KATARZYNA ZYGMUNT v DISTRICT COURT IN GDANSK (POLAND)

In an extradition case engaging Article 8 ECHR, the court must conduct a proportionality assessment which gives proper weight to the best interests and likely impact on a young child, including the loss of a primary carer and the availability of alternative care.

A possible transfer of the sentence is a matter for the requesting and executing authorities. The court cannot discharge a requested person in order to compel or influence that process. The seriousness of the offending and the requested person’s fugitive conduct may carry substantial weight. A comparison with likely domestic sentencing may be considered, but does not necessarily reduce the public interest in extradition.

The appellant was wanted for extradition to Poland to serve the balance of a custodial sentence imposed after conviction for causing grievous bodily harm. District Judge Callaway ordered extradition on 19 May 2021 after an oral hearing.

Permission to appeal was refused on the papers by Sir Ross Cranston on 26 November 2021. The renewed application concerned only the proposed challenge to the judge’s Article 8 ECHR assessment, particularly the impact on the appellant’s young son, alternative care arrangements, possible transfer of the sentence to the United Kingdom, the appellant’s ability to return, her health, and the weight given to the offending.

The renewed application for permission to appeal was refused. The court concluded that there was no realistic prospect of a substantive appeal succeeding. The appeal was dismissed under section 27(1)(b) of the Extradition Act 2003, with the order taking effect after eight weeks to allow the appellant to pursue an application to transfer her sentence.

1. Article 8 assessment. The court had to focus on whether surrender to Poland would be a disproportionate interference with the Article 8 rights of the appellant, her young son and her partner. The child’s best interests and the devastating effect of separation from his primary carer were kept at the forefront of the assessment. The court also considered the difficulties of alternative care, the appellant’s post-Brexit position, her health and the possibility of maintaining contact.
2. Sentence transfer. Transfer was a less intrusive alternative, but the decision whether to request or accept it belonged to the Polish and United Kingdom authorities. The court had to respect the Polish authorities’ decisions not to consider transfer substantively before the appeal was finally determined. Neither Article 4(6) of Framework Decision 2002/584/JHA nor the Extradition Act 2003 gave the court a freestanding power to discharge the appellant because transfer appeared preferable.
3. Public interest. The offending was properly characterised as extremely serious. The court rejected the suggestion that an assessment based on domestic sentencing categories, time already served and qualifying curfew could materially reduce the weight of the Polish public interest in extradition. Those matters could form part of the Article 8 balance, but there was no direct read-across from domestic sentencing consequences.
4. The appellant had knowingly left Poland while aware of the criminal proceedings and her obligation to notify a change of address. Her fugitive conduct and the substantial sentence remaining to be served reinforced the public interest in extradition.

• High Court (Administrative Court): District Judge Callaway ordered the appellant’s extradition on 19 May 2021.
• High Court (Administrative Court): Sir Ross Cranston refused permission to appeal on the papers on 26 November 2021.
• High Court (Administrative Court): Fordham J refused renewed permission to appeal and ordered that the appeal be dismissed under section 27(1)(b) of the Extradition Act 2003, subject to an agreed eight-week delay.