Matyjaszczyk v Regional Court of Slupsk Poland

On an appeal under section 21 of the Extradition Act, the appellate court asks whether the district judge’s proportionality decision was wrong. Article 8 does not impose an exceptionality test. The court must examine the actual gravity of the interference with private and family life and balance it against the public interest in extradition.

Where delay in issuing or completing a European Arrest Warrant has allowed family relationships to develop, that delay may reduce the weight of the extradition interest and increase the impact on the family. A judge must analyse those effects expressly. It is insufficient merely to say that the family impact has been taken into account.

The appellant challenged an extradition order made by Westminster Magistrates’ Court on 12 March 2015. Poland sought his extradition to face trial for an alleged theft committed between 2000 and 2002. The sole ground was that extradition would be incompatible with his and his family’s rights under Article 8 of the Convention.

The appellant had lived in the United Kingdom since 2007 and had formed a family life with his partner and her two children. One child had Asperger’s syndrome and required substantial supervision. The European Arrest Warrant was issued in 2008, but amendments requested by the UK authorities were not supplied until July 2014. The issue was whether the district judge had properly assessed the proportionality of extradition in the light of the family impact, the child’s circumstances and the delay.

1. Appeal allowed and appellant discharged. The appeal court applied the approach stated in Polish Judicial Authorities v Celinski & Ors [2015] EWHC 1274 (Admin): the question was whether the district judge had made the wrong decision. The focus was on the proportionality outcome, while the district judge’s factual findings ordinarily had to be respected.
2. The district judge had treated the absence of an exceptionality test as a principle which nevertheless required striking or unusual facts. That was an error. The correct question was whether the gravity of the interference with family life was justified by the gravity of the public interest pursued. The court applied the guidance in HH v Deputy Prosecutor of the Italian Republic, Genoa [2012] UKSC 25, including that exceptionality was a prediction, not a test.
3. The district judge had not properly analysed the likely impact of extradition on the children. A general statement that the impact had been considered was inadequate. The judge also failed to analyse the effect of the delay between the UK authorities’ request for amendments in July 2010 and receipt of the amended warrant in July 2014.
4. On the evidence, the appellant was a particularly significant father figure. His removal would have a particularly grave effect on both children, especially the child with Asperger’s syndrome. The seriousness of the alleged offence ordinarily carried significant weight, but the delay materially diminished that weight because the family relationship had developed during the relevant period. On these fact-sensitive circumstances, extradition would be disproportionate.

• High Court (Administrative Court): The appeal from the extradition order made by Westminster Magistrates’ Court on 12 March 2015 was allowed. The appellant was formally discharged.