Tu Pham Anh v District Court of Lublin, Republic of Poland [2025] EWHC 3045 (Admin)

[2025] EWHC 3045 (Admin)Case No AC-2024-LON-003018
IN THE HIGH COURT OF JUSTICE
KING'S BENCH DIVISION
ADMINISTRATIVE COURT
IN THE MATTER OF AN APPEAL UNDER THE EXTRADITION ACT 2003
Venue Royal Courts of Justice, Strand London WC2A 2LLDate 19 November 2025
Before
HON SIR PETER LANE
Between
TU PHAM ANHAppellantDISTRICT COURT OF LUBLIN, REPUBLIC OF POLANDRespondent
Mr Martin Henley (instructed by Duncan Lewis) for appellantMr Jonathan Swain (instructed by the Crown Prosecution Service) for respondentHearing Hearing date: 23 October 2025
HMTL VERSION OF JUDGMENT APPROVEDCrown Copyright ©This judgment was handed down remotely at 10:30am on 19 November 2025 by circulation to the parties or their representatives by email and by release to the National Archives
[1]This is a “rolled up” hearing of an application for permission to appeal and, if granted, the appeal against the judgment of District Judge Zani, handed down on 6 September 2025, in which he ordered the extradition of the appellant to Poland.[2]There are also before me three applications to admit fresh evidence. On 16 December 2024, the appellant applied to admit a second supplementary witness statement (he had produced an initial statement and a supplementary statement before the District Judge). On 9 May 2025, he applied to admit a witness statement by his lawyer in Poland, regarding the initiation of a process whereby the appellant may be allowed to serve his sentence of imprisonment in the United Kingdom; and an article of uncertain date written by Magdalena Kotzurek regarding the implementation in Germany, Poland and Spain of Directive 2010/64/EU on translation and interpretation services in criminal proceedings. On 21 October 2025, the appellant applied to admit emails regarding the position in respect of the request to serve the sentence in the United Kingdom.[3]The applications are opposed by the respondent. I admitted the materials which were the subject of the applications de bene esse. The proceedings below[4]On 6 September 2024, District Judge Zani ordered the extradition of the appellant to Poland in connection with an arrest warrant issued by the respondent on 13 February 2024 and certified by the National Crime Agency on 17 April 2024. The warrant seeks to enforce the remainder of a total custodial sentence of 3 years' imprisonment imposed in connection with offences of facilitating illegal migration.[5]The warrant was issued pursuant to Part III, Title VII of the EU-UK Trade and Cooperation Agreement. These extradition proceedings are governed by Part 1 of the Extradition Act 2003. Poland has been designated a category 1 territory for the purposes of Part 1 of the Act by virtue of the Extradition Act 2003 (Designation of Part 1 Territories) Order 2003 (SI 3333 /2003) as amended.[6]The relevant conduct can be summarised as follows:a. Offence I: Between June or July 2004 and 2 September 2005 in various cities in Poland, particularly in Warsaw and other cities in the province of Mazowieckie, the appellant participated jointly with others in an organised criminal group aimed at organising illegal crossing of the borders of the Republic of Poland for material gain. Under Polish law, this conduct amounts to an offence contrary to Article 258 paragraph 1 of the Penal Code.b. Offence II: Between June or July 2004 and 5 August 2004 in various cities in Poland, particularly in Warsaw and other cities in the province of Mazowieckie, the appellant and others organised the illegal crossing of the Polish border of at least 41 citizens of Asian countries. The appellant participated in the collection of at least 11 immigrants near Warsaw and transported these individuals to Warsaw to be transferred to other unidentified persons. He also transferred at least 30 immigrants to other members of the criminal group for onward transfer through the Polish-German border, thereby enabling these individuals to stay in the territory of Poland. The appellant made a material benefit of an unidentified amount from these criminal activities. Under Polish law, this conduct amounts to an offence contrary to Article 264 paragraph 3 of the Penal Code in conjunction with Articles 264a paragraph 1, Article 11 paragraph 2, Article 12 and Article 65 paragraph 1 of the Penal Code.c. Offence III: Between spring 2005 and 2 September 2005 in various cities in Poland, particularly in Warsaw and other cities in the province of Mazowieckie, the appellant and others participated in the illegal crossing of the Polish border of at least 24 citizens of Asian countries. The appellant collected and housed at least 14 illegal immigrants in a rented building in Warsaw. He also transferred at least 10 immigrants to other members of the group for onward transfer through the Polish-German border, thereby enabling these individuals to stay in the territory of Poland. The appellant made a material benefit of an unidentified amount from these criminal activities. Under Polish law, this conduct amounts to an offence contrary to Article 264 paragraph 3 of the Penal Code in conjunction with Articles 264a paragraph 1, Article 11 paragraph 2, Article 12 and Article 65 paragraph 1 of the Penal Code.