[2025] EWHC 2475 (Admin)

I turn to the law on article 8 in the context of extradition. In Love v USA [2018] EWHC 172 (Admin) the Divisional Court said this:

“25.

The statutory appeal power in section 104(3) permits an appeal to be allowed only if the district judge ought to have decided a question before him differently and if, had he decided it as he ought to have done, he would have had to discharge the appellant. The words "ought to have decided a question differently" (our italics) give a clear indication of the degree of error which has to be shown. The appeal must focus on error: what the judge ought to have decided differently, so as to mean that the appeal should be allowed. Extradition appeals are not re-hearings of evidence or mere repeats of submissions as to how factors should be weighed; courts normally have to respect the findings of fact made by the district judge, especially if he has heard oral evidence. The true focus is not on establishing a judicial review type of error, as a key to opening up a decision so that the appellate court can undertake the whole evaluation afresh. This can lead to a misplaced focus on omissions from judgments or on points not expressly dealt with in order to invite the court to start afresh, an approach which risks detracting from the proper appellate function. That is not what Shaw or Belbin was aiming at. Both cases intended to place firm limits on the scope for re-argument at the appellate hearing, while recognising that the appellate court is not obliged to find a judicial review type error before it can say that the judge's decision was wrong, and the appeal should be allowed.

26.

The true approach is more simply expressed by requiring the appellate court to decide whether the decision of the district judge was wrong. What was said in Celinski and Re B (A Child) are apposite, even if decided in the context of article 8. In effect, the test is the same here. The appellate court is entitled to stand back and say that a question ought to have been decided differently because the overall evaluation was wrong: crucial factors should have been weighed so significantly differently as to make the decision wrong, such that the appeal in consequence should be allowed.”

In Andrysiewicz v Circuit Court in Lodz, Poland [2025] UKSC 23, the Supreme Court reviewed its case law on article 8 in the extradition context:.

“33.

In Norris v Government of the United States of America (No 2) [2010] UKSC 9; [2010] 2 ac 487, the role of article 8 in extradition proceedings was addressed in detail by this court. The US Government sought the extradition of Mr Norris to stand trial on three counts of conspiracy to obstruct justice. It was common ground that, as in most extradition cases, the extradition of Mr Norris would interfere with his exercise in the United Kingdom of his right to respect for his private and family life under article 8 and that this interference would be in accordance with the law. In his judgment Lord Phillips of Worth Matravers explained (at para 9) that the critical issue in the case was whether this interference was necessary in a democratic society for the prevention of disorder or crime. Resolving that issue involved a test of proportionality: the interference must fulfil a pressing social need and it must also be proportionate to the legitimate aim relied upon to justify the interference. Having surveyed the Strasbourg and domestic jurisprudence he expressed the following conclusions.

(1)

While there can be no absolute rule that any interference with article 8 rights as a consequence of extradition will be proportionate, the public interest in extradition nonetheless weighs very heavily indeed. It carries special weight when considering the interference extradition would cause to article 8 rights. It was certainly not right to equate extradition with expulsion or deportation in this context. It is of critical importance in the prevention of disorder and crime that those reasonably suspected of crime are prosecuted and, if found guilty, duly sentenced. Extradition is part of the process for ensuring that this occurs on a basis of international reciprocity (paras 51, 52).

(2)

Referring to the exceptions to the right to liberty under article 5 in the case of the arrest and detention of a suspect and detention while serving a sentence following conviction, he observed that such detention will necessarily interfere drastically with family and private life. However, in practice it was only in the most exceptional circumstances that a defendant would consider even asserting his article 8 rights by way of challenge to remand in custody or imprisonment. "Normally it is treated as axiomatic that the interference with article 8 rights consequent upon detention is proportionate." (para 52). Until recently it had also been treated as axiomatic that the dislocation to family life that normally follows extradition as a matter of course is proportionate. (para 54).

