Kotlarski v Regional Court In Bielsko-Biala, Poland

On an extradition appeal based on ECHR article 8, the appellate court must respect the district judge’s primary factual findings and proportionality assessment. It is not exercising a simple substitutionary jurisdiction. However, the court may stand back and consider whether the overall evaluation was wrong, including whether factors should have been weighed significantly differently, as explained in Love v United States of America [2018] EWHC 172 (Admin). The public interest in extraditing a fugitive to serve a substantial custodial sentence may outweigh established private and family life, including the likely impact on young children, unless the consequences are exceptionally severe. The appeal was dismissed.

The appellant appealed against an extradition order made by District Judge Sarah-Jane Griffiths on 1 August 2019. He was wanted in Poland to serve custodial sentences for offending committed between 2001 and 2004. The appeal was confined to whether extradition would be disproportionate under ECHR article 8.

Permission to appeal was granted after an apparent Polish sentence aggregation was thought substantially to reduce the outstanding term. By the hearing, the parties agreed that approximately three years and four months remained after credit for remand. The central issue was whether the district judge’s article 8 proportionality assessment and outcome were wrong.

1. Appeal dismissed. The district judge’s extradition decision was upheld.
2. The appellate court must give appropriate respect to the district judge as the primary fact-finder and decision-maker on article 8 proportionality. It is not ordinarily a substitutionary jurisdiction in which all evidence is re-evaluated. The approach in Love v United States of America [2018] EWHC 172 (Admin) nevertheless permits the appellate court to stand back and conclude that the overall evaluation was wrong where crucial factors ought to have been weighed significantly differently.
3. The district judge had made findings open to her on the evidence, including that the appellant was a fugitive, that his partner could cope with the extradition, and that the children would remain in their mother’s care with appropriate support. She had properly conducted the required balance-sheet assessment and explained why the strong public interest in extradition was not outweighed.
4. The appellant’s long residence, family relationships, good character in the United Kingdom and the age of the offending were relevant. However, being a fugitive increased the public interest in extradition and tempered the significance of lapse of time. The court continued to consider the private and family life established during that period.
5. The likely distress to a two-and-a-half-year-old child was a relevant consideration, but no particularised or expert evidence showed an impact peculiar to that child. Applying the observation in HH [2012] UKSC 25, while recognising that it was not a legal litmus test, the impact was insufficient to outweigh the strong public interest in extradition to serve a substantial custodial term.
6. As a cross-check on legal merits, the judge considered what the outcome would be under a substitutionary correctness approach and concluded that the district judge had reached the correct outcome by a significant margin.

1. High Court (Administrative Court): Permission to appeal was granted by Mrs Justice Steyn on 5 March 2020 after permission had been refused on the papers by Mr Justice Dove. The appeal was dismissed and the district judge’s extradition decision was upheld.
2. District Judge Sarah-Jane Griffiths: An extradition order was made on 1 August 2019 following a hearing on 17 July 2019.