Wieslaw Kwit v District Court in Krakow, Poland [2025] EWHC 1679 (Admin)

[2025] EWHC 1679 (Admin)Case No AC-2024-LON-003060
IN THE HIGH COURT OF JUSTICE
KING'S BENCH DIVISION
ADMINISTRATIVE COURT
Venue Royal Courts of Justice, Strand, London, WC2A 2LLDate 03/07/2025
Before
THE HONOURABLE MR JUSTICE SWEETING
Between
Wieslaw KWITAppellantDistrict Court in Krakow, POLANDRespondent
George Hepburne Scott (instructed by Jettender Arora Saunders Ltd) for AppellantMichael McHardy (instructed by Crown Prosecution Service) for RespondentHearing Hearing dates: 12 June 2025
Approved JudgmentThis judgment was handed down remotely at 10.00am on 03.07.2025 by circulation to the parties or their representatives by e-mail and by release to the National Archives..............................THE HONOURABLE MR JUSTICE SWEETING

Introduction

[1]This is an appeal brought by Wieslaw Kwit (hereinafter, "the Appellant") against an order for his extradition to Poland made by District Judge Zani (hereinafter, "the Judge") on 6 September 2024, following a hearing at Westminster Magistrates’ Court on 9 August 2024. The Appellant seeks to quash the extradition order, contending that his surrender would constitute a disproportionate interference with his and his family’s rights to respect for their private and family lives, contrary to Article 8 of the European Convention on Human Rights (“ECHR”).

Background to the Case

[2]The Appellant is a Polish national, born on 22 March 1965, and is 59 years’ old. He is sought by the District Court in Krakow, Poland, on a conviction warrant (“AW”) issued on 25 May 2023 and subsequently certified by the National Crime Agency (“NCA”) on 9 August 2023. The AW is based upon a judgment issued by the Krakow-Krowodrza Regional Court on 29 November 2001, which was upheld by the District Court in Krakow on 17 July 2002.[3]The conviction relates to three offences of fraud committed between 25 March 1998 and 28 May 1998 in Sciejowice, Poland. The particulars of the offending specify that the Appellant intentionally caused the company Tchibo, in Warsaw, to dispose of coffee, defrauding them of a total of PLN 40,230.51. The sums involved in the individual frauds were PLN 5,771.76 (25 March 1998), PLN 14,200.80 (22 April 1998), and PLN 20,257.95 (28 May 1998). I was told that when adjusted for inflation to 5 June 2025, the total value defrauded is approximately £13,721.26.[4]The Appellant was originally sentenced to two years’ imprisonment, suspended for four years, and fined 100 zloty. On 14 October 2004, the suspended sentence was activated. The Appellant had 1 year, 10 months, and 10 days of his sentence remaining to be served, with 50 days credited for time served in detention from 1 May 2001 to 20 June 2001.[5]The Appellant re-located to the United Kingdom in 2002, shortly after his suspended sentence was upheld. He has lived openly in the UK for the past 22 years, has gained settled status, consistently worked, paid tax, and has no record of offending before or since the index offending. The Appellant was arrested in the UK on 24 August 2023.

Proceedings Below

[6]The Appellant was unrepresented at the extradition hearing in August 2024, having failed the means test for legal aid. He raised challenges under s.14 of the Extradition Act 2003 (passage of time) and Article 8 ECHR. The Judge received live evidence from the Appellant and considered his witness statement.[7]The Judge made a finding that the Appellant was a fugitive from Polish justice and therefore not entitled to rely on the safeguards afforded by s.14 of the Act. This finding was based on the AW stating that the Appellant was convicted in his presence, which the Judge accepted despite the Appellant’s evidence to the contrary. The Judge found that when the Appellant left Poland for the UK, he knowingly and deliberately placed himself beyond the reach of the Polish legal process, aware of the suspended sentence, which he later breached by failing to comply with the conditions imposed as part of the sentence. The Judge also noted that the Appellant had provided various UK addresses to UK authorities but had never provided these to the Polish authorities. The Appellant accepts his fugitive status.[8]In relation to Article 8, the Judge conducted a balancing exercise, weighing factors in favour of extradition (the strong public interest in upholding international obligations, the seriousness of the criminal conduct, and the Appellant's fugitive status) against factors in favour of refusing extradition (the Appellant's long residence, employment, settled accommodation, law-abiding life, and health concerns). The Judge concluded that extradition would not be a disproportionate interference with the Appellant’s Article 8 rights. Specifically, the Judge noted that the criminal conduct was not trivial, involved deliberate fraud totalling over £8,000 (at the time) and that the Appellant had failed to abide by the terms of his suspended sentence. The Judge also found the Appellant not to be a fully truthful witness in relation to his court appearance and time served in Poland and expressed doubt as to the veracity of his stated debt level due to the lack of corroborating documentation. While acknowledging hardship, the Judge reiterated that hardship alone is insufficient to prevent extradition. The Judge considered delay, in the sense of the overall period of time which had elapsed but did not find it sufficient to tip the balance in the Appellant's favour, given his findings on fugitivity.