(3)

Rejecting a submission that it was wrong for the court when approaching proportionality to apply a categorical assumption about the importance of extradition in general he observed: "Such an assumption is an essential element in the task of weighing, on the one hand, the public interest in extradition against, on the other hand, its effects on individual human rights. This is not to say that the latter can never prevail. It does mean, however, that the interference with human rights will have to be extremely serious if the public interest is to be outweighed." (para 55) "The reality is that only if some quite exceptionally compelling feature, or combination of features, is present that interference with family life consequent upon extradition will be other than proportionate to the objective that extradition serves." (para 56).

(4)

Referring to the judgment of the European Commission on Human Rights in Launder v United Kingdom (1997) 25 EHRR CD 67, 73, he continued:

"'Exceptional circumstances' is a phrase that says little about the nature of the circumstances. Instead of saying that interference with article 8 rights can only outweigh the importance of extradition in exceptional circumstances it is more accurate and more helpful, to say that the consequences of interference with article 8 rights must be exceptionally serious before this can outweigh the importance of extradition. A judge should not be criticised if, as part of his process of reasoning, he considers how, if at all, the nature and extent of the impact of extradition on family life would differ from the normal consequences of extradition." (para 56).

(5)

Deciding whether extradition will be compatible with Convention rights is a fact-specific exercise. "[A]t this point ... it is legitimate for the judge to consider whether there are any relevant features that are unusually or exceptionally compelling. In the absence of such features, the consideration is likely to be relatively brief. If, however, the nature or extent of the interference with article 8 rights is exceptionally serious, careful consideration must be given to whether such interference is justified." (para 62).

(6)

In such a situation the gravity, or lack of gravity, of the offence may be material (para 62). Rejecting a submission that the gravity of the offence can never be of relevance where an issue of proportionality arises in the human rights context, Lord Phillips continued: "The importance of giving effect to extradition arrangements will always be a significant factor, regardless of the details of the particular offence. Usually the nature of the offence will have no bearing on the extradition decision. If, however, the particular offence is at the bottom of the scale of gravity, this is capable of being one of a combination of features that may render extradition a disproportionate interference with human rights. Rejecting an extradition request may mean that a criminal never stands trial for his crime. The significance of this will depend upon the gravity of the offence." (para 63).

(7)

"When considering the impact of extradition on family life, this question does not fall to be considered simply from the viewpoint of the extraditee." (para 64) After referring to an immigration case, Beoku-Betts v Secretary of State for the Home Department [2008] UKHL 39; [2009] AC 115, he continued: "[T]he family unit had to be considered as a whole, and each family member had to be regarded as a victim. I consider that this is equally the position in the context of extradition." (para 64) "Indeed, in trying to envisage a situation in which interference with article 8 might prevent extradition, I have concluded that the effect of extradition on innocent members of the extraditee's family might well be a particularly cogent consideration. If extradition for an offence of no great gravity were sought in relation to someone who had sole responsibility for an incapacitated family member, this combination of circumstances might well lead a judge to discharge the extraditee under section 87 of the 2003 Act." (para 65).  

"One has to consider the effect on the public interest in the prevention of crime if any defendant with family ties and dependencies ... was thereby rendered immune from being extradited to be tried for serious wrongdoing. The answer is that the public interest would be seriously damaged. It is for this reason that only the gravest effects of interference with family life will be capable of rendering extradition disproportionate to the public interest that it serves." (para 82).

The Supreme Court summarised the article 8 position as follows:

“42.

Contrary to Lord Brown's prediction in Norris, the incidence of extradition cases in which article 8 is invoked has shown no sign of declining. On the contrary, it appears that it is continuing unabated. We were told by Mr Louis Mably KC that a random and unscientific sample of contested extradition hearings before the Westminster Magistrates' Court between 10 and 21 March 2025 showed that article 8 was invoked in 22 out of 23 cases examined. It seems that an article 8 "defence" is raised almost as a matter of course in virtually every extradition case.

43.

We have set out above relevant passages in Norris, H(H) and Celinski at some length because it is clear that there is a need to reiterate the essential points they make. Cases in which a submission founded on article 8 ECHR may defeat the public interest in extradition will be rare. It is most unlikely that extradition will be held to be disproportionate on the ground of interference with private life. Even in cases where interference with family life is relied upon, it will only be in cases of exceptionally severe impact on family life that an article 8 ECHR "defence" will have any prospect of success.”