[7]The respondent also provided further information dated 19 July 2024, which can be summarised as follows:a. The appellant disregarded the obligations of his suspended sentence ‘from the moment the surveillance began'. The appellant evaded his probation officer and often went abroad without informing the probation officer. In unannounced visits, the appellant was found not to be staying at his declared location. The appellant made casual contact with the probation officer by telephone, but overall the Respondent regards the appellant's compliance as a ‘sham in the exercise of supervision'.b. The suspended sentence was activated on 14 January 2014 due to the appellant's non-compliance.c. During the period of suspension, the appellant was under obligations to appear whenever summoned by a court or a probation officer, to allow his probation officer to enter his apartment, and to report any change of employment. He was also prevented from changing his permanent residence without the permission of the court.d. The period of suspension commenced on 5 October 2011, which is the date that the judgment became final and valid. The probation officer submitted a motion for the execution of the suspended sentence on 31 October 2012 due to the appellant's non-compliance. The motion was submitted to a court which did not have jurisdiction, and that court erroneously forwarded the application to another court. The application eventually reached the correct court on 23 August 2013. After requesting and receiving information from the probation officer in November 2013, the Court held a hearing on 14 January 2014 at which the decision to execute the sentence was made. The appellant then lodged an appeal, and therefore the decision to execute the sentence did not become final and valid until 3 September 2014.e. On 5 February 2015, defence counsel appointed by the appellant lodged an application for an adjournment of the sentence on health grounds. This application was granted and the execution of the sentence was postponed until 28 October 2015. A further successful application for deferral led to the postponement of the execution of the sentence until 28 April 2016. A third application for deferral was refused on 31 January 2017, and on 24 April 2017 the appellant was summoned to serve his sentence. Due to the appellant's failure to appear to serve his sentence as required, the court issued a decision to ‘search for him by a wanted notice'.f. The lapse of time between the issuance of the ‘wanted notice' and the issuance of the Part 1 arrest warrant was said to be primarily due to the need to search for the appellant. The respondent became aware that the appellant may be residing in Great Britain by way of a letter from the Polish police dated 15 December 2023. This provided the basis for the respondent to issue an international search for the appellant.[8]The District Judge heard oral evidence from the appellant and the appellant’s wife. He also had before him a psychiatric report on the appellant from Dr Hussein dated 15 July 2024. Dr Hussein concluded that the appellant “likely suffers from a longstanding mental illness of a psychotic nature, such as paranoid schizophrenia”.[9]The District Judge stated at paragraph 66 of his judgment that he did not find the appellant “to have been an entirely credible witness”. The Judge said that in cross examination, the appellant had for the very first time made a very serious allegation regarding his probation officer in Poland, who he said wished to be bribed by the appellant. At paragraph 67, the District Judge said that, having had the opportunity to assess the appellant giving evidence, he wished to make it clear that, where there was a difference between the information provided by the respondent and the appellant, the District Judge had “no hesitation in preferring the former”. At paragraph 69, the District Judge accepted the evidence of the respondent that the appellant made only casual contact with the probation officer by telephone and that the appellant’s compliance was a “sham in the exercise of supervision.”