Grant of Permission to Appeal

[9]The Appellant lodged a notice of appeal at the High Court on 11 September 2024. On 20 February 2025, Mr Justice Morris granted permission to appeal on the papers. He suggested the parties might consider the period of time the Appellant had been subject to electronically monitored curfew and its effect on the remaining sentence. I was told that he may not have had the Respondent’s submissions at the time of granting permission.

Relevant Law

[10]This appeal is brought under s.26 of the Extradition Act 2003 (“the Act”). Section 27 of the Act sets out the High Court’s powers on appeal. Section 27(2) provides that the Court may allow an appeal only if the conditions in subsection (3) or (4) are satisfied. Subsection (3) applies if the Judge ought to have decided a question differently, and that different decision would have required discharge. Subsection (4) applies if a new issue or evidence is raised, and it would have led to a different decision requiring discharge.[11]The role of an appellate court in these types of cases is one of review, not a fresh determination. As Aikens LJ stated in Belbin v Regional Court of Lille, France [2015] EWHC 149 (Admin), an appellate court should not interfere simply because it takes a different overall view of the value-judgment made by the District Judge, or the weight attached to individual factors. A successful challenge generally requires a demonstration that the Judge misapplied legal principles, made an unreasonable factual finding, failed to consider a relevant fact, considered an irrelevant fact, or reached an irrational or perverse conclusion. As Lord Neuberger explained in Re B (A Child) (FC) [2013] UKSC 33, the appeal should be dismissed if the appellate judge’s view is that the trial judge’s conclusion was: "the only possible view, a view which she considers was right, a view on which she has doubts, but on balance considers was right, or a view which she cannot say was right or wrong".[12]The appeal should be allowed if the conclusion was "wrong" or "unsupportable". The focus must be on whether the outcome, the decision itself, was wrong.[13]The Appellant’s appeal is predicated on Article 8 ECHR. The principles guiding an Article 8 assessment are well-established in the case law, primarily Norris v USA [2010[ UKSC 9, HH v Italy [2012] UKSC 25, and Polish Judicial Authorities v Celinski and Ors [2015] EWHC 1274 (Admin). Lady Hale in HH summarised the effect of Norris at paragraph 8: i) There is no test of exceptionality, but the question is always whether interference with private and family lives is outweighed by the public interest in extradition. ii) There is a constant and weighty public interest in extradition: bringing criminals to justice, honouring treaty obligations, and preventing the UK from becoming a "safe haven". iii) This public interest carries great weight, though its specific weight varies with the crime’s nature and seriousness. iv) Delay since the crimes may diminish the public interest and increase the impact on private and family life. v) The public interest will likely outweigh Article 8 rights unless the consequences of interference are "exceptionally severe".[14]Celinski further emphasised that the public interest in upholding extradition arrangements and discouraging the UK from becoming a haven for fugitives is "very high". For a fugitive, "very strong counter-balancing factors" are required before extradition could be disproportionate. It is also unhelpful to cite administrative court decisions on Article 8 in other cases, as they are invariably fact-specific; guidance should come from specially constituted Divisional Courts or the Supreme Court.[15]The Supreme Court has recently considered Article 8 in the context of extradition proceedings in Andrysiewicz v Circuit Court in Lodz, Poland [2025] UKSC 23. In their judgment Lord Lloyd-Jones and Lord Stephens observed:
“42. Contrary to Lord Brown’s prediction in Norris, the incidence of extradition cases in which article 8 is invoked has shown no sign of declining. On the contrary, it appears that it is continuing unabated. We were told by Mr Louis Mably KC that a random and unscientific sample of contested extradition hearings before the Westminster Magistrates’ Court between 10 and 21 March 2025 showed that article 8 was invoked in 22 out of 23 cases examined. It seems that an article 8 “defence” is raised almost as a matter of course in virtually every extradition case. 43. We have set out above relevant passages in Norris, HH 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.”
[16]In relation to delay, Georgescu v Romania [2025] EWHC 864 (Admin) sets out the approach which the Court should take. A fugitive cannot rely on delay caused by their flight as a factor in itself, though its effect on family life can be taken into account, but with "less weight". Save in exceptional circumstances, a fugitive has no right to interrogate the Judicial Authority (“JA”) about delay. Substantial, unexplained JA delay, unrelated to flight, may reduce the public interest in extradition, but there was no such finding here. Only the impact of delay is relevant, not delay itself, and for a fugitive, the weight of this factor is reduced. It is for the Appellant to provide evidence of culpable delay by the JA. Unexplained delay does not necessarily show fault.

