Madej v District Court In Koszalin (Poland)

Fresh evidence on an extradition appeal should be admitted only where it could not, with reasonable diligence, have been obtained for the original hearing. Prejudice caused by the inability to test the evidence, including by cross-examination, is relevant.

In an Article 8 extradition case, the public interest in extradition ordinarily carries great weight. Family consequences must be exceptionally severe before they outweigh that interest. The rights of each affected family member, particularly any child, must be considered. Delay is relevant but fact-sensitive, and a fugitive cannot rely on delay for the purposes of section 14 of the Extradition Act 2003.

The appellant appealed under section 26 of the Extradition Act 2003 against District Judge Crane’s order for his extradition to Poland to serve the balance of a custodial sentence imposed for repeated criminal damage and theft offences.

He challenged the proportionality of extradition under Article 8 ECHR, relying principally on fresh psychiatric and psychological evidence concerning his partner’s mental health and his young daughter’s special needs. The court first had to decide whether the evidence should be admitted and, if so, whether extradition would remain proportionate.

1. The appeal was dismissed. The application to adduce fresh evidence was refused. Applying Szombathley City Court v Fenyvesi [2009] EWHC 231 (Admin), the relevant material could and should have been obtained before the District Judge’s hearing with reasonable diligence. The absence of legal representation did not justify disapplying that test where the appellant had received legal advice and had been given clear directions concerning expert evidence. Admission would also cause significant prejudice because the respondent had been unable to test the evidence by cross-examination.

2. Without the fresh evidence, the District Judge had identified and applied the correct Article 8 principles, referring to Norris [2010] UKSC 9, HH [2012] UKSC 25 and Celinski [2015] EWHC 1274 (Admin). Her conclusion that extradition was proportionate was plainly open to her on the material available.

3. Had the fresh evidence been admitted, the court would have retaken the decision and conducted the Celinski balancing exercise afresh. The evidence showed that extradition would probably have a significant adverse effect on the appellant’s partner and daughter. Those consequences were weighty, but they did not outweigh the public interest in extradition, having regard to the seriousness of the offending, the outstanding sentence of more than two years and the appellant’s fugitive status.

4. Delay was relevant to the Article 8 assessment, although its significance was fact-sensitive. The appellant could not rely on delay for section 14 purposes because he was a fugitive, but some culpable delay by the requesting state added weight to his side of the proportionality balance. The suggested uncertainty arising from Brexit was not a legitimate factor: following Sobczyk v Poland [2017] EWHC 2353 (Admin), the court should not speculate about future arrangements.

5. The court applied the principle in Beoku-Betts v Secretary of State for the Home Department [2009] AC 115 that the Article 8 rights of each family member must be considered. Lord Brown’s example concerning sole responsibility for an incapacitated family member was treated as illustrative of the severity required, rather than as a rule determining the outcome.

• High Court (Administrative Court): appeal under section 26 of the Extradition Act 2003 dismissed. The court upheld the proportionality conclusion reached by District Judge Crane and refused admission of the fresh evidence.