Marek Kurta v Regional Court in Poznan (Poland)

On a renewed application for permission to appeal in an extradition case, arguability requires a realistic prospect of establishing a material error of approach or outcome. A judge assessing the public interest under Article 8 ECHR need not label an offence as trivial or of no great gravity, or list that characterisation separately, where the seriousness of the offending is adequately reflected in the sentence imposed. Fugitivity may be established where a person knowingly places himself beyond the reach of a legal process, proved to the criminal standard. Extradition may remain proportionate even if the fugitive finding is revisited, where the public interest in enforcing an activated sentence decisively outweighs the competing Article 8 interests.

The appellant sought permission to appeal against an extradition decision. The renewed application followed the refusal of permission on the papers and the judgment of the Divisional Court, [2022] EWHC 1906 (Admin). The proposed appeal relied on a single ground under Article 8 ECHR.

It was argued that the extradition judge had failed to assess the relatively low seriousness of the underlying fraud and had wrongly found that the appellant was a fugitive. The central issues were whether those alleged errors were arguable and whether they could affect the Article 8 balance.

1. Permission refused. There was no realistic prospect of showing a material error of approach or outcome.
2. The extradition judge was not required to characterise the offence as trivial or of no great gravity, or to list that characterisation as a separate factor against extradition. The judge had recorded the nature of the fraud, the sentence and the appellant’s previous convictions, and was entitled to treat the length of the activated 16-month sentence as reflecting the relative seriousness of the offending. The Article 8 balancing exercise was unimpeachable.
3. The judge’s finding of fugitivity was made to the criminal standard. The applicable approach, identified in Wisniewski v Poland [2016] 1 WLR 3750 at paragraph 59, was knowingly placing oneself beyond the reach of a legal process. The finding that the appellant had knowingly breached an obligation to notify a change of address provided an unassailable basis for finding fugitivity.
4. The evidence that an address in Warrington appeared in the later European arrest warrant did not establish that the Polish authorities had known that address since 2014, or that the appellant had notified it in compliance with the obligation. The judge was entitled to rely on the later police intelligence and the surrounding evidence.
5. In any event, the Article 8 conclusion would not have changed even if the appellant were not a fugitive. The public interest in extraditing him to serve the activated sentence, following substantial non-payment of compensation and in the context of his offending and previous record, decisively outweighed residence in the United Kingdom, family and employment impacts, the passage of time and the absence of UK convictions.

1. Divisional Court—the background and context were recorded in [2022] EWHC 1906 (Admin).
2. High Court (Administrative Court)—renewed application for permission to appeal refused.