Sylwester Hojden v District Court, Gorzow, Wielkopolski, Poland

In an extradition appeal, delay under section 14 of the Extradition Act 2003 is assessed from the point at which a person convicted in absentia becomes unlawfully at large. In a non-fugitive case, delay may instead inform the holistic ECHR Article 8 balance. Family hardship, curfew restrictions and uncertainty about re-entry require assessment of their practical impact. An immigration argument must be fully formulated against the relevant statutory, regulatory and immigration framework. The counterfactual position if extradition is refused must also be considered. Where the offending is serious, the public interest in extradition is strong and the family can relocate to the requesting state, extradition may remain proportionate.

The appellant appealed under section 26 of the Extradition Act 2003 against District Judge Ezzat’s decision of 9 June 2020 ordering his extradition to Poland to serve an 18-month sentence for thefts from motor vehicles. The offences had been committed in 2015 and the appellant had been convicted in his absence.

On appeal, he sought to adduce further evidence, including an International Conviction Certificate, material concerning delays in the Polish criminal justice system, evidence of an electronic curfew and immigration guidance. The central issues were the admission of fresh evidence, delay under section 14, and whether extradition would disproportionately interfere with private and family life under Article 8, having regard to family separation, re-entry prospects, possible deportation and future delay.

Appeal dismissed.

1. The statutory hurdles governing fresh evidence under section 27 of the Extradition Act 2003 applied to evidence adduced by the appellant where it might have led to a different answer and his discharge. They did not apply in the same way to evidence adduced by the respondent, although the respondent had to show that admission was in the interests of justice. The International Conviction Certificate was admitted because excluding it would have produced an unjust result. It demonstrated that the appellant had materially misrepresented his criminal record and substantially altered the context of the Article 8 assessment.
2. For a conviction in absentia, delay for section 14 purposes begins when the person becomes unlawfully at large. The appellant’s admission of the offences meant that the period between 14 November 2018 and the District Judge’s decision could not make extradition oppressive or unjust. Delay could nevertheless be considered within the holistic Article 8 balance. The District Judge was entitled to consider evidence indicating that the appellant had contributed to the delay by leaving Poland while subject to reporting obligations.
3. The Article 8 assessment required a holistic balance between the public interest in extradition, including the importance of honouring international obligations and the seriousness of the offending, and the interference with private and family life. The hardship caused to the family was genuine but not exceptionally severe. The finding that the family could relocate to Poland materially reduced the weight of separation. The observations in HH v Deputy Prosecutor of the Italian Republic [2012] UK SC 25 and the approach in Lipski v Poland 1220 [EWHC] 1257 (Admin) did not assist the appellant in the light of the true seriousness and context of his offending.
4. A possible right to a retrial did not establish significant future delay. The appellant provided no adequate explanation why, having admitted the offences, he would insist on a full retrial, and no evidence that any re-sentencing would take a significant time. A curfew of less than nine hours could be relevant under Article 8, following Einkis v Lithuania [2014] EWHC 2325 (Admin), but its weight depended on its practical effect on work, study or family life. The curfew added little weight in this case.
5. After Brexit, EU citizens no longer had an automatic free-movement right to re-enter the United Kingdom. The United Kingdom could impose more restrictive conditions, subject to Article 8. The immigration rules were not a complete code: Hesham Ali v Secretary of State for the Home Department [216] UKSC 60. An immigration argument had to be fully formulated, and the counterfactual possibility of removal absent extradition had to be considered, applying the guidance in Gurskis v Latvian National Authority [2022] EWHC 1305 (Admin). The appellant was likely to face deportation action if not extradited. In any event, the immigration issue could not overcome the strong public interest in extradition and the availability of family relocation to Poland.

1. High Court (Administrative Court). On 4 November 2022, Mr Justice Lane dismissed the appeal under section 26 of the Extradition Act 2003.
2. District Judge Ezzat. On 9 June 2020, the District Judge ordered the appellant’s extradition to Poland.