Damian Leszczynski v Regional Court in Warsaw, Poland [2025] EWHC 1024 (Admin)

[2025] EWHC 1024 (Admin)Case No AC-2024-LON-001116
IN THE HIGH COURT OF JUSTICE
KINGS BENCH DIVISION
ADMINISTRATIVE COURT
Venue Royal Courts of Justice, Strand, London, WC2A 2LLDate 29/04/2025
Before
THE HONOURABLE MR JUSTICE MORRIS
Between
DAMIAN LESZCZYNSKIAppellantREGIONAL COURT IN WARSAW, POLANDRespondent
Julian Atlee (instructed by Wainwright & Cummins LLP) for AppellantBeheshteh Engineer (instructed by CPS (Extradition)) for RespondentHearing Hearing date: 19 March 2025Further written submissions dated 24 March 2025 and 2 April 2025
Approved JudgmentThis judgment was handed down remotely at 10.30am on 29 April 2025 by circulation to the parties or their representatives by e-mail and by release to the National Archives..............................
[1]This is an appeal against the decision of District Judge Minhas (“the Judge”) dated 28 March 2024 (“the Decision”) to order the extradition of Damian Leszczynski (“the Appellant”) to Poland. Permission to appeal was granted by Mr Justice Murray on 18 October 2024. The Respondent is the Regional Court in Warsaw, Poland.[2]There is one ground of appeal. Extradition is said to be incompatible with the Appellant’s rights under Article 8 ECHR and so under section 21 Extradition Act 2003 (“the 2003 Act”). There is also an application by the Appellant to adduce fresh evidence on the basis of the provisions of section 27(4) of the 2003 Act.[3]Mr Atlee appeared on behalf of the Appellant and Ms Engineer appeared on behalf of the Respondent. Following the grant of permission there was an issue as to the extent to which the Respondent should be able to participate in the appeal. However this was resolved at the oral hearing when, sensibly, Mr Atlee did not press opposition to the Respondent’s participation.[4]At the oral hearing of the appeal, the Appellant sought to rely, for the first time, on his conditions of bail, including an electronically monitored curfew, as an additional ground of appeal. As a result, I directed the parties to provide further post-hearing written submissions on the relevant principles on time spent on such a curfew and how they applied to the facts of this case. The Factual Background The Arrest Warrant

The Factual Background

[5]The Respondent seeks the extradition of the Appellant pursuant to an arrest warrant (“AW”) issued by the Respondent on 26 September 2022. The AW was certified by the National Crime Agency on 17 April 2023.[6]The AW is a conviction warrant for a single offence of robbery dated 10 August 2015. The Appellant, acting with two others, used violence, including kicking to the head whilst on the ground, to steal from two victims. The group stole money from one victim and attempted to steal a mobile phone from the second victim. On 30 July 2018 the Appellant was sentenced to five months imprisonment and a restriction of liberty for two years, with an obligation to continue education. The decision became enforceable in September 2018. On 28 February 2020, the restriction of liberty for two years was replaced with 365 days’ (one year) imprisonment. All of that sentence of one year is yet to be served.[7]The Appellant was born on 22 July 1998 in Poland. On an unspecified date in 2009, the Appellant’s parents settled in Plymouth with the Appellant, his brother and sister.[8]The offence was committed on 10 August 2015 during a holiday in Poland. On an unspecified date in 2015 the Appellant was remanded in custody in Poland for two months before his release on bail. As set out above, he was sentenced in Poland on 30 July 2018. In April 2019 the Appellant travelled to Poland to serve the remaining three months of the sentence. In July 2019 he was released. In the summer of 2019 the Appellant spent holiday in Poland before returning to Plymouth.

The extradition proceedings

[9]The Appellant was arrested on 22 April 2023 and appeared before Westminster Magistrates Court on that day. He was initially remanded in custody but then, later that day, was released on conditional bail. The initial conditions of bail included a condition of residence at a hotel in Plymouth, not to attend any international travel hub, and not to apply for, or possess, any international travel documents. He was also required to observe an electronically monitored curfew between 1 am and 3 am and was made subject to pre-release conditions of surrendering his ID or passport and to pay £500 security. At a subsequent hearing on 28 August 2023, his bail conditions were modified. His required place of residence changed to a different Plymouth address and an additional condition - to report to a Police Station in Plymouth at specified times on Mondays, Wednesdays and Fridays - was imposed. Subsequently at hearings in 2024, his address, the police station and the reporting times were varied. The curfew was lifted on two specific dates.[10]The position in summary is that the Appellant has been subject to an electronically monitored curfew for two hours each day since 22 April 2023 (except on two specific days), a period of just over 2 years to the date of this judgment and he has been required to report to a police station three times a week since 28 August 2023, a period of 1 year 8 months.

