Sebastian Klos v Regional Court in Warsaw, Poland

On an appeal under the Extradition Act 2003, the High Court must determine whether the District Judge’s ultimate Article 8 assessment was wrong. There is no exceptionality test. The question is whether interference with the requested person’s private and family life is outweighed by the strong public interest in extradition.

The best interests of affected children are a primary consideration, but may be outweighed. Where the requested person is a fugitive, very strong counterbalancing factors are required. If fresh evidence is admitted, the appellate court must conduct its own assessment on the material as it stands. A litigant in person is not ordinarily entitled to a second opportunity to present evidence that was available and relevant at the extradition hearing.

The appellant, a Polish national, appealed under section 26(4) of the Extradition Act 2003 against a District Judge’s order for his extradition to Poland to serve a four-year sentence for 13 fraud and false-instrument offences.

Permission to appeal was granted only on the Article 8 ground. The appellant argued that extradition would disproportionately interfere with his private and family life. He also sought to rely on further evidence concerning fugitivity and his family circumstances. The central issues were whether that evidence should be admitted, whether the District Judge had applied the correct Article 8 approach, and whether extradition was disproportionate in light of the appellant’s wife and three young children.

1. Appeal dismissed. The appellant’s extradition did not amount to a disproportionate interference with his Article 8 rights or those of his family.
2. The first application to admit fresh evidence was refused. Under section 27(4) of the Extradition Act 2003, evidence unavailable at the extradition hearing must be genuinely unavailable or unobtainable with reasonable diligence, and must be decisive. The material concerning fugitivity and pre-existing family circumstances had been available before the hearing. The appellant had been aware of the issues, had received the respondent’s opening note, and had had opportunities to address them. It was not in the interests of justice to give him a second opportunity to run a differently focused case.
3. The second, third and fourth applications were admitted because most of the evidence post-dated the extradition hearing and was relevant to the Article 8 assessment. The fifth application and reliance on the appellant’s wife’s medical condition fell away.
4. The District Judge’s reference to an exceptionality test was unfortunate but did not demonstrate that the wrong legal test had been applied. The District Judge had correctly directed himself that there was no such test and had undertaken the required balancing exercise. However, he had materially failed to take account of the appellant’s actual family circumstances, referring only to a wife and one child. The High Court therefore re-conducted the Article 8 assessment.
5. The public interest factors were substantial: enforcement of sentences, compliance with extradition obligations, prevention of the United Kingdom becoming a safe haven, the appellant’s fugitive status, the seriousness of the offending, and the unserved four-year sentence. Against them were the appellant’s settled life and employment in the United Kingdom, his lack of further offending, the family impact, restrictive bail conditions and the age of the offences.
6. The children’s best interests were a primary consideration. The court accepted the substantial emotional and financial impact on the family. Nevertheless, the consequences did not significantly exceed the usual consequences of extradition and were not exceptionally severe. The appellant’s fugitive status and responsibility for a significant part of the delay further strengthened the case for extradition.

• High Court (Administrative Court): The appeal against the District Judge’s extradition order was dismissed. Permission had been granted only on the Article 8 ground.
• Westminster Magistrates’ Court: The District Judge ordered extradition on 7 December 2022.