Modzelewski, R (on the application of) v Regional Court In Warsaw, Poland

On an extradition appeal, a new Article 8 ground requiring fresh evidence cannot generally be raised unless the evidence was unavailable at the extradition hearing or could not have been obtained with reasonable diligence.

Where family-life rights are engaged, the court must balance the children’s interests, treated as a primary consideration, against the public interest in extradition. The court must assess the proportionality of extradition itself. A possible compromise of a conviction warrant does not ordinarily justify adjourning extradition proceedings unless a decision is imminent or exceptional circumstances exist. Personal safety concerns do not establish an extradition bar where the person will be imprisoned on return.

The claimant appealed against an order of District Judge Evans at Westminster Magistrates’ Court directing his extradition to Poland under a conviction European arrest warrant. He relied on family life in the United Kingdom, a possible Polish application to suspend his sentence, and fears for his safety in Poland.

The central issues were whether the Article 8 ground could be advanced on fresh evidence, whether the hearing should be adjourned pending the Polish application, and whether the safety concerns justified allowing the appeal.

1. The appeal was dismissed. The order for extradition to Poland remained in force.

2. The claimant had not relied on Article 8 in the Magistrates’ Court. His proposed ground depended on evidence that was available at that hearing, and no reason based on lack of availability or reasonable diligence had been established. The ground could therefore not be pursued on appeal.

3. In any event, applying HH v Deputy Prosecutor of the Italian Republic Genoa [2012] 3 WLR 90, the court had to balance the family-life rights of the claimant and his child against the public interest in extraditing convicted offenders, honouring extradition obligations and preventing the United Kingdom becoming a safe haven. The child’s interests were a primary consideration. The proportionality of extradition under the warrant had to be assessed in this jurisdiction.

4. The family hardship caused by loss of the claimant’s income was insufficient to make extradition disproportionate. His wife was the primary carer, and there was no suggestion that social-services involvement called her ability to care for the child into question.

5. The court refused to adjourn pending a possible suspension of sentence in Poland. Following the approach in Baghishyan v District Court in Zamusc, Poland [2011] EWHC 1297 Admin, an adjournment should not ordinarily be used to await a possible compromise of extradition proceedings, save in exceptional circumstances such as an imminent decision.

6. Fear of attacks by criminal elements in Poland did not justify allowing the appeal because the claimant would be imprisoned there rather than at liberty.

• High Court (Administrative Court): allowed the appeal to be heard but dismissed it, refusing the requested adjournment and upholding the extradition order.
• Westminster Magistrates’ Court: District Judge Evans ordered extradition to Poland under the conviction warrant.