Janik v Judicial Authority of Poland

In an extradition case engaging Article 8, the court must balance the public interest in extradition against the individual and family circumstances, giving appropriate weight to delay, the seriousness and age of the offending, the person’s age at the time, and the likely impact on dependent children. An appellate court may intervene where the lower court was materially misinformed, significant new evidence has emerged, or the court’s own procedural failure has deprived the appellant of relevant evidence. Such failures should not operate to the appellant’s disadvantage. Delay may diminish the weight attached to the public interest, even where some responsibility for the delay rests with the appellant.

The appellant appealed against a decision of the District Judge at Westminster Magistrates’ Court ordering her extradition to Poland to serve two remaining custodial sentences. The district judge considered whether extradition was barred under Article 8 of the European Convention on Human Rights and section 21 of the Extradition Act 2003, and concluded that the balance favoured extradition, applying Polish Judicial Authorities v Celinski & Ors [2015] EWHC 1274 (Admin).

On appeal, the appellant relied on inadequate representation, inaccuracies in her evidence, new evidence concerning her pregnancy and childcare arrangements, and the absence of a social-services report which the court had directed should be sought. The central issue was whether those matters required the Article 8 balance to be reconsidered.

1. Appeal allowed. The district judge’s decision was reached without a fully informed assessment of the relevant Article 8 factors.

2. The public interest in extradition had to be weighed against the appellant’s family life and the effect of extradition on her two young children. Delay could diminish the weight attached to the public interest, as recognised in HH [2012] UKSC 25. The district judge had failed adequately to address that point.

3. The offending, viewed in detail, was not properly characterised as serious. It consisted of two groups of relatively old offences, committed when the appellant was young. The appellant’s age at the time of offending was a factor militating against extradition.

4. The appellate court was entitled to take account of material that had not been before the district judge. The new evidence concerning the appellant’s pregnancy and the practical difficulties of caring for her children was admissible under the Fenyvesi test, [2009] EWHC (Admin) 231, at paragraph 32.

5. The appellant had been inadequately represented. Her witness statement contained important inaccuracies concerning the availability and capacity of family members to care for the children. In addition, the court’s failure to obtain a report from Enfield Social Services deprived the appellant of potentially relevant evidence. Those procedural deficiencies should not disadvantage her.

6. Although it was highly unusual for the court to disturb an experienced district judge’s Article 8 extradition assessment, the identified deficiencies meant that, had the relevant matters been before the district judge, the balance required by Celinski would have been struck differently.

• High Court (Administrative Court): the appeal from the Westminster Magistrates’ Court was allowed. The court held that the Article 8 assessment had been materially affected by inadequate evidence, new material and procedural failures.
• Westminster Magistrates’ Court: the District Judge ordered extradition to Poland on 23 September 2016, concluding that the balance under Polish Judicial Authorities v Celinski & Ors [2015] EWHC 1274 (Admin) favoured extradition.