Olenski v Regional Court of Krosno, Poland

On an appeal against an extradition decision, the appellate court asks whether the judge made the wrong decision. Findings of fact, particularly where evidence was heard, are ordinarily respected. Errors or omissions in reasoning do not by themselves establish that the decision was wrong.

In an Article 8 extradition case, the court must balance the interference with private and family life against the strong public interest in honouring extradition arrangements and preventing the United Kingdom becoming a safe haven for fugitives. Delay remains relevant even where the requested person is a fugitive. However, serious offending, fugitive status and mutual confidence between Member State judicial authorities may carry decisive weight. Extradition may nevertheless become disproportionate if circumstances materially change before the appeal is determined.

The appellant appealed under section 26 of the Extradition Act 2003 against a District Judge’s order for his extradition to Poland under a conviction European Arrest Warrant. He challenged the decision on the grounds of passage of time under section 14 and proportionality under Article 8 of the ECHR.

The District Judge found that the appellant had absconded before the conclusion of the Polish proceedings and rejected both grounds. By the time the High Court delivered judgment, the appellant had served the remainder of his sentence while on remand and had been released. The central issues were whether the District Judge had made the wrong decision and whether extradition had become disproportionate or abusive in the changed circumstances.

1. Appeal allowed on the re-formulated Article 8 ground. Although the appeal would have been dismissed on the grounds argued at the hearing, the appellant had subsequently served the remainder of his sentence and had been released. In those circumstances, extradition would now be disproportionate to his Article 8 rights. The respondent accepted that the appeal should therefore be allowed.
2. Under section 26, the appellate question is whether the District Judge made the wrong decision. Following Polish Judicial Authorities v Adam Celinski & others [2015] EWHC 1274 (Admin), the approach is informed by Re B (A Child) (FC) [2013] UKSC 33. The appellate court should focus on the decision itself. It should ordinarily respect findings of fact made after hearing evidence. Errors or omissions in reasoning do not necessarily show that the decision was wrong.
3. For Article 8, the judge must conduct a structured balancing exercise. The public interest in honouring extradition arrangements and discouraging the United Kingdom from becoming a safe haven for fugitives is very high. Its weight varies with the seriousness of the offending. Mutual confidence and respect are owed to the judicial authorities of Member States. Delay must nevertheless be considered, even where the requested person is a fugitive.
4. The first ground failed. The evidence justified the finding that the appellant was an unreliable witness and a fugitive. He had been released before the Polish proceedings concluded, knew the dates on which he was required to attend court, and failed to attend. This was not the rare type of case in which, despite fugitive status, the passage of time still required separate consideration under section 14.
5. The second ground, as originally formulated, would also have failed. The District Judge had applied the relevant Article 8 principles and reached the right conclusion. In this case the public interests in honouring extradition arrangements and discouraging fugitives, together with the seriousness of two offences and the need for mutual confidence, outweighed the matters relied upon by the appellant.

• Westminster Magistrates’ Court: District Judge Grant ordered extradition to Poland on 29 January 2015.
• High Court (Administrative Court): The appeal under section 26 of the Extradition Act 2003 was allowed because, following the appellant’s release after serving the remainder of his sentence, extradition had become disproportionate under Article 8.