[10]The District Judge proceeded to make findings regarding what happened after the suspended sentence was activated in 2014 for non compliance. There were two successful applications made on his behalf for deferment of serving the sentence on health grounds, which resulted in service being deferred until 28 April 2016. After a third (unsuccessful) application for deferral, the appellant was summoned on 24 April 2017 to serve his sentence. Although the appellant wavered in his testimony regarding how much he knew about the applications, the District Judge concluded that “they were made on his instructions and with his full knowledge” (paragraph 73).[11]At paragraph 74, the District Judge held that the appellant failed to abide by the requirements attached to his suspended sentence. At paragraph 75, he rejected the appellant’s evidence that he did not fully understand the terms of the suspended sentence or that he had not been made aware until very recently that the sentence could be activated for non-compliance. At paragraph 76, the District Judge found that the appellant was a fugitive from justice.[12]At paragraphs 81 to 92, the District Judge set out the relevant case law on Article 8 ECHR in the context of extradition, including Norris v Government of the United States of America [2010] UKSC 9, HH v Italy [2012] UKSC 25 and Polish Judicial Authority v Celinski [2015] EWHC 1274. Having set out the factors said to be for and against extraditing the appellant, the District Judge recorded his findings on Article 8 at paragraph 95. He found that the criminal conduct to which the arrest warrant related was very serious and would have been likely to have resulted in a prison sentence of some length, had the offences occurred here. The appellant was a fugitive from justice. There would be hardship to the appellant, his wife and children. However, the “resilient and capable” wife would be able to cope with the children. The District Judge was puzzled why the wife thought it necessary to source diazepam for the appellant’s anxiety and sleep from Vietnam, given its availability in this country. The appellant had not sought medical advice or assistance in the United Kingdom for his mental health issues. Even if the appellant were not a fugitive, the District Judge said he did not find it disproportionate to extradite the appellant. The District Judge said he had taken into account in the Article 8 context the time that had passed since the appellant was convicted but concluded that this did not tip the balance in the appellant’s favour. The Polish authorities had not been guilty of any culpable delay. They had explained the reasons why proceedings in Poland had taken the time they did; and the District Judge was prepared to accept their explanation. The grounds of challenge[13]For the appellant, Mr Henley advances three grounds of challenge to the judgment of District Judge Zani. First, Mr Henley submits that the appellant’s extradition is barred by section 13 (Extraneous considerations) of the Extradition Act 2003. Second, Mr Henley says that the District Judge’s finding of fugitivity cannot stand. Third (and relatedly to the second ground), Mr Henley submits that the District Judge’s Article 8 assessment was wrong and that the appellant stands to succeed on the basis that, in all the circumstances, extradition would be a disproportionate interference with ECHR Article 8.[14]Section 27 of the 2003 Act provides that the High Court on appeal may allow or dismiss the appeal if certain conditions are satisfied:
“(3) The conditions are that- (a) the appropriate judge ought to have decided a question before him at the extradition hearing differently; (b) if he had decided the question in the way he ought to have done, he would have been required to order the person’s discharge. (4) The conditions are that- (a) an issue is raised that was not raised at the extradition hearing or evidence is available that was not available at the extradition hearing; (b) the issue or evidence would have resulted in the appropriate judge deciding a question before him at the extradition hearing differently; (c) if he had decided the question in that way, he would have been required to order the person’s discharge.”
Discussion (1) Section 13[15]Section 13 of the 2003 Act provides that:
“A person’s extradition to a category 1 territory is barred by reason of extraneous considerations if (and only if) it appears that- (a) the Part 1 warrant issued in respect of him (though purporting to be issued on account of the extradition offence) is in fact issued for the purpose of prosecuting or punishing him on account of his race, religion, nationality, gender, sexual orientation or political opinions; or (b) if extradited he might be prejudiced at his trial or punished, detained or restricted in his personal liberty by reason of his race, religion, nationality, gender, sexual orientation or political opinions.”
