Jankowski v Regional Court In Bialystok, Poland

In an extradition appeal, delay caused by a requested person’s deliberate evasion cannot ordinarily support an oppression challenge under section 14. A person cannot be treated as unlawfully at large while unaware that a suspended sentence has been activated.

Article 8 proportionality requires consideration of all material circumstances. These include delay since the offences, unexplained delay in executing the extradition process, the sentence already served and the period remaining, as well as private and family life, health, rehabilitation and the public interest in extradition. A fugitive may be unable to rely on delay under section 14 but may still rely on it in the Article 8 balancing exercise.

The appellant challenged an extradition order made on 11 February 2015 in respect of a Polish conviction warrant for two serious assaults committed in 1993. He had been sentenced to four years’ imprisonment, of which approximately one year and 52 days remained after credit for detention.

The district judge rejected challenges under section 14 of the Act and section 21, including Article 8 of the Convention. She found that the appellant had become a fugitive after learning in 2006 that his suspended sentence had been activated, and that extradition remained proportionate. The central issues were whether those findings were open to her and whether all relevant factors had been included in the Article 8 balancing exercise.

1. Section 14. The appeal against the finding that the appellant was a fugitive was rejected. Applying Kakis v Government of the Republic of Cyprus [1978] 1 WLR 779 and Narang [1978] AC 247, delay caused by fleeing, concealing whereabouts or evading arrest cannot be relied upon as oppression. The appellant was not a fugitive when he left Poland in 2002 because there was no evidence that he then knew that the suspended sentence had been activated.
2. Following Pinto [2014] EWHC 1243 (Admin), a person can become unlawfully at large only when he knows that he is required to serve the sentence. The district judge was entitled to find that the appellant acquired that knowledge in 2006 and thereafter actively concealed himself.
3. Article 8. The proportionality assessment had to include the length of sentence already served and the period remaining. It also had to take account of the delay since the offences, including the unexplained delay between issue of the European Arrest Warrant in 2006 and its certification in 2013. Such delay may diminish the public interest in extradition and increase the impact on private and family life, even where the person cannot rely on it under section 14. The approach in Norris and HH required the competing factors to be balanced, while Celinski [2015] EWHC 1274 (Admin) required them to be identified clearly.
4. The district judge had omitted, or failed expressly to include, material factors. The High Court therefore reassessed proportionality. The appellant had served about three quarters of his sentence, had not reoffended since 1993, was rehabilitated, and faced substantial delay, alongside the health and family factors already identified. The public interest in extradition was consequently diminished, and extradition would be disproportionate.
5. The appeal was allowed.

The judgment does not state the citation of any earlier appellate decision in the same proceedings. The appeal was from an extradition order made by a district judge on 11 February 2015. The High Court allowed the appeal after rejecting the section 14 challenge but finding the Article 8 proportionality assessment materially incomplete.