Piotr Zebracki v Regional Court in Torun, Poland [2025] EWHC 2831 (Admin)

“10 Initial stage of extradition hearing … (2) The judge must decide whether the offence specified in the Part 1 warrant is an extradition offence.” (2) The judge must decide whether the offence specified in the Part 1 warrant is an extradition offence.”

“A person handles stolen goods if (otherwise than in the course of the stealing) knowing or believing them to be stolen goods he dishonestly receives the goods, or dishonestly undertakes or assists in their retention, removal, disposal or realisation by or for the benefit of another person, or if he arranges to do so.”

“15. I am satisfied so I am sure the second description in the AW under II K 779/12 does constitute an offence of handling stolen goods because Box E states that the RP and another burgled the premises on 24th February 2012. Later, between 25th and 27th February 2012, the RP bought items stolen in the burglary. The burglary was committed with another, but the RP then separately bought items stolen in the burglary either from the other person who stole them or from a third party. It is a separate offence.”

“Under Polish law, this conduct amounts to the offence of dealing in stolen goods contrary to Article 291 paragraph 1 of the Penal Code.”

“it is not in the course of stealing because the items were gained during the course of the burglary that [the appellant] took part in and therefore they are received in the course of stealing.”

“The old common law (its complications are succinctly summarised in Smith, Law of Theft (2nd ed., 1972), para. 486) has now gone. The combined effect of the Criminal Law Act 1967, s. 1 and the Theft Act I968, s. 22 (1) is that, as Professor Smith suggests in paragraph 487 of his book, a thief ‘could be convicted of handling the goods stolen by him by receiving them - if the evidence warranted this conclusion’ (our italics). If the defendant's handling of the goods occurs only in the course of the stealing, he cannot be found guilty of handling by receiving; see Theft Act 1968, s. 22 (1). But, if he handles them later, i.e. after the stealing, he commits an offence under the subsection. It is, therefore, perfectly possible for a man to be guilty of stealing and receiving the same goods.”

“Case where person has been convicted (1) If the judge is required to proceed under this section (by virtue of section 11) he must decide whether the person was convicted in his presence. (2) If the judge decides the question in subsection (1) in the affirmative he must proceed under section 21. (3) If the judge decides that question in the negative he must decide whether the person deliberately absented himself from his trial. (4) If the judge decides the question in subsection (3) in the affirmative he must proceed under section 21.”

“* b. the person was not summoned in person but by other means actually received official information of the scheduled date and place of the trial which resulted in the decision, in such a manner that it was unequivocally established that he or she was aware of the scheduled trial, and was informed that a decision may be handed down if he or she does not appear for the trial in cases: Il K 779/12, VIII K 1583/14, II K 271/16”

“37. In respect of reference II K 779/12 Box D confirms the RP did not attend the trial but was summonsed in writing on 2nd August 2012 to the trial on 12th September 2012 and informed that a decision may be handed down if he did not appear. It was sent to an address the RP provided in the preparatory proceedings. He was also informed on 16th June 2012 that he had to notify any change of address exceeding seven days. The RP’s written evidence does not deal with what he knew about each of the proceedings, but he was questioned by Ms Beatty in respect of each of the judgments. In respect of this one he said he knew he was being prosecuted for the offence, but it was hard to tell after such a long time but when it was put to him there was an obligation on him to notify a change of address he refuted that saying that he was a free man and there was no obligation to do so. He said no documents were sent to him. … 65. I do not agree with Ms Herbert’s submissions in respect of this judgment. The AW states that the warrant was served by other means informing the RP of the date of the trial and that it could go ahead without him being present. As Ms Beatty submits that should be read as stated at [Cretu v Romania [2016] EWHC 353 (Admin) (“Cretu”)] at 35 but the endorsement ought to be taken at face value. Furthermore, her argument in respect of this being I case falling within paragraph 58 of Bertino [Bertino v Italy [2024] UKSC 9 (“Bertino”)] is persuasive because the warrant says the RP was notified of his obligation to provide an address for service and to notify any change of address lasting longer than seven days on 16th June 2012. He then failed to collect summonses for his trial and a copy of the sentence pass there is no evidence to suggest that this was not served correctly on him and in respect of Ms Herbert’s submission that there is no evidence the RP new of the investigation before being summonsed that was not his evidence when he said under cross examination that it was possible he knew he was being prosecuted for the events but it was hard for him to tell after such a long time.”

