Leszek Robert Gomulka v Poland (No 2)

Can a substantial and unexplained delay itself ever amount to an ‘exceptional circumstance’ rendering extradition ‘oppressive’ for the purpose of Section 14 of the 2003 Act?

The issue which I determined was “whether the extensive passage of time in this case itself constitutes ‘exceptional circumstances’” (judgment §4). I said (§6) that Mr Cadman had cited no authority to support “the proposition that a long period of time could – in and of itself – constitute ‘the most exceptional circumstances’, to allow access to the injustice or oppression test”. But my conclusion was that “the circumstances of the present case – including the passage of time – fall very far short of being capable of characterisation as ‘the most exceptional’ circumstances” (§6). The “in and of itself” point went nowhere. The question which is raised is not a “point of law” which was “involved” in my decision.

Does the established ‘private life’ of long term settled migrants under Article 8 of the ECHR enjoy less value than the established ‘family life’ of long term settled migrants by virtue of choosing not to have a partner or children?

The issue which I determined was whether the Judge “seriously under-weighed the nature of the Appellant’s private life” (§11). I recorded that “a disproportionate interference with private life with private life is a violation of Article 8”. I explained that the impact on private life in this case was described as “small”, because the Judge was comparing the impact on the Appellant’s private life with impacts encountered in some extradition cases, which impacts “are far weightier and more serious”, which is “because innocent family members are impacted” (§12). This is not a point of law, about a “value” relating to long term settled migrants and their choices. It is a point about severity of impacts, on the facts, made moreover in relation to “innocent family members” whose rights are interfered with by extradition. I went on to say (§12) that the Judge had considered the impact on the Appellant’s private life, having “understood and recognised it”; that the Judge had explained that this could not be said to be “exceptionally severe”; and that the Judge “did not overlook or materially under-weigh the nature of the private life that had built up and was being interfered with”. Again, the question which is raised is not a “point of law” which was “involved” in my decision.

Are there circumstances in which the seriousness of an offence [can] be considered independently of the sentence given for that offence in the Requesting State to avoid the possibility of a sentence which does not adequately reflect the relative absence of seriousness of an offence?

The issue which I determined was whether (§9) the Judge, who “repeatedly referred to the two-year custodial sentence”, had failed to characterise the seriousness of the offending, overlooking that it was not “major” or “severe”. My reasoning explained (§10): (a) that the Judge was plainly well aware of the nature and seriousness of the crimes (multiple offences of fraud over an extended period of time, involving dishonest used of forged documents to obtain bank loans); (b) that the seriousness was reflected in the two-year custodial sentence (initially suspended), as the Judge had rightly recognised; (c) that the Judge referred to both the sentence “and a description of the four offences”, recording that the gravity of the offending as a factor to be weighed in the balance; and (d) that in referring again to the sentence, the Judge did not need to repeat or re-describe the nature and seriousness of the offending, which he plainly had it in mind and properly included. So, all aspects of seriousness which have been put forward were considered, on the specific facts and in the specific circumstances. Again, the question which is raised is not a “point of law” which was “involved” in my decision.