Maciejewski v District Court In Elbag, Poland

On an extradition appeal engaging Article 8, the court must carefully balance the effects of extradition on the requested person and family, including children, against the public interest in enforcing extradition arrangements. There is no test of exceptionality. Ordinarily, however, family consequences must be particularly severe before extradition becomes disproportionate. Relevant considerations include the seriousness and repetition of the offending, the requested person’s fugitive status, the significance and cause of delay, available family or state support, and the realistic possibility of relocation. Fresh evidence may be admitted where there is good reason for its absence below and it addresses an important issue.

The appellant appealed against District Judge Brennan’s decision of 28 September 2016 ordering his extradition to Poland under a conviction European Arrest Warrant. The appellant had been convicted of two group assaults committed in 2007 and had left Poland knowing that prison sentences remained outstanding.

The appeal principally concerned whether extradition would breach Article 8 and therefore be barred by section 21 of the Extradition Act 2003. The appellant sought to rely on a psychologist’s report and updated evidence concerning the likely effect of extradition on his partner and their infant daughter. The central issue was whether the new evidence required a different proportionality assessment.

1. The court admitted the psychologist’s report and updated witness evidence. Applying Fenyvesi v Hungary [2009] EWHC 231 (Admin), there was good reason why the evidence had not been available before the District Judge, and it addressed an important issue.
2. The court conducted the Article 8 balancing exercise afresh, as recommended in Celinski v Poland [2015] EWHC 1274 (Admin). The new evidence showed a significant risk that the appellant’s partner’s depression would worsen and that this could affect the child. The court nevertheless considered that the report had not fully addressed family support available in Poland or the possibility that the partner and child could return there.
3. The factors favouring extradition remained substantial. The offences involved repeated and serious group violence causing head injuries. The appellant had left Poland knowing that the sentences remained outstanding, so any family or private life established in the United Kingdom was precarious. The delay between issue of the European Arrest Warrant and arrest was not attributable to culpable inaction by the Polish authorities, although delay remained a factor against extradition.
4. There is no requirement of exceptionality in an Article 8 extradition case. Nevertheless, extradition will ordinarily be disproportionate only where the consequences for the family, particularly children, are particularly severe: HH v Italy [2012] UKSC 25; [2013] 1 AC 338. The consequences in this case did not cross that threshold.
5. The appeal was dismissed. Extradition was not a disproportionate interference with the private or family life of the appellant, his partner or their daughter.

• District Judge Brennan: on 28 September 2016 ordered the appellant’s extradition to Poland under a conviction European Arrest Warrant.
• High Court (Administrative Court): granted permission to appeal and dismissed the appeal on 6 March 2017.