RT v The Circuit Court in Tarnobrzeg, Poland

In an extradition appeal based on fresh evidence, the High Court must determine the relevant statutory question for itself on all material then available. It need not speculate about how the District Judge would have assessed the new material.

A child’s best interests are a primary consideration in the Article 8 balance. They do not displace the weighty public interest in extraditing a fugitive convicted of a serious offence unless the interference with family life is exceptionally severe. The extradition court should obtain sufficient evidence about likely care arrangements and their impact on the child, but separate representation by the Official Solicitor will rarely be necessary. Parallel Family Court proceedings do not ordinarily justify delaying extradition proceedings.

The appellant was sought by Poland under a conviction European arrest warrant to serve the balance of a three-year sentence for violent robbery. District Judge Goldspring ordered his extradition in October 2016.

The appellant relied on Article 8, principally because his nine-year-old son had become vulnerable following the parents’ separation and was then living with the appellant, his uncle and aunt. After the extradition hearing, the appellant began Family Court proceedings concerning the child. Fresh social-services and psychological evidence was obtained for the appeal.

The court considered whether the child required representation by the Official Solicitor, whether the appeal should await the Family Court proceedings, and whether the new circumstances made extradition disproportionate.

1. Appeal dismissed. The court granted permission because fresh evidence had materially changed the factual position, but concluded that extradition remained compatible with Article 8.

2. Under section 27(4) of the Extradition Act 2003, an appeal based on a new issue or fresh evidence requires the High Court to decide the relevant question itself on all the material now available. It is not required to reconstruct what the District Judge might have decided. That approach would be speculative and inconsistent with the appellate court’s responsibility.

3. The child’s best interests were a primary consideration. The court had sufficient evidence about likely care arrangements and the effect of separation. Ordinarily that evidence should be obtained before the District Judge, from the parents and, where appropriate, children’s services. The Official Solicitor will rarely be needed in extradition proceedings, including where Family Court proceedings are under way. Article 12 of the United Nations Convention on the Rights of the Child is not incorporated into domestic law and did not create a right for the child to be separately heard in this criminal process.

4. The court declined to follow the dicta in PA v Criminal Court Coimbra (Portugal) [2017] EWHC 331 (Admin) suggesting that the Family Court should decide first. The Family Court determines the child’s best interests, whereas the extradition court strikes an Article 8 balance. Extradition proceedings should normally proceed urgently with such evidence as is needed. Awaiting Family Court proceedings is a wholly exceptional course.

5. The public interest was exceptionally strong. The appellant had fled Poland to avoid serving the balance of a sentence for a serious violent offence. Delay had not appreciably reduced that interest. The court accepted that extradition would harm the child, but found that the likely arrangement was for him to remain with his uncle, aunt and cousins, with local-authority support if needed. In the absence of cogent evidence of a systemic deficiency, mutual confidence justified assuming that humane family contact could be maintained from Poland. The likely harm, though real, was insufficient to outweigh the public interest in extradition.

• High Court (Divisional Court): Permission to appeal was granted on fresh evidence, but the appeal against the extradition order was dismissed.
• Westminster Magistrates’ Court: District Judge Goldspring ordered the appellant’s extradition to Poland on 18 October 2016.