“Article 4a Decisions rendered following a trial at which the person did not appear in person 1. The executing judicial authority may also refuse to execute the European arrest warrant issued for the purpose of executing a custodial sentence or a detention order if the person did not appear in person at the trial resulting in the decision, unless the European arrest warrant states that the person, in accordance with further procedural requirements defined in the national law of the issuing Member State: (a) in due time: (i) either was summoned in person and thereby informed of the scheduled date and place of the trial which resulted in the decision, or by other means actually received official information of the scheduled date and place of that trial in such a manner that it was unequivocally established that he or she was aware of the scheduled trial; and (ii) was informed that a decision may be handed down if he or she does not appear for the trial”

“34. In my judgment, when read in the light of article 4a section 20 of the 2003 Act, by applying a Pupino conforming interpretation, should be interpreted as follows:- … “An accused must be taken to be deliberately absent from his trial if he has been summoned as envisaged by article 4a paragraph 1.(a)(i) in a manner which, even though he may have been unaware of the scheduled date and place, does not violate article 6 ECHR” 35. It will not be appropriate for requesting judicial authorities to be pressed for further information relating to the statements made in an EAW pursuant to article 4a save in cases of ambiguity, confusion or possibly in connection with an argument that the warrant is an abuse of process. The issue at the extradition hearing will be whether the EAW contains the necessary statement. Article 4a is drafted to require surrender if the European arrest warrant states that the person, in accordance with the procedural law of the issuing Member State, falls within one of the four exceptions. It does not contemplate that the executing state will conduct an independent investigation into those matters. That is not surprising. The EAW system is based on mutual trust and confidence. Article 1 of the 2009 Framework Decision identifies improvement in mutual recognition of judicial decisions as one of its aims. It also contemplates surrender occurring very shortly after an EAW is issued and certified. To explore all the underlying facts would generate extensive satellite litigation and be inconsistent with the scheme of the Framework Decision. Article 4a provides additional procedural safeguards for a requested person beyond the provision it replaced in the original version of the Framework Decision, but it does not call for one Member State in any given case to explore the minutiae of what has occurred in the requesting Member State or to receive evidence about whether the statement in the EAW is accurate. That is a process which might well entail a detailed examination of the conduct of the proceedings in that other state with a view to passing judgment on whether the foreign court had abided by its own domestic law, EU law and the ECHR. It might require the court in one state to rule on the meaning of the law in the other state. It would entail an examination of factual matters in this jurisdiction, on which the foreign court had already come to conclusions, but on partial or different evidence. None of that is consistent with article 4a of the Framework Decision.” “An accused must be taken to be deliberately absent from his trial if he has been summoned as envisaged by article 4a paragraph 1.(a)(i) in a manner which, even though he may have been unaware of the scheduled date and place, does not violate article 6 ECHR”

“In accordance with the case law of the European Court of Human Rights [“ECtHR” or “Strasbourg Court”], when considering whether the way in which the information is provided is sufficient to ensure the person’s awareness of the trial, particular attention could, where appropriate, also be paid to the diligence exercised by the person concerned in order to receive information addressed to him or her.”

“A leading decision of the Strasbourg Court on this topic is Collozza and Rubinat v Italy (1985) 7 EHRR 516 which held that an accused had a right to be present and take part in criminal proceedings but that a trial in absentia could be acceptable if the state had diligently but unsuccessfully given the accused notice of the hearing. The Strasbourg Court applies a principle that depends upon “unequivocal waiver”.”

“The Framework Decisions do not contemplate an investigation by the courts of one Member State into the circumstances in which a court of another Member State decided to proceed in the absence of an accused. Still less could it be consistent with the concept of mutual confidence that courts in one Member State should be making findings on past compliance with article 6 ECHR in the courts of the other Member States.”

“47. The Strasbourg Court has emphasised the “capital” importance of the right of defendants to be present at their trials (Poitrimol v France (1993) 18 EHRR 130 para 35) and also that a fair hearing requires that defendants are notified of the proceedings against them (Colozza v Italy (1985) 7 EHRR 516, para 35). Moreover, as was reiterated in Sejdovic at para 89, the notification of the formal “accusation” to the defendant plays a crucial role because it is then that the defendant is put on notice of the factual and legal basis of the charges.”

