Rafal Tomasz Galicki v The District Court in Gdansk, Poland

On an extradition appeal under the Extradition Act 2003, the appellate question is whether the district judge’s proportionality decision was wrong, not whether the appellate court would have reached a different view. Relevant changes and newly raised matters must nevertheless be assessed as at the appeal hearing. Potential early release under Polish law and the period spent subject to an electronic curfew may materially affect the Article 8 balance. Where those issues could affect the outcome and are awaiting authoritative guidance, the appeal may properly be stayed. The public interest in extradition remains weighty, particularly where the requested person is a fugitive. A child’s best interests are a primary consideration, but may be outweighed unless the consequences for family life are exceptionally severe.

The appellant appealed under section 26 of the Extradition Act 2003 against District Judge Goldspring’s decision of 13 May 2024 ordering his extradition to Poland to serve the balance of a custodial sentence. The sole issue was whether extradition would be a disproportionate interference with the appellant’s and his family’s Article 8 rights.

Permission to appeal was granted, and fresh evidence concerning the appellant’s caring responsibilities was admitted. The appeal raised the significance of possible early release under Articles 77 and 78 of the Polish Penal Code, the appellant’s prolonged electronic curfew, and the effect of extradition on his children. The central issue was whether the district judge’s proportionality conclusion could still be shown to be wrong while the Supreme Court’s decision in Andrysiewicz remained pending.

1. The appeal was stayed pending judgment in Andrysiewicz. The court considered that the appropriate weight to be given to possible early release under Polish law could materially affect the Article 8 balancing exercise and the outcome of the appeal.

2. On an extradition appeal, the court’s task is to decide whether the district judge was wrong. A decision is not wrong merely because the appellate court might have taken a different view. The focus is on the outcome, although the district judge’s reasons must be examined carefully: Re B (A Child) [2013] UKSC 33 and Polish Judicial Authorities v Celinski [2015] EWHC 1275 (Admin).

3. Where matters arise after the district judge’s decision, including a newly raised early-release issue or a longer period spent subject to a monitored curfew, the appellate court must evaluate the Article 8 balance afresh as at the hearing: Chechev v Bulgaria [2021] EWHC 427 (Admin) and Bakai v Slovakia [2024] EWHC 1768.

4. The Article 8 exercise requires the court to balance the interference with private and family life against the constant and weighty public interest in extradition. Children’s best interests are a primary consideration, but the public interest will ordinarily prevail unless the consequences of separation are exceptionally severe: Norris v Government of the USA (No.2) [2010] UKSC 9 and HH v Italy [2012] UKSC 25.

5. The appellant had served six months in qualifying remand and would become eligible to seek early release after serving a further five months. The court had no reliable basis for predicting the Polish court’s decision. The appellant’s fugitive status weighed against release, while his lack of previous or subsequent convictions, compliance with electronic monitoring, employment and childcare responsibilities weighed in his favour.

6. The appellant’s approximately 18-month electronic curfew was a significant deprivation of liberty and had to be included in the Article 8 balance, particularly if only five months of imprisonment might remain. The changed evidence concerning the children and their mother could also support a finding that the consequences of extradition were exceptionally severe. Those matters were sufficiently arguable that the appeal should await the Supreme Court’s guidance.

• High Court (Administrative Court): District Judge Goldspring ordered extradition on 13 May 2024. Permission to appeal was granted by Garnham J on 29 November 2024, with permission to adduce fresh evidence. The appeal was stayed by Mr Justice Calver pending the Supreme Court’s judgment in Andrysiewicz.