Article 8 of the European Convention on Human Rights protects the right to respect for an individuals private and family life. Extraditing an individual abroad is a dramatic step for the court to take and in almost every case will have a major impact on an individual's family life. Families may be left without the principal provider in the household or may need to relocate to an unfamiliar country. The impact can be particularly great where children are involved. Parents may be removed for long periods of time and children may be taken out of school or even into care.
After the Supreme Court decision in HH in 2012 there was a huge increase in the number of extradition cases in which Article 8 was argued. Indeed it became the dominant argument in many European Arrest Warrant cases, often argued on its own as the sole defence to extradition. Mindful of this dramatic increase (and the consequential increase in appeals to the High Court) in 2015 in the case of Poland v Celinski and others the High Court clarified the correct approach to Article 8 in extradition cases in the Magistrates' Court and gave guidance as to how district judges should make the assessment.
Article 8 requires the district judge to conduct a balancing exercise between the rights of the individual but also the public interest in ordering extradition. The High Court held stressed that it was important to conduct a balancing exercise of the factors in each case. After finding the facts, the judge should ordinarily set out each of the "pros" and "cons" in what has aptly been described as a "balance sheet". The judge should then set out his reasoned conclusions as to why extradition should be ordered or the defendant discharged.
A recent example of a case that came before the High Court illustrates the approach in practice. On 24 June 2016 in the case of Poland v Kulig Singh J overturned the discharge of an individual facing extradition to Poland
Mr Kulig had committed two assaults in Poland and had received suspended sentences of imprisonment. He had then committed a further offence, which caused the sentences to be activated. He subsequently moved to the UK with his partner and family with 1 year and 9 months left to serve. A European Arrest Warrant was issued some time later.
The High Court noted that the district judge made adverse findings of fact against Mr Kulig, not believing aspects of his account to be credible or truthful. Nevertheless, the judge held that although he was a fugitive and had committed violent offences, there were strong counter-balancing factors that made extradition disproportionate, namely the offences had been committed more than 10 years ago, the business that he had set up with his partner would fold if he was extradited, and it would be unrealistic to expect his family to move to Poland.
Singh J concluded that the district judge had made an incorrect assessment on proportionality in respect of Article 8. The case was not unusual and the factors referred to as outweighing the public interest in extradition were far from strong counter-balancing factors. Accordingly, the discharge of the Mr Krulig was overturned and his extradition to Poland was ordered.
It is still possible to succeed in relation to an Article 8 challenge but as this case illustrates the court will always look for strong and unusual factors to outweigh the strong public interest in the UK upholding our obligations with our extradition partners. The difficulties that Mr Krulig and his family would face were significant but sadly not unusual or grave enough to outweigh the public interest in favour of extradition.
Gherson has extensive experience in advising individuals facing extradition and are experienced in successfully raising human rights arguments both in the UK and abroad. If you wish to speak to a member of our team please contact us.