The Extradition hearing

[11]The Appellant resisted extradition on the following two bases:(1) Section 2 of the 2003 Act;(2) Human rights: extradition was incompatible with the Appellant’s right to a private life in the United Kingdom under Article 8 ECHR. The extradition hearing itself took place on 7 March 2024 before the Judge. The Appellant was represented and gave evidence and was cross examined.

The Appellant’s evidence before the Judge

[12]In his proof of evidence (which he adopted in evidence in chief), the Appellant stated, inter alia, as follows. “10. My understanding of the result of the hearings in Poland was that I had to serve 5 months imprisonment. I spent 2 months in prison there in 2015. 11. Then I came back to England to continue my education. 12. In April 2019 I went back to Poland and was required to serve the remaining 3 months of the sentence of 5 months. I was released from prison in July 2019, and spent the summer in Poland. …14. My understanding was that I was allowed to come back to my family in England on my release from prison in Poland and that I should continue in education in England.15. However when I came back (to) England, I was 21 and too old to go back to school.”

The Judgment

[13]In her judgment dated 28 March 2024 (“the Judgment”) the Judge set out the background to the case (at paragraphs 1 to 8) and the evidence and the submissions made (at paragraphs 9 to 16). At paragraph 10, the Judge summarised the Appellant’s evidence, as follows:
“The RP stated he had spent 5 months in total in custody in Poland. He was released and spent the summer holidays in Poland before returning to the UK. In cross- examination he was questioned as to how he spent time in custody in 2015, when the sentence was not passed until 2019? The RP explained that he was sent to prison in 2015, to a form of temporary detention for 3 months. He spent two months in prison and was released thereafter because the security was paid. The case dragged on. He knew there were three months outstanding of the sentence to be served, so he returned to Poland in 2019 to serve those. He was arrested at the airport and taken to prison. He was released on 19 July 2019. The RP was unclear whether he was in Poland in 2018 when the sentence was passed but was satisfied that his lawyers were present. The Polish JA corresponded with him at his grandmother’s address in Poland. His grandmother had told him he had a further three months imprisonment to serve. Eventually after repeat questioning, the RP stated he was not aware the sentence included a provision to complete 2 years of education. He had not completed any education after his release from custody, either in Poland or the UK. He questioned how the Polish JA could covert 2 years of education to 1 year imprisonment? He explained he was not informed of the education requirement when he was in custody in Poland. The RP believed he had pre-settled status in the UK.”
(emphasis added) At paragraph 17 the Judge made a number of findings. At paragraph 17 a, she made the following finding on fugitivity:
“I find the RP is a fugitive. The AW clearly stated he was present in 2018 when the sentence was passed. The RP could not recall being present but did not state the AW was incorrect. He was 20 years of age in 2018 and represented by lawyers. He clearly understood he was required to serve a further period of imprisonment to complete the initial 5 months imposed. He confirmed his grandmother had received correspondence on his behalf which prompted his return to Poland in 2019 to serve the balance of the sentence. I do not find it credible that the RP had no knowledge of the educational requirement when he was present at the sentence hearing, was represented and received correspondence at his grandmother’s address in Poland. I find, to the criminal standard, the RP knowingly placed himself beyond the reach of the JA by leaving Poland once he had completed the initial period of imprisonment in 2019.”
(emphasis added)[14]At paragraph 17 b,

the Judge made the following findings about the Appellant’s private and family life:

