Barszcz v Regional Court In Bydgoszcz, Poland

In an extradition appeal involving Article 8 family-life rights, the correct question is whether the gravity of the interference with family life is justified by the gravity of the public interest in extradition. The usual expectation that extradition will prevail unless the consequences are exceptionally severe must not be treated as a substitute for that proportionality assessment. The appellate court asks whether the district judge made the wrong decision. It must respect the requesting state’s sentencing policy, including enforcement of suspended sentences, provided that policy complies with the Convention. Delay carries little weight where the requested person knowingly avoided serving the sentence and sought to postpone it.

The appellant appealed under section 26 of the Extradition Act 2003 against District Judge Williams’s decision of 13 May 2016 ordering his extradition to Poland to serve a one-year sentence for attempted theft with burglary. The offence was committed in 2004, the sentence was activated in 2008, and the appellant had not served it.

The sole ground was that extradition would be disproportionate having regard to the appellant’s and his family’s Article 8 rights. Both parties accepted that the district judge had applied the wrong formulation by asking whether the consequences for the family would be exceptionally severe. The central issues were the correct proportionality test, the weight to be given to the age and nature of the offending, rehabilitation, family circumstances and delay, and whether the district judge had made the wrong decision.

1. Appeal dismissed. The appellate court’s single question was whether the district judge had made the wrong decision: Polish Judicial Authorities v Celinski and others [2015] EWHC 1274 (Admin), para 24.
2. The correct Article 8 test was whether the gravity of the interference with family life was justified by the gravity of the public interest pursued. The formulation that extradition would ordinarily prevail unless the consequences were exceptionally severe was not a separate or substitute test. It was a summary of the likely outcome in an appropriate case, as explained in HH v Deputy Prosecutor of the Italian Republic, Genoa [2012] UKSC 25, having regard to Norris v Government of the United States of America (No.2) [2010] UKSC 9.
3. Although the district judge had used the wrong formulation, he had accepted the appellant’s and his wife’s evidence, considered the appellant’s age at the time of the offence, his rehabilitation, his family relationships, financial hardship, possible loss of accommodation and the emotional harm to the children. He had then conducted a careful balancing exercise.
4. The seriousness of the offence could not be revisited by treating the sentence as disproportionate merely because the offence was old or relatively minor. The requesting state was entitled to determine its own sentencing policy and to enforce non-compliance with a suspended sentence. A United Kingdom court should not second-guess that policy where it complied with the Convention: Polish Judicial Authorities v Celinski and others [2015] EWHC 1274 (Admin).
5. The appellant had known of the sentence, remained at arm’s length from the Polish authorities and wished to postpone serving it. In those circumstances he had no real complaint about the delay. Extradition was not disproportionate in light of the Article 8 rights relied upon, and the district judge had not made the wrong decision.

1. High Court (Administrative Court) — The appeal under section 26 of the Extradition Act 2003 was dismissed. The court upheld the district judge’s extradition order, despite identifying an error in the formulation of the Article 8 test.