Klos v Polish Judicial Authority

In extradition cases, reliance on Article 8 to resist return after conviction and sentence requires a very strong case. The fact that extradition will cause real hardship to an innocent family, including hardship arising from medical needs, does not by itself make return disproportionate. The court must consider the individual facts, but against the high threshold identified in HH v Deputy Prosecutor of the Italian Republic, Genoa [2012] UKSC 25. A person who left the requesting state knowing that imprisonment was due, and thereby became a fugitive from justice, faces a substantial hurdle. Return may remain proportionate where the family can in principle return to the requesting state.

The appellant challenged an order for his return to Poland to serve concurrent sentences totalling two years for burglary and attempted burglary. The order had been made by District Judge Purdy on 20 December 2012. The appellant relied on Article 8, principally because his wife had health problems and his young son had a serious heart condition requiring treatment and monitoring at Great Ormond Street Hospital. He argued that return would cause severe hardship and might reduce his son’s access to healthcare.

The central issue was whether, notwithstanding the family circumstances and the appellant’s status as a fugitive from justice, return would be disproportionate.

1. The appeal was dismissed. The appellant had pleaded guilty to two offences in Poland and had left the country knowing that he was required to serve the sentences. That substantially increased the difficulty of establishing disproportionality.
2. The correct approach to an Article 8 challenge was that set out in HH v Deputy Prosecutor of the Italian Republic, Genoa [2012] UKSC 25. Although every case must be decided on its own facts, the person resisting extradition must surmount a high hurdle, and a very strong case is required before return can be held disproportionate.
3. The court accepted that return would create real hardship for the appellant’s wife and children. It also accepted that the younger child’s medical condition and concerns about healthcare in Poland were serious matters. Those circumstances did not, however, establish that return was disproportionate. The family could in principle return to Poland, and the hardship was not in principle harsher than the consequences that would have followed had the appellant remained there and served the sentences when required.
4. The District Judge had considered the relevant matters and had applied the correct legal approach. The threshold was not met on the facts of this case.

• High Court (Administrative Court): appeal under section 26 of the Extradition Act 2003 against the order of District Judge Purdy dated 20 December 2012; appeal dismissed.