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

The failure of the previous grounds is of prime importance to Ground 4 and the appellant’s article 8 ground, although such failure does not entail that Ground 4 must also fail. They do not stand or fall together.

However, the importance of Ground 1 is seen from para 52 of the appellant’s skeleton argument, where it is submitted that “if the court is with [the appellant]” on Ground 1, there is one fewer offence to consider. This is said to affect the balancing exercise so that the factors “should have been weighed so significantly differently as to make the decision wrong”. The force of such argument is contingent on Ground 1 succeeding, but it did not. Equally, whether the appellant was and remained a fugitive is relevant to the public interest in the Celinski balancing exercise (Polish Judicial Authorities v Celinski and Others [2015] EWHC 1274 (Admin) (“Celinski”)). That said, the failure of the section 14 ground does not render the question of the unexplained NCA delay and its impact on the appellant’s family life irrelevant. Therefore, I move on to consider the remaining elements of the article 8 submission.

I subdivide the analysis into (1) early release; (2) the Judge’s Celinski balancing exercise; (3) my article 8 discussion.

I deal first with the early release submission. In Andrysiewicz v Poland [2025] UKSC 23 (“Andrysiewicz”), the Supreme Court considered the impact of early release provisions in foreign states. The court said at paras 77-78:

“77.

It is unrealistic not to recognise the existence of article 77 of the Polish Penal Code so ordinarily it will be appropriate to take account of the bare possibility of early release in Poland. However, again in agreement with Swift J, save in rare cases, a court in this jurisdiction should not embark on predicting the likelihood of the outcome of the application in Poland. This is for reasons of international comity and because of the strong practical considerations which mean that, save in the most exceptional circumstances, there cannot be any accurate prediction by a judge in this jurisdiction as to the outcome of an application in Poland for early release. It is also because account should be taken in the Celinski “balance sheet” of the fact that a court in this jurisdiction cannot impose licence conditions or impose any probationary period when discharging an offender. If these factors are included as “pro” factors in favour of extradition then whatever assessment is made as to the likelihood of a Polish court ordering early release on licence featuring on the “cons” side of the balance sheet, will be outweighed by these important countervailing public interest on the “pros” side of the balance sheet.

78.

Because (save in rare cases) a court in this jurisdiction should not embark on predicting the likelihood of the outcome of the application in Poland, the bare possibility of early release on licence adds “little weight” in determining whether extradition is a disproportionate interference with article 8 ECHR rights.”

About the significance of early release, the appellant submitted that although it only carries “little weight”, where there is only “a very short remaining sentence to serve, this is a strong factor against ordering extradition”. The respondent refutes the relevance of early release in this case for essentially Andrysiewicz reasons.

The early release submission would have greater cogency if Ground 1 had succeeded and the outstanding term of extradition offences were reduced. In its absence, the length of outstanding sentence is, by agreement at appeal (there having previously been a difference in figures), 207 days. Therefore, between 6 to 7 months’ custody remains to be served in Poland. This is not “very short”. I do not accept the submission at para 50 of the appellant’s skeleton argument that the appellant has at the date of this appeal served “such a substantial period in custody that extradition would now be disproportionate.” The outstanding term remains a substantial sentence and significantly above the length of the minimum floor of four months’ imprisonment for a conviction case in a Category 1 case under section 65(3)(b) of the Act.

As to the proper approach to questions of early release, it is vital to have regard to what the Supreme Court actually said in Andrysiewicz at para 80:

“80.

We envisage that a rare case is confined to cases where there is agreed or uncontested evidence sufficient to demonstrate an overwhelming probability: (a) that the requested person would be released under article 77 of the Polish Penal Code upon an application; (b) as to when that release would take place; (c) as to what the probation period and conditions attached to that release would be; and (d) that the inability of a court in this jurisdiction to provide for such a probationary period and to attach such conditions would not adversely affect the interests of the offender or of the public.”

There is no agreed or uncontested evidence sufficient to demonstrate “an overwhelming probability” that the appellant would be released under early release provisions in Poland, nor when that release would take place, nor what probation period or conditions would be attached. It cannot be said that the inability of this court to attach such conditions or a probationary period would not “adversely affect” the interests of the public.

Therefore, the appellant fails the Supreme Court's “rare case” test. I judge that this is not one of the “rare cases” envisaged by Andrysiewicz where the court should embark on predicting the likely outcome of the application of Polish early release provisions. To my mind, the prospect of early release, which only remains a “bare possibility” with an unevidenced likelihood, adds “little weight” to the balancing exercise and can only be of modest assistance to the appellant. I note that the approach of the Judge, taken before the Supreme Court’s judgment, is presciently in conformity with it.

