PAWEL PALCZEWSKI v REGIONAL COURT IN RZESZOW (POLAND)

Permission to appeal in an extradition case should be refused where the first-instance judge applied the correct legal tests and there is no realistic prospect of success on any arguable ground. A person who knowingly leaves the requesting state in breach of an obligation to notify a change of address, and while failing to comply with the original sentence, is a fugitive. That conduct may prevent reliance on the passage of time under section 14 of the Extradition Act 2003. In an Article 8 case, the court must balance the factors favouring extradition against the interference with private or family life. Personal circumstances, employment in the United Kingdom and delay will not make extradition disproportionate where the public interest in enforcing a custodial sentence, particularly one evaded by fugitivity, decisively outweighs them.

The appellant was wanted for extradition to Poland under a European Arrest Warrant concerning a conviction for the theft of power tools. Extradition was ordered by District Judge Clews on 6 August 2021. Permission to appeal was refused on the papers by Choudhury J on 1 March 2022, and the appellant renewed his application.

The proposed grounds concerned fugitivity, delay under section 14 of the Extradition Act 2003, and Article 8 of the European Convention on Human Rights. Arguments under section 2 of the Act and Article 3 had become unsustainable in light of Wozniak and Litwinczuk. The central issue was whether any proposed ground had a realistic prospect of success.

1. Permission refused. There was no realistic prospect of success on any ground advanced by the appellant.
2. The first-instance judge applied the correct legal test and was entitled, on the evidence, to find that the appellant was a fugitive. He knew that he had to notify a change of address, left Poland in breach of that obligation, and failed to comply with the conditions of the original sentence. He had therefore deliberately and knowingly placed himself beyond the reach of Polish justice. That finding was unassailable.
3. Fugitivity was fatal to reliance on section 14 of the Extradition Act 2003. In any event, the threshold of injustice and oppression was not met.
4. The judge had conducted an appropriate Article 8 balance-sheet exercise. The factors capable of weighing against extradition included the appellant’s family circumstances, casual work in the United Kingdom, absence of United Kingdom convictions since 2016 and the passage of time since the offending and subsequent default.
5. Those considerations were decisively outweighed by the public interest in extradition so that the appellant could serve the 330-day custodial sentence, which he had evaded as a fugitive. The delay did not, in the circumstances, make extradition a disproportionate interference with Article 8 rights.
6. Arguments under section 2 of the Act and Article 3 ECHR were no longer sustainable in light of Wozniak [2021] EWHC 2557 (Admin) and Litwinczuk [2021] EWHC 2735 (Admin).

• High Court (Administrative Court): permission to appeal refused.
• District Judge Clews: extradition ordered on 6 August 2021.
• Choudhury J: permission to appeal refused on the papers on 1 March 2022.