Ciemniak v Regional Court In Bydgoszcz (Poland)

On an appeal under section 27 of the Extradition Act 2003, the High Court may allow the appeal only where the extradition judge ought to have decided a question differently and would then have been required to order discharge. The court must conduct the Article 8 balancing exercise afresh where material errors affected the first decision. Delay must be fairly attributed, and the analysis must accurately distinguish offending involving possession from offending involving supply. Family life requires proper consideration of each parent’s role and the cumulative effect of repeated separation on a child. Extradition should be refused where, on the corrected assessment, the individual and family Article 8 rights outweigh the public and international interest in extradition.

The appellant appealed under section 26 of the Extradition Act 2003 against an order made by District Judge Marie Mallon in the Westminster Magistrates’ Court on 13 November 2018. The order required his extradition to Poland to serve a sentence of two years and two months imposed for drug offences committed in June 2008.

The appellant had previously been extradited to Poland in 2014 under a mixed European Arrest Warrant, including to face prosecution for those offences. He was imprisoned until September 2015, was then permitted by a Polish court to return to England, and was convicted in Poland in March 2017. The central issues were whether the district judge had materially erred in assessing flight, delay, the seriousness of the offending and the effect of extradition on the appellant’s family, and whether section 27 permitted the High Court to allow the appeal.

1. The appeal was allowed. The order for extradition was quashed and the appellant was discharged pursuant to section 27(5) of the Extradition Act 2003.

2. The district judge was entitled to find that the appellant was a fugitive from his arrival in England in 2008 until his arrest under the first European Arrest Warrant in January 2013. After that date his whereabouts were known. He was in Poland from June 2014 to September 2015, and thereafter returned to England with the express permission of the Polish court. It was therefore wrong to attribute the whole period of delay to his conduct.

3. The district judge had materially overstated the offending by eliding possession and supply and by treating 19g of supplied amphetamine as part of the substantial quantity possessed. The offending was serious, but the description of it as extremely serious was hyperbolic and distorted the later Article 8 assessment.

4. The approach to family life was also materially flawed. In a household in which both parents live with their child, describing one parent as not the primary carer is inappropriate. The assessment also failed to address the cumulative effect of a further abrupt separation, particularly in light of the child’s earlier adverse reaction to the appellant’s extradition.

5. Section 27(3) imposed a stringent threshold. The existence of errors did not itself justify allowing the appeal. The High Court had to undertake the balancing exercise afresh, applying the Celinski approach, and could allow the appeal only if the corrected decision would have required discharge.

6. On the corrected balance, the public interest in complying with extradition obligations, mutual confidence between judicial authorities, the seriousness of the offending and the sentence imposed were outweighed by the age of the offences, the unexplained delay after the appellant had been extradited and made available for prosecution, his settled and law-abiding family life in England, and the likely serious effect of another enforced separation on his son. The appellant’s Article 8 rights, and particularly those of his son, therefore prevailed.

• High Court (Administrative Court): On 22 May 2019, allowed the appeal under section 26 of the Extradition Act 2003, quashed the extradition order and ordered the appellant’s discharge.
• Westminster Magistrates’ Court: District Judge Marie Mallon ordered extradition on 13 November 2018.