Horchel v Polish Judicial Authority

On a renewed application for permission to appeal in an extradition case, an Article 8 challenge is arguable only where there is a realistic prospect that the lower court’s evaluative conclusion was wrong. The appellate court must examine both the reasoning and the overall outcome, standing back from the balance sheet.

Delay is relevant to Article 8, but its weight depends on its cause and context. Where delay is substantially attributable to the requested person’s fugitive conduct, it provides little support against extradition. The public interest in enforcing a foreign custodial sentence, respect for the requesting state’s sentencing decisions, family and private life, and third-party care needs must be weighed together.

The appellant was wanted for extradition to Poland under a conviction warrant concerning an unserved two-year sentence for fraud committed in 2007. District Judge Zani ordered extradition on 6 April 2020. Swift J refused permission to appeal on the papers on 13 July 2020.

On renewal, the appellant relied on Article 8 and sought permission to add a separate ground concerning the status of the Polish courts as judicial authorities under section 2 of the Extradition Act 2003. The central issues were whether the Article 8 challenge was reasonably arguable and whether the new ground should be added and stayed pending the Divisional Court’s decision in Wozniak and [2020] EWHC 1459 (Admin).

1. Article 8 permission. Permission to appeal on the Article 8 ground was refused. The district judge had accurately identified and balanced the relevant factors. On an appeal, the court must assess both the reasoning and whether the overall evaluative conclusion was wrong, standing back from the case as a whole.
2. Balance. The unserved two-year custodial sentence, the background of offending, and the public interest in extradition required substantial weight. The appellant’s relationship, employment and care provided to his disabled partner were relevant, but had been properly considered. The absence of dependent children was also relevant.
3. Delay and fugitive status. The age of the offending and the periods before the domestic warrant and European Arrest Warrant were not, in context, a sufficient basis for an arguable Article 8 appeal. The appellant had been found to have come to the United Kingdom as a fugitive. That increased the public interest in extradition and substantially qualified reliance on lapse of time. The court also owed appropriate respect to Polish sentencing policy and there was no realistic prospect that further remand time would alter the balance.
4. New ground. Permission was granted to amend the grounds, with an extension of time, to rely on the section 2 judicial-authority point identified in Wozniak, [2020] EWHC 1459 (Admin). The application for permission on that ground was stayed pending judgment in the Divisional Court appeals of Wozniak and Chlabicz. The appellant was not to be extradited pending consideration of that application. The respondent had liberty to apply, and there was no order as to costs apart from detailed assessment of publicly funded costs.

• High Court (Administrative Court): Permission to appeal on Article 8 was refused. Permission was granted to amend the grounds to add the section 2 judicial-authority point, and that application was stayed.
• District Judge Zani: Extradition ordered on 6 April 2020.
• Swift J: Permission to appeal refused on the papers on 13 July 2020.