Niewinski v Polish Judicial Authority

In extradition proceedings, an Article 8 proportionality assessment must weigh the private and family impact against the serious public interests supporting extradition. Delay may reduce the weight of the public interest or increase the impact on private and family life, but it does not necessarily make extradition disproportionate. Rehabilitation, employment, business interests and a settled relationship must be considered, together with the seriousness of the offending, the sentence, fugitive status and the international obligations engaged. Article 8 does not confer a right to choose to serve a foreign sentence in the United Kingdom. Fresh Article 3 evidence should ordinarily be raised before the district judge. Evidence previously available but deliberately not relied upon will not ordinarily establish a reasonably arguable appeal.

The appellant sought permission to appeal against an extradition decision concerning a European arrest warrant issued on 9 April 2019. Permission had been refused on the papers by Mr Justice Johnson. The renewed application relied principally on Article 8 of the European Convention on Human Rights and, by way of fresh evidence, on Article 3.

The district judge had found extradition proportionate, despite the appellant’s rehabilitation and settled life in the United Kingdom. The central issues were whether the Article 8 proportionality assessment was arguably wrong and whether the fresh Article 3 material could provide a reasonably arguable basis for resisting extradition.

1. Application refused. There was no reasonably arguable Article 8 ground of appeal.
2. The district judge had considered the appellant’s settled and rehabilitated position, employment, business and long-term relationship. Delay and lapse of time were inherently relevant because of the changes in the appellant’s private and family life. Even on the most generous approach, however, there was no realistic prospect of overturning the careful proportionality assessment.
3. The relevant public interests included the seriousness of the offending, the sentence of four years, nine months and 21 days, the appellant’s fugitive status, mutual respect between states, international obligations and avoiding the United Kingdom becoming a safe haven for fugitives. Those considerations outweighed the matters relied upon against extradition.
4. The appellant had no right under Article 8 to elect to serve the foreign sentence in the United Kingdom.
5. The proposed Article 3 evidence did not provide a reasonably arguable ground of appeal. The matters relied upon had been available before the district judge but had not been raised. Even when considered de bene esse and viewed against the Article 3 threshold, the evidence could not reasonably support a conclusion that Poland and its authorities failed to provide reasonable protection against threats from private individuals.

• High Court (Administrative Court): Mr Justice Johnson refused permission to appeal on the papers. On renewal, Mr Justice Fordham refused the application: [2020] EWHC 1339 (Admin).
• District judge: extradition was found proportionate and compatible with Article 8.