Beben v District Court In Gliwice (Poland)

On an extradition appeal, proportionality must be assessed on the facts existing at the appeal hearing. Where the requested person has substantially served the sentence covered by a valid warrant, and the Article 8 case is strong, the court may conclude that extradition has become disproportionate. The appeal court must also correct reasoning that gives weight to offences and sentences covered by a separate warrant already found invalid.

This was a substantive appeal under section 26 of the Extradition Act 2003 against an order for extradition to Poland. The district judge had considered two conviction warrants. She found the narcotics-trafficking warrant invalid and discharged it under section 2, but included its offences and remaining sentence when assessing Article 8 proportionality in relation to the valid assault warrant. By the appeal hearing, the appellant had served about 41 weeks of the one-year sentence under the valid warrant. The central issues were whether the district judge’s reasoning was materially flawed and whether extradition remained proportionate in the circumstances existing at the appeal hearing.

The appeal was allowed. The order for extradition was quashed and the appellant was discharged.

1. The district judge had correctly concluded that the second European arrest warrant, concerning narcotics trafficking, was invalid and had discharged it under section 2 of the Extradition Act 2003. It was therefore legally erroneous to allow the offences and the unexpired sentence under that warrant to influence the Article 8 proportionality assessment.

2. The district judge’s repeated references to both offences, both sentences and extradition to serve plural sentences showed that the invalid warrant had materially pervaded her reasoning. The judgment lacked coherence in that respect.

3. Under section 27(4) of the Extradition Act 2003, the appeal court had to consider evidence and circumstances available at the appeal hearing which had not been available at the extradition hearing. The appellant had by then served approximately 41 weeks of the one-year sentence under the valid warrant.

4. The appellant presented a very strong Article 8 case concerning his private and family life, including the interests of his wife, children and seriously ill brother. In light of the sentence already served and the strengthened Article 8 case, the judge concluded that, if the district judge had been considering the matter at that date, she would have been required to discharge the appellant. Extradition was consequently disproportionate.

• District Judge (Magistrates’ Courts): on 18 March 2019, ordered extradition to Poland. The narcotics-trafficking warrant was found invalid and discharged under section 2 of the Extradition Act 2003, but the invalid warrant nevertheless influenced the proportionality assessment.
• High Court (Administrative Court): appeal allowed under section 26 of the Extradition Act 2003; the extradition order was quashed and the appellant discharged.