“I find the RP has a private life and family life in the UK. He arrived in 2009 as a minor child with his parents and siblings. He completed compulsory education in the UK. He continued to live with his family. He is currently unemployed and in receipt of state financial assistance. The RP stated he had both physical and mental health illnesses. His physical illness is a skin condition. He was unable to explain his mental health condition.”
[15]At paragraph 18 the Judge addressed the Appellant’s challenge under section 2 of the 2003 Act (set out at paragraph 12) that the particularisation of the AW was unclear, including as regards the educational requirement in the original sentence. She concluded that the AW complied with the requirements of section 2. The Judge’s assessment on Article 8[16]The Judge addressed the Article 8 ground at paragraphs 20 to 27 of the Judgment. At paragraph 21 she reminded herself of the general principles in relation to the application of Article 8 as set out in the cases of Norris and Celinski. At paragraph 22, she set out the factors in favour of granting extradition as follows:
“(i) There is a strong and continuing important public interest in the UK abiding by its international extradition obligations. (ii) There is a strong public interest in offenders being brought to justice. (iii) The decisions and processes of the JA should be afforded mutual confidence and respect, which included the sentencing regime. (iv) The RP is a fugitive. (v) The RP has a sentence of imprisonment of 1 year to serve. (vi) The nature and seriousness of the offence.”
[17]At paragraph 23 she set out the factors in favour of refusing extradition as follows:
“(i) The RP has lived in the UK since 2009. (ii) The family of the RP live in the UK. (iii) The RP may not be able to return to the UK if extradited. (iv) The RP’s physical and mental health. (v) The RP’s age when the offending occurred (17). (vi) The vintage of the offending behaviour (9 years).”
(emphasis added)[18]The Judge then made her assessment of the relevant factors at paragraphs 24 to 26. At paragraph 24 she referred to the guidance given in Celinski. The first three factors identified in paragraph 22 weighed heavily in favour of extradition. She added that, having found the Appellant to be a fugitive, he required strong counterbalancing factors against extradition.[19]At paragraph 25 she considered the nature and seriousness of the offending. She recognised that the offence was of some age and committed when the Appellant was a youth and that he had no other criminal convictions in the UK or Poland. The offence was a group action. The value of the items stolen or attempted to be stolen was low, but violence was used. She found the offence to be serious and violent. The balance of the sentence to be served was not an insignificant period. She concluded as follows:
“Accordingly I find the seriousness of the offence and remaining sentence to be served still weighed in the balance in favour of extradition notwithstanding the weight to be attributed to the RP’s age at the time, the fact that the offence was committed 9 years ago or that the RP had not been convicted of any further offences since then.”
[20]At paragraph 26,

the Judge addressed the Appellant’s private and family life in the following terms:

“I accepted the RP had established a private and family life in the UK since 2009 and extradition is an interference in that private/family life. Since his return to the UK in 2019, the RP’s private life is built upon his fugitivity. The RP has no financial dependents in the UK or elsewhere. He is not employed. The RP has not produced any documentary evidence in relation to his physical or mental health ailments. There is no evidence before me to rebut the presumption that both illnesses cannot be adequately managed in a Polish prison. He has not evidenced his status to live in the UK but believed he had pre-settled status for five years. I have no evidence as to the impact his departure from the UK may have on his pre-settled status. Even if extradition has the consequence of preventing the RP from returning to the UK, I find that is a consequence of the change in immigration rules, not extradition. The RP has a grandmother and address available to him in Poland as well as the support of his family in the UK. There is no evidence before me that the RP will struggle in Poland or that his absence will have a disproportionate effect on his family relationships. There is no supporting evidence from the RP’s family before me.”
(emphasis added)[21]At paragraph 27

the Judge stated her conclusions on Article 8 as follows:

“I find that it will not be a disproportionate interference with the Article 8 rights of the RP for extradition to be ordered. On balance, the individual or combined weight to be attributed to the main factors militating against extradition; the RP’s private life in the UK, the RP’s age at the time of offending, the RP’s mental and physical health, the risk he may not be able to return to the UK and, and the vintage of the offending are not such that they outweighed the weighty public interest in favour of extradition given the nature of the offending, the sentence which remained to be served and the RP’s fugitivity. The evidence of hardship and the impact which will result from extradition does not, in my view, go beyond that which is often present when extradition is ordered. I find the consequences of extradition are not so significant that they will have a disproportionate impact on the article 8 rights of the RP or his family members.”
(emphasis added) Finally, at paragraph 28, the Judge stated that “I have carefully considered the oral evidence, submissions and all documentary evidence or submissions even if I do not refer to them within my judgment”.

The procedural history of the appeal

[22]Following the making of the extradition order on 28 March 2024, on 3 April 2024 the application for permission to appeal was issued and served. On 15 April 2024 perfected grounds of appeal were filed and served. By order dated 14 August 2024, Sir Peter Lane refused the Respondent’s application to file a Respondent’s Notice out of time. At the same time he refused the Appellant’s application for permission to appeal. On 19 August 2024 the Appellant filed and served the application to renew the application for permission to appeal.[23]On 18 October 2024 Mr Justice Murray granted permission to appeal at an oral hearing. By paragraphs 11 and 12 of his order, he provided that the Respondent’s skeleton and any oral submissions at the hearing of the appeal had to be limited to responding to points raised by the Appellant and defending the decision of the Judge. He then made directions relating to the issue of whether the Respondent should be permitted to participate in the hearing of the appeal, in view of Sir Peter Lane’s refusal of the application for an extension of time to file a Respondent’s Notice. As matters transpired, Mr Atlee did not pursue an objection to the Respondent’s participation, and I have received written and oral submissions from the Respondent.

