Juszczak v Circuit Court Poznan Poland

In an extradition appeal, fugitive status does not make delay irrelevant to the European Convention on Human Rights Article 8 proportionality assessment. A strong case is required where the person deliberately chose not to return, but prolonged and unexplained delay may still tip the balance.

The court must assess exceptional dependency and caregiving needs alongside the seriousness of the offences and the public interest in extradition. Material evidence omitted below may be considered where it clearly can and should be taken into account. Here, exceptional care needs and known, unexplained delay made return disproportionate.

This was an appeal under section 26 of the Extradition Act 2003 against a District Judge’s decision ordering the appellant’s return to Poland to serve sentences totalling two years for three offences committed in 2004.

The appellant challenged the warrant under section 2 and relied principally on Article 8, relying on his essential caregiving role for his severely disabled stepdaughter and the consequences for his family. At an earlier hearing before Ouseley J in November 2012, the section 2 argument was rejected without reasons and the Article 8 issue was adjourned for further evidence. The central questions were whether that evidence could be considered and whether return had become disproportionate because of the family circumstances and delay.

Disposition and principal findings

1. Scope of the warrant. The warrant sought extradition only for the three offences committed in 2004. The later theft offence was not an offence for which extradition was sought, and its six-month sentence could not be served consecutively to the two-year sentence forming the basis of the warrant. The section 2 ground therefore offered no basis for resisting extradition.
2. Fugitive status and delay. The court applied HH v Deputy Prosecutor of the Italian Republic, Genoa [2012] UKSC 25: delay may be considered in deciding proportionality under Article 8 even where failure to return was culpable. Nevertheless, a strong case is required where the person deliberately chose not to return. The appellant’s fugitive status therefore did not exclude consideration of delay.
3. Additional evidence. The respondent properly accepted that it was inappropriate to rely on the Fenyvesi test in the circumstances. The new evidence clearly could and should be considered. The District Judge should also have taken steps to reopen the matter or seek further inquiries when the possible Article 8 case emerged during the bail application.
4. Proportionality. The appellant provided essential daily care for a severely disabled child whose mother could not safely lift her. His removal would also create serious difficulties concerning the care of the younger child, employment, housing and the family’s ability to remain in the United Kingdom. The offences were relatively serious, particularly the blackmail, but the unexplained delay was substantial and the authorities had known the appellant’s whereabouts. The delay had materially altered the family circumstances and tipped the balance against return.
5. The return would therefore be disproportionate under Article 8. The section 8 bar applied and the appeal was allowed.

• High Court (Administrative Court): At an earlier hearing before Ouseley J in November 2012, the section 2 argument was rejected without reasons and the Article 8 issue was adjourned for further evidence. On 19 February 2013, Mr Justice Collins allowed the appeal: [2013] EWHC 526 (Admin).
• District Judge: Ordered the appellant’s return to Poland to serve sentences totalling two years. No citation is stated in the judgment.