Lukasz Talaga v Polish Judicial Authority

In extradition proceedings, the passage of time is not irrelevant to the proportionality assessment under article 8 ECHR merely because the requested person is a fugitive. The court must consider what has happened during the delay, including time already served in custody, changed family circumstances, rehabilitation and the likely effect of further imprisonment.

Where the requesting state provides discretionary early-release provisions, the English court may assess their likely significance when deciding proportionality. It must recognise that the foreign court retains the release decision, but may evaluate the prospects of release where the evidence permits. The assessment is fact-sensitive and should not be constrained by rigid categories of rarity or exceptionality.

The appellant appealed against a Westminster Magistrates’ Court decision ordering his extradition to Poland to serve two consecutive one-year sentences imposed after suspended sentences were activated. The offences had been committed in 2002 and 2004, when he was aged 18 and 20. He relied solely on the alleged disproportionate interference with his article 8 ECHR rights and those of his partner and son.

The district judge treated the appellant as a fugitive, accepted that the delay was lengthy and unexplained, but concluded that the public interest in extradition prevailed. On appeal, the appellant sought to rely on updated evidence, including the effect of a further year in custody on his health and family. The central issues were whether that changed evidence could be admitted and whether extradition remained proportionate after more than two thirds of the sentence had been served.

1. Appeal allowed and appellant discharged. The further year in custody since the magistrates’ court decision constituted a significant change in the background to the article 8 proportionality assessment. Updated evidence concerning the appellant, his partner and their son was therefore properly admitted under the approach in Szombathely City Court and Others v Fenyvesi [2009] EWHC 231 (Admin). Evidence available at the original hearing, without explanation for its omission, was refused.
2. The appellant’s fugitive status remained a powerful factor in favour of extradition. It did not make the passage of time legally irrelevant. The court had to assess the consequences of the delay and the changes occurring during it, including the appellant’s maturation, absence of further offending, prison conduct, health, family responsibilities and the child’s best interests.
3. The appellant had served more than two thirds of a two-year sentence, whereas release in the United Kingdom would ordinarily have occurred at the halfway point. That punishment, together with the further disruption caused by extradition, was a material factor against extradition.
4. The Polish discretionary early-release provisions were relevant to the proportionality balance. The English court was not deciding the Polish application or usurping the Polish courts’ function. It could assess the likely prospects of release, where sufficient evidence existed, while recognising that the ultimate decision belonged to the Polish courts. The issue was fact-sensitive and should not be forced into rigid categories of rare or exceptional cases.
5. Here, eligibility for early release was clear. The appellant had a long period without further offending, a positive prison record, established family responsibilities in the United Kingdom and more than two thirds of the sentence served. The continuing and increasing harm to his son and partner, combined with his health difficulties and the unexplained delay, meant that extradition would now be a disproportionate interference with article 8 rights.

• High Court (Administrative Court): appeal allowed and the appellant discharged.
• Westminster Magistrates’ Court: District Judge Cieciora ordered extradition on 18 October 2023.
• Permission to appeal: refused on paper by Jay J on 29 February 2024 and granted by Kerr J on 12 April 2024.