Sobolewski v Polish Judicial Authority

This is a statutory appeal pursuant to section 26 of the Extradition Act 2003 from an order for extradition made on 17 October 2018 by District Judge (Magistrates' Court) Gareth Branston in the Westminster Magistrates' Court.

I intend to allow this appeal, but I wish to stress at once that I do not do so on the ground of any error of any kind in the approach or reasoning of the district judge in this case. Indeed, in my view, his judgment is a shining model of a meticulously careful and thorough judgment in this type of case. The sole reason why I allow this appeal is entirely based upon significant changes in the circumstances between the decision and order of the district judge on 17 October 2018 and today, effectively one year later.

The essential facts and background of this case are as follows. In June 2004 the appellant was convicted after a trial in Poland of a number of offences. These effectively fall into two groups. One is a specific offence of possession by him of a quantity of marijuana on 3 February 2004. The other group is a series of offences of the sale of marijuana to various people between June 2003 and February 2004. The European Arrest Warrant identifies that he was convicted of the sale of marijuana on at least 63 separate occasions. Some of that sale or supply was to people who are described as "a minor." In one case the warrant says that the appellant did not himself "have awareness of the age of" the person to whom he sold the marijuana.

Having been convicted of these offences, the appellant was sentenced to a total of three years' imprisonment. He had served a period in prison on remand but appears to have been released pending an appeal. The appeal was later dismissed and the upshot was that he

In 2005 the appellant was served with a notice requiring him to surrender to serve that imprisonment, but instead of doing so he travelled to England on 28 May 2005. He says that he has never returned to Poland since then. His wife appears to have travelled to England in about 2007 to join him, and they have lived here ever since. On those facts and in those circumstances, the district judge inevitably and correctly found that the appellant is a fugitive from Polish justice, and Ms Laura Stephenson, who appeared on his behalf before the district judge and appears on his behalf again today, has not suggested otherwise.

There was evidence before the district judge that both the appellant and his wife were even then suffering from ill-health. The appellant was born in June 1961 so he was aged 57 at the time of the hearing before the district judge and is aged 58 today. The evidence is clearly to the effect that he has had, and continues to have, a significant history of heart disease coupled with diabetes. He has required frequent periods of hospitalisation and takes a good deal of medication. The wife was born in August 1965, so she was aged 53 at the time of the hearing before the district judge and is aged 54 now. There was evidence before the district judge that she had suffered breast cancer for which she had been treated and was receiving treatment.

As I have said, the judgment of the district judge is one of great thoroughness and meticulous care. Having set out all the facts in a great more detail than I have done, and having correctly directed himself as to relevant principles of the law, he turned at paragraph 105 and paragraph 106 of his judgment to perform the well-known balance pursuant to the authority of Celinski of factors in favour of extradition and factors militating against extradition. His lists of the factors both ways are also very comprehensive. He then concluded at paragraph 107 that in his judgment:

It may be possible to cavil at one or two phrases in the judgment of the district judge, but, wisely, Ms Stephenson has focused all her appeal today upon the significant changes in circumstances since the date of the hearing before, and decision by, the district judge. There are two significant changes in circumstances. The first is that already shortly before the hearing on 17 October 2018 the appellant had been remanded in custody. He has now been in custody continuously for effectively a year (the precise date upon which he was remanded in custody is not known to anybody present in the courtroom this morning). He still is in custody. The second significant change in circumstances is, tragically, a marked decline in the position of the appellant's wife with regard to her cancer and the prognosis.

