Lipski v Regional Court In Torin, Poland & Anor

An appeal under section 27(4) of the Extradition Act 2003 on fresh evidence requires an objective reappraisal within the first-instance framework. The appellate court may overturn an outcome that is wrong in Article 8 terms and is not confined to a simplistic prediction of what the lower judge would have done.

Article 8 extradition cases involve a dynamic, fact-sensitive balance. Exceptionally serious or severe consequences guide the assessment but do not create a fixed exceptionality threshold. The weight of the public interest varies with the seriousness of the offending and the lapse of time. Serious harm to a child need not be unique or inevitable before it can require reconsideration of proportionality.

Kasper Lipski appealed against an extradition judge’s ruling of 8 March 2019 ordering his extradition to Poland under two European Arrest Warrants. The warrants concerned 2011 offending and activated or unserved custodial sentences totalling 21 months.

He relied on fresh psychological evidence concerning the likely effect of extradition on his nine-year-old son, together with further evidence about his family circumstances and subsequent conduct. The central issue was whether the fresh evidence, considered with the existing evidence under section 27(4) of the Extradition Act 2003, required the Article 8 appeal to succeed.

Appeal allowed and appellant discharged.

1. Fresh evidence and appellate review. Section 27(4) of the Extradition Act 2003 required an objective exercise in which the fresh evidence was fed into the framework of the extradition judge’s analysis and findings. The court adopted the guidance in Love v United States of America [2018] EWHC 172 (Admin). It could stand back and overturn an outcome which was wrong in Article 8 terms, rather than merely predict what the judge would have decided.
2. Fugitive status. Non-compliance with a condition of a suspended sentence constituted fugitive conduct only if it was knowing. Genuine misunderstanding was capable of preventing fugitive status. The extradition judge had made no reasoned finding that the appellant’s non-compliance was knowing. The appellate court could not make its own adverse finding without oral evidence or cross-examination and proceeded on the basis that the appellant was not a fugitive.
3. Article 8 proportionality. The guidance in Norris v Government of the United States of America (No.2) [2010] UKSC 9 and H (H) v Deputy Prosecutor of the Italian Republic [2012] UKSC 25 required a dynamic, fact-sensitive balance. Exceptional seriousness or severity was a guide to weight, not a fixed test. The fresh evidence established likely serious short-term harm to the child and substantial risks of more severe or enduring harm. It was not necessary to show that the case was unique or that severe harm was inevitable.
4. Public interest and delay. Consistently with Celinski v Polish Judicial Authority [2015] EWHC 1274 (Admin), the court respected the Polish sentencing and activation decisions and did not substitute a UK sentence. It was nevertheless entitled, and required, to assess the offending against the spectrum of criminal behaviour. The offences were not trivial but were of no great gravity and not seriously criminal. The substantial lapse of time, in a non-fugitive case, substantially reduced the weight of the public interest and increased the impact on private and family life.
5. Balancing all factors, the fresh evidence showed that extradition would be disproportionate under Article 8. The appeal was allowed and the appellant was discharged.

• High Court (Administrative Court), [2020] EWHC 1257 (Admin): appeal allowed on fresh evidence and appellant discharged.
• Extradition hearing: on 8 March 2019, the extradition judge ordered the appellant’s extradition to Poland.