Siwak v Prosecutor General's Office, Poland

In an extradition case engaging Article 8, the strong public interest in enforcing sentences may be outweighed where delay has diminished that interest and family life has substantially developed during the period. The best interests of affected children are a primary consideration. A compelling case is required, but this does not create a separate exceptionality test: expressions such as “exceptionally severe” describe the required degree of interference.

Where the requested person is not a fugitive, responsibility for delay and the development of private and family life must be assessed carefully. The court must respect the requesting state’s sentencing regime, while considering domestic sentencing only to assess the likely impact of the children’s interests.

The appellant challenged an order of District Judge Radway at Westminster Magistrates’ Court requiring his extradition to Poland under two conviction European arrest warrants. The warrants concerned commercial burglaries committed in 2008 and 2009, for which suspended sentences had later been activated.

The appellant had lived in the United Kingdom since 2010, had formed a family and had three young children. The appeal relied on Article 8, delay in issuing and certifying the warrants, his rehabilitation, and the likely effect of extradition on his partner and children. Further psychological and other evidence was admitted on appeal. The central issue was whether extradition would be disproportionate in the light of the updated evidence.

1. Appeal allowed. Extradition would be disproportionate in the particular circumstances.
2. The applicable Article 8 principles were those set out in RT v The Circuit Court in Tarnobrzeg Poland [2017] EWHC 1978 (Admin), Polish Judicial Authority v Celinski [2015] EWHC 1274 (Admin); [2016] 1 WLR 551, and HH [2013] 1 AC 338. The best interests of the children were a primary consideration. A compelling case was required to overcome the strong public interest in extradition, but “exceptionally” described a degree of severity and did not impose an independent exceptionality test.
3. Delay had to be assessed both for its effect on the public interest in extradition and for the changes it permitted in private and family life. The appellant was not a fugitive and had not knowingly breached obligations to maintain contact or provide his address. The authorities bore the greater responsibility for the delay, particularly up to late 2014. The District Judge had therefore given the delay insufficient weight.
4. The court respected the Polish sentencing regime and the significance of the sentences imposed. The gravity of the offending was not to be reassessed by substituting an English view of the appropriate sentence. Domestic sentencing principles were relevant only to the limited question whether, allowing for the children’s interests, an English court would probably have imposed an immediate custodial sentence.
5. The appellant had reformed, remained employed and law-abiding, and developed a settled family life. Extradition would cause significant disruption to the children’s attachment to their father, with little prospect of face-to-face contact during the sentence. It would also impose substantial practical, financial and emotional burdens on their mother and adversely affect her capacity to care for them. The impact was materially more serious than the ordinary consequences of imprisoning a family’s main breadwinner.
6. The further evidence satisfied the approach under section 27(4) of the Extradition Act 2003: once admitted, the appeal court had to decide proportionality on all the available material. On the full evidence, the interference with family life outweighed the diminished public interest in extradition.

• High Court (Administrative Court): appeal from the extradition order made by District Judge Radway at Westminster Magistrates’ Court on 18 December 2017. The appeal was allowed.