Jacek Smolarek v Polish Judicial Authority

In an extradition case, the passage of time may strengthen private and family life ties and weaken the public interest in extradition, but it is not determinative. Fugitivity is a relevant feature of the Article 8 assessment, although it is not an automatic answer against the requested person. The court must evaluate all circumstances, including any culpable delay or false sense of security, and conduct a fair balance-sheet assessment. Permission to appeal should be refused where the alleged errors cannot realistically undermine the overall Article 8 outcome.

The appellant, aged 61, was wanted for extradition to Poland to serve a 10-month custodial sentence for misappropriating entrusted property in 2004. He had lived in the United Kingdom since 2006 with his wife and had two adult children. A District Judge ordered extradition after conducting an Article 8 balance-sheet exercise and refused permission to appeal on the papers.

On a renewed application, the appellant challenged the treatment of his good character, the seriousness of the offending, payments allegedly made to the Polish authorities, and the passage of time. The central issue was whether those matters gave rise to an arguable error capable of overturning the Article 8 conclusion.

1. Permission refused. The criticisms advanced by the appellant did not disclose a realistic prospect that the District Judge’s Article 8 conclusion would be overturned as wrong.
2. The District Judge was entitled to treat the appellant’s law-abiding life in the United Kingdom as a relevant consideration while remaining aware that the index offence was his first and only recorded conviction.
3. The District Judge’s assessment of seriousness was open to him. The misappropriation involved an element of trust because the equipment had been supplied on the representation that it would be used in a shop and was then largely sold to a pawnbroker. The judge had used the possibility, rather than the likelihood, of a custodial sentence in the United Kingdom.
4. The alleged payment of 2,000 PLN did not require the court to proceed on the basis that the appellant had acquired a false sense of security. The District Judge had expressly found that the Polish authorities had not caused such a belief, preferred the issuing authority’s evidence where accounts conflicted, and rejected the appellant’s account.
5. In the Article 8 assessment, the passage of time was relevant. It could strengthen private and family life ties and weaken the public interest in extradition. Fugitivity was also relevant, but was not an automatic or decisive factor. The findings that there had been no culpable delay and no false sense of security by the Polish authorities were unassailable.
6. The District Judge had considered the period from the Polish sentence to the present. It was immaterial that he had not separately referred to the period from the offending itself. The matters concerning the 2012 arrest warrant, its later certification, Brexit and the loss of the SIRENE database system were incapable, even arguably, of undermining the overall balance.

• High Court (Administrative Court): On the renewed application for permission to appeal, permission was refused.
• District Judge Zani: Extradition to Poland was ordered on 23 March 2023. Permission to appeal was refused on the papers.