[16]Mr Henley relies upon Schtraks v Israel [1964] AC 556. In that case, the House of Lords allowed evidence to be adduced which was not in the form of “properly sworn statements”, in connection with what might be described as a forerunner of section 13; namely, section 3(1) the Extradition Act 1870, which was, however, limited to offences “of a political character”. I agree with Mr Henley that no less restrictive an approach should apply to the other matters, such as race and nationality, now covered by section 13.[17]This does not, however, mean that evidence which could have been put before the District Judge on this issue, but which was not, can be adduced on appeal, without having to comply with the requirements set out in Szombathely City Court v Fenyvesi [2009] 4 All ER 324. The first requirement is that the evidence sought to be adduced did not exist at the relevant time or, if it did exist, was not at the disposal of the party wishing to adduce it and could not with reasonable diligence have been obtained by them. The second requirement is that, if the evidence had been adduced, it would have been decisive to the outcome of the case before the District Judge. The existence of the first requirement has recently been re-affirmed in the context of appeals concerning human rights (ECHR) issues by Swift J in Hamasalih v Public Prosecutor’s Office, Bolzano Court of Law, Italy [2025] EWHC 593 (Admin).[18]The evidence in the present case is the second supplementary statement of the appellant, which is the subject of the application dated 16 December 2024. In it, the appellant asserts that whilst he was in prison in Poland for 8 months and 22 days in 2010/11, he experienced “horrific racism” from the other prisoners. They ordered him to clean the room every day and to make coffee for them; and generally told what to do. As a result, the appellant felt “unsafe”. He was ostracised and completely isolated.[19]The second supplementary statement also complains that the appellant had no adequate access to interpreters. There were none available in the prison. Earlier, following his arrest, there were no interpreters at the first two police stations to which the appellant was taken. There was an interpreter at the court when the appellant was sent to prison. In 2011, shortly before his release from prison, the appellant was forced to sign his name to a document, without the assistance of an interpreter.[20]The second supplementary statement contains details regarding the interactions between the appellant and the Probation Officer and between the appellant and his lawyer. The appellant understood that he could “end up in prison for 3 years” if he breached his release conditions “but I did not think it was a problem if you did not commit crime and tried to stay in contact.” The appellant says his wife keeps his diazepam for him, which he takes every night to help him sleep.[21]Mr Henley informs me that at the hearing before District Judge Zani, an application was made by the appellant’s counsel for an adjournment, so that the appellant could gather and file “further evidence” on discrimination in Polish prisons (paragraph 15 of the appellant’s skeleton argument for the appeal). Mr Henley says that the fact of the adjournment application is confirmed by the attendance note of counsel who appeared for the appellant before the District Judge; but that, as a privileged document, it is not as such disclosable.[22]Mr Swain, who appears for the respondent and who has seen the attendance note prepared by counsel who appeared for the respondent before the District Judge, says in his skeleton argument that “the stated basis for the application to adjourn was to enable the [appellant] to obtain evidence relating to Polish prison conditions and general discrimination towards individuals of Vietnamese nationality”. The note records that the District Judge “refused the application in light of the fact that no explanation was offered as to why this evidence had not been obtained prior to the hearing, and also in light of the fact that the extant case law is against the [appellant] on these issues”. Mr Henley does not contradict this record. I therefore consider it appropriate to have regard to it.[23]As Mr Henley acknowledges, the District Judge enjoys a broad measure of discretion in making case management decisions, such as whether to adjourn to enable further evidence to be adduced. I have heard nothing to suggest that District Judge Zani exceeded the bounds of his discretion or made any other error, in refusing to adjourn on the basis apparently described in counsel's note. Contrary to the stated purpose of the application to adjourn, the evidence in the supplementary proof is entirely subjective; it is not third party evidence about the situation in Polish prisons (whether generally or in relation to foreign prisoners and/or those not of Western ethnicity); nor is it third party evidence about general discrimination in Poland towards those of Vietnamese ethnicity.[24]There is, therefore, no merit in Mr Henley’s submission that the second supplementary statement should be admitted because the appellant was not given an opportunity to adduce it as a result of the refusal of the adjournment application. But, even if the new evidence had been on all fours with the case advanced in respect of that application, the appellant’s stance would still amount to an inappropriate attempt to avoid the first requirement in Fenyvesi. It has not been suggested that the evidence now in the supplementary proof could not have been put before the District Judge. Accordingly, the mere fact that the adjournment application was refused cannot mean the appellant is under no obligation to show that the evidence could not have been adduced at the appropriate time. Maintaining procedural rigour is particularly important where, as here, the new evidence comprises assertions by an appellant whose evidence has been given orally, tested under cross examination and found to lack credibility.