Issues on Appeal

[17]The sole ground of appeal is that the Judge erred in concluding that the Appellant’s extradition would not constitute a disproportionate interference with his and his family’s Article 8 ECHR rights. This encompasses the cumulative effect of a 26-year delay since the offending, the alleged lack of seriousness of the offences, the impact on his wife and 12-year-old son, his law-abiding life, the electronically monitored curfew, his eye condition, and his debts.

Submissions of the Parties

[18]The Appellant maintains that the cumulative weight of the factors he relies on should have tipped the Article 8 balance in his favour. He places significant emphasis on the 26-year delay since the offending, arguing that it significantly denudes the public interest in extradition and increases the impact (of extradition) upon private and family lives. He points to cases such as Kopan v Poland [2015] EWHC 2229 (Admin) and Lysiak v District Court Torun, Poland [2015] EWHC 3098 (Admin) to support the argument that long delays can weigh heavily against extradition, even for fugitives. While accepting that his fugitive status may reduce the impact of delay, he argues it does not extinguish it. He says that he came to the United Kingdom because of the difficult circumstances in which he found himself following conviction:
“When I was in Poland I was starving and had to walk 60 kilometres to my parents for assistance. I am not picking and choosing what I can remember. I agree that I came to the UK soon after the sentence was passed. I decided to leave the country because there was no future for me there.”
[19]The Appellant also relies on his 22 years of law-abiding, tax-paying life in the UK, settled status, lack of prior or subsequent offending, and the impact on his innocent wife and 12-year-old son. He submits that the electronic curfew he has been under since August 2023 constitutes a form of punishment, and points to his eye condition and debts as additional hardships. He contends that the Judge gave insufficient weight to the impact of the significant delay and under-analysed it within the Article 8 balancing exercise. He asks the Court to "stand back" and re-evaluate proportionality (see Luari Love v USA (2018) EWHC 7).[20]The Respondent argues that the Judge properly directed himself on the applicable law and correctly balanced the factors. Given the Judge’s unchallenged finding that the Appellant is a fugitive, the Respondent asserts that "very strong counter-balancing factors" are required to defeat the extradition request. The Respondent submits that the factors raised by the Appellant represent the "inevitable consequences of extradition" and do not meet this high threshold. In relation to delay, the Respondent relies heavily on Georgescu, contending that a fugitive has no right to interrogate the JA about delay, and that unexplained delay does not equate to culpable delay. The Respondent points out that the Appellant has not provided any evidence of culpable delay by the Polish authorities. Further, the Respondent highlights that Georgescu clarifies that only the impact of delay is relevant, not the delay itself, and that this impact is given "less weight" for a fugitive. The Respondent contests the Appellant's calculation of delay, arguing the relevant period starts from sentence activation in 2004, not the offences in 1998. The Respondent characterises the Appellant's claimed hardship from the electronic tag as mere inconvenience, carrying "very little weight" as it is a non-qualifying, overnight curfew, and a significant portion of the time on tag was due to allegations of domestic offending which had nothing to do with the extradition request. The Respondent also disputes the claimed level of debt due to lack of evidence and inconsistency in the stated amounts (the Appellant’s counsel accepted that the figure of £50,000 in his written submissions had been an error). Finally, the Respondent stresses the seriousness of the fraud offences, the length of the remaining sentence (1 year, 10 months, 10 days), and the high public interest in honouring treaty obligations and preventing the UK from being a "safe haven".

