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“Model example” of Article 8 balancing exercise in High Court extradition case
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Despite strong public interest considerations in favour of respecting extradition agreements, the High Court has decided that a Polish national who came to the UK as a fugitive eight years ago will not be extradited. The case is Dobrowolski v District Court in Bydgoszcz, Poland  EWHC 763 (Admin).
The appellant, who is 33 years old, was wanted for extradition to Poland for four domestic burglaries committed in 2012, an assault on police officers in 2013, and an attempted burglary in 2013. A sentence of two years and ten months was imposed, and he was due to report to prison in November 2014. Instead, he came to the UK and began working in the construction industry. In 2019, he sustained a severe head injury at work. Shortly after, he was arrested and extradition hearings were commenced against him to send him back to Poland to complete his prison sentence.
During the extradition proceedings, the appellant was kept in custody in the UK. Under bilateral agreements, time spent in custody in the UK would be subtracted from his entire sentence in Poland once he gets there. When the initial case was decided, he had been in custody for 18 months. In other words, he had 16 months left to serve in Poland. The appellant was also suffering severe mental health consequences of his head injury and was at risk of suicide at the time the case was decided.
The judge had to balance these factors against the public interest of going ahead with the extradition and decided that public interest arguments outweighed his extraordinary circumstances, ordering the extradition.
In July 2022, permission to appeal was granted. The judge granting permission thought the balance of interests may have shifted for two reasons: first, more time had passed, meaning the Appellant’s leftover sentence in Poland was only getting shorter, and second, the existing concerns regarding the appellant’s mental health.
It is this appeal that appeared in front of Judge Fordham in March 2023.
Article 8 of the European Convention on Human Rights protects the right to respect private and family life. The court uses a “balance sheet” of factors to decide whether extradition infringes on Article 8 rights. Under the Extradition Act 2003 section 21(1), people who are unlawfully at large, such as fugitives, can only be extradited if the extradition complies with the European Court of Human Rights. The judge must consider whether the interference with family life or private life that extradition constitutes is justified as proportionate. This analysis is highly fact-specific; every case is different.
The judge weighed four factors in his decision not to extradite the appellant: his mental health, the portion of his sentence already served, the prospects of early release in Poland, and the delay in pursuing extradition on behalf of Poland.
Though the head injury was nearly healed and his depression mild by the time the case came before the judge, the appellant did suffer throughout his time spent in custody and he was on anti-depressants and anti-psychotic medication during the proceedings. By the time of his appeal, his condition had improved significantly, but the judge found that his previous suffering was still a factor to consider.
Additionally, by March 2023, about 90% of the appellant’s Polish sentence had been served and he only had six months left. The court considered this an important factor in accepting the appeal and discharging the appellant. In Poland, offenders are not automatically release after half their sentence like in the UK, but there is discretion to release someone after they have completed half or two thirds of their sentence under Article 77 of the Polish criminal code. Though a UK judge can never be sure of how a Polish court or official will apply Article 77, UK case law has shown that if the prospects of release are good, the likelihood of release is a factor that weighs against extradition.
Finally, the judge highlighted that the Polish authorities discovered that the Appellant was on UK soil as a fugitive in 2015; but they did not request extradition until 2020. Once the extradition procedure was set in motion and the extradition request certified, the UK located the Appellant swiftly, arresting him two months later. In those five years, the appellant was living a crime-free and hardworking life in the UK during which he was injured. The injury significantly changed his circumstances, as he developed health issues as a consequence. Due to the delay in extradition, he spent the bulk of his time in custody with significant mental health conditions which, under Article 8, reduced the weight of the public interest factors against him.
The Judge said:
“… the present case is a model example of why Article 8 operates as a ‘balancing’ and ‘balance sheet’ exercise. It is also a model example of how Article 8 cases are intensely fact-specific…
If I were to weigh each of the four features which I have emphasised, individually, against the public interest considerations in favour of extradition, this appeal would fail. But what matters is putting all four features onto the scales, so that they can weigh collectively and cumulatively in the balance. That combined effect, moreover, reflects the special facts of the present case. I prefer not to speak of one or more factors ‘tipping the balance’.”
The weight of different factors and their contributions to an Article 8 argument have to be assessed on a case-by-case basis. But combining all factors in each case, rather than solely assessing these factors individually, is important to effectively consider the weight of the public interest factor in extradition cases, against the individual’s human rights. It is the combination of factors that weighted the scales in this case towards a ruling not to extradite based on human rights grounds.