[25]I do not consider that the attempt on appeal to adduce the second supplementary statement by reference to section 13 affects any of the above. The issue of prison conditions for those of Vietnamese origin could have been advanced by reference to the sole pleaded ground before the District Judge; namely, ECHR Article 8, as it relates to a person’s mental and physical integrity.[26]There is, furthermore, a discrete problem with the appellant’s section 13 ground. Even if the supplementary proof were to be admitted, it would not avail the appellant because his complaint is about his treatment in prison by other prisoners, rather than by organs of the Polish state. As Mr Swain submits, section 13 requires the punishment, detention or other restriction of liberty to be “by reason of” one of the specified characteristics. The punishment, detention or restriction on liberty has to be at the hands of the authorities of the state. Ill-treatment by non-state actors can, of course, be relevant in extradition cases, in the context of the ECHR: see section 21 of the 2003 Act. This includes circumstances where the state fails, whether wilfully or not, to prevent prisoners from abusing other prisoners. The fact that section 13 is about the actions of authorities in the requesting state is made plain by the juxtaposition in section 13(b) of punishment etc with prejudice at trial; and by the fact that section 13(a), which is concerned with issuing an arrest warrant for the same improper purposes, can obviously relate only to the action of a state authority.[27]I therefore reject Mr Henley’s submission, made in reply, that section 13(b) is engaged because if the appellant were “forced to be a slave” by other prisoners, this would constitute a restriction of the appellant’s liberty.[28]The second supplementary statement also alleges a lack of interpreters and translation services at points during the appellant’s encounters with the Polish criminal justice system. The appellant prays this part of his new evidence in aid, both as regards section 13 and as regards the issue of whether he understood he had been ordered to serve his prison sentence. That second matter goes to the grounds concerning fugitivity and Article 8.[29]So far as section 13 is concerned, Mr Henley’s skeleton argument submits that not providing translation services at what are said to be key points of the criminal justice process amounts to discrimination on the grounds of ethnic origin.[30]The second supplementary statement asserts that there was no interpreter present at the hearing in September 2011 which resulted in the suspended sentence of imprisonment. The thrust of this passage and of the earlier passage regarding being required to sign documents without interpretation in June 2011 is clearly aimed at showing that the conviction was tainted by discrimination, in that the appellant did not speak or read Polish sufficiently well; so as to facilitate the submission that this discrimination engages section 13(b). The requirement that the prejudice, punishment etc. must be “by reason of” race or nationality, however, requires something more than that a person who is being proceeded against because he has violated the criminal law might be at a disadvantage because of linguistic difficulties.[31]Even assuming that section 13 might be engaged on this basis, the second supplementary statement paints a significantly different evidential picture, compared with the initial statement which the appellant adopted in evidence before the District Judge. There, he said “Eventually I pleaded guilty as agreement was reached that if I did so I would receive a suspended sentence order. This plea was not reflective of my guilt but rather a pragmatic approach to get the best sentence possible” (paragraph 25 of the judgment; paragraphs 53 to 61 of the initial statement). Although, owing to transport difficulties, the appellant was late for the September 2011 hearing when he was sentenced, paragraph 66 of the initial statement says that “I confirm that I was represented at the hearing”. In cross examination, the appellant was recorded by the District Judge at paragraph 38 of the judgment as saying that his lawyer did not attend the hearing on 27 September 2011, when the appellant received a suspended sentence. At paragraph 39, he is, however, recorded as having agreed that he had adopted his proofs of evidence. This inconsistency is of a piece with the District Judge’s adverse credibility finding. It is also noteworthy that the appellant under cross examination did not resile from what he had said in his initial statement regarding agreement being reached that he would plead guilty so as to receive a suspended sentence.[32]Leaving aside the fact that the appellant’s belated assertions regarding translations and interpreting plainly could have been made to the District Judge, the disparity in the evidence on how the appellant came to receive the suspended sentence, coupled with the adverse credibility finding made by the District Judge, is such that no weight can possibly be placed on this aspect of the second supplementary statement, even if section 13 might be engaged.