At the time of the hearing in front of the district judge, the appellant had only actually served about five months towards his total sentence of three years' imprisonment and, as I have said, there was outstanding a period of just over two years and seven months. In a bullet point at paragraph 105 of his judgment, when listing factors in favour of extradition, the district judge said, "there is a substantial period of sentence remaining." In a bullet point at paragraph 106, when listing the factors militating against extradition, he said

The second change of circumstances relates to the wife's health. The appellant and his wife have now been married for some 35 years, so in the case of the wife she married around the age of 20. There is no evidence to suggest that it is other than a happy and mutually supportive marriage, although it is the case that the wife has suffered in the past from

Pausing there, the conclusion of the district judge at that point was that "it appears that things are going as well as could be expected," albeit that there is a median survival rate of four to five years. No doubt on the basis of that evidence and description, the district judge went on to say in a bullet point at paragraph 106 under factors militating against extradition:

There is then a perhaps slightly curious bullet point which reads:

I am not quite sure what the district judge meant by that observation, but it may be a view that there would be less treatment available to her for her cancer in Poland than here.

So the district judge set out comprehensively the full range of relevant factors in this case and performed the balance that he did. I would find it quite impossible to say on the evidence as it was at the time of the hearing before the district judge that "he would have been required to order the person's discharge." Today, however, there is clearly evidence that was not available at the time of the extradition hearing. Section 27 of the Extradition

It is a fact which speaks for itself that the appellant has been continuously in custody now for more or less a year. There has been an application, which was not resisted by the respondent, to admit two pieces of evidence in relation to the current state of health and prognosis of the wife. These are, first, a statement from the wife herself dated

Pausing there, at the time of the hearing in front of the district judge, he was able to say, as I have already quoted, that "it appears that things are going as well as could be expected," and that, "the median survival rate for this type of cancer is four to five years." Tragically, it now seems clear that things are not going as well as could be expected. The patient has not responded well to treatment to date. Her cancer is clearly incurable. On the best scenario, her prognosis could still be a year or possibly slightly more, but on a less good scenario, it could be shorter than that.

Mrs Sobolewski herself frankly accepts in her statement that her cancer is terminal and that the treatment that is now provided "is just to try and control my pain and prolong my life for as long as they can." She knows that the cancer is spreading. She describes how she is constantly fatigued and weak, whether as a result of the cancer or the treatment, or both. She describes rather pathetically how she now has to attend her treatments alone since her husband is in prison and that she is not always able even to get out for the treatment. She concludes her statement by saying:

Since then he has been transferred to HMP Wandsworth in London. She continues:

On the basis of Dr Cliff's prognosis, that gloomy prediction by her would seem to be correct. Clearly, the district judge would, if he was considering this case now, have expressed himself differently in relation to the period of imprisonment already served and the amount outstanding, and I am confident that he would have expressed himself very differently in relation to the current up-to-date health position of the wife and her prognosis. I have already quoted section 27(4)(c) of the Extradition Act 2003 which makes it a condition before an appeal is allowed that "if [the judge below] had decided the question in that way, he would have been required to order the person's discharge." The judge would clearly have decided questions in relation to the period of imprisonment already served, and as to the health and prognosis of the wife, differently from the way in which he did decide them a year ago.

The difficult question for me is whether, having done so, "he would have been required to order the person's discharge". "Required" is a strong word. However, I am firmly of the view that if this district judge had known the facts and circumstances as they now are, he not only would have been required to order the appellant's discharge, but would indeed have done so. His judgment as a whole is very balanced and very fair, and I am firmly of the view that if he had appreciated then the current prognosis of the wife, and coupled it with the amount of imprisonment now already served, he himself would have ordered the discharge of the requested person.

Of course, all the factors in favour of extradition remain. He said "these offences are serious, including as they do, the supply of drugs to children." They are serious offences, but they are not of the most serious kind. The appellant alone is responsible for the very long delay, since, as the district judge found, he was and is a fugitive. That said, it is now over 15 years since these offences were committed and the sentence of imprisonment imposed. For nearly all that time this appellant and his wife have lived here in England. They have both obtained and held down good jobs. Neither of them has any known criminal record, or indeed any conduct to their discredit, in all the 15 years that they have been living here. In those circumstances, it seems to me that the current plight of the wife does outweigh the normal, constant and weighty public interest in extradition.

For those reasons, I allow this appeal. I quash the order for extradition and I order the immediate discharge of the appellant from prison.

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