Pojda v Lord Advocate (No 2) [2025] HCJAC 33: Scottish High Court Re-Affirms the “Exceptionally Severe” Article 8 Threshold in Extradition Cases

1. Introduction

The High Court of Justiciary, sitting as the Appeal Court, has delivered an important ruling in Pojda v Lord Advocate refusing leave to appeal an extradition order sought by the Republic of Poland under a European Arrest Warrant (EAW). Although procedurally modest—an application for leave rather than a substantive appeal—the judgment clarifies and consolidates two recurring themes in Scottish extradition law:

• the very high hurdle a requested person must clear to resist extradition on Article 8 (right to private and family life) grounds; and
• the limited scope for invoking “passage of time” when the individual is effectively a fugitive from justice.

The appellant, Mr Przemyslaw Lukasz Pojda (“Pojda”), had lived in Scotland since 2006, formed a family life, and obtained settled immigration status. Nevertheless, Polish authorities sought him for the service of a four-year sentence dating back to convictions for drugs supply, fraud, and threatening a witness. Sheriff Court granted extradition; Pojda sought leave to appeal, arguing principally that removal would breach Article 8 given his family ties in Scotland. The High Court emphatically dismissed the application.

2. Summary of the Judgment

• Leave refused. The Court concluded that Pojda’s written grounds (“I do not agree…”) disclosed no arguable error of law.
• Article 8 analysis. Applying domestic and UK-wide authority, the Court reiterated that extradition will only be blocked where the interference with family life is “exceptionally severe”. Those circumstances were not present.
• Fugitive factor. The Court characterised Pojda as a fugitive—having left Poland knowing his sentence was to be activated—and held that this status weighed heavily against him in the balancing exercise.
• Passage of time. Because of the fugitive finding, s 14 (passage of time) could not assist him unless truly exceptional facts arose, which they did not.
• No procedural error. The Sheriff’s approach was upheld; Pojda identified no misdirection or flawed fact-finding.

3. Detailed Analysis

3.1 Precedents Cited

Key authorities relied upon by the Court:

• H(H) v Italy [2012] UKSC 25, [2013] 1 AC 338 – Supreme Court guidance on balancing Article 8 rights against the public interest in extradition; emphasises that only exceptional cases justify refusal.
• Lagunionek v Lord Advocate [2015] HCJAC 53; 2015 JC 300 – Scottish authority limiting reliance on “passage of time” where the person is a fugitive.
• RF v Lord Advocate [2024] HCJAC 46 – recent decision restating that consequences must be “exceptionally severe” for Article 8 to prevail.

The Court referenced these cases to underscore that the legal terrain is settled: extradition tribunals are to respect international obligations unless very compelling humanitarian considerations exist.

3.2 Court’s Legal Reasoning

1. Framing the Issue. The only live ground was Article 8. No oppression/delay argument was pursued.
2. “Exceptionally Severe” Test. By citing RF and associated jurisprudence, the Court confirmed that interference must go beyond ordinary family hardship inherent in imprisonment.
3. Fugitive Status. Evidence showed Pojda left Poland, and later remained in the UK, knowing his sentence was executable. This status diminishes weight given to his private/family life arguments (cf. Lagunionek).
4. Proportionality Balance. The gravity of the underlying offences, Poland’s legitimate interest in enforcement, and the UK’s treaty obligations outweighed the family disruption. The mother was already the primary carer; visits would remain possible.
5. Procedural Minimalism. Because the appeal grounds were bare, the Court spent little time on detailed reconsideration, emphasising the litigant’s burden to articulate specific errors.

3.3 Potential Impact

While doctrinally consistent with earlier case-law, Pojda solidifies several pragmatic consequences:

• Higher threshold for unrepresented applicants. Self-represented persons must still identify arguable points of law; mere disagreement is insufficient.
• Clarity on fugitive doctrine. The Court’s willingness to label someone a fugitive even where the lower court had not expressly done so indicates a readiness to curtail delay-based arguments.
• Post-Brexit EAW continuity. Despite the UK’s changed relationship with EU instruments, Scottish courts remain staunch in upholding cross-border enforcement, signalling stability to partner states.
• Family life arguments narrowed. The decision discourages reliance on routine family circumstances; only cases with truly exceptional elements (serious disability, sole caregiver, etc.) are likely to succeed.

4. Complex Concepts Simplified

• European Arrest Warrant (EAW): A fast-track extradition mechanism between EU states (still applicable in legacy and transitional cases) that minimises political involvement.
• Extradition Act 2003 – Part 1: Implements the EAW system in UK law. Section 26 gives a right to seek leave to appeal from the High Court.
• Article 8 ECHR: Protects the right to respect for private and family life; can limit state actions like extradition when interference is disproportionate.
• “Passage of Time” (s 14): Extradition may be barred if the lapse of time makes it unjust or oppressive; rarely applies where the person is a fugitive.
• Fugitive: A person who knowingly absents himself from the jurisdiction to avoid criminal proceedings or sentence.
• “Exceptionally Severe” Consequences: Hardship going well beyond the inevitable effects of prison—for example, catastrophic impact on a dependent disabled child.

5. Conclusion

Pojda v Lord Advocate is not a landmark because it charts new legal territory; its significance lies in the Court’s emphatic restatement of firmly settled principles:

• Article 8 will only defeat extradition in truly exceptional circumstances.
• Individuals who leave a country aware of outstanding sentences are fugitives; they cannot later rely on delay as a shield.
• Self-represented appellants must articulate specific legal errors; mere personal disagreement is insufficient to obtain leave.

By reinforcing these points, the High Court provides practitioners with authoritative guidance on how extradition appeals will be scrutinised in Scotland. The decision serves as a cautionary tale for would-be fugitives: family life established under the “shadow” of imminent extradition will rarely constitute a safe harbour against removal.