Two particular legal matters regarding the operation of article 8 call for specific mention. The first is the significance of delay on the part of the authority and the requesting state and/or on the part of the authority in England and Wales, which is required to identify, locate and arrest the person concerned so as to bring that person before Westminster Magistrates' Court. If the person concerned is found to be a fugitive from justice, the courts will generally be disinclined to regard any such delay as having a material bearing on the proportionality assessment to be conducted in relation to article 8. The precise position is, however, more nuanced.

In Pabian v Poland [2024] EWHC 2431 (Admin), Chamberlain J carried out a careful review of the authorities. Beginning at paragraph 32 of his judgment, Chamberlain J traced the evolution of the case law concerning delay under article 8 beginning with HH v Italy [2012] UKSC 25:

“32. In HH (Italy), at [8], Lady Hale held that delay on the part of the authorities was relevant to the question whether extradition was compatible with Article 8, whether the delay was attributable to the issuing or executing state. At [46], when addressing F-K, a Polish case joined with HH's, she made clear that this was so even in a case where the appellant was a fugitive. This was because, whatever the reasons for it, a lack of urgency in bringing the requested person to justice was some indication of the importance attached by the authorities to the offending. Delay was particularly relevant in a case where in the intervening period the appellant had made a "new, useful and blameless life" in the UK without any reason to believe that the authorities of the requesting state were seeking his or her return: [47]. As respects F-K's case, the other members of the Supreme Court agreed with Lady Hale.

33.

In a series of subsequent cases, Article 8 appeals were allowed in part on the ground of delay by the NCA in certifying warrants, even where the appellant was a fugitive from justice, often in cases where there had also been significant delay by the requesting state in issuing the European arrest warrant.”

Chamberlain J also considered the more recent case law on delay in the article 8 context, This included Wolack v Poland [2024] EWHC 2278 (Admin); Savickis v Latvia [2017] EWHC 315 (Admin)]; RT v Poland [2017] EWHC 1978 (Admin); Cieczka v Poland [2016] EWHC 399 (Admin) and CIS v Poland [2022] EWHC 980 (Admin). Beginning at paragraph 48 of his judgment, Chamberlain J summarised the position as follows:

“48.

When an issuing state seeks an individual who has fled outside its borders to evade its justice system, without indicating which country he has fled to, that state is under no obligation to devote resources to making enquiries about his whereabouts. By the same token, a decision by an issuing state to enter an alert on SIS, without more, does not trigger an obligation on the judicial authority or police force of every other Member State to check its own official records or otherwise search for the individual concerned. In this situation, as the Divisional Court put it in RT, "neither the foreign judicial authority nor the NCA can be expected to explore the byways and alleyways of British officialdom to discover whether someone is in this country". This informs the approach to questions of delay in Article 8 cases where the appellant is a fugitive.

49.

It is important, however, to note that, in the Divisional Court's reasoning in RT, what the issuing state could not be expected to do was make enquiries "to discover whether someone is in this country". As the careful analysis of Choudhury J in Cis makes clear, the position may be different where the authorities of the issuing state know that the requested person is in this country, as in Cieczka. In such a case, there is a step which those authorities could be expected to take, namely, make a direct request to the authorities here. There may, of course, be an explanation why that step was not taken. If so, the authorities in the issuing state should be prepared to give it. If no satisfactory explanation is given, the UK court is likely to assume that there is none. This is a factor that can be relevant to the Article 8 balancing exercise.

50.

Once the UK authorities have received a direct request, a question may arise as to the significance to be attached to any subsequent delay between the receipt of the request and the arrest of the requested person. The court is unlikely to be impressed with a complaint made by a requested person who has taken steps to evade arrest or hide his location in the UK, as had the appellant in RT. Furthermore, as was recognised in Wolack and Zimackis, the court must be realistic about the resource constraints operating on the NCA and on UK police forces. But a long delay can properly be weighed in the Article 8 balance in cases where it would have been easy to locate the requested person and the UK authorities have failed to take even the most minimal steps to do so. Where there has been a long delay between a direct request from the authorities of the issuing state and the execution of the warrant in the UK, the NCA should be prepared to give at least a brief explanation of any steps taken to execute the warrant. If no such explanation is given, the court may assume that there is none. This too is a factor which may be of relevance to the Article 8 balancing exercise.

