Gorczewski v Court of Swidnica, Poland

In extradition cases engaging Article 8, the court must balance the interference with family life against the constant and weighty public interest in extradition. There is no separate test for fugitives. The public interest will generally prevail unless the consequences for family life are exceptionally severe. Delay may reduce the weight of the public interest and increase the impact on family life, but its significance depends on the circumstances. A court may describe the necessary counter-balancing factors as very strong without creating a new legal test. In a conviction case, a speculative possibility of future proceedings before a Polish court does not establish a real risk of an unfair trial.

The appellant challenged orders made by a District Judge requiring his extradition to Poland under two European arrest warrants. The warrants concerned suspended sentences for theft and breaking into an allotment shed, both committed when he was young. He relied principally on the impact of extradition on his partner and children under Article 8.

Permission to appeal was granted on whether Polish Judicial Authority v Celinski had introduced an incorrect test for fugitives, contrary to HH v Italy. Following further submissions, the court also considered whether changes affecting judicial independence in Poland created a real risk of breach of fair-trial rights.

1. Appeal dismissed. The District Judge had applied the correct proportionality exercise under section 21 of the Extradition Act 2003. The appellant’s family circumstances were serious, but they were not exceptionally severe and did not outweigh the public interest in extradition.
2. Polish Judicial Authority v Celinski had not created a new test. Its reference to very strong counter-balancing factors expressed essentially the same test as the summary in HH v Italy, which in turn explained Norris v USA. A three-member Divisional Court had no authority to depart from the Supreme Court, and had not done so.
3. The relevant exercise requires the court to weigh the Article 8 interference against the public interest in bringing offenders to justice, requiring sentences to be served, honouring extradition arrangements and preventing safe havens. The seriousness of the offences and delay are relevant, but delay attributable to the fugitive carries limited weight.
4. The court declined to permit an amendment challenging Celinski, which was binding at this level. It also held that the decision in R(R) v Chief Constable of Greater Manchester Police could not affect the result. Even if proportionality were determined afresh on the facts, extradition would remain proportionate.
5. Following Lis and others v Poland, there was no general basis to refuse extradition to Poland. An individual exceptional case requiring specific and precise assessment had not been demonstrated. This was a conviction case, with no trial in prospect; any future application concerning deferment, suspension or postponement of sentence was speculative. Permission to obtain expert evidence about the local court was therefore refused as a fishing expedition, and a stay or certification was also refused.

1. High Court (Administrative Court): Appeal dismissed.
2. Westminster Magistrates’ Court: The District Judge ordered extradition on 31 August 2017; the reserved judgment was issued on 19 September 2017.
3. High Court: Permission to appeal was refused on the papers by Nicol J on 6 December 2017, but granted by Holman J at an oral renewal hearing on 22 January 2018.