“58. The certified question on this issue poses a choice in black and white terms: “For a requested person to have deliberately absented himself from trial for the purpose of section 20(3) of the Extradition Act 2003, must the requesting authority prove that he had actual knowledge that he could be convicted and sentenced in absentia?”

“45. The failure to notify the Italian authorities of the change of address amounted to a lack of due diligence. Taken in isolation, it was not sufficient to lead to a conclusion of deliberate absence. This was because Mr Bertino had not been charged with a criminal offence and whilst he was a suspect had done nothing which might permit the inference to be drawn that he was evading the criminal process. (emphasis provided) … The Supreme Court did not address the hypothetical question of whether Mr Bertino would or might have been deliberately absent if he had been charged and then, once in this country, failed to notify the Italian authorities of his change of address. Nor did the Supreme Court address the issue of deliberate absence on the hypothesis that, instead of doing nothing, Mr Bertino whilst in this country and still a suspect, was contacted by the Italian authorities and actively misled them with the intention of evading future prosecution. […] 47. Counsel subjected [paragraph 58 of Bertino] to close analysis. It is common ground that Mr Mohammed and Mr Oprea were not warned, contrary to the practice in our courts, that a trial might proceed in their absence. All the possible factual scenarios in which a Respondent is able to prove to the necessary constituents of deliberate absence cannot be presaged although a clear steer is given by para 99 of the judgment of the ECtHR in Sedjovic. What is required is (1) a knowing and intelligent awareness of the criminal proceedings and the charges being faced, and (2) an unequivocal intention (usually proved inferentially) not to participate in a trial or to escape prosecution. In extradition cases the accused person will by definition have placed himself beyond the jurisdiction of the prosecution authorities, and that by itself is insufficient to prove deliberate absence. However, once these two limbs of the para 58 test is fulfilled, the Court is then permitted as a matter of inference to conclude that the accused also knew or appreciated that for all practical purposes a trial with him present would not be practical, or that a trial in absentia would be the only practical option. In reality, unless a prosecuting authority decides no longer to proceed at all, a trial in the accused’s absence will be the only practical option. I cannot accept Mr Perry’s submission that the only correct course would be to issue an accusation warrant.”

“42. The RP’s written evidence does not support what he said in oral evidence but his proof was only 15 paragraphs and general in its content. At times I found that he did not answer questions straightforwardly but when pressed gave more details and found him to be credible in what he was recalling a number of years ago and in relation to a number of cases.”

“However, I am satisfied so I am sure from the evidence that I have set out from the judicial authority and from the RP’s in respect of some of the cases that he was aware of the trial dates and failed to attend and by doing so he knowingly and deliberately put himself beyond the reach of the legal process.”

“Passage of time A person’s extradition to a category 1 territory is barred by reason of the passage of time if (and only if) it appears that it would be unjust or oppressive to extradite him by reason of the passage of time [since he is alleged to have— (a) committed the extradition offence (where he is accused of its commission), or (b) become unlawfully at large (where he is alleged to have been convicted of it)” (a) committed the extradition offence (where he is accused of its commission), or (b) become unlawfully at large (where he is alleged to have been convicted of it)”

“As respects delay which is not brought about by the acts of the accused himself, however, the question of where responsibility lies for the delay is not generally relevant. What matters is not so much the cause of such delay as its effect; or, rather, the effects of those events which would not have happened before the trial of the accused if it had taken place with ordinary promptitude. … My Lords, in the chronology of events that I have summarised which extends over some four and three-quarter years from April 5, 1973, to December 16, 1977, the failure of the prosecuting authorities to begin criminal proceedings against Mr. Kakis during the first 15 months until the coup in July 1974 was due to his own action in going into hiding in the mountains. So the starting point for the period of time that requires to be considered is July 1974.”

“It is submitted that there is a tension here between someone coming to the UK without the [judicial authorities’] knowledge and in breach of a condition to notify a change of address in 2015 where the Appellant could be considered a fugitive. And, following arrest and remand and discharge in this jurisdiction where the [judicial authorities] knew the Appellant was in the UK that he can ‘still’ be considered a fugitive. The Appellant is within reach of the legal process in Poland as the Polish authorities know where he is and can seek his request to return (following proper legal process under the Extradition Act 2003).”

“I am satisfied so I am sure from the evidence that I have set out from the judicial authority and from the RP’s in respect of some of the cases that he was aware of the trial dates and failed to attend and by doing so he knowingly and deliberately put himself beyond the reach of the legal process.”

