[2025] EWHC 2475 (Admin)

For these reasons, it falls to this court to conduct the proportionality balancing exercise itself. That does not, however, mean everything in the district judge's judgment falls away. In particular, the district judge found the appellant to be a fugitive (paragraph 21 of the judgment). There is no challenge to that finding.

This brings me to the issue of delay. Miss Herbert submits that in the period since 2011, the appellant has not committed any criminal offences. I accept he does not have any criminal convictions in this jurisdiction during that period.

I do not find that any delay by the authorities in Poland or in England and Wales lessens the importance of extraditing the appellant. Miss Herbert submits that the police knew in 2015 that the appellant was in the United Kingdom, but they did not ask the court in Poland to issue a warrant until October 2020.

In Pabian, however, the authorities knew for a certainty that the appellant was in the United Kingdom. This is because he had corresponded with the court in Poland from an address in the United Kingdom (see paragraph 52 of the judgment). By contrast, in the present case, all we have is the somewhat exiguous suggestion that unspecified neighbours considered the appellant was in the United Kingdom. The further information states that "when the police diffused (sic) that the appellant was likely to be in the UK, on 28 October 2020 the court was requested to issue an EAW".

Taking this further information at face value, it seems that, for whatever reason, the police did not come to the conclusion that the appellant was sufficiently likely to be in the United Kingdom until 2020; but, when they did, they requested the court to issue the warrant, and the issuing of the warrant occurred less than four months after the request was conveyed.

Turning to the position in the UK, the NCA did not certify the warrant until 23 October 2023, a period of some 20 months. I do not consider that this delay is so reprehensible as to require the factors in favour of extradition to be materially diminished. Indeed, the period stands in stark contrast to the period of more than four years between the issuing and certification in Pabian (see paragraph 53). Nevertheless, I accept that the passage of time falls to be considered in the context of the appellant's family life with his partner and children and his own private life; but particularly the article 8 rights of the two children, which are a primary consideration.

The district judge found that the appellant's extradition would have an adverse impact on the family (see paragraph 24). As a general matter, that must of course be so. There is, however, an absence of reliable evidence as to the actual effects that extradition would have on the children. There is nothing from their school or other professionals, such as social workers, deposing to any adverse current effect on the children as a result of the present uncertainty, or what might happen in the event of extradition. Apart from some from school and nursery attendance and progress reports, the evidence regarding the children is confined to the witness statements of the partner and the appellant, both of which are lacking in detail. They certainly do not demonstrate that extradition will cause serious immediate or longer term consequences to the children. That is not to suggest that the experience will be anything other than unpleasant for the children. In so finding, I have treated the interests of the children as a primary consideration.

Importantly, considering the position if extradition is ordered, the appellant is not the sole breadwinner for the family. As we have already seen, the partner manages to work as well as to care for the children.

I have already dealt at some length with the appellant's health issues, both as regards the evidence before the district judge and in the new evidence which is sought to be adduced. I need, however, to return to the health of the appellant. At the heart of the appellant's mental health case is that he says he was raped by members of a football gang in Poland. This appears to have occurred in 2013, when the appellant was in detention in Poland (paragraph 7 of his witness statement of 24 June 2024). There is, however, again a striking absence of detail.

The medical records are problematic. Overall, I find myself in agreement with the submission of Mr Findlay on this issue. He points out that at no point during the almost 13-month period when the appellant's matter was at Westminster Magistrates' Court did the appellant provide any independent medical and/or forensic evidence to substantiate the claim concerning the factors which he says led to his fear of return to Poland. Indeed, that remains the case today. The district judge adjourned the hearing in June 2024 until September for the specific purpose of enabling the appellant to obtain further evidence regarding his mental and physical health. All of this explains McGowan J's decision not to accede to the belated application to adduce expert medical evidence.

I do not accept Miss Herbert's submission that there was really nothing that could be done by way of a report which might corroborate or otherwise the allegation of rape that is said to have led to much of the mental health problems of the appellant. Appropriate experts routinely consider such matters in the context of making findings regarding such matters as PTSD.

I am prepared to accept that the appellant is likely to be suffering from depression and I also reiterate my acceptance that he may well have deliberately self-harmed in the way described in the most recent letter from the GP practice; but to what extent this can be attributed to other factors, such as his drug use, is still unclear.

The present position, therefore, revealed by the new evidence, is that the appellant has been referred by his GP practice to a mental health team. Even assuming there is a degree of suicidal ideation, there is nothing in the evidence to suggest that any resultant risk cannot be adequately addressed in the United Kingdom, and in Poland. More generally, there is nothing to suggest that any mental health problems which remain following extradition cannot be treated satisfactorily in Poland. The same is true of the appellant’s other medical conditions, including his asthma and what he describes in his latest statement as blood pressure fluctuations and migraines. The appellant has referred to a planned endoscopy procedure. Again, there is no reason to suppose that this cannot be undertaken in Poland and any treatment which might result from it be appropriately given in that country.

Apart from the medical records and the updated evidence, and the report of the doctor considered by the district judge, to which I have also had regard, the only third party opinion on the appellant's mental and physical state is a report of 10 June 2024 from a coaching institution in Poland. The contents of this report, however, are extremely problematic and Miss Herbert quite understandably placed no reliance on them.

The offence for which the appellant is sought is robbery. That is in itself serious, albeit that the particular circumstances do not place it at the higher end of the spectrum.

The factors in favour of extradition are the weighty public interest in the United Kingdom adhering to its treaty obligations; the weighty public interest in ensuring the United Kingdom does not become a safe haven for criminals; the seriousness of the offence in terms that I have just described; and the fact the appellant is a fugitive from justice.

In view of my findings in respect of the appellant's position and the position of that of his partner and his children, the effect of extradition on the article 8 rights of all those concerned is not such as to make extradition disproportionate, either alone or in combination with any other factor weighing on the appellant's side of the balance.

One such factor is the issue of the electronically-monitored curfew. I am told the curfew has effect from midnight to 4 am. Part of the period during which the appellant has been subject to this curfew came about because the appellant was not ready to present evidence to Westminster Magistrates' Court concerning his mental health in 2024. In any event, the evidence of the effect of the curfew on the appellant is sparse. He complains of his inability to socialise, which he says has impacted on his life. That is, however, difficult to accept, given the modest curfew hours, which would seem likely to have been framed in light of the appellant's previous work in the construction industry. It is also unsupported by any objective evidence.

Miss Herbert sought to draw a comparison generally between the circumstances of the present appellant and the appellant in XY v Public Prosecutor's Office, Oost Nederland [2019] EWHC 64 (Admin). The facts of that case were, however, strikingly different. XY was released from custody in the Netherlands in 2013, as he thought he had served his sentence, only to find himself liable to serve a five-year sentence; and that he was not to be given any credit for serving the four-year sentence (see paragraph 49 of the judgment). XY suffered from PTSD that had been properly diagnosed and this condition was found to be at risk of becoming untreatable in prison. He also had been found, professionally, to be at a high risk of suicide (see paragraph 50).

In conclusion, I do not consider that the new evidence would be decisive, either alone or in combination with the previously admitted evidence. I therefore formally refuse the application to admit it. I find that extradition of the appellant would not be disproportionate in terms of article 8 and, although not pursued before me, I also find that it would not be oppressive in terms of section 14.

This appeal is accordingly dismissed.