The application to admit fresh evidence

[24]By application notice dated 12 March 2025, the Appellant applied for the Court to admit fresh evidence on this appeal under the principles in Szombathely City Court, Hungary v Fenyvesi [2009] EWHC 321 (Admin). The fresh evidence comprises(1) the fact that, since the Decision, the Appellant’s father has died,(2) a recent witness statement from the Appellant’s mother and(3) extracts from her medical records. The essential purport of this evidence is that, as a result of his father’s death, the Appellant has now assumed greater domestic caring responsibility for his mother, who has certain medical conditions. In her statement, the Appellant’s mother states that she is totally dependent on the Appellant as her only source of care and companionship. I address the legal principles applicable to the admission of fresh evidence in paragraphs 45 and 46 below. The Parties’ submissions The Appellant’s case

The Parties’ submissions

[25]The Appellant submits that his extradition would be disproportionate to his Article 8 rights and that the Judge’s decision to the contrary was wrong. The relevant circumstances of this case render extradition disproportionate. He relies on the following.[26]First, he relies upon delay since the commission of the offence in 2015 when he was 17 years old. Secondly, the finding that the Appellant was a fugitive is inconsistent with his voluntary return in April 2019 to Poland to serve the remainder of the sentence of five months and with the fact that the hearing on 28 February 2020 took place in Poland in his absence.[27]Thirdly, “the Brexit factor”: applying the correct approach in line with relevant case law, the Judge failed to take into account properly the extent of the Appellant’s subjective fear that he would not be able to return to his mother and siblings in Plymouth following the imprisonment in Poland, in circumstances where it was not known what the content of the Immigration Rules would be at the time that he had served his sentence in Poland.[28]Fourthly, the fact that the sentence and warrants are silent as to the nature of, and jurisdiction within which, the unidentified educational programme would be available. The Polish authorities must have been aware that the Appellant and his family had emigrated from Poland to this jurisdiction, as Box (a) of the AW and his voluntary return to serve the sentence of five months illustrate. There is no evidence that the Appellant was notified what he was required to do as a result of the educational requirement.[29]Fifthly, the Judge’s finding that the Appellant’s evidence was that he was not aware that the sentence included a provision to complete two years of education is contrary to the evidence given by the Appellant at paragraphs 14 and 15 of his proof of evidence (set out in paragraph 12 above), which evidence was unchallenged. The Judge was wrong to make her comment at paragraph 17 a of the Judgment, without mentioning what the Appellant had said in his proof of evidence.[30]Sixthly, there are further factors in the Appellant’s favour: the Appellant’s age then and now, and his honest life in this country.[31]Seventhly, in relation to the fresh evidence, his mother’s evidence is credible and supported by medical evidence. As a result his domestic role, tantamount to being a carer, is a relevant and significant factor within the Celinski balancing exercise, which the Judge could not have foreseen.[32]Finally, in relation to time spent on curfew, the Appellant has been subject to a long-standing and long-observed electronically monitored curfew for a period of 1 year and 11 months and further to a requirement to report to the police three times a week for a substantial period, which has involved time incurred in travelling to and from the police station. The relevant case authorities show that observance of even a non-qualifying curfew over a lengthy period is a factor capable of tipping the balance in favour of the appellant in a borderline case; and in the present case this factor, in conjunction with the other factors relied upon, does tip the Article 8 balance.

The Respondent’s case

[33]The Respondent submits as follows.[34]First, in relation to the Appellant’s evidence relating to the educational requirement in the original sentence, the Judge was entitled (at paragraph 17 a of the Judgment) to reject, as not credible, the Appellant’s evidence that he had no knowledge of that educational requirement.[35]Secondly, as regards the point made about the warrant not setting out the nature of the further education envisaged, this is a challenge under section 2, which is not being pursued by this appeal.[36]Thirdly, in relation to the Appellant’s fear that he will not be able to return to the UK (“the Brexit factor”), no evidence has been provided by the Appellant as to his actual status in this country, as the Judge clearly found in the Judgment at paragraph 26. In any event at paragraphs 23 and 27 of the Judgment, the Judge did include this factor in her balancing exercise in favour of refusing extradition.[37]Fourthly, in response to the particular factors listed by the Appellant as rendering extradition disproportionate: the Judge did consider the age of the Appellant and of the offending; she was entitled to find that the Appellant was a fugitive; she was well aware of the time between the offence and the AW being issued; finally, she expressly stated that she had taken all relevant evidence and argument into consideration.[38]In relation to the fresh evidence, the Appellant’s mother’s statement and her medical records are not decisive and should not be admitted.[39]Finally, in relation to time spent on curfew, the approach to be taken is to be based on all the facts of this case. In this case the Appellant’s curfew and the police station reporting do not tip the Article 8 balance. The interference with the Appellant’s life has been minimal. It cannot tip the balance, in particular taking account of three particular factors: the finding on fugitivity, the seriousness of the index offence and the fact that there is now 1 year to serve because the Appellant did not comply with conditions. The relevant legal background Article 8 generally