[33]The conclusions reached in the article regarding Directive 2010/64EU, which forms part of the second application to adduce new evidence, is that “Germany, Poland and Spain are only partially meeting the requirements of the Directive”. Poland is said to have “fulfilled many of the Directive’s requirements from day one, including the requirement that language services be of sufficient quality...”. Poland, however, has “no effective obligation to give priority to sworn interpreters...”. As a result, “the high standards of quality introduced in 2004 are by no means the day-to-day reality in the judicial system.”[34]The article is undated and I was not informed that any attempt had been made to ascertain the date of publication. I therefore agree with Mr Swain that the appellant has failed to show the article was not in existence at the date of the hearing before the District Judge, or that, if it was, it could not reasonably have been adduced before him. Furthermore, the article cannot explain the change in the appellant’s stance, described above. The article does not, in short, cure the problems that arise from the appellant’s own evidence. Understandably, Mr Henley does not suggest that the article discloses general failures in the treatment of non native speakers at the hands of the criminal justice system of Poland, of such magnitude as to engage section 13, irrespective of the facts of an individual case. The article plainly does not go so far. (2) Fugitivity[35]The challenge to the District Judge’s finding on fugitivity is, in substance, part of the appellant’s Article 8 ground. It is nevertheless convenient to deal with it discretely, as the appellant suggests. 36.The challenge has three aspects. First, it is said that the District Judge failed to make a finding on when the appellant became a fugitive. As a result, the District Judge did not properly assess the nature of the delay in this case. Second, the District Judge failed to consider the impact of the mental health of the appellant, which suggested that he may not have been able to understand the nature of the conditions attached to the suspended sentence and the consequences of non-compliance. Third, the difficulties with translation of documents may have resulted in, or contributed to, the appellant not understanding those conditions and consequences.[37]The core question for the District Judge was whether the appellant had placed himself beyond the reach of legal proceedings in Poland: Wisniewski v Poland [2016] EWHC 386 (Admin). This inevitably involved consideration of the appellant’s knowledge and understanding of the conditions attached to the suspended sentence, and of the applications to defer the sentence of imprisonment, following its activation. The District Judge made findings on these issues at paragraphs 68 to 75 of the judgment. They led directly to the conclusion at paragraph 76 that the appellant “is to be regarded as a fugitive from Polish justice.” Although it would have been helpful if the District Judge had said so in terms, I do not consider that this experienced Judge can properly be said to have regarded the appellant as a fugitive, in the required sense, any earlier than when, at some point in 2017, following the last unsuccessful application to defer the activation of his sentence, he left Poland for the United Kingdom. Even if the District judge could be said to have erred by treating the appellant as a fugitive before he left Poland, the requirement in section 27(3)(b) of the 2003 Act is not met. For the reasons I give below, the District Judge was entitled to find there was no culpable delay on the part of the respondent between 2011, when the appellant was convicted, and when he left the jurisdiction in 2017. The immateriality of any such error is reinforced by the District Judge’s finding at paragraph 95(vii) that “[e]ven if it were to be found elsewhere that the [appellant] is not to be treated as a fugitive I would not find it Article 8 disproportionate to order return.” 38.There is no basis in the evidence for the submission that the appellant’s mental health may have impaired his ability to understand the conditions of the suspended sentence and the consequences of breaching them. It does not appear that any such submission was made to the District Judge. This is unsurprising, as the medical report of Dr Hussein contains no finding to that effect. On the contrary, at 8.2 of the report, Dr Hussein found that, despite presenting at the time of his review with “symptoms suggestive of an ongoing psychotic episode”, which included “hearing voices, paranoid thoughts and bizarre beliefs,” the appellant was “not currently presenting with disordered thinking or grossly disorganised behaviour”. As the District Judge noted at paragraph 52 of the judgment, Dr Hussein was unable “to state at present that extradition to Poland would be clearly harmful” to the appellant (8.11).[39]There is, accordingly, no basis for thinking that in 2016, when the appellant was briefly admitted to hospital in Vietnam and diagnosed with a “schizophrenia/schizophrenia disorder”, his cognitive ability was materially worse. A reading of 6.2 of the report discloses that Dr Hussein was clearly puzzled by some of the information presented to him about the treatment in Vietnam, which included the appellant being given medications which Dr Hussein did not recognise. Whilst I accept that that the appellant secured two deferrals of the order to begin his activated sentence of imprisonment, on health grounds, there are no details of these grounds. The success of the first two applications accordingly casts no material light on the appellant’s mental ability to understand the conditions of the suspended sentence.