AC-2024-LON-003550 - [2025] EWHC 2831 (Admin)

Having rejected the appellant’s two key points, I examine the question in more general terms to test the analysis. A person is not just a fugitive in the abstract. A person is a fugitive from something. It is from the legal process initiated against that person in the requesting state. This is evident from the House of Lords’ decision in Gomes. The court said at paras 26-27:

“26.

… This is an area of the law where a substantial measure of clarity and certainty is required. If an accused like Goodyer deliberately flees the jurisdiction in which he has been bailed to appear, it simply does not lie in his mouth to suggest that the requesting state should share responsibility for the ensuing delay in bringing him to justice because of some subsequent supposed fault on their part, whether this be, as in his case, losing the file, or dilatoriness, or, as will often be the case, mere inaction through pressure of work and limited resources. We would not regard any of these circumstances as breaking the chain of causation (if this be the relevant concept) with regard to the effects of the accused's own conduct. Only a deliberate decision by the requesting state communicated to the accused not to pursue the case against him, or some other circumstance which would similarly justify a sense of security on his part notwithstanding his own flight from justice, could allow him properly to assert that the effects of further delay were not “of his own choice and making”. (emphasis provided)

27.

There are sound reasons for such an approach. Foremost amongst them is to minimise the incentive on the accused to flee. There is always the possibility, often a strong possibility, that the requesting state, for want of resources or whatever other reason, may be dilatory in seeking a fugitive's return. If it were then open to the fugitive to pray in aid such events as occurred during the ensuing years—for example the disappearance of witnesses or the establishment of close-knit relationships—it would tend rather to encourage flight than, as must be the policy of the law, discourage it. Secondly, as was pointed out in Diplock para 2, deciding whether “mere inaction” on the part of the requesting state “was blameworthy or otherwise” could be “an invidious task”. And undoubtedly it creates practical problems. Generally it will be clear one way or the other whether the accused has deliberately fled the country and in any event, as was held in Krzyzowski , given that flight will in all save the most exceptional circumstances operate as an almost automatic bar to reliance on delay, it will have to be proved beyond reasonable doubt (just as the issue whether a defendant has deliberately absented himself from trial in an inquiry under section 85(3) of the Act). But it will often be by no means clear whether the passage of time in requesting the accused's extradition has involved fault on the part of the requesting state and certainly the exploration of such a question may not only be invidious (involving an exploration of the state's resources, practices and so forth) but also expensive and time consuming. It is one thing to say—as Lord Edmund-Davies said in Kakis and later Woolf LJ said in Osman (No. 4) and Laws LJ in La Torre — that in borderline cases, where the accused himself is not to blame, culpable delay by the requesting state can tip the balance; quite another to say that it can be relevant to and needs to be explored even in cases where the accused is to blame.”

As is clear from Goodyer’s case within the conjoined appeal in Gomes, fleeing the jurisdiction in breach of bail conditions can amount to the necessary fugitive action. In De Zorzi, the Divisional Court offered an instructive counterfactual at para 63:

“had the Judge found as a fact that the Appellant had fled back to Holland during the course of the French proceedings and without the Court's permission; or was told on 28 June 2001 at the French Court that she had been convicted and sentenced, so that she knew that that was the position when she returned to the Netherlands, I would have held that the Judge's conclusion on fugitive status was correct, albeit for the wrong reasons.”

Therefore, a person fleeing in the midst of proceedings can be fleeing the legal process. If De Zorzi knew she was convicted and sentenced in Paris and then fled to the Netherlands without the permission of the French court (unlikely to be granted), that would amount to the requisite action. In Pillar-Neumann, the criminal proceedings were initiated when the appellant was already settled in the United Kingdom. The key moment was the initiation of the criminal proceedings (legal process) in Austria. The accused could not be a fugitive as she did not flee to evade the legal process. Therefore, a key question is whether the individual is seeking to evade the legal proceedings and their consequences.

It is not disputed that the appellant was a fugitive when he came to the United Kingdom in 2015. He therefore deliberately and knowingly placed himself beyond the reach of the Polish legal process initiated against him, or more accurately, the four legal processes, one for each case file. After that, and to borrow directly from Gomes at para 26, at no point was there “a deliberate decision by the requesting state communicated to the accused not to pursue the case against him”. Further, there is no “other circumstance which would similarly justify a sense of security on his part notwithstanding his own flight from justice.” It is difficult to understand how that could arise. The Polish judicial authorities had already applied twice successfully and obtained extradition orders against him (January 2018/AW 1; August 2018/AW2). During all this, at some point towards the beginning of 2018 the appellant applied to the Polish court to consolidate his various sentences. This requires further examination.

