Wyczesany v District Court Warszawa, Poland

In an extradition appeal, oppression under section 14 of the Extradition Act 2003 and interference with family life under Article 8 require a fact-sensitive balancing exercise. The seriousness and antiquity of the offences may weigh in the requested person’s favour, but neither factor is ordinarily decisive alone. Particular weight may arise where the requesting state failed to resolve the matter when it should have done so and subsequently permitted the person to leave, creating a false sense of security. A deferred sentence may still fall within the statutory purpose of sentencing or serving a sentence. The court must discharge the requested person if, on the evidence, the district judge’s conclusion that extradition would not be oppressive was wrong.

The appellant challenged an order made by District Judge Snow on 19 September 2012 requiring his extradition to Poland under a conviction European arrest warrant. The warrant concerned three sentences of imprisonment imposed for offences committed in 2004 and 2005. Two sentences had originally been suspended and were later converted, in principle, into immediate sentences. The third sentence had been deferred pending financial recompense.

The appellant relied on the current position of the Polish proceedings, oppression under section 14 of the Extradition Act 2003, and Article 8 rights arising from his family and settled life in the United Kingdom. The central issues were whether the deferred sentence could properly support extradition and whether, having regard to the delay, the conduct of the Polish authorities, and the effect on the appellant’s family, extradition would be oppressive or disproportionate.

1. Statutory purpose. The argument that extradition for the third offence was unavailable because the sentence had been deferred was rejected as a freestanding point. Under section 2(5)(b) of the Extradition Act 2003, extradition may be sought for the purpose of being sentenced for an offence or serving a sentence of imprisonment. On the facts, the appellant could be extradited for sentencing on 15 July 2013 if the required recompense was not made. In any event, the two immediate sentences would occupy the intervening period. The issue could therefore arise only as part of the oppression assessment.
2. Oppression and Article 8. The seriousness and antiquity of the offences are relevant to both Article 8 and oppression. Their weight depends on the circumstances and they will not ordinarily determine the appeal without more. The court must assess the interference with private and family life against the public interest in extradition and compliance with international obligations.
3. Application. The appellant had committed breaches of the conditions of his suspended sentences, but the District Judge had also found that the matters should have been resolved when the appellant appeared before the Polish court in 2008. The appellant then remained at his registered address for nine months and was permitted by a Polish judge to leave the country. No evidence suggested that the judge had been misled. These matters created a false sense of security and materially reduced the force of the public interest in extradition.
4. The family circumstances were finely balanced. The appellant’s partner suffered continuing health problems and cared for two young children. The appellant’s absence would cause hardship and affect his young son, even though the son was not primarily cared for by him. The court differed from the District Judge’s overall judgment on substantially the same material, supplemented by relevant medical evidence, and concluded that extradition would be oppressive.
5. The appeal was allowed. The appellant was ordered to be discharged. A public funding assessment of his costs was permitted.

• High Court (Administrative Court): District Judge Snow ordered extradition on 19 September 2012. The High Court allowed the appeal and ordered the appellant’s discharge.