Borkowski v Regional Court of Warszawa Praga

In extradition proceedings engaging Article 8 rights, the effect on children must be weighed carefully. However, the obligation to comply with European Arrest Warrant arrangements creates a high threshold for establishing that extradition would be disproportionate. A person’s failure to maintain contact with probation authorities or to disclose a change of address may properly weigh against an Article 8 challenge, even where the person is not technically a fugitive from justice. The requested person’s comparison with sentences likely to have been imposed domestically must also be approached with great care, since sentencing is a matter for the requesting state and may reflect local patterns of offending.

The appellant challenged, under section 26 of the Extradition Act 2003, a District Judge’s order for his extradition to Poland to serve outstanding custodial sentences for theft and obtaining property by impersonating a police officer.

He relied principally on Article 8, referring to his relationship with his children, former partner and parents, and to the consequences of his extradition. The District Judge rejected the argument that extradition would be disproportionate. The central issue was whether the appellant’s personal and family circumstances, considered alongside his conduct and the outstanding sentences, crossed the high threshold required to defeat extradition.

1. The appeal under section 26 of the Extradition Act 2003 was dismissed. The District Judge had correctly concluded that extradition was not disproportionate.

2. Article 8 rights were engaged. The effect of extradition on children had to be given significant weight. Nevertheless, the Supreme Court had made clear that the international obligations arising from the European Arrest Warrant imposed a high threshold before extradition could be characterised as disproportionate.

3. The appellant had left Poland knowing that he was required to remain in contact with the probation authorities and had failed to disclose his departure. Although he might not technically be a fugitive from justice because he did not know when he left that his suspended sentence had been activated, that conduct was a relevant matter which could properly be weighed against him in the proportionality assessment.

4. The court should approach with great care an argument that the sentences would have been shorter had the offences been committed in the United Kingdom. Sentencing was a matter for the courts of the requesting state, which might take account of the prevalence of particular forms of criminality. The possibility that the appellant might not serve the whole outstanding term, because of consolidation or release arrangements in Poland, was also relevant.

5. Those considerations, taken with the family and financial circumstances, did not establish the exceptional disproportionality required to prevent extradition.

1. High Court (Administrative Court): on an appeal under section 26 of the Extradition Act 2003, the court dismissed the appeal and upheld the District Judge’s extradition order.