Analysis

[21]I have considered the recent statement from the Appellant in relation to the impact of the electronically monitored curfew. The Respondent did not object to this new evidence being considered de bene esse but argued it did not meet the Fenyvesi criteria and would not materially alter the balancing exercise. I agree with the Respondent on this latter point. While the statement provides a more detailed account of the inconvenience, financial impact, and personal restrictions of the curfew, it does not, in my judgment, introduce a factor so significant as to be decisive or to meet the "very compelling reasons" threshold required for a fugitive, as per Celinski. I have considered the observations of Mr Justice Fordham in Bakai v District Court in Dunajska Streda [2024] EWHC 1768 (Admin), in relation to the potential impact of a curfew on the balancing exercise and accept that that it is a factor which needs to be considered, but a curfew, particularly an overnight one, is a standard condition of bail designed to manage risk, not to act as a form of sentence reduction. The Judge specifically considered the fact of the tagged curfew in his judgment [69].[22]A significant portion of the time the Appellant spent on curfew was in any event due to the domestic criminal allegations against him, meaning he would likely have been on some form of restrictive bail in any event and these proceedings could not be progressed (of 11 months some 7 months and 24 days appears to be due to Crown Court proceedings). This diminishes the weight that can be attributed to a curfew as an additional hardship specifically attributable to the extradition proceedings.[23]The core of the Appellant's case rests heavily on the long delay since the offending and its cumulative impact when combined with other factors. It is indeed a considerable period, approximately 26 years since the commission of the offences. However old offending is not the same as culpable delay. The proceedings in Poland and the activation of the suspended sentence all took place promptly. There has been no dragging of the heels by the JA. The Appellant has not been lulled into a false sense of security by inaction. The Judge’s finding that the Appellant is a fugitive from justice is not challenged. This finding significantly alters the weight that can attributed to delay in the Article 8 balancing exercise. While the effect of delay on family life can be considered, it must inevitably be given "less weight" where the requested person is a fugitive. The impact of the time that has elapsed was considered and taken into account by the Judge.[24]The Appellant’s reliance on cases such as Kopan, Stryjecki, and Lysiak must be viewed through the lens of Celinski and Georgescu, which caution against the direct factual comparability of Article 8 cases. The principles are constant, but their application is fact specific. Importantly, Georgescu clarified that the period of delay relevant for Article 8 purposes in a conviction case begins when the sentence was activated, not when the offence was committed. In this case, the sentence was activated on 14 October 2004, making the relevant period of delay approximately 18 years and 7 months, not 26 years as asserted by the Appellant. Furthermore, the Appellant has no right to interrogate the Polish JA about this delay, and the Judge specifically found that the Polish authorities were not guilty of culpable delay. I see no reason to disturb this finding.[25]The Appellant’s personal circumstances, including his long residence in the UK, settled status, consistent employment, and lack of further offending are undoubtedly positive factors in his favour. The Judge expressly considered these in his balancing exercise. However, they must be weighed against the public interest, which is particularly strong in conviction cases, especially where the person is a fugitive. The fraud offences, while not of the most serious are certainly not trivial, involving repeated deception and a substantial sum of money (over £8,000 at the time, and over £13,000 adjusted for inflation). The remaining sentence of 1 year, 10 months, and 10 days further reflects the seriousness of the offending.[26]The impact on the Appellant’s wife and 12-year-old son is a natural and regrettable consequence of any extradition. However, as the Judge correctly noted, and as established in Norris, hardship of itself is not sufficient to prevent an extradition order. The Appellant’s evidence of hardship was found by the Judge to be unsubstantiated in some respects, particularly in relation to his debts, which were inconsistently stated and lacked corroboration. The medical evidence in relation to his eye condition was also brief and did not suggest that appropriate treatment would be unavailable in Poland. The Judge assessed the Appellant’s credibility as a witness and found him not to be "fully truthful" on certain matter. There was and is no witness statement from his wife.[27]Having reviewed the Judge’s detailed judgment, it is clear that he carefully considered all relevant factors, including the delay, the Appellant’s family life, health, and financial situation. He directed himself correctly on the relevant legal principles from Norris, HH, and Celinski. His conclusion that extradition would not be disproportionate was reached after a thorough balancing exercise. The threshold for overturning a District Judge's proportionality assessment is high. Applying the Belbin criteria, I find no misapplication of legal principles, no finding of fact that no reasonable judge could have reached, no failure to take into account a relevant factor, and no irrational or perverse conclusion. The Judge’s reasoning explicitly grappled with the long passage of time and the Appellant's fugitive status, ultimately concluding that these factors did not tip the balance in the Appellant's favour. This was a permissible conclusion on the evidence before him.[28]Therefore, standing back and considering the overall evaluation, I am not persuaded that the Judge’s decision was wrong. The public interest in extradition, particularly for a convicted fugitive, has to be accorded significant weight. The counter-balancing factors, even when viewed cumulatively and with the additional information available in relation to the curfew, do not meet the high threshold of "very strong counter-balancing factors" required to render this extradition disproportionate.

Conclusion

[29]For the reasons set out above, I am satisfied that the Judge’s decision was not wrong in law or on the facts. The appeal is therefore dismissed. END

Cited in 1 later judgment