The relevant legal background

[40]The general principles in relation to the application of Article 8 in the context of extradition proceedings are set out in Norris v Government of USA (No2) [2010] UKSC 9, HH v Italy [2012] UKSC 25 and Polish Judicial Authorities v Celinski & Others [2015] EWHC 1274 (Admin) at §§5 to 17. They are well established and familiar and I do not set them out in detail. It is necessary for the district judge to identify, and then balance, the factors in favour of, and against, extradition. In particular delay since the crimes were committed may both diminish the weight to be attached to the public interest and increase the impact upon private and family life. Where the requested person is found to be a fugitive, then strong countervailing factors may be required to weight the balance in his favour. Even in such a case, delay may be taken into account. but may have less weight.

The approach on appeal from a District Judge

[41]An appeal against the decision of a district judge may be brought on a question of law or fact: section 26(3) of the 2003 Act. The court may allow the appeal if the district judge ought to have decided a question before him at the extradition hearing differently: section 27(3)(a). Thus, in the present case, the question for this Court is whether the Judge ought to have found that extradition would have been disproportionate interference with his private and family life. The approach on appeal in an Article 8 case is set out in Celinski at §§20 to 24. Love v Government of USA [2018] EWHC 172 (Admin) at §26 is also relevant.[42]As regards the correct approach to be applied by this Court in relation to findings of fact, in an extradition case, findings of facts are to be distinguished from value-judgment findings on proportionality: Celinski at §§20(ii) and 24. Findings of fact, especially if evidence has been heard, must ordinarily be respected: Celinski §24. The ultimate test is that a finding of fact may be challenged if it was a finding which no reasonable judge could have reached on the evidence: Celinski §20 (ii) (citing Belbin at §66). The appellate court should think very carefully about the advantage which the trial judge had of having seen and heard witnesses giving evidence. That advantage, and the trial judge’s view as to credibility, are to be given great weight. Nevertheless the appellate court can depart from the trial judge’s view where that advantage could not be sufficient to explain or justify his or her conclusion: Celinski §21 (citing Lord Neuberger in In re B (A Child) at §94).[43]As regards the value judgment on the question of proportionality under Article 8, this Court should not interfere simply because it takes a different view overall of the value judgment which the district judge has made or the weight he has attached to one or more individual factors which he took into account in reaching that overall judgment. The question is whether the district judge was wrong to decide that extradition was or was not proportionate; errors or omissions do not of themselves necessarily show that the decision on proportionality itself was wrong. This Court is entitled to stand back and say that a question ought to have been decided differently because the overall evaluation was wrong: crucial factors should have been weighed so significantly differently as to make the decision wrong, such that the appeal in consequence should be allowed. “Brexit uncertainty”[44]On the issue of “Brexit uncertainty”, I have been referred to the following cases: Antochi v Richterin am Amtsgericht of the Amtsgericht Munchen, Germany [2020] EWHC 3092 (Admin) at §§49 to 52; Rybak v District Court in Lublin Poland [2021] EWHC 712 (Admin) at §§33 to 36; Pink v Regional Court in Elblag, Poland [2021] EWHC 1238 (Admin) at §52 and most recently Gurskis v Latvian Judicial Authority [2022] EWHC 1305 (Admin) at §§14 to 34. From these cases I derive the following propositions:(1) Antochi was the first case which identified the notion of “Brexit uncertainty” at a time in the transition period. It referred (at §51) to taking Brexit “uncertainty” into account in the Article 8 analysis both as a subjective factor (relevant to the “anguish” of the uncertainty) and as an objective factor (namely the risk of actually not being able to return).(2) However the position on “Brexit uncertainty as discussed in Antochi has now moved on: see Gurskis §33. In my judgment, it is doubtful whether the approach (including the “subjective factor”) in Antochi applies following Gurskis.(3) If a party to extradition proceedings wishes to support its case by reference to propositions of immigration law, it is essential that the submission is fully-formulated, taking account of all relevant legislation. Immigration law consequences cannot simply be asserted, but must be supported by comprehensive and cogent submissions, and, where necessary, evidence: Gurskis §22. The court must identify as clearly as possible the extent of the interference with Article 8 rights that will be the consequence of the extradition. The court will need to consider what will most likely happen in the event that the requested person applies to re-enter the UK and the counterfactual i.e. even if there is no extradition, the effect which the foreign conviction abroad has on the requested person’s immigration status in the UK: Gurskis §30.(4) There is now a settled position. If the requested person has settled status in the UK, extradition will interfere with his Article 8 rights, but the duration of interference is likely be finite because after serving their sentence, he is likely to be able to re-enter. If the requested person does not have settled status, he is subject to immigration rules and there must be an assessment of obstacles to any future application to re-enter, if extradited, set against the likelihood that, absent extradition, the foreign conviction could provide grounds for removal: Gurskis §33.(5) Even if there is a risk of not being re-admitted to the UK, this is not a consequence of extradition, but rather a consequence of the foreign conviction and the change to the immigration rules as a result of Brexit - Pink at §52 as approved in Gurskis §29.

