Wisniewski v Polish Judicial Authority (Rev 1)

In an extradition case, the passage of time and the possibility that only a short period of imprisonment remains may be material to the Article 8 proportionality assessment. Their significance depends on the period actually likely to remain and the strength of the public interest in giving effect to extradition arrangements.

Speculative matters, such as a possible re-suspension of sentence, future release on licence or pandemic-related delay, carry limited weight. An outstanding review process in the requesting state does not, without more, create an arguable Article 6 issue or reduce the public interest in extradition.

The appellant sought permission to appeal against an extradition order made by a District Judge on 31 August 2018 in respect of two European Arrest Warrants. One concerned a rape conviction and a three-year sentence; the other concerned a theft conviction and an eight-month sentence.

The appellant relied on family life, time spent on remand, possible re-suspension of the theft sentence, pandemic-related delay, possible release on licence under Article 78 of the Polish Criminal Code, and an outstanding Ombudsman process concerning the rape conviction. The central issue was whether those matters made an appeal under Article 8 reasonably arguable.

1. Permission refused. The remaining Article 8 ground was not reasonably arguable.
2. The District Judge had approached the Article 8 issue using the balance-sheet method recommended in Celinski [2015] EWHC 1274 (Admin). The appellant’s separation from his partner and children, emotional harm and financial hardship had been weighed against the seriousness of the offences and the public interest in extradition.
3. The period of imprisonment remaining to be served can be material where it is very short, because it bears on the significance of the public interest in enforcing extradition arrangements. Here, about two years of the sentences remained, so the passage of time did not materially reduce that public interest.
4. The possible re-suspension of the theft sentence was speculative, particularly because an earlier application had failed. The possibility of further pandemic-related delay and release on licence under Article 78 of the Polish Criminal Code was likewise too uncertain to carry significant weight.
5. The outstanding Ombudsman process did not create an arguable Article 6 issue. The extradition was sought on the basis of an existing conviction, and any complaint about delay in the Ombudsman process could be pursued in Poland. The process was also unrelated to the significance of the public interest in effective extradition arrangements.
6. Taking the matters individually and collectively, the interference with Article 8 rights remained justified by the significant public interest in executing the extradition arrangements.

1. District Judge: extradition order made on 31 August 2018.
2. High Court (Administrative Court): permission to appeal was refused on the papers on 18 April 2019. After several adjournments, the renewed application was considered by Swift J and refused on 23 April 2020.