Sebastian Malinowski v Polish Judicial Authority

In an extradition case, Article 8 requires a structured balancing exercise between the strong public interest in extradition and the person’s private and family life. Delay may reduce the weight of the public interest and increase the weight of the Article 8 interference, but its significance depends on its character and the circumstances of the case. Family relationships, residence, employment, rehabilitation and the impact on children may carry substantial weight. They do not necessarily outweigh serious offending, an outstanding custodial sentence and fugitive conduct. The court may refuse permission where there is no realistic prospect that the lower court’s proportionality assessment was wrong.

The appellant sought permission to appeal against an extradition order made by District Judge Griffiths. Johnson J had granted a stay in relation to separate section 2 and Article 6 ECHR issues arising in linked cases, but refused permission on section 14 and Article 8 grounds. The renewed application before Fordham J concerned Article 8 only.

The appellant had lived in the United Kingdom since 2011 with his partner and their child. He relied on family ties, employment, rehabilitation and delay in issuing and pursuing the European Arrest Warrants. The central issue was whether extradition was arguably incompatible with Article 8 and whether the District Judge’s proportionality assessment disclosed an arguable error.

1. Permission refused. There was no realistic prospect that an appeal would succeed or that the District Judge’s Article 8 conclusion would be overturned.
2. The Article 8 issue required the familiar balancing exercise. The public interest in extradition was especially strong because the accusation warrant concerned serious offending and the conviction warrant concerned serious offending followed by a three-year custodial sentence, with a significant period still to be served.
3. The appellant’s fugitive status in relation to the conviction warrant materially reduced the force of his reliance on the passage of time and his United Kingdom roots. He had left Poland shortly before he was due to begin serving his sentence, in breach of his obligations and knowing that imprisonment was required. His use of false details on arrest was also relevant.
4. Delay can reduce the weight of the public interest in extradition and increase the weight of the private and family life consequences, as described by Lady Hale in HH [2012] UKSC 25. However, the judge found no obvious or culpable delay by the Polish authorities, and no delay capable of supporting a breach of Article 8.
5. The appellant’s conviction-free period, established employment and strong relationship with his partner and child were relevant. The emotional distress to the family, particularly the child and partner as innocent third parties, also required substantial weight. Those factors did not outweigh the public interest. This was not a sole-carer case, and the District Judge had carefully evaluated all relevant matters. Even on a fresh balancing exercise, extradition would not be unjustified or disproportionate.

1. High Court (Administrative Court): Johnson J refused permission to appeal on the Article 8 ground on the papers. On renewal, Fordham J refused permission to appeal, while the separate section 2 and Article 6 ECHR issues remained stayed for determination in linked cases.