Makowska v Regional Court, Torun, Poland (No. 1)

Extradition is disproportionate under article 8 where, viewed cumulatively, its exceptionally severe effects on settled family life decisively outweigh the strong public interests in enforcing sentences and honouring international obligations. Severe harm is capable of determining the balance, but is not a trump card.

Whether a requested person is a fugitive is a contextual question requiring more than being unlawfully at large. Knowing default in paying redress does not alone establish fugitivity where there is no relevant change of location, informational deficit or consequential elusiveness. Nor does a person become a fugitive by returning under the guaranteed arrangements governing a temporary transfer.

The appellant appealed against a district judge’s order for her extradition to Poland under a conviction European Arrest Warrant. A suspended 16-month sentence for fraud had been activated after she failed to pay redress. She had lived with her husband and four children in the United Kingdom for nearly 11 years.

Permission was granted to rely on fresh psychological evidence concerning the likely effects of extradition upon the family. The High Court therefore conducted the article 8 balancing exercise afresh. The principal issues were the severity of those effects, whether the appellant was a fugitive, the seriousness and age of the offending, and the resulting proportionality of extradition.

1. The appeal was allowed and the appellant discharged. On the fresh psychological evidence, extradition was disproportionate under article 8. The extradition order was quashed pursuant to the Extradition Act 2003.

2. The likely consequences were exceptionally serious and exceptionally severe. Extradition was likely to cause serious harm to all six family members and very serious harm to each child. The family was close-knit, the appellant was its primary carer, several children had established psychological vulnerabilities, and the father’s physical and mental health restricted his ability to mitigate the harm. Severity was not a trump card, but it was capable of carrying decisive weight in the overall assessment.

3. The respondent had not established fugitivity to the criminal standard. Fugitivity is context-sensitive and requires more than being unlawfully at large. The concept concerns conduct by which a person knowingly places herself beyond the reach of legal process, so that delay in extradition is the consequence of her own choices. Changes of location, an informational deficit and intended consequential elusiveness are helpful themes, but not elements of a rigid test.

4. Knowing failure to pay redress from a settled United Kingdom address did not itself make the appellant a fugitive. There was no alleged concealment, breach of a contact condition, unknown whereabouts or evasion of arrest. The default explained why enforcement became appropriate, but not why any delay in enforcement was attributable to her.

5. The appellant also did not become a fugitive when she returned to the United Kingdom following a temporary transfer under section 21B of the Extradition Act 2003. That transfer had a specific, protected and tightly circumscribed purpose, accompanied by a guarantee of return. Any informational deficit concerning the separate sentence was pre-existing and independent of the transfer.

6. The fraud offences were not trivial, but were not seriously criminal. The substantial lapse of time both substantially diminished the public interest in extradition and substantially increased the interference with private and family life. As the appellant was not a fugitive, that lapse could not be laid at her door.

7. Against extradition stood the grave family harm, the limited gravity of the offences, the delay and the appellant’s long-settled, law-abiding life. Those considerations decisively outweighed the strong and continuing public interests in enforcing foreign sentences, honouring international obligations and respecting the requesting court’s decision.

1. High Court (Administrative Court): The appeal was allowed under section 27(1)(a) of the Extradition Act 2003. The appellant was discharged and the extradition order quashed under section 27(5).

2. High Court permission stage: Steyn J granted permission to appeal and to rely on fresh evidence on 5 December 2019.

3. District Judge: Following a hearing on 15 April 2019, District Judge Jabbitt ordered extradition after finding it compatible with article 8. The appellant had been unrepresented and the judge had not seen the fresh psychological evidence later admitted on appeal.