Fresh evidence

[45]Where an appellant seeks to adduce new evidence in support of a contention that the district judge’s decision was wrong, it must be demonstrated(a) (in general) that the evidence was not available at the extradition hearing and(b) in any event that the evidence would have resulted in the judge deciding the relevant question differently, so that he would not have ordered the defendant’s discharge i.e. the fresh evidence must be decisive: see Fenyvesi at §§32 to 35 and sections 27(4)(a)(b) and (c) of the 2003 Act.[46]The first part of the test is met if the evidence either did not exist at the time of the extradition hearing or it was not at the disposal of the party wishing to adduce it and could not have been obtained with reasonable diligence. The second part of the test requires the court to be satisfied that the evidence would have resulted in the judge deciding the relevant question differently, so that he would not have ordered the person’s extradition. In short, the fresh evidence must be “decisive”. The statutory test does not establish a condition for admitting the evidence, but a condition for allowing the appeal. The court may admit fresh evidence but subsequently decide that the statutory criteria is not met. However, admitting evidence that would require a full rehearing on appeal is to be regarded as exceptional. In deciding whether to admit the fresh evidence, I therefore consider the evidence putatively. If admitted, would it have tipped the Article 8 balance in favour of the Appellant?

Time spent on electronically monitored curfew

[47]I have been referred to a substantial number of extradition cases where the issue of time spent on an electronically monitored curfew and other bail conditions has been considered, namely: R (Einikis) v The Ministry of Justice, Lithuania [2014] EWHC 2325 (Admin); Dezda v Regional Court in Olsztyn (Poland) [2022] EWHC 838; Prusianu v Braila Court of Law (Romania) [2022] EWHC 1929 (Admin); The King on the Application of Muizarijis v The Prosecutor General of the Republic of Latvia [2022] EWHC 2751 (Admin); Hojden v Poland [2022]EWHC 2725 (Admin); Brindusa v Law Court of Targoviste (Romania) [2023] EWHC 3372 (Admin); Begum v District Court of Zutphen (Netherlands) [2023] EWHC 3291 (Admin); Toma v Romania [2024] EWHC 183 (Admin);Mario Bakai v District Court in Dunaiska Streda (A Slovakian Judicial Authority) [2024] EWHC 1768 (Admin); and, most recently, Polom v Regional Court in Bydgoszcz (Poland) [2024] EWHC 2708 (Admin). From these authorities, I derive the following principles:(1) For the purposes of domestic law on sentencing, “qualifying curfew” is an electronically monitored curfew of at least 9 hours duration a day. However, it is clear that, in an extradition case, both qualifying curfew and non-qualifying curfew (i.e. less than 9 hours duration per day) in the UK is capable of being a factor properly to be taken into account in the Article 8 balancing exercise: Hojden §49.(2) What falls to be assessed is the degree of the deprivation of liberty or restriction on freedom of movement and autonomy: Prusianu §49. This might arise both from an electronically monitored curfew and from an obligation to report to a police station (Einikis) (or perhaps other bail conditions) or a combination of these elements. The court will consider whether the curfew has had a material effect on a person’s ability to work, study or maintain family life, in which case the curfew will be afforded greater weight (than, for example, merely preventing late-evening socialising): Hojden §50.(3) Each case turns on its own facts. The assessment of a curfew as a relevant factor and the overall balance is an intensely fact-specific exercise: Polom §44. Little is to be gained by comparing the facts of previous cases. The cases vary as regards the seriousness of the underlying offence, the length of sentence to be served, the number of hours of the daily curfew and the amount of time that the requested person has been subject to that curfew.(4) In the cited cases where curfew was considered, in some cases, extradition was ordered; in others it was taken into account as a factor which led to extradition being discharged. As a matter of fact, the shortest curfew duration which has been taken into account in the cases referred to above, was a curfew of 4 hours in the case of Prusianu.(5) Amongst the factors relevant to the court considering the issue is whether or not it has before it evidence as to how the requesting state will deal with the time spent under UK curfew: see, for example, Polom §44.(6) As a matter of general principle, where the public interest in extradition is otherwise very strong, time spent on curfew is unlikely to tip the balance against extradition. On the other hand, in a case which is otherwise marginal, time spent on curfew might tip the balance against extradition.

