Patrycjusz Bernacki v The Regional Court in Slupsk, Poland

Fresh evidence in an extradition appeal must be assessed by asking whether it would have required the extradition judge to reach a different conclusion under Article 8 of the European Convention on Human Rights.

Emotional, financial and psychological hardship caused by extradition is relevant, but hardship alone will not ordinarily make extradition disproportionate. The court must conduct the applicable balancing exercise, considering the seriousness and age of the offending, the sentence remaining, the requested person’s conduct, the impact on family members, and the ability of the requesting state to manage medical risks. A sentence substantially exceeding remand time remains significant.

The appellant appealed against a District Judge’s order of 10 October 2019 requiring his extradition to Poland under a conviction European Arrest Warrant. The warrant concerned a two-year sentence for nine fuel-theft offences committed in 2008.

The District Judge rejected an Article 8 challenge based on the effects of extradition on the appellant, his partner and her two children. Permission to appeal was initially refused by Swift J but granted on renewal by Lewis J on 11 February 2020. Fresh medical, psychological and family evidence was admitted. The central question was whether that evidence would have required the District Judge to order the appellant’s discharge.

1. The appeal was dismissed. The court considered the fresh evidence under Extradition Act 2003, s.27(2) and (4), asking whether it would have led the District Judge to conclude that extradition was a disproportionate interference with Article 8 rights.
2. The appellant’s deteriorating mental health and the risk of self-harm were serious matters. Nevertheless, the evidence presented a more nuanced picture than before, including medical assessments recording stability, fleeting suicidal thoughts and protective family factors. The presumption that Poland would manage the appellant appropriately remained relevant. His previous mental-health difficulties had been managed in Poland by psychiatric treatment and medication.
3. The impact on AK remained a real concern, but her circumstances had improved. She was an adult, was no longer associating with harmful peers, had not repeated an isolated self-harming incident, and had found the ADHD diagnosis helpful. The family’s debts had been paid and accommodation had improved. The adverse emotional and financial consequences for the partner and family therefore did not outweigh the public interest in extradition.
4. The remaining sentence, exceeding ten months, was significant and was nowhere near the remand-time-served threshold identified in Molik v Poland. The age of the offending did not determine the appeal because the appellant had acted as a fugitive, had changed his name and had established his family life knowing that he was required to serve the sentence. The appellant had not demonstrated that Brexit consequences should affect the result.
5. Extradition commonly causes emotional and financial hardship to the requested person and family. Such hardship, without more, is insufficient to prevent extradition.

• High Court (Administrative Court): The appeal against the District Judge’s extradition order was dismissed. Fresh evidence was admitted and considered.
• District Judge: On 10 October 2019, ordered the appellant’s extradition to Poland under the conviction European Arrest Warrant.
• Permission stage: Swift J refused permission on the papers. On renewal, Lewis J granted permission on 11 February 2020 and admitted fresh evidence.