Mr Justice Saini allows five year long extradition appeal based on fresh evidence
Mary Westcott represented Mr K who had become a single father to his then 3 year old son when his partner left their home, soon after extradition to Poland was ordered in 2019.
On 18 June 2024 Mr Justice Saini allowed the appeal on the single Article 8 ECHR ground on 18 June 2024, based on the exceptionally serious impact there would be on Mr K’s son, by then 9 years old.
This was a prime example of why sometimes appeals must consider new developments, as well as the dynamic nature of public interest assessments, especially when proceedings are protracted over many years.
The now overturned 2019 extradition order was made to imprison Mr K for the remainder of a 1 year 6 month penalty imposed for a fraud offence (with loss of approximately £40,000).
After the appeal began and Mr K’s partner left him, the High Court obtained assessments from local social workers. These confirmed Mr K’s account about his pivotal role for his son, the limited support family could offer and that his ex-partner was not a viable full time alternative carer.
After securing permission to appeal at a hearing on 13 May 2020, in 2022 the appeal case was stayed behind a second extradition request.
The second Polish extradition request was made to enforce three separate penalties (consecutively some 6 years), imposed for similar fraud type offending. On 30 November 2022, at Westminster Magistrates’ Court, DJ Tempia decided to refuse extradition on the second warrant, based on the exceptionally serious impact on Mr K’s son, notwithstanding the pending extradition appeal of the 2019 order.
The CPS on behalf of Poland did not attempt to challenge DJ Tempia’s 2022 Article 8 ECHR refusal of extradition in the second matter. Further, the CPS agreed to take instructions from the issuing Polish Court in the appeal case to see if that request would be dropped in light of DJ Tempia’s findings.
The Polish Court simply replied that the original EAW was “up to date”, in an apparently archetypal refusal to exercise discretion to abandon a request, sometimes referred to as the principle of legality.
The High Court were repeatedly asked to list the previously stayed appeal from late 2022 onwards, finally resulting in a substantive appeal hearing on 18 June 2024.
By the point of the appeal Mr K had been subject to extradition proceedings for well over 5 years, including strict conditions of bail, dwarfing the underlying original 18 month penalty. The CPS on behalf of the Respondent refused to concede the appeal, but acknowledged there was no argument that could be advanced to resist the appeal being allowed.
Mr Justice Saini disposed of the case with a short ex tempore judgment, not yet available.
Mr K is looking forward to taking his son on holiday – within England and Wales.
Mary Westcott was instructed by Hodge Jones & Allen solicitors