[40]Before the District Judge, the appellant adduced a supplementary witness statement, in which he said that his “compliance with the supervision requirement was hampered by the fact that I did not speak or read/write fluent Polish... The Polish Government did not provide a translation of the Court Order in Vietnamese. I am unsure that I understand all of the requirements of the Order. An interpreter was not available for meetings with the Probation officer. Any time that I (sic) a lawyer had to write to the Court I had to pay for a lawyer and an interpreter at my own expense...” (paragraphs 34 and 35 of the judgment). At paragraph 36, the District Judge noted further assertions in the supplementary statement, in which the appellant denied he had evaded supervision by the Probation Officer.[41]The District Judge was therefore presented with a case that specifically included the assertion that translation difficulties had played a part in the appellant not being aware of the conditions of the suspended sentence. Having found the appellant to be “not entirely credible”, such that the District Judge had “no hesitation” in preferring the respondent’s evidence, where there was a difference between that and the appellant’s, the District Judge was “entirely satisfied that the [appellant] failed to abide by the requirements attached to the Suspended sentence” (paragraph 74). The District Judge rejected the appellant’s evidence “that he did not fully understand the terms of the suspended sentence” or that he had only very recently been made aware that it “could be activated if he did not fully comply with its terms” (paragraph 75). At paragraph 73, the District Judge had expressed himself satisfied that the applications to defer imprisonment were made on the appellant’s instructions and with his full knowledge. The District Judge was entitled to all of these findings. I would add that the applications to defer necessarily meant the appellant was aware at the time that the suspended sentence was being activated.[42]The translation issue regarding the conditions of the suspended sentence was therefore properly addressed by the District Judge. Quite apart from the failure to comply with the first Fenyvesi requirement, the second supplementary statement and the article on the Directive would not have had any impact on the outcome of the case, had they been before the District Judge. (3) Article 8[43]The appellant’s case on Article 8 also has three aspects. First, the District Judge is said to have erred in his assessment of the seriousness of the appellant’s offending. Second, he erred with regard to the delay since the commission of the offences in 2004/5, particularly as it impacted on the position of the appellant’s children. Third, there is now the prospect of the appellant being allowed to serve his sentence in this jurisdiction. Had that been known to the District Judge, his overall Article 8 assessment would have been in favour of the appellant.[44]As for seriousness, Mr Henley submits that the appellant did not convey the immigrants across international borders but only within Poland; that the appellant initially received only a suspended sentence; and that these factors meant the appellant was only “a minor player in the gang”. The District Judge was therefore wrong in failing to recognise the offending was of “no great gravity.”[45]I do not accept that the District Judge erred in this regard. I agree with Mr Swain that there is no evidential basis for the submission that the appellant was a minor player. The warrant details show the appellant benefited financially from the offending. His role in transporting individuals within Poland facilitated the illegal border crossing of large numbers. His conduct persisted for a significant period of time. The District Judge rightly observed at paragraph 95(ii) of his judgment that, had the appellant's conviction occurred in the United Kingdom, a prison sentence of some length might well have been imposed.[46]I reject the criticism that the District Judge failed to take account of the passage of time between the offending and the appellant’s conviction. At paragraph 95(x) of the judgment, the District Judge specifically addressed the duration of the proceedings in Poland. He concluded that there had been no culpable delay on the part of the respondent. Although that finding included the period after the decision to activate the suspended sentence, there is no reason to read it as being confined to that period. Given the number of named co-perpetrators, the statements in Part E of the warrant that there were other “identified and unidentified persons” and the fact that the appellant said in paragraph 56 of his first witness statement that he was apprehended in 2010 “because a co accused named me as being involved”, it was reasonable to infer that the investigative process was of some complexity. Once arrested, matters moved with expedition, with the appellant being sentenced on a guilty plea in September 2011. Nor was there any error as regards the period thereafter. After the activation of the sentence in 2014, the appellant made applications to defer, which meant the summons to attend prison was not made until April 2017. Following his failure to attend, a search was initiated. As we now know, the appellant had fled Poland and the respondent only became aware in December 2023 that the appellant might be residing in the United Kingdom, at which point the respondent issued an international search for the appellant.