Grzegorz Pabian v Circuit Court in Warszawa, Poland

Delay by an issuing or executing state may weigh against extradition under Article 8 even where the requested person is a fugitive. An issuing state need not search for a fugitive whose destination is unknown. The position may differ once it knows that the person is in the United Kingdom, when an unexplained failure to make a direct request may affect the proportionality balance.

After a direct request, substantial unexplained delay may also be relevant where the United Kingdom authorities could readily have located the person by taking minimal steps. Fugitive status attenuates, but does not extinguish, the weight attributable to private or family life developed during the delay. Extradition will not be oppressive because of mental illness where the high statutory threshold is unmet and the evidence shows that treatment and safeguards can manage the identified risks.

Two European arrest warrants sought the appellant’s surrender to Poland to serve activated suspended sentences for offences committed in 2011 and 2012. A district judge ordered extradition, rejecting objections under sections 21 and 25 of the Extradition Act 2003. The appellant relied on delay, his established private life in the United Kingdom, moderate depression, ADHD symptoms and an asserted risk of self-harm or suicide.

Permission to appeal was granted because the remaining sentences, the possible misunderstanding that a United Kingdom conviction concerned drug trafficking rather than simple possession, the passage of time and the medical evidence arguably rendered extradition disproportionate. Further evidence disclosed substantial and inadequately explained delay between the issue and certification of the warrants. The central questions were whether extradition was disproportionate under Article 8 or oppressive under section 25.

1. Appeal dismissed. The district judge had failed properly to account for delay attributable to the issuing and/or executing authorities. It was an error of law to treat such delay as irrelevant merely because the requested person was a fugitive. The High Court therefore conducted the Article 8 balancing exercise afresh.

2. An issuing state seeking a person who has fled without revealing his destination need not expend resources investigating his whereabouts. Nor does entering an alert on the Schengen Information System, without more, oblige every other state to search its records. However, where the issuing authorities know that the person is in the United Kingdom, they may reasonably be expected to make a direct request. An unexplained failure to do so can weigh in the Article 8 balance.

3. Once the United Kingdom authorities receive a direct request, substantial delay may also be relevant where the person could readily have been located and even minimal steps were not taken. Courts must nevertheless recognise operational priorities and resource constraints. The requested person’s own efforts to conceal his whereabouts remain material.

4. Delay has two possible forms of relevance. Unexplained delay by the issuing state may indicate the seriousness which that state attaches to the offending. Delay by the executing state may increase the weight attributable to private or family life developed during the interval. Fugitive status attenuates that weight but does not extinguish it.

5. The delays in issuing the warrants and the period of more than four years before certification were inadequately explained. Even so, extradition remained proportionate. The appellant had no relevant family life, limited weight attached to his non-familial relationship with his landlady, and substantial custodial terms remained. His offences formed a pattern, and the Polish sentences remained effective unless altered by the Polish courts.

6. The medical evidence established moderate depression and ADHD symptoms, with a possible recurrence of suicidal thoughts. It did not show that the risks were unmanageable. Treatment and appropriate safeguards could be provided if current medical information accompanied the appellant. The high threshold for oppression under section 25 of the Extradition Act 2003 was therefore not met. Extradition was barred by neither section 21 nor section 25.

1. High Court (Administrative Court): The court held that the district judge’s Article 8 balancing exercise contained an error of law, retook the balance, and dismissed the appeal.
2. Westminster Magistrates’ Court: District Judge Callaway ordered the appellant’s extradition to Poland on 5 July 2023 following a hearing on 17 May 2023.
3. Permission: Sir Duncan Ouseley, sitting as a High Court judge, granted permission to appeal on 31 October 2023.