Leszek Robert Gomulka v Poland

In extradition cases, fugitivity does not automatically exclude consideration of Article 8, but it is a powerful factor in assessing the effect of delay. Delay should be examined through two questions: whether it reduces the public interest in extradition and whether it increases the impact on private or family life. Delay is not a freestanding issue, and the court should consider all relevant circumstances without routinely interrogating the authorities’ investigative steps. Long delay alone does not amount to the most exceptional circumstances permitting a fugitive to rely on the statutory injustice or oppression bar. Post-Brexit re-entry consequences require a concrete, fully supported counterfactual addressing the position if extradition never occurred.

The appellant challenged an order for his extradition to Poland on a conviction warrant relating to four historic fraud offences. The District Judge discharged him on separate accusation warrants, finding extradition unjust and oppressive under section 14(1)(a) of the Extradition Act 2003, but rejected his section 14(1)(b) argument on the conviction warrant because he was a fugitive. The appellant appealed, arguing that the passage of time itself constituted the most exceptional circumstances, and that extradition would disproportionately interfere with his Article 8 private life.

The central issues were the effect of fugitivity and delay on the statutory bar, the Article 8 proportionality assessment, and the significance of possible post-Brexit difficulties in returning to the United Kingdom.

1. Section 14. The appeal against extradition on the conviction warrant was dismissed. The rule in Kakis v Cyprus and Gomes v Trinidad and Tobago is that delay caused by fleeing, concealing whereabouts or evading arrest cannot ordinarily support an injustice or oppression argument. Access to the statutory test is available only in the most exceptional circumstances. The passage of time, without more, could not satisfy that threshold.
2. Article 8 framework. Delay must be assessed by asking whether it diminishes the public interest in extradition and whether it increases the impact on private or family life. It is not a freestanding factor. All relevant circumstances may be considered, including the requested person’s conduct, the authorities’ knowledge and actions, and the relationship between periods of official inaction and the development of private life. In a fugitivity case, however, further interrogation of official steps may be inappropriate and reliance on living openly may be unpersuasive.
3. The appellant had developed substantial private life ties through nearly 17 years in the United Kingdom. Nevertheless, the District Judge had considered those ties and was entitled to treat the public interest as remaining strong. The appellant had deliberately left Poland to place himself beyond its justice system, failed to comply with his obligation to notify the authorities of his address, and remained a fugitive. The delay was therefore not required to be treated as culpable or as substantially reducing the public interest.
4. Post-Brexit return. The correct counterfactual was whether the Polish convictions would affect the appellant’s immigration position even if extradition did not occur. A party relying on re-entry difficulties must present a concrete and fully supported submission. None was advanced, and the absence of such evidence was fatal.
5. The District Judge’s evaluative conclusion that extradition was proportionate was within the permissible range of judgment. The appeal was dismissed.

• District Judge McGarva: On 24 November 2022, ordered extradition on the conviction warrant, but discharged the appellant on two accusation warrants under section 14 of the Extradition Act 2003.
• High Court (Administrative Court): The appeal against the conviction-warrant decision was dismissed.