considered the likely consequences of the mother’s absence, the children’s care arrangements, opportunities for visits and communication in Poland, and the availability of alternative measures. The fact that the Polish authorities had not themselves assessed extradition’s proportionality made the domestic assessment especially important.
4. The seriousness of the offences and the likely sentence in England were relevant. The court had to exercise caution before substituting its assessment of the seriousness of the offences, sentence length, or release arrangements in the requesting state. Extradition would not automatically be disproportionate merely because an English court might impose a shorter or non-custodial sentence.
5. Although the children would suffer significant disruption, their father remained available and wider family support could reduce the harm. The offences were sufficiently serious that English courts might well have imposed immediate custodial sentences. The balance therefore favoured extradition.
6. The appellant’s publicly funded costs were ordered to be assessed.

The appellant appealed to the Administrative Court against the Westminster Magistrates’ Court order of 3 April 2013 directing her extradition to Poland.