Next, I note that the Judge performed the necessary Celinski balancing exercise at paras 83-96 of her judgment. The relevant factors for and against extradition, recorded by the Judge in her judgment in October 2024 were characterised as follows (based on the respective cases of the parties, not necessarily her findings):

“Factors against extradition

•

The RP has been living in the UK since 2015 and has acquired a private and family life.

•

He has been in a relationship with his partner since 2012 and they have 3-year-old son born on 2nd November 2021.

•

The RP has been working since his arrival in the UK and since 2019 has worked as a self- employed builder.

•

The RP has completed almost 2/3 of his sentence and will be entitled to benefit from the early release provisions in Poland.

•

There has been culpable and unexplained delay on the part of the NCA not certifying the re- issued warrant dated 21st January 2019 until January 2022.

•

The RP is not a fugitive since the cumulative sentence because the JA knew he was in the UK.

Factors in favour of extradition

•

There is a constant and weighty public interest in extradition that those convicted of crimes should be sought to serve their sentences. In this case the RP has a sentence of 3 years, 8 months’ imprisonment to serve for multiple offences committed over a period of time, albeit he has spent 1 year, 2 months and 12 days on remand in respect of previous extradition proceedings.

•

There is high and weighty public interest that extradition arrangements are honoured.

•

There is a strong public interest that the UK should not become known as a safe haven for those who do not want to serve their sentences. Weight is added to this factor because I have found the RP to be a fugitive.

•

The RP is not a man of good character in this jurisdiction having been sentence to 12 months imprisonment by Grimsby Crown Court on 3rd June 2024 for an offence of dangerous driving.

•

The RP has a partner and three-year old son, but very little detail has been given about their circumstances and how the RP’s remand has affected them and how his extradition will affect them. No statement has been received from her.”

The Judge presented her conclusion on the balancing exercise at paras 94-98:

“94.

I have considered all the evidence when undertaking the balancing exercise. I have found the RP to be a fugitive from justice when he left Poland being aware of the proceedings against him, but as Ms Herbert has submitted that the balancing exercise should take into account the fact that he is not a fugitive since the cumulative sentence was imposed because the JA knew that he was in the UK. I accept that two previous warrants have been issued for the RP's arrest prior to him applying for the cumulative sentence. However that does not detract from the fact that in respect of all the judgments he was a fugitive from justice and even since the cumulative judgment he has spent a considerable time in prison which would impact on both his private and family life.

95.

Furthermore, the RP is not a man of good character in the UK having been sentenced to 12 months imprisonment by a UK court on 3rd June 2024 for an offence of dangerous driving. He has been in the UK since 2015 and works as a self-employed builder. He has been in a relationship with his partner since 2012 and they have a three-year old son who was born in 2021. Since 2018 the RP has been on remand on and off only in relation to these extradition proceedings but also in relation to two previous warrants. This lessens the impact on his family life because he has been in and out of prison for a number of years albeit there has been an unexplained delay about why the NCA did not certify the warrant for three years I have already indicated that the loss of SIRENE may have affected that. I do not have an explanation but I still do not find that the delay impacts on the RP's family life for the reasons I have already given.

[96. … agreeing with the approach of Swift J in Andrysiewicz, then at first instance.]

97.

I have been told nothing about the impact on his family if he were extradited. He says his partner relies on him emotionally and financially, but he has been in prison for a substantial amount of time and his evidence about this was that he has saved money to financially provide for his family and that he speaks to his partner twice a day over the phone and by letters.

98.

I have also considered in the balance the very strong and weighty importance to be given to upholding extradition agreements and that the UK should not be seen to be a safe haven for those who do not want to serve their sentences. The strong counterbalancing factors that would be required in the case of a fugitive to result in extradition being disproportionate are not found in this case (Celinski [39]) and I do not find it would be against the RP’s Convention rights to order extradition.”

Last on this, I return to the consequence of my having rejected Grounds 1, 2 and 3 of the appeal. This means that the Judge’s analysis remains intact. I note in particular that the Judge proceeded on the basis that the NCA delay was unexplained. Undoubtedly, she correctly identified and applied the law given my conclusion on the three preceding grounds, save the fugitivity point, which in any event was exercised the appellant’s favour. The approach I take to the article 8 question is that set out with clarity in Celinski at para 24:

“The single question therefore for the appellate court is whether or not the district judge made the wrong decision. It is only if the court concludes that the decision was wrong… that the appeal can be allowed. Findings of fact, especially if evidence has been heard, must ordinarily be respected. In answering the question whether the district judge, in the light of those findings of fact, was wrong to decide that extradition was or was not proportionate, the focus must be on the outcome, that is on the decision itself. Although the district judge’s reasons for the proportionality decision must be considered with care, errors and omissions do not of themselves necessarily show that the decision on proportionality itself was wrong.”