The court asked the parties for further details about the aggregation proceedings, but some facts remain unknown. However, there is sufficient known to reach a conclusion about all this. What is clear is that it was the appellant who initiated the aggregation process and asked the Polish authorities to consider aggregating his sentences. He said at the 2024 extradition hearing (that resulted in the order now challenged) that his initiation was sometime at the beginning of 2018, but no exact date is before the court. The aggregation hearing in Poland was held on 23 July 2018. He had been notified of the date in writing at the United Kingdom address he ultimately provided to the Polish authorities. The appellant was in custody at HMP Wandsworth at the time of the hearing and had a lawyer appointed to represent him in Poland. He knew the hearing would go ahead in his absence and that he would be legally represented. He then appealed the aggregated sentence imposed, although the date of his application to appeal is not known. The appeal hearing was on 13 December 2018. He was represented by the same lawyer, as he was still in custody in the United Kingdom. The appeal was dismissed.

While it might be argued that in a highly technical sense the aggregation proceedings were different criminal proceedings, or to use the language deployed in this discourse, a different “legal process”, this is a most strained and artificial analysis. To my mind, it ignores the practical reality of the situation. The aggregation proceedings were initiated at the appellant’s request. They were not founded on any new or different criminal charges or accusations. The underlying substance of the proceedings was the same. There was no new trial at which the appellant’s guilt was being determined. He had been found guilty of everything and had already been sentenced for everything. He sought what was in effect a review of his sentences. The resulting aggregated sentence handed down in August 2018 was appealed and the appeal was dismissed in December 2018. The Polish judicial authorities wrote to the CPS shortly after that on 21 January 2019 to inform the relevant United Kingdom authority that an aggregated sentence had been passed. A fresh arrest warrant was issued on the same date to reflect this procedural development. Three days later the original two arrest warrants were discharged. Nothing that the Polish state did indicated that the appellant was not required to serve the aggregated sentence of 3 years and 8 months’ imprisonment. There was never a gap in coverage in warrants from the first one issued on 10 April 2017 until this appeal hearing. However, by 2019 and the arrest warrant relevant to this appeal, the appellant had placed himself beyond the reach of the Polish legal processes that produced the sentences that were then aggregated at his request.

It is difficult to understand how when he does not dispute that he deliberately evaded Polish justice by his move to the United Kingdom and not informing the Polish judicial authorities of his change of address, that fugitivity evaporates on his sentences for ten offences being aggregated on his application. To borrow from Gomes v. Government of the Republic of Trinidad and Tobago; Goodyer v. Government of the Republic of Trinidad and Tobago [2009] UKHL 21 (“Gomes”) at para 27, the extinguishing of fugitive status by seeking sentence aggregation does nothing “to minimise the incentive on the accused to flee”. Both the extraditees Gomes and Goodyer fled to the United Kingdom from Trinidad in breach of their bail conditions. They were each, the House of Lords held at para 39, a “classic fugitive”. When the appellant came to this country, on his acceptance of initial fugitive status, he knowingly and deliberately placed himself beyond the reach of the Polish legal process (as properly understood and explained above). His case is not that he was never a fugitive, but that his fugitive status changed (by the latest) on sentence aggregation. It is misconceived.

If in this appellant’s case, the 2019 arrest warrant were in respect of different criminal proceedings based on different allegations and initiated after he had arrived in the United Kingdom from Poland, he would not have knowingly and deliberately left Poland for this country and evaded that fresh legal process. I can envisage that if the original legal proceedings had been discontinued and then revived on fresh evidence after he had already arrived in the United Kingdom, he may be able to mount a similar type of argument. Naturally, that is no guarantee such an argument would succeed; mount is not the same as bringing home. As repeatedly emphasised in authority, each decision is inescapably fact-based.

In any event, here the facts are different. Each of the case files (the four legal processes) was initiated while he was in Poland. He has not and credibly could not dispute being a fugitive in respect of each of them in 2015. The question is whether that status changed and why. I cannot think that his fugitive status ends when his whereabouts are known. He simply becomes a fugitive whose whereabouts in the United Kingdom are known. The fugitivity is a subjective concept focusing on the requested person’s actions and the motivation for them in respect of initiated legal processes. Equally, I cannot think he ceases being a fugitive when the already-imposed sentences for precisely the same offences are aggregated at his request.

What he can do legitimately is point to any delay that he did not cause. If there are exceptional circumstances, he may still mount a section 14 bar argument. However, there are not exceptional circumstances here. I will next examine the Judge’s conclusion that there is no section 14 bar. If the appellant cannot avail himself of section 14, it remains open to him to invite the court to consider any delay for which he is not culpable in the article 8 balancing exercise, subject to the qualification noted by Laws LJ in La Torre v Italy [2007] EWHC 1370 at para 37, “The extraditee cannot take advantage of delay for which he is himself responsible.” On this, I will come to the Judge’s analysis in Ground 4. But the appellant’s argument that he ceases to be a fugitive from the Polish legal process from the point of his whereabouts in the United Kingdom becoming known or from his sentence aggregation is flawed.