ADAM KACZOR v KALISZ REGIONAL COURT (POLAND)

An appellate court reviewing an extradition judge’s Article 8 proportionality assessment must review the decision rather than conduct the balancing exercise afresh. It should intervene only if satisfied that the assessment was wrong. A decision which falls within the range of permissible evaluative conclusions must stand.

In assessing proportionality, the court may attach substantial weight to the public interest in enforcing extradition arrangements, particularly where the requested person is a fugitive and the sentence is significant. Speculative effects on businesses, employees or future immigration status may carry little weight. Fresh evidence must satisfy the applicable admissibility requirements and be decisive before it can justify reopening the appeal.

The appellant appealed against an extradition order made on 8 September 2021 in respect of a Polish conviction warrant, EAW1. The warrant concerned a sentence of 18 months’ imprisonment for stealing a car in December 2007. The appellant had lived and worked in the United Kingdom since April 2008 and relied on Article 8 rights arising from his relationships with his partner, her two children and a child of a former partner.

The District Judge had discharged him in respect of EAW2 because time spent on remand extinguished that sentence, but ordered extradition under EAW1 after applying a balance-sheet proportionality analysis. The appeal alleged errors in that assessment and sought admission of a psychologist’s report and later witness statements. The central issue was whether the District Judge’s conclusion that extradition under EAW1 was proportionate was wrong.

1. Appeal dismissed. The District Judge’s conclusion that extradition under EAW1 was a proportionate interference with Article 8 rights was not wrong. The correct appellate approach was that stated by Lord Neuberger in Re B [2013] 1 WLR 1911: the appellate court reviews the decision and must intervene if satisfied that it was wrong, but must not merely substitute its own assessment.
2. The District Judge had considered the material matters relied upon by the appellant. The appeal concerned the weight given to those matters, rather than the omission of a relevant consideration. The public interest in extradition remained strong because the appellant faced a significant sentence and had been a fugitive from the Polish authorities since 2008. The nature of the offence and the passage of time did not materially diminish that interest.
3. The possible effect on businesses and others connected with them was speculative and unsupported by sufficient evidence. It did not materially engage Article 8 and might not fall within Article 1 of Protocol 1 to the ECHR. The reference to the imperative of extradition was shorthand for the public interest in honouring extradition arrangements and did not impose an exceptionality requirement.
4. The three months spent on remand in connection with EAW2 had no relevance to proportionality under EAW1. That period concerned different offences and pre-dated the commission of the EAW1 offence.
5. The psychologist’s report was refused because it could have been obtained for the extradition hearing and was not decisive. The later witness statements contained new information but were likewise not decisive. The relevant principles were those stated in Fenyvesi [2009] EWHC 231 (Admin), based on section 29(4) of the Extradition Act 2003.
6. The uncertainty over the appellant’s future return to the United Kingdom was a relevant consideration, but did not alter the overall Article 8 balance. The applications to admit the additional evidence were refused.

• High Court (Administrative Court): The appeal against the District Judge’s extradition order was dismissed. The applications to admit the psychologist’s report and later witness statements were refused.
• District Judge: Extradition was ordered under EAW1. The appellant was discharged under EAW2 because time spent on remand extinguished the relevant sentence.