MAREK KRYGER v REGIONAL COURT IN SZCZECIN

On a renewed application for permission to appeal in an extradition case, the court considered whether the Article 8 proportionality assessment was reasonably arguable to be wrong. A finding, made to the criminal standard, that the requested person left the requesting state to evade trial and its consequences may establish fugitivity, even if the first-instance judge did not separately list it in the balance sheet. Fugitivity may materially qualify the weight given to delay and the resulting private and family life factors. In a classic fugitivity case, strong public interests in extradition may decisively outweigh established private and family life impacts, including post-Brexit difficulties in returning to the United Kingdom.

The appellant faced extradition to Poland under a conviction European Arrest Warrant concerning a 12-month custodial sentence for three burglaries. The District Judge ordered extradition on 10 December 2020 after hearing evidence from the appellant and his mother and considering written evidence from his partner.

Permission to appeal had been stayed on other issues, which fell away after adverse determinations in test cases. The renewed application proceeded solely on Article 8 ECHR grounds. The central question was whether it was reasonably arguable that the District Judge was wrong to conclude that extradition was compatible with the Article 8 rights of the appellant and others affected.

1. Permission refused. Applying the threshold of reasonable arguability, there was no realistic prospect that a substantive appeal would overturn the Article 8 outcome.
2. The District Judge had not expressly included fugitivity in the balance-sheet exercise. That omission did not assist the appellant. Whether fugitivity can be inferred is fact-specific, but the District Judge had found, using the criminal standard, that the appellant left Poland to avoid his trial and its consequences. That finding necessarily established that he had left as a fugitive.
3. Fugitivity qualified the weight attributable to the passage of time. The District Judge had properly recognised the delay and age of the offences, while explaining that they were primarily attributable to the appellant’s deliberate departure. The assessment also properly took account of the appellant’s changed life, absence of offending in the United Kingdom, employment, family support and partner’s emotional and financial interests.
4. The offences and sentence engaged strong public-interest considerations in favour of extradition. Those considerations had to be balanced against the appellant’s private and family life, including the real post-Brexit difficulties concerning his ability to return to the United Kingdom. Even on a revisited and recalibrated assessment, the public-interest factors decisively outweighed the factors against extradition.
5. The case was described as a classic fugitivity case. The court agreed with the refusal of permission on the papers by Sir Ross Cranston and refused permission to appeal.

• District Judge: District Judge Jabbit ordered extradition to Poland on 10 December 2020.
• High Court (Administrative Court): The renewed application for permission to appeal, limited to Article 8 ECHR grounds, was refused.