M v Circuit Court In Czestochowa, Poland

On a statutory extradition appeal, the High Court may allow an appeal under section 27(4) of the Extradition Act 2003 where new issues or evidence would have required the extradition judge to reach a different decision and order discharge. The requirement that discharge would have been required imposes a high threshold. In assessing that question, the court must conduct the Article 8 balance afresh on the evidence as it exists at the appeal. The welfare of affected children is not paramount, but it is an important consideration. Where extradition would cause immediate separation from a primary carer, there is no reliable alternative care, the children are particularly vulnerable, and criminal proceedings are substantially delayed, the statutory threshold may be met despite a powerful public interest in extradition.

The appellant appealed under section 26 of the Extradition Act 2003 against an order made by the Westminster Magistrates’ Court on 18 December 2017. She was wanted in Poland in connection with alleged high-value carousel VAT fraud. The appeal concerned the effect of her extradition on her three young children, who had remained with her in England.

Since the extradition hearing, the paternal grandparents had withdrawn their willingness and ability to care for the children, the proposed joint trial in Poland had been severed and significantly delayed, and further psychological evidence had become available. The central issue was whether those new matters satisfied section 27(4), including whether the district judge would have been required to order the appellant’s discharge.

1. Appeal allowed. The conditions in section 27(4) of the Extradition Act 2003 were satisfied. The appellant was ordered to be discharged and the extradition order was quashed under section 27(5).
2. Section 27(4) requires new issues to have been raised or new evidence to have become available, and requires the court to conclude that, if the extradition judge had considered them, he would have been required to order discharge. The word “required” imposes a high threshold. The question is not whether the judge might properly have ordered discharge, but whether he could only have reached that result on the evidence as it stood at the appeal.
3. The district judge had conducted the Article 8 balancing exercise identified in Celinski. The public interest in honouring extradition arrangements and prosecuting serious alleged offending remained powerful. However, the Article 8 rights of the requested person and directly affected family members, including children, had to be given proper weight. The children’s welfare was not paramount, but it was an important consideration.
4. The new evidence materially altered the balance. The grandparents could no longer be treated as available and capable carers. The appellant would probably be detained immediately in Poland for an appreciable and uncertain period. The proceedings had ceased to be a joint trial and were likely to be substantially delayed. Updated psychological evidence indicated that separation would cause devastating or severe harm to the children, who were already vulnerable as a result of previous separations.
5. Viewed in the round, the district judge would have been required to order discharge had he considered the evidence as it existed in May 2019. The decision concerned extradition only and did not affect the Secretary of State’s separate discretion concerning deportation.

• High Court (Administrative Court): The statutory appeal was allowed under section 27(4) of the Extradition Act 2003; the appellant was discharged and the extradition order was quashed.
• Westminster Magistrates’ Court: District Judge Goozee ordered extradition on 18 December 2017.