Polish national wanted to serve prison sentence wins appeal against extradition due to carer role

About this case:

• Citation:
  [2024] HCJAC 25
• Judgment:
  External link
• Court:
  Appeal Court of the High Court of Justiciary
• Judge:
  Lord Doherty

Appellant PK, whose wife suffered from chronic back problems that rendered her bedbound and was in receipt of Personal Independence Payment, argued that extradition would harshly affect his family by depriving his wife of care and his youngest children of the only parent fit to care for them. For the respondent it was argued that the balance came down in favour of the public interest in the extradition request being given effect over the Article 8 rights of the family.

The appeal was heard in the High Court of Justiciary by Lord Doherty, Lord Matthews, and Lord Beckett. Loosemore, advocate, appeared for the appellant and McCulloch, advocate, for the Lord Advocate on behalf of the Republic of Poland.

Exceptionally severe impact

On 19 February 2015, the appellant left Poland with his wife and three children and came to Scotland, where he obtained employment. He later had to give up work in order to look after his wife, who suffered from an increasingly incapacitating health condition. Criminal proceedings had been commenced against him in Poland in early 2015, with the first hearing due to commence on 15 May of that year.

While he did not appear in person at the May 2015 hearing, he voluntarily submitted through his Polish lawyer to judgment being given against him on four charges. Charges 1, 3, and 4 related to the same complainer, whom he threatened that he would disseminate naked pictures of her if she refused to pay him money and later impersonated on a website offering sexual services. Charge 2 was insulting a police officer in connection with the exercise of his official duties.

The District Court in Dabrowna Tarnowska gave the appellant an aggregate sentence of 18 months’ imprisonment, suspended for a probation period of three years provided that, among other things, the appellant paid compensation to the complainer in charge 1 for “moral damages”. He did not do so, resulting in service of the prison sentence. After he failed to present at prison, he was eventually determined by the Polish authorities to be in the UK and arrested in Aberdeen in late 2021.

Before the sheriff the appellant submitted that there would be an exceptionally severe impact on his family were he to be extradited due to Mrs K losing her sole carer, with the services he provided unlikely to be replicated by the local authority and incapable of being provided by his younger children. However, the sheriff concluded that the interference with his rights was outweighed by the public interest in his extradition and that he had come to the UK to escape justice.

On appeal it was submitted that the sheriff had erred in determining that the balance favoured extradition and had been wrong to proceed on the footing that the appellant was a fugitive from justice. He had over-estimated the seriousness of the offences, and under-estimated the gravity of the interference with the rights of Mrs K and the two younger children.

Tantamount to single parent

Lord Doherty, delivering the opinion of the court, said of the Article 8 issue: “The article 8 issue was undoubtedly the most challenging issue the sheriff had to grapple with. Ultimately, for the reasons which follow, we have concluded that he reached the wrong conclusion, but we have sympathy for him. We recognise that the issue was a difficult and borderline one, and that he was not favoured with submissions which were as fully developed as those which we heard.”

He continued: “It was common ground before us that there was no evidence at the extradition hearing that criminal proceedings had been commenced against the appellant before he left Poland, or that he knew at that time that such proceedings would be commenced. It is significant that the appellant was not a fugitive when he came to the UK, and that he has lived a law-abiding life here with his family since then.”

Turning to the evidence on Mrs K’s disabilities, Lord Doherty said: “There is no guarantee that replacement care and assistance would be provided timeously by the local authority, or if it is, that it would be even adequate, let alone as full or as satisfactory as the care and assistance currently provided to her by the appellant. [The sheriff] also under-estimated the interference with the two younger children’s article 8 rights which would be caused by extradition. The appellant is the only parent who is physically fit enough to care for them. In that regard he is tantamount to a single parent.”

He concluded: “The cumulative effect of these errors causes us to conclude that the appeal should be allowed. The likely consequences of extradition for Mrs K and the two younger children would be exceptionally severe. Had the sheriff not made the errors we have described, and had he given appropriate weight to each of the relevant factors, we are satisfied that he ought to have decided that the factors favouring extradition do not outweigh the interference with the article 8 rights of Mrs K and the two younger children.”

The court accordingly quashed the order for extradition and ordered the appellant’s discharge.