Discussion

[48]I consider first the points raised by the Appellant in the perfected grounds of appeal, before turning to the fresh evidence and the recent additional ground based on time spent on electronically monitored curfew.

Delay

[49]It is not clear that delay was not expressly raised before the Judge. Nevertheless the time line is clear. The offence took place in 2015. The Appellant was convicted in 2018. The 1 year sentence was imposed in 2020. The Appellant has given no detail of the nature of any particular delay at any particular point in the period. The time periods were considered before the Judge. The Judge did take into account that the offence had been committed 9 years earlier. The time period between the offence and the warrant being issued was clearly taken into account by the Judge: see for example paragraph 23 (vi) of the Judgment. I do not consider that the Judge failed to consider the delay as a relevant factor in the balancing exercise.As indicated in paragraph 43 above, questions of weight to be attached to the various factors were a matter for the Judge.

Fugitivity

[50]At paragraph 17 a of the Judgment, the Judge found the Appellant to be a fugitive. The Appellant came back to the UK in 2019, having served five months, knowing that the educational requirement was still outstanding. In doing so, he put himself beyond the reach of the authorities. The Judge was entitled to make this finding. She heard the evidence, including the Appellant’s oral evidence. There is no basis to go behind the Judge’s factual findings upon which her finding of fugitivity was based.

The educational requirement

[51]First, in the Judgment the Judge referred to the Appellant’s evidence which she had heard. At paragraph 9, she referred to the fact that the Appellant had adopted his proof of evidence as being true. This reference necessarily included paragraphs 14 and 15 (as set out in paragraph 12 above). In any event, in so far as it is said that the Judgment does not refer to these specific parts of the Appellant’s proof, at paragraph 28 the Judge stated expressly that all relevant material has been considered, even if not referred to in the Judgment. The Appellant was then cross-examined. At paragraph 10 of the Judgment, the Judge referred to the Appellant’s evidence, given “eventually after repeat questioning”, that he was not aware that the sentence included the educational requirement, and that he had not been informed of the requirement when in custody in Poland. It is clear that this is a reference to the oral evidence he gave in cross examination. Then, at paragraph 17 a the Judge found that she did not accept that the Appellant had no knowledge of the educational requirement i.e. she found the Appellant’s oral evidence to be not credible. In my judgment, that finding was one that the Judge was entitled to make, having heard the evidence which included the Appellant’s cross-examination. There is no basis to go behind the Judge’s credibility finding at paragraph 17 a. The Appellant is seeking to cherry pick the evidence which suits and ignores the evidence given in cross-examination.[52]Finally, in any event, it is not clear to me the precise nature of the Appellant’s complaint in this regard: both his evidence in his proof of evidence and the Judge’s finding were to the effect that the Appellant was aware of the educational requirement.[53]Secondly, I agree with the Respondent that the complaint that the warrant does not specify the details of the educational requirement is essentially an allegation of failure of the warrant adequately to particularise and thus that section 2 of the 2003 Act was not complied with. However the Judge rejected the Appellant’s case on section 2 (at paragraph 18 of the Judgment) and there was no application for permission to appeal against that decision.

The “Brexit factor”

[54]In my judgment, the Judge’s assessment of the “Brexit factor” was not wrong. Gurskis provides the most current and detailed analysis of the proper approach to this issue. First, as the Judge expressly found, there was no clear evidence or submissions before the Judge as to the relevant Immigration Rules (as required by Gurskis §22). The duty was upon the Appellant both to set out his position in fact and under the Immigration Rules. Secondly, assuming (as did the Judge) in the Appellant’s favour that he has pre-settled status, then Gurskis at §33 suggests that, after serving his sentence in Poland, the Appellant will be able to re-enter the UK. In any event, there was, and is, no evidence that he will not be able to do so. Thus, there is no basis to find an objective risk of not being able to return. Thirdly, there was some evidence that the Appellant was anxious that he might not be able to return to live in Plymouth, if extradited. However, even if the “subjective” element of Antochi survives following the decision Pink and Gurskis (see paragraph 44(2) above), in any event, I do not consider that this alone is sufficient to tip the Article 8 balance, given the absence of any evidence of objective risk of inability to return. Finally, and in any event, at paragraphs 23 and 27 the Judge positively assumed in the Appellant’s favour that the Appellant might not be able to return to the UK if extradited and expressly weighed this in the balance as a factor against extradition. Just as in Gurskis itself, the Judge expressly considered and gave weight to the effect of the Brexit factor. Her reasoning was expressly based on the assumption that the Appellant might not have a right to re-enter UK.[55]The Judge went on to find (at paragraph 26) that, even if extradition had the consequence of preventing the Appellant from returning to the UK, that was a consequence of the change in immigration rules and not extradition (thus following the approach in Pink).[56]In any event, regardless of the nuances of the case law on post-Brexit return, the fact here is that the Appellant has not provided evidence of the current immigration position and has not provided basic information such as his status in the UK.

