Falecki v District Court In Bydguszcz Poland

In extradition cases engaging Article 8, delay and severe hardship to a partner or children are relevant to proportionality, but hardship alone will rarely justify refusing return. The court must begin from the obligation to honour the European Arrest Warrant system and return fugitives. It should assess the seriousness of the offending, including whether custody would probably have been imposed domestically, the likely period of imprisonment, the fugitive’s conduct and criminal record, and the effect on dependent children. A fugitive cannot rely on lapse of time under section 14 of the Extradition Act 2003, although delay remains relevant to the Article 8 proportionality assessment.

This was an appeal under section 26 of the Extradition Act 2003 against District Judge Evans’s decision ordering the appellant’s return to Poland to serve a 15-month sentence for a 2005 burglary of a garden shed. The appellant had left Poland while his sentence appeal was pending and had lived in the United Kingdom since 2006.

He relied on Article 8, citing the hardship that extradition would cause to his partner, their young child and his partner’s two children, together with the delay before the European arrest warrant was issued. The central issue was whether return to serve the sentence would be disproportionate.

1. Appeal dismissed. The return order was upheld, largely for the reasons given by the District Judge.
2. The appellant was a fugitive from justice. Accordingly, lapse of time under section 14 of the Extradition Act 2003 was unavailable. The delay nevertheless remained a relevant factor when assessing Article 8 proportionality.
3. The Supreme Court’s decision in HH established that the United Kingdom’s obligations under the European Arrest Warrant system meant that refusing return on proportionality grounds, particularly where return was sought to serve a sentence, would be rare. The court could consider the seriousness of the offence and whether custody would probably have been imposed had the offence occurred in the United Kingdom.
4. The burglary was not among the most serious offences and, viewed in isolation, might not have crossed the custody threshold domestically. The appellant’s criminal record and breach of a suspended sentence made custody materially more likely. The court also lacked full information about possible aggravating features.
5. The effect on the appellant’s partner and children would be severe, and the seven-and-a-half-year delay was relevant. However, harshness was not sufficient by itself to establish disproportionality. The court considered the international obligation to return fugitives, the appellant’s fugitive status and conduct, the relatively recent family relationship, the availability of care from the children’s mother, and the likely length of imprisonment.
6. Although the case was borderline, the overall circumstances did not make return disproportionate.

• District Judge Evans: directed the appellant’s return to Poland to serve a 15-month sentence.
• High Court (Administrative Court): dismissed the appeal under section 26 of the Extradition Act 2003 and upheld the return decision.