[47]Whilst the passage of time since the commission of the offences could not be attributed to the fault of the respondent, so as to require the District Judge to diminish the weight to be given to the public interest in extradition, the passage of time was still relevant in the Article 8 exercise, in that it might affect the nature and quality of family life; in particular, the interests of the appellant’s children. The appellant has three children, born respectively in 2008 (Poland), 2012 (Vietnam) and 2016 (Poland). In this regard, Mr Henley relies upon the findings of Lady Hale in paragraphs 46 to 48 of HH, that, during the period in question, family life rights may have strengthened or otherwise developed, such that extradition may be disproportionate, even in a case where the respondent cannot be blamed for delay.[48]The District Judge was properly cognisant of this point. At paragraph 95(viii) of the judgment, he said that he had taken into account, in the Article 8 context, the time that had passed since the appellant was convicted. The District Judge did not, however, find that this tipped the balance in the appellant’s favour.[49]That finding has to be read in the light of the findings at paragraph 95(iv), where the District Judge acknowledged there would be hardship to the children This was not, however, a sole carer case, as the mother would be available to care for the children during the appellant’s absence. There was no evidence the children were not in good health. I also note that there was no evidence that any of them would suffer significant psychological or other hardship if the appellant were extradited. As I have already recorded, the District Judge was impressed by the mother’s resilience and capability. At paragraph 95(vi), the District Judge found that the mother would “continue to provide appropriate care for the children, even though – as she says – she may have to re-adjust her work pattern, or, indeed if the need arises, give up work and claim additional UK State benefits.”[50]Standing back, there is no error in the District Judge’s approach to the issue of delay, whether in respect of the children or otherwise, such as to lead the court to conclude that the District Judge’s Article 8 analysis was “wrong,” in the sense described by the Divisional Court in Love v The Government of the United States of America [2018] EWHC 172 (Admin).[51]The possibility of the appellant being permitted to serve his sentence in this jurisdiction is the subject of the third application and part of the second application to adduce fresh evidence. On 5 May 2025, the appellant’s lawyer in Poland applied to the respondent for the execution of the sentence in “the appropriate court in Great Britain.” On 27 June 2025, the appellant’s solicitors in the United Kingdom were informed by HM Prison Service that the Polish authorities had decided not to apply for a transfer of the sentence. On 14 October 2025, HMPS informed the appellant’s solicitors that the Polish Ministry of Justice have a policy not to request sentences to be enforced in the United Kingdom whilst there is a pending arrest warrant before the courts in the United Kingdom. This was said to be because of Article 601 of the Trade and Cooperation Agreement. The email exchanges on this issue are the subject of the third application to adduce fresh evidence. According to a Senior Prosecutor of the CPS, writing on 22 October 2025, opposing that application, the Polish authorities have misunderstood the position. Article 601(f) of the TCA allows an optional bar on extradition where the executing state agrees to sentence transfer. The United Kingdom has, however, never ratified those provisions (nor their predecessors). Accordingly, sentence transfer to this country operates pursuant to Article 2 of the Additional Protocol to the Convention on the Transfer of Sentenced Persons. The Senior Prosecutor says this is an entirely separate mechanism, rather than one arising from extradition.[52]Mr Henley does not seek to cast doubt on the information supplied by the Senior Prosecutor. In the circumstances, therefore, the position regarding sentence transfer is inchoate. It cannot be said that there is currently in train a process that may lead to the appellant’s sentence being transferred. The transfer issue is accordingly unable to carry any significant weight in the Article 8 balancing exercise. The new materials therefore fail to meet the second of the Fenyvesi requirements for admission at this stage. Outcome[53]The applications to admit the second supplementary witness statement of the appellant and the article on Directive 2010/64/EU are refused. It has not been shown that they could not with reasonable diligence have been adduced before the District Judge. In any event, they are not capable of being decisive, in the sense that they would have led to a different outcome before the District Judge. The applications to admit the information regarding the application made in Poland to transfer the appellant’s sentence to the United Kingdom are refused because that information could not have led to a different outcome.[54]I grant permission to appeal but, for the reasons set out above, none of the conditions in section 27(3) or (4) is satisfied. The appeal is accordingly dismissed.