51.

Delay may be relevant to the Article 8 balance in one or both of two ways. As Lady Hale said in HH, inadequately explained delay on the part of the issuing state may cast light on the seriousness attached by that state to the offending in respect of which extradition is sought. Inadequately explained delay on the part of the executing state is unlikely to bear on that issue, but may still be relevant when assessing the weight to be given to any interference with private and/or family life to which extradition gives rise. This is likely to be of particular importance in cases where extradition would disrupt family relationships which have started or significantly developed during the period of delay, but it may also be relevant where the requested person has built up a private life in this country during that period. The weight to be given to the interference is attenuated, but not extinguished, by the fact that the requested person came to this country as a fugitive from justice.”

The second, somewhat narrower legal issue that is relevant in the present case concerns the part to be played in an article 8 proportionality assessment by a restriction on liberty in the form of an electronically-monitored curfew imposed upon a person facing extradition as a condition of bai,.

In Leszczynski  v Poland [2025] EWHC 1024 (Admin) Morris J said this:

“47.

I have been referred to a substantial number of extradition cases where the issue of time spent on an electronically monitored curfew and other bail conditions has been considered, namely: R (Einikis) v The Ministry of Justice, Lithuania [2014] EWHC 2325 (Admin); Dezda v Regional Court in Olsztyn (Poland) [2022] EWHC 838; Prusianu v Braila Court of Law (Romania) [2022] EWHC 1929 (Admin); The King on the Application of Muizarijis v The Prosecutor General of the Republic of Latvia [2022] EWHC 2751 (Admin); Hojden v Poland [2022] EWHC 2725 (Admin); Brindusa v Law Court of Targoviste (Romania) [2023] EWHC 3372 (Admin); Begum v District Court of Zutphen (Netherlands) [2023] EWHC 3291 (Admin); Toma v Romania [2024] EWHC 183 (Admin); Mario Bakai v District Court in Dunaiska Streda (A Slovakian Judicial Authority) [2024] EWHC 1768 (Admin); and, most recently, Polom v Regional Court in Bydgoszcz (Poland) [2024] EWHC 2708 (Admin). From these authorities, I derive the following principles:

(1)

For the purposes of domestic law on sentencing, "qualifying curfew" is an electronically monitored curfew of at least 9 hours duration a day. However, it is clear that, in an extradition case, both qualifying curfew and non-qualifying curfew (i.e. less than 9 hours duration per day) in the UK is capable of being a factor properly to be taken into account in the Article 8 balancing exercise: Hojden §49.

(2)

What falls to be assessed is the degree of the deprivation of liberty or restriction on freedom of movement and autonomy: Prusianu §49. This might arise both from an electronically monitored curfew and from an obligation to report to a police station (Einikis) (or perhaps other bail conditions) or a combination of these elements. The court will consider whether the curfew has had a material effect on a person's ability to work, study or maintain family life, in which case the curfew will be afforded greater weight (than, for example, merely preventing late-evening socialising): Hojden §50.

(3)

Each case turns on its own facts. The assessment of a curfew as a relevant factor and the overall balance is an intensely fact-specific exercise: Polom §44. Little is to be gained by comparing the facts of previous cases. The cases vary as regards the seriousness of the underlying offence, the length of sentence to be served, the number of hours of the daily curfew and the amount of time that the requested person has been subject to that curfew.

(4)

In the cited cases where curfew was considered, in some cases, extradition was ordered; in others it was taken into account as a factor which led to extradition being discharged. As a matter of fact, the shortest curfew duration which has been taken into account in the cases referred to above, was a curfew of 4 hours in the case of Prusianu.

(5)

Amongst the factors relevant to the court considering the issue is whether or not it has before it evidence as to how the requesting state will deal with the time spent under UK curfew: see, for example, Polom §44.

(6)

As a matter of general principle, where the public interest in extradition is otherwise very strong, time spent on curfew is unlikely to tip the balance against extradition. On the other hand, in a case which is otherwise marginal, time spent on curfew might tip the balance against extradition.”