APPLICATION FOR LEAVE TO APPEAL UNDER SECTION 26 OF THE EXTRADITION ACT 2003 BY AH AGAINST THE LORD ADVOCATE

Factual and Procedural Background

The Applicant, a 39-year-old male UK national, is subject to a European Arrest Warrant ("EAW") issued by the Wroclaw-Srodmiescie District Court in Poland on 18 October 2018, relating to three charges of VAT fraud allegedly committed in Poland between 23 December 2013 and 31 March 2014. The offences involve participation in an organised criminal group and concern a sum of approximately £2.3 million. The Applicant was arrested in the UK following certification of the EAW by the National Crime Agency and appeared before the Edinburgh Sheriff Court in June 2020, where he denied consent to extradition and was granted bail.

The extradition proceedings were delayed by multiple continuations, including those related to the Covid-19 pandemic and awaiting decisions in lead cases concerning the Polish judiciary's compliance with Article 6 of the European Convention on Human Rights ("ECHR"). The extradition hearing was held in May 2023 before Sheriff Dickson, who ordered extradition in June 2023, rejecting the Applicant's arguments that extradition was barred by forum, unjust or oppressive due to the passage of time, and incompatible with Article 8 of the ECHR.

The Applicant seeks leave to appeal this extradition order.

Legal Issues Presented

1. Whether a substantial measure of the Applicant's relevant activity was performed in the United Kingdom, engaging the forum bar under section 19B of the Extradition Act 2003.
2. Whether extradition is barred or should be refused on grounds of the passage of time making extradition unjust or oppressive under section 14 of the Extradition Act 2003.
3. Whether extradition would be compatible with the Applicant's and his son's Article 8 rights under the ECHR, and whether extradition would be disproportionate under section 21A of the Extradition Act 2003.
4. Whether new evidence unavailable at the extradition hearing, indicating a deterioration in the mental health of the Applicant's son, justifies reconsideration of the extradition order.

Arguments of the Parties

Appellant's Arguments

• The Applicant argued that a substantial measure of his relevant activity was performed in the UK, satisfying the threshold for the forum bar, and thus extradition would not be in the interests of justice.
• He contended that extradition would be unjust and oppressive due to the passage of time, impairing his ability to defend himself because of lost evidence and faded memory.
• Extradition would cause significant family hardship, particularly to his son, who is emotionally and psychologically vulnerable and dependent on him, making extradition incompatible with Article 8 rights and disproportionate.
• The Applicant submitted that the sheriff erred in law and fact by not properly weighing these factors and by misapplying the relevant legal tests.
• New evidence, including a supplementary psychological report and an affidavit, showed a marked deterioration in the son's mental health after the extradition order, which should have led to a different conclusion on oppression and Article 8 compatibility.

Respondent's Arguments

• The Respondent maintained that the EAW alleges offences committed entirely in Poland, with no relevant activity in the UK, and the sheriff correctly found the forum bar threshold was not met.
• It was submitted that the sheriff was entitled to conclude that a fair trial in Poland remained possible despite the passage of time, and the high threshold for oppression was not met.
• The Respondent argued that the sheriff properly balanced the public interest in extradition against the Article 8 rights of the Applicant and his son, correctly concluding that extradition was justified and proportionate.
• Regarding the new evidence, the Respondent contended that it did not materially alter the assessment of the likely effects on the son and would not have led to a different decision on oppression or Article 8 compatibility.

Table of Precedents Cited

Court's Reasoning and Analysis

The court carefully reviewed the factual findings and legal reasoning of the sheriff. On the forum bar, the court agreed that the EAW contained no allegations of relevant activity performed in the UK by the Applicant and that the sheriff's factual conclusion that the threshold test under section 19B(2)(a) was not met was a matter of fact within the sheriff’s discretion. The court also upheld the sheriff’s evaluative judgment that, even if the threshold had been met, the interests of justice factors under section 19B(2)(b) and (3) did not warrant refusal of extradition.

Regarding the passage of time, the court accepted that the high threshold for barring extradition on this ground was not met. The sheriff reasonably found that the Applicant retained the ability to mount a defence, had access to some evidence, and that no culpable delay by the Polish authorities existed. The court noted the serious nature of the alleged offences and the strong public interest in extradition.

On the Article 8 issue, the court acknowledged the significant and potentially devastating impact extradition would have on the Applicant’s son, who is vulnerable due to diagnosed mental health conditions and dependency on the Applicant. The sheriff gave anxious consideration to these factors and treated the son’s best interests as a primary consideration. Balancing these against the public interest and the seriousness of the offences, the sheriff concluded that the interference with Article 8 rights was justified and proportionate. The court found no error in this evaluative judgment.

The court also considered the additional evidence submitted after the extradition hearing, which demonstrated a deterioration in the son’s mental health. However, it concluded this did not materially change the assessment of oppression or Article 8 compatibility, as the sheriff had already anticipated a likely devastating effect. Therefore, the new evidence would not have led to a different decision.

Holding and Implications

The court GRANTED leave to appeal on the fourth, fifth, and additional grounds but ultimately DISMISSED the appeal.

The court refused leave to appeal on the first three grounds, finding them not arguable.

The direct effect is that the extradition order stands and the Applicant may be surrendered to Poland. The court emphasized the importance of urgent planning for the support of the Applicant’s son by family and health services following extradition. No new legal precedent was established; the decision reaffirms established principles regarding forum bars, passage of time, and balancing of Article 8 rights in extradition cases.