Pollak, R (on the application of) v Judicial Authority of Czech Republic

In an extradition appeal, the time remaining on a custodial sentence may be relevant to the proportionality of return under Article 8, where the person has a private life deserving respect. In exceptional circumstances, returning a person to serve only a small balance of the sentence may serve no sufficient public interest and may be disproportionate. The court must assess the position at the hearing on the evidence then available. Adjournment powers should not be used to facilitate a de facto transfer of sentence or to encourage delay until the sentence has effectively been served. The time-served factor requires caution and should not be overused to undermine the European arrest warrant arrangements.

The appellant appealed against the decision of the Chief Magistrate at the City of Westminster Magistrates’ Court on 19 September 2014 ordering his return to the Czech Republic under a European arrest warrant. He had been sentenced in the Czech Republic to six months’ imprisonment for theft and had spent more than five months in custody in the United Kingdom. By the earliest anticipated removal date, only twelve days of the sentence would remain.

The appellant sought an adjournment to ask the Czech authorities to withdraw the warrant, and argued on the substantive appeal that return would be disproportionate under Article 8. The central issues were whether the appeal should be adjourned and whether the limited remaining sentence made extradition disproportionate.

1. Adjournment. The adjournment application was refused. The court’s task was to decide whether the magistrate had made a wrong decision. Its adjournment powers could not be used to achieve a de facto transfer of sentence or to delay the appeal until the sentence was effectively completed. The issues had to be decided on the evidence available at the hearing. Baghishyan v Poland [2011] EWHC 1297 Admin was relied on in support of that approach.
2. Article 8 proportionality. Newly amended section 21A did not apply to this conviction case. Nevertheless, where private life deserving respect was engaged, the length of sentence remaining was a relevant consideration in deciding whether extradition was a justified and proportionate interference with Article 8 rights.
3. The court followed the approach identified in Wysocki v Polish Judicial Authority [2010] EWHC 3430 Admin, where the pointlessness of pursuing extradition in very unusual circumstances meant that no sufficient public interest justified return. The relevant balance had to be performed on the circumstances appearing at the hearing.
4. By the relevant date, the appellant had served virtually the whole six-month sentence. In those particular circumstances, and having regard to the offence and time served, return would be disproportionate. The court repeated the caution that this factor should not be overused to facilitate de facto sentence transfers. Any tactical use of remand to undermine the European arrest warrant arrangements could require future judicial consideration.
5. The appeal was allowed on Article 8 grounds. The appellant was discharged.

• High Court (Administrative Court): The appeal from the Chief Magistrate’s decision of 19 September 2014 was allowed on Article 8 grounds and the appellant was discharged.
• City of Westminster Magistrates’ Court: The Chief Magistrate ordered the appellant’s return to the Czech Republic under a conviction warrant to serve a six-month sentence.