“58. ‘Fugitive’ is not a statutory term but a concept developed in the case law, in particular in Gomes's case [2009] 1 WLR 1038 which elaborates the principle stated in Kakis's case [1978] 1 WLR 779 . In the context of Part 1 of the 2003 Act it describes a status which precludes reliance on the passage of time under section 14. Before this rule can apply, a person's status as a fugitive must be established to the criminal standard; Gomes's case, para.27. 59. …Where a person has knowingly placed himself beyond the reach of a legal process he cannot invoke the passage of time resulting from such conduct on his part to support the existence of a statutory bar to extradition. Rather than seeking to provide a comprehensive definition of a fugitive for this purpose, it is likely to be more fruitful to consider the applicability of this principle on a case by case basis …”

“The essential question is therefore whether the Requested Person has knowingly placed himself beyond the reach of legal process. Fleeing the country, concealing whereabouts or evading arrest are examples of so doing.”

“declining to surrender herself to the requesting state [which] does not constitute knowingly placing herself beyond the reach of a legal process. It amounts instead to declining to place herself within the reach of that process.”

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

“70. Nor was she knowingly placing herself beyond the reach of a legal process. She took no positive steps to place herself anywhere. The Respondent's case is that she was somehow obliged to place herself within the reach of a legal process instituted in another country and to leave and give up her home and lawful residence in the UK in order to do so. Not surprisingly, we have been shown no case in which it has been found, or even suggested, that failing to act in this way makes someone a fugitive.”

“It cannot be said that that person knowingly placed herself beyond the reach of a legal process when they were already beyond its reach.”

“26. … This is an area of the law where a substantial measure of clarity and certainty is required. If an accused like Goodyer deliberately flees the jurisdiction in which he has been bailed to appear, it simply does not lie in his mouth to suggest that the requesting state should share responsibility for the ensuing delay in bringing him to justice because of some subsequent supposed fault on their part, whether this be, as in his case, losing the file, or dilatoriness, or, as will often be the case, mere inaction through pressure of work and limited resources. We would not regard any of these circumstances as breaking the chain of causation (if this be the relevant concept) with regard to the effects of the accused's own conduct. Only a deliberate decision by the requesting state communicated to the accused not to pursue the case against him, or some other circumstance which would similarly justify a sense of security on his part notwithstanding his own flight from justice, could allow him properly to assert that the effects of further delay were not “of his own choice and making”. (emphasis provided) 27. There are sound reasons for such an approach. Foremost amongst them is to minimise the incentive on the accused to flee. There is always the possibility, often a strong possibility, that the requesting state, for want of resources or whatever other reason, may be dilatory in seeking a fugitive's return. If it were then open to the fugitive to pray in aid such events as occurred during the ensuing years—for example the disappearance of witnesses or the establishment of close-knit relationships—it would tend rather to encourage flight than, as must be the policy of the law, discourage it. Secondly, as was pointed out in Diplock para 2, deciding whether “mere inaction” on the part of the requesting state “was blameworthy or otherwise” could be “an invidious task”

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

“53. I do not find that it would be unjust/oppressive to extradite the RP since the judgment on 3rd August 2018. He has spent time on remand and in relation to other warrants but this is something the Polish courts will take into account and deduct his sentence if he is extradited. She also prays in aid the fact that he has now had his son who was born in 2021. As I have already indicated I do not have a lot of information about his home circumstances. However between 3rd August 2018 and 24th January 2019 the RP was in custody and that would have impacted on his family life because he was not that with his partner at that time. I accept that in 2021 his son was born. But also during this time he committed an offence of dangerous driving in this jurisdiction and received a custodial sentence of 12 months imprisonment on 3rd June 2024. He has been in custody in relation to this AW since 29th January 2024. He has spent substantial amount of time in custody since 2018 which reduces the argument about the hardship to him resulting from his change in circumstances during the period to be taken into consideration because he has been in custody for a substantial amount of that time.”

“… And, so far as concerns oppression, it is worth noting too Lord Diplock’s statement in Kakis v. Government of the Republic of Cyprus [1978] 1 WLR 779, 784 that: “the gravity of the offence is relevant to whether changes in the circumstances of the accused which have occurred during the relevant period are such as would render his return to stand his trial oppressive …”

“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.”

“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.”

“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 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. • 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 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.”

“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.”

“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).”

“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 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.”

“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.”

“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”