Since the impugned decision, the Supreme Court handed down its judgment in Andrysiewicz. However, the approach commended in that judgment on the article 8 balancing exercise was no different to the Judge’s approach. The Supreme Court said at para 43:

“43.

We have set out above relevant passages in Norris, H(H) and Celinski at some length because it is clear that there is a need to reiterate the essential points they make. Cases in which a submission founded on article 8 ECHR may defeat the public interest in extradition will be rare. It is most unlikely that extradition will be held to be disproportionate on the ground of interference with private life. Even in cases where interference with family life is relied upon, it will only be in cases of exceptionally severe impact on family life that an article 8 ECHR “defence” will have any prospect of success.”

Therefore, in addition to Andrysiewicz, it is appropriate to have regard to the seminal cases of Norris v United States of America [2010] UKSC 9 (“Norris”), HH v Deputy Prosecutor of the Italian Republic, Genoa [2012] UKSC 25 (“HH”) and Celinski. I note that the Judge cited all three cases in her judgment at para 78. I have reviewed her analysis provided at paras 83-98. She considered all the relevant factors. She did not err in fact or law, nor ascribe undue weight to any factor.

It is submitted that the Judge erred in her analysis of “culpable delay”. I have rejected the Ground 3, but the appellant submits that it has a wider article 8 (Ground 4) application. It assists to set out the submission as advanced:

“There is no explanation provided by the NCA as to why they did not certify the warrant between the period 21 January 2019 and 7 January 2022 during which the Appellant has quite understandably got on with his life and had a child, born on 2 November 2021. The case of Pabian v Poland [2024] EWHC 2431 (Admin) [“Pabian”] at [49-50] supports the submission that where it would have been easy to locate the requested person in the UK and the authorities have failed to take even the most minimal steps to do so, and where there is no explanation that this is a relevant factor. Here the Appellant was released from custody 3 days after the issuance of the warrant, the UK authorities knew exactly where he was and yet did not certify the warrant. Absent any explanation this is culpable delay and does, now in 2025 with such a de minimis sentence to be served make extradition unjust and oppressive. The argument in the alternative is made under s.21 of the Act (Article 8 ECHR).”

As to the NCA’s delay, I respectfully adopt the approach of Chamberlain J in Pabian at para 50:

“Where there has been a long delay between a direct request from the authorities of the issuing state and the execution of the warrant in the UK, the NCA should be prepared to give at least a brief explanation of any steps taken to execute the warrant. If no such explanation is given, the court may assume that there is none. This too is a factor which may be of relevance to the Article 8 balancing exercise.”

The lack of explanation from the NCA is puzzling and unsatisfactory. If there is justification, it should be given. It has not been. I proceed on the basis that there is none. Thus, it seems to me that the NCA’s delay has article 8 relevance. I note, as did the Judge in the lower court, that the appellant has been in the United Kingdom since 2015. However, he was a fugitive and remained a fugitive from Polish justice in respect of the relevant legal processes. That said, the delay by the NCA’s certification has significance because in the period the appellant understandably developed his family life. I recognise as stated in HH at para 8 by Lady Hale that delay since the offending can diminish the public interest. One of the reasons is because delay by the requesting state may indicate the importance with which the offending is regarded. In the instant case, however, the delay principally arises due to the unexplained actions of the NCA and cannot be much laid at Poland’s door. There is no material culpable delay by the requesting state in the issuing of the arrest warrants. However, another aspect of delay remains highly relevant: its effect. As said in Pabian at para 55:

“… The main significance of the delay is that it delineates the period upon which it is necessary to focus in evaluating any private or family life interests which may have developed.”

As noted in HH, delay remains a factor relevant to article 8 compatibility. This is so even where, as here, the requested person is a fugitive (see the Supreme Court’s observations on the F-K case at para 46, joined in HH). In the hiatus, in 2021 the appellant had a child born in the United Kingdom with a partner he says he remains with. However, there is no confirmation of this from his partner and indeed no evidence whatsoever from her. It seems the Judge proceeded on the basis that the relationship persists, and I am not prepared to go behind the Judge’s approach in fairness to the appellant. Added to this family life development, there is the private life factor of his labouring when not in custody. These are factors weighing against the making of an extradition order and the Judge noted and weighed them.

Reduced to its bare minimum, the cardinal issue remains that identified by Lady Hale in HH at para 8(3):

“The question is always whether the interference with the private and family lives of the extraditee and other members of his family is outweighed by the public interest in extradition.”

I have well in mind the observations of Lord Phillips in Norris at para 56 that

“A judge should not be criticised if, as part of his process of reasoning, he considers how, if at all, the nature and extent of the impact of extradition on family life would differ from the normal consequences of extradition.”