Other factors

[57]First the Judge clearly considered both the age of the Appellant and the age of the offending in the balancing exercise. She also considered the seriousness of the offence and the remaining sentence to be served: see paragraph 25 of the Judgment.

Fresh evidence

[58]I turn to the fresh evidence. In her statement, the Appellant’s mother states that her husband died on 25 December 2024; that she has suffered from stomach ulcers and an umbilical hernia; and that she is currently undergoing tests for suspected cancer of the uterus and that she suffers from depression and anxiety and has had a nervous breakdown due to the stress of her husband’s illness. However the medical records do not support her witness statement evidence that she is currently undergoing tests for cancer. The evidence from her detailed medical notes is that, whilst she had tests for cervical cancer in May and June 2024, the most recent relevant evidence from August 2024 is that there was no evidence of invasive cancer of the cervix. Rather her recent medical records are concerned with efforts to secure bereavement counselling for her.[59]Thus some of her medical conditions appear to pre-date the Appellant’s father’s death. The cancer investigations to which she refers appear to have been resolved. There is no further supporting evidence from the Appellant himself or from his two adult siblings to the effect that the Appellant is the only person who is capable of supporting his mother, or indeed as to the change in his caring responsibilities brought about by his father’s death. Nor is there any other evidence as to his mother’s daily needs or as other potential sources of support available to her. In my judgment, there is not a sufficient weight of evidence to support the conclusion the Appellant’s mother is in extremis or that the Appellant is the only person who can provide such care as she requires.[60]Whilst some of the evidence appears to have existed at the time of the hearing before the Judge, I accept that, if and in so far it is said to support a case that concerning the impact of the Appellant’s father’s death, it was not available at that time.[61]However, applying the second limb of Fenyvesi, this evidence does not tip the Article 8 balance in the Appellant’s favour. I am not satisfied that the additional evidence would have resulted in the Judge deciding the relevant question under Article 8 differently such that she would have ordered the Appellant’s discharge. This further evidence is far from decisive. It falls short of providing an evidential basis upon which an appellate court could revisit the factual basis of the Judge’s decision, or conclude that, if the current position had been known to the Judge, she would have decided the question differently and discharge the Appellant. The conditions in section 27(4)(b) and (c) of the 2003 Act are not satisfied. Accordingly, for these reasons, I refuse the application to adduce this fresh evidence.

The bail conditions: curfew and reporting

[62]Applying the principles set out in paragraph 47 above, in my judgment, the bail conditions to which the Appellant has been subject do not, in the present case, tip the Article 8 balance in the Appellant’s favour. First, and significantly, even though it has been in place for almost two years, the daily curfew itself is for the very limited period of 2 hours (in the small hours of the morning). It does not restrict the Appellant’s ability to work, study or maintain his family life. Secondly, the police reporting obligation has been in place for several months less; and there is no evidence from the Appellant himself as to whether it has had any practical or substantial effect restrictive of his freedom of movement, let alone depriving him of his liberty. Thirdly, at no point prior to the oral hearing of this appeal, has this issue ever been raised by the Appellant. Fourthly, there is no evidence as to how the Polish Court would treat time spent on curfew and reporting to the police. In his post-hearing submissions, Mr Atlee did not pursue the suggestion, made at the oral hearing, that by the time of his extradition, the Polish Court would consider, by virtue of these conditions, that the Appellant would have served the whole of his sentence. Finally, this is not, otherwise, a “marginal case” in relation to the Article 8 balancing exercise where the impact of a curfew might tip the case in the requested person’s favour. Rather, as the Judge found at paragraph 27 of the Judgment, the impact resulting from extradition did not go beyond that which is often present when extradition is ordered.

Conclusion

[63]In this case, the Judge undertook a careful and cogent analysis of the factors for, and against, extradition: see paragraphs 18 to 21 above. In relation to the factors which she did consider, I conclude that none of them should have been weighed so significantly differently as to make her decision wrong. Moreover, the two additional matters now raised on this appeal (the fresh evidence and the Appellant’s bail conditions) are not, taken either individually or cumulatively, such as to tip the Article 8 balance decisively in the Appellant’s favour.[64]For these reasons, I am not satisfied that the Judge’s conclusion was wrong, and this appeal is dismissed.[65]Finally I am grateful to counsel for their presentation of the case.

Cited in 4 later judgments