Oreszczynsi v Krakow District Court Poland

In an extradition appeal, culpable delay is distinct from the mere passage of time. It arises where an authority responsible for executing a European arrest warrant ought to have acted sooner and has no good explanation. An authority that undertakes to assist execution must take reasonable and competent steps to locate the fugitive, including obvious inquiries where relevant information is available. A specific statutory investigative duty is unnecessary. Delay caused by institutional failure may engage Article 8 ECHR. It may strengthen private and family life, reduce the weight of the public interest in return, and make removal disproportionate. The court must balance those interests with the seriousness and staleness of the offences, family circumstances, the children’s welfare and the fugitive’s responsibility for remaining at large.

The appellant challenged his return to Poland under a European arrest warrant concerning alleged theft offences dating from 2002. The warrant was duly signed and certified on 15 November 2010, but he was not arrested until 22 June 2014. District Judge Tempiah found no culpable or considerable delay. After an earlier judgment on 26 November 2014, the High Court adjourned for further evidence concerning inquiries made by the National Crime Agency and received written representations. The central issues were whether the failure to make further inquiries, particularly with the Home Office, was culpable and whether the resulting delay made return incompatible with the appellant’s and his family’s Article 8 rights.

Appeal allowed. Mr Justice Blake set aside the Article 8 assessment made by District Judge Tempiah and conducted a fresh assessment after receiving further evidence from the National Crime Agency.

1. Culpable delay. Culpable delay is distinct from the mere passage of time. It arises where something ought to have been done sooner and there is no good explanation for the failure. The cautions identified in Jabczysnki [2013] EWHC 526 Admin did not prevent a finding of culpable delay where the evidence disclosed a specific institutional failure.
2. Duty of reasonable and competent execution. The National Crime Agency had agreed to receive the European arrest warrant and assist in its execution. It therefore had to act reasonably and competently. The absence of a specific statutory duty to investigate did not remove that obligation. The failure, after 15 November 2010, to check with the Home Office was an obvious omission. It was the failure of the National Crime Agency, rather than the absence of a response from the primary care trust, that mattered. The omission was culpable and substantially caused the four-year delay in execution.
3. Article 8 and delay. The court applied the approach in HH v Italy [2012] UKSC 25 and the principles discussed in EB Kosovo [2008] UKHL 41. Delay may strengthen private and social ties, reduce the sense of impermanence in family relationships, and reduce the weight given to firm and fair immigration control where it results from a dysfunctional system. The underlying Article 8 reasoning was relevant in the extradition context.
4. Proportionality. The offences were not trivial, but they were very stale. The appellant had lived in the United Kingdom with his wife and three children since 2007, was the sole breadwinner, and removal would affect the family’s economic and social integrity. The children’s welfare was relevant but not determinative. The appellant’s responsibility for being at large was recognised. Nevertheless, adding the culpable four-year delay to the earlier period substantially reduced the weight of the public interest in return and increased the weight of the established private and family life. Return would therefore be a disproportionate and unjustified interference with Article 8 rights.

• District Judge Tempiah: found no culpable delay and concluded that the delay was not considerable.
• High Court (Administrative Court): after obtaining further National Crime Agency evidence, set aside the Article 8 assessment, made a fresh proportionality assessment and allowed the appeal.