POREBSKI WOJCIECH v DISTRICT COURT IN BIELSKO- BIALA

In extradition proceedings, an alleged change in the requested person’s sentence does not establish abuse of process where the new judgment is not final and the requested state has explained the consequences if it becomes final. A court considering permission to appeal must apply the extradition statutory framework and cannot decide where a sentence should be served. In assessing Article 8 proportionality, the rights of the requested person and affected family members must be considered. Serious offending, a substantial custodial sentence, conviction and fugitive status may decisively outweigh family-life considerations, including delay and the impact on children.

The appellant faced extradition to Poland under a conviction European Arrest Warrant relating to numerous offences, including domestic burglaries. The District Judge ordered extradition in April 2021. Permission to appeal was refused on the Article 3, Article 8 and section 2 grounds, subject to subsequent consideration of the section 2 issue.

On renewal, the appellant relied principally on a later Polish judgment imposing an aggregate six-year sentence. He argued that the new sentence required further information and might support an abuse of process challenge. Further information explained that the Polish judgment was not final and that, if it became final before extradition, the existing warrant would be revoked and a new warrant issued. The central issues were whether there was an arguable abuse of process ground and whether the Article 8 arguments had a realistic prospect of success.

1. Permission refused. The alleged abuse of process ground was not viable. The Polish judgment imposing the aggregate six-year sentence was not final, and the further information explained the procedural consequences if it became final before extradition. In that event, the existing European Arrest Warrant would be revoked and a new warrant issued.
2. The court was satisfied that the previously raised Article 3 and section 2 grounds had no viability. The Article 8 arguments also had no realistic prospect of success.
3. The extradition judge’s function was to decide whether extradition would be disproportionate as an interference with private and family life. The court had no function to decide where the appellant should serve his sentence.
4. Article 8 proportionality required consideration of the appellant’s rights and those of his wife and son. The seriousness of the offending, the substantial custodial term, the fact of conviction and the appellant’s fugitive status created a decisive public interest in extradition. That public interest outweighed the family-life factors, including the family’s residence in the United Kingdom, the son’s circumstances and the passage of time.
5. The application for permission to appeal was refused, with no order as to costs.

• District Judge: District Judge Clews ordered extradition after an oral hearing in April 2021.
• High Court: Thornton J refused permission to appeal on 9 November 2021, subject to a stay concerning the section 2 ground. The renewed application was heard and refused by Mr Justice Fordham.