Polish judicial Authority v Celinski: the end of Article 8 in extradition?

18 May 2015

On 6 May the Administrative Court (consisting of Lord Thomas CJ, Ryder LJ and Ouseley J) handed down judgment in the case of Celinski and others, and established the proper approach to be taken in extradition cases (both at first instance and on appeal) where a requested person relies on Article 8 of the European Convention on Human Rights (the right to private and family life).

The judgment heralds a shift towards a more formulaic exercise at the magistrates’ court wherein the “pros” and “cons” of extradition are set out on a “balance sheet”. However though the court describes six factors that on any reading can only be “pros”, it declined to provide a single example of a “con”, the reason given being that Article 8 cases are “invariably fact specific”. It seems clear that the court’s intention is to reduce the number of Article 8-based discharges and appeals, reciting as it does in its opening paragraph that:

“It was the best estimate of the Chief Magistrate … that Article 8 would be relied on in between 350-400 cases over the following three months. It was the view of the Chief Magistrate… that Article 8 was relied on in about 120 cases a month. Appeals are very frequently brought to this court in relation to such decisions. That frequency can be judged by the fact that it is ordinarily necessary each week for a Divisional Court and 1-2 High Court Judges sitting alone to hear appeals…”

The six factors to be considered at the magistrates’ court are: that the leading Article 8 case of HH v Deputy Prosecutor of the Italian Republic, Genoa [2012] UKSC 25 involved the interests of children and should be considered in that (limited) context; that the public interest in honouring extradition agreements (and preventing the UK for becoming a haven for fugitives) is very high; that the decisions of a requesting EU Member State should be “accorded a proper degree of mutual confidence and respect”; that the question of whether an individual should be prosecuted in the UK rather than extradited is one for an independent prosecutor (and judicial input is neither appropriate nor desirable); that the judge at the extradition hearing must bear in mind that mitigating factors (including Article 8 factors) will be taken into account by the court in the requesting state; and the judge must not second guess another Member State’s sentencing regime or policy.

The court set a much simpler test in respect of appeals relying on Article 8: it is whether or not the district judge “made the wrong decision”.

In the cases of the six appellants dealt with by this judgment, the court upheld each decision of the lower court when directing extradition and reversed each decision where discharge was ordered. These outcomes alone, considered in isolation from the statistics on courts’ workload and the six factors clearly urging the rejection of Article 8 claims, are compelling evidence of current judicial policy. Such policy is of a piece with the government’s dismissive approach to family life-related appeals in deportation cases, an approach which gained considerable traction in the media and proved to be popular with the public.

Combined with the recent introduction of a requirement for leave to appeal (a hurdle which the application of the new approach will make insurmountable for many cases), practitioners can expect to see a significant reduction in the number of successful Article 8 arguments.

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