Extradition proceedings were raised against RM by the Lord Advocate on behalf of the Republic of Poland. The defender, who had been living with his spouse and five of his nine children in Lanarkshire for 11 years, argued that his extradition would be unjust or oppressive in the circumstances.

The case was heard by Sheriff Thomas Welsh QC. Jajdelski, advocate, appeared for the Crown Office and Mackintosh QC for the defender.

Dependent family

The defender was convicted in absentia for two mercantile frauds said to have been committed in 2007, with a total value of 8,044.21 Polish zloty, in the District Court of Wroclaw on 26 September 2011. A European Arrest Warrant was issued in September 2016, which eventually led to the defender’s appearance in Edinburgh Sheriff Court in July 2020.

In his evidence, the defender explained that he had operated a small bathroom installation business in Wroclaw from 2007 until 2010, when he came to Scotland to join his brother and started working in a foundry in Lanarkshire. It was alleged that he had taken goods on credit from a builder’s merchant without paying for them while he was running his bathroom business, which he denied.

It was argued by the defender that, given the passage of time, extradition under the Extradition Act 2003 would be unjust or oppressive. He had been convicted in his absence with no possibility of a retrial, and further his extradition would be incompatible his rights under article 6 and 8 of the ECHR and also the article 8 rights of his family, who would have to move back to Poland if he was extradited.

The defender further explained that his younger children, who did not speak Polish fluently, were dependent on his wages, which paid the rent and expenses on the family home. He had never been in trouble with the police in the UK apart from an early misunderstanding in relation to car insurance and was concerned that he would lose his job and not be allowed back into the UK if he had to go back and serve a 6-month prison sentence.

It was contended that the defender had signed a document in a Polish prosecutor’s office in April 2011 in relation to the trial. He denied this, stating any purported signatures had been forgeries, and he denied receiving summons addressed to him ordering him to attend the prosecutor’s office. Whilst he had met with a Polish prosecutor, he had told her that all debts with the company were cleared and she had said she believed him.

Crossed a line

In his decision, Sheriff Welsh said of the defender’s credibility: “I considered it highly improbable, that the prosecutor in the requesting state would have forged the signature of RM on an official record in a case involving a relatively minor fraud. I thought it much more probable that RM when confronted with the proof, that showed he knew about the investigation has lied to avoid being returned to Poland, to serve the sentence he faces under Polish law.”

Addressing the argument concerning passage of time, he said: “RM took the risk that these proceedings might come back to haunt him. Accordingly, the passage of time has no purchase in his favour, as he himself created the delay by leaving the Polish jurisdiction when he knew proceedings were extant. Further, I did not consider, nor was it suggested, that there was anything exceptional in the circumstances of this case, which would permit a fugitive not to be extradited.”

The sheriff also rejected the submissions in relation to a retrial, However, turning to article 8 of the ECHR, he noted: “It is not easy to avoid extradition on this ground. I took account of the strong and weighty public interest in favour of extradition, so that the UK, is seen to fulfil its international obligations and to prevent criminals achieving safe haven in this jurisdiction.”

However, he continued: “The combination of factors here, especially, when examined against the level of sentence likely to be served and the potential for family fracture, marriage breakdown and the consequences for the dependent school children, if separated from their father, or the damage to their education, if instead, they are relocated to Poland, struck me as, not just an unfortunate but inevitable necessary consequence of the enforcement of a legitimate public interest but rather, this extradition, if granted, crossed a line and became a disproportionate infringement of the dependents right to a family life, with father and spouse.”

For these reasons, the defender was discharged, however in a postscript the sheriff observed: “This conclusion is not one I would have reached if the sentence to be served was materially higher, even taking account of the dependents’ circumstances and the consequences for their family life.”