Kwasniewski v Regional Court of Piotrkow Trybunalski (Poland)

On an appeal concerning extradition and Article 8 proportionality, errors in the lower court’s assessment of relevant factors do not automatically require the appeal to succeed. The appellate court must decide whether the ultimate proportionality decision was wrong.

The period of imprisonment already served and the time elapsed since the offence are relevant to the balance. The modest sentence remaining may be merely background. The public interest in lawful extradition, the seriousness of the offence and fugitive status may nevertheless substantially outweigh interference with family life.

The appellant appealed against an order made by District Judge Bayne on 18 August 2016 directing his extradition to Poland to serve approximately seven or eight months of a sentence imposed for serious offences committed in 2004.

The appeal alleged that the District Judge had failed to take account of imprisonment and probation already undergone, the age of the offences, the effect of extradition on the appellant’s partner and child, and delay in the extradition process. The central issue was whether those matters made extradition incompatible with the appellant’s and his family’s rights under Article 8 of the Convention and section 27(3) of the relevant Act.

1. Appeal dismissed. The District Judge had legitimately been criticised for omitting from the balance the imprisonment and probation already undergone and the time elapsed since the offences. Those were relevant considerations.

2. The reduced sentence remaining to be served was historical background and need not appear on either side of the balancing exercise, although its modest length was relevant to the appellant’s case when the appellate court undertook the assessment itself.

3. Following the approach identified in Belbin v Regional Court of Lille, France [2015] EWHC 149 (Admin), an appellate challenge to a proportionality decision may succeed where the lower court misapplied legal principles, made an unreasonable material finding, omitted a relevant factor, considered an irrelevant factor, or reached an irrational or perverse conclusion.

4. However, as explained in Celinski [2015] EWHC 1274 (Admin), errors or omissions in the reasons do not themselves establish that the proportionality decision was wrong. The appellate court must focus on the outcome.

5. The public interest in lawful extradition remained very weighty. It included bringing accused persons to trial, requiring convicted persons to serve sentences, honouring treaty obligations and preventing safe havens. The seriousness of the offence and the appellant’s fugitive status substantially outweighed the interference with the family life of the appellant, his partner and child.

6. The delay since the offence was relevant, consistently with HH [2013] 1 AC 388, but the delay in this case was not sufficiently marked to carry significant weight. The appeal was therefore dismissed.

1. High Court (Administrative Court): Permission to appeal was granted on renewal by King J. Garnham J dismissed the appeal against the extradition order made by District Judge Bayne on 18 August 2016.