While the appellant now has a son born in the United Kingdom, he is not the child’s sole carer. The appellant has spent limited time not in custody since his son’s birth. The parties agree that this amounts to around 2 years 3 months from the child being born. Thereafter the appellant has been in imprisoned due to the criminal offending here or remanded awaiting the outcome of the extradition proceedings. In conformity with Norris (paras 50-65), the proper approach is to view the article 8 rights of the family as a whole, including how innocent family members may be affected. As Ms Herbert confirmed to this court, there is no witness statement from the appellant’s partner confirming what his contribution to her and the child has been or, much more importantly, what the impact on them would be if surrender took place. The Judge was in the same position.

All enforced separations and relocations involve a degree of hardship, familial distress and disruption (see the discussion in Debiec v Poland [2017] EWHC 2653 (Admin) at para 35, per Julian Knowles J). In all these circumstances, I am not persuaded that the impact of extradition on family life in this case is outside the norm of impact in extradition cases. However, I note the example given by Lord Phillips in Norris at para 65 of the degree of interference where article 8 rights may outweigh the public interest in extraditing the requested person:

“If extradition for an offence of no great gravity were sought in relation to someone who had sole responsibility for an incapacitated family member, this combination of circumstances might well lead a judge to discharge the extraditee under section 87 of the 2003 Act”

These offences are a decade or more old now. But the offender deliberately put himself beyond the reach of Polish justice to evade the criminal proceedings and the lawful sentences of the Polish courts, a fact that attenuates the significance of the delay. He must bear substantial but not exclusive responsibility for it, given the NCA’s unexplained delay. While it should also be noted that individually each offence is not of “great gravity”, to borrow Lord Phillips’ phrase, the aggregated sentence of 3 years and 8 months’ custody is a substantial term and indicative of the seriousness with which the Polish court considered, and was entitled to consider, his course of persistent criminal offending. On the other side of the scales, the impact on his article 8 rights and more broadly those of his family is not “exceptionally severe”. I observe that his family life was developed in the knowledge that he came to the United Kingdom as a fugitive from Polish justice. As to private life, Andrysiewicz makes clear (para 43) that private life interference is “most unlikely” to render extradition disproportionate. That said, his employment history in this country cannot be discarded completely.

The courts have repeatedly emphasised that this nation must both honour extradition arrangements it has subscribed to and ensure that the United Kingdom does not become a safe haven for fugitives who would evade justice. There is a strong public interest in ensuring that offenders who have evaded lawful custodial sentences serve them. This, to my mind, is simply an expression of the qualification to article 8 recognising what is necessary in a democratic society for the prevention of crime and disorder. This aspect of the public interest has particular weight for an offender who has sought to evade the lawful custodial sentences imposed by the Polish court for offending including burglary, fraud, forgery and theft. His offending spanned a protracted period from February 2012 to October 2015, shortly after which, despite his obligation to notify the Polish judicial authorities of a change of address (extending to more than seven days), he left Poland for the United Kingdom without notification and thus in deliberate breach of his notification obligation. His deliberate actions made his whereabouts unknown until he was arrested in November 2017. Once in the United Kingdom, he did not lead a “new, useful and blameless life”, as put in HH at para 47. Instead, he committed an offence of dangerous driving of such gravity that the Crown Court imposed an immediate sentence of imprisonment of 12 months. He had, as noted, received a custodial term for a serious driving offence in Poland.

I must respect the judgment of the properly constituted Polish court. As said by the Supreme Court in Norris, in an authority also considered by the Judge, in order to outweigh the public interest in extradition of a fugitive, the interference with human rights must be “extremely serious” (para 55). The court said at para 82 that

“only the gravest effects of interference with family life will be capable of rendering extradition disproportionate to the public interest that it serves”

That is not the case here. I cannot see how the article 8 interferences viewed as a whole outweigh the “constant and weighty” (HH, para 8) public interest considerations in this case. Thus, to answer the “single question” identified in Celinski (para 24) for article 8 appeals, the Judge’s decision on proportionality is not wrong: an extradition order is not disproportionate nor incompatible with the appellant’s article 8 rights and those of his family, viewed holistically. I have examined everything put before me on behalf of the appellant and cannot find any rational basis to indicate that the balancing exercise should have resulted in a different outcome.

It has not been necessary to conduct a fresh balancing exercise. If I had, I would have unhesitatingly concluded that the public interest considerations significantly outweigh the interference with appellant’s family and private life. Extradition is not disproportionate nor incompatible with the engaged Convention rights or any of them.

Ground 4 fails.

All four grounds fail. The appeal is dismissed.