PRZEMYSLAW BOJANOWSKI v REGIONAL COURT IN LODZ (POLAND)

This is an appeal against an order, dated 7 July 2020, for the Appellant’s extradition to Poland in relation to his conviction for five offences relating to possession of drugs with intent to supply.

The sole ground of appeal before the Court is that extradition would be an unjustified interference with the Appellant’s rights under Article 8 of the European Convention on Human Rights (ECHR). In particular, it is said that the District Judge gave insufficient weight to the length of culpable delay (on the part of the Judicial Authority) between 2006-2012. The Appellant also raises, as a new issue, the impact of ‘Brexit uncertainty’ on the Appellant.

The European arrest warrant (“EAW”) in this case was issued by the Judicial Authority on 1 October 2019. The basis of the warrant is said to be a judgment of the District Court in Zgierz on 27 November 2002, which became final on 4 December 2002 (case reference II K 729/02 (“792/02”) and a judgment of the District Court in Lodz on 7 July 2005 which became final on 15 July 2005 (case reference II K 270/05 (“270/05”)). The EAW sets out that for the 729/02 offences the Appellant was sentenced to a suspended sentence of two years imprisonment, which he did not appeal. The sentence was subsequently activated after he committed a further offence of a similar nature. One year and seven months of the sentence remains to be served. The Appellant was sentenced to one year and six months imprisonment in case 270/05, of which a sentence of one year, one month and twenty one days remains to be served. The Appellant appeared in person at his trial in both proceedings

The EAW explains that the convictions relate to 5 offences.

Further information from the Judicial Authority, dated 12 June 2020, explains that the Polish Criminal Procedure Code requires a suspect to inform the authorities of every change to his address lasting longer than seven days. The Appellant had been informed of his obligations during interview and confirmed receipt of this information with his signature. He breached his obligations by failing to inform the court of his change of address. The Appellant was summonsed to attend prison to serve his sentence in relation to case 270/05 on 19 September 2005 but failed to attend (the summons was sent to the address he had given the Court). On 27 September 2005, the Court ordered that he be taken to prison, but he could not be located. On 25 January 2006, the Court issued an arrest warrant. On 6 February 2006, the Appellant was summonsed to report to the correctional facility to serve his sentence in case 729/02. He did not appear. On 16 March 2006, police officers were instructed to attend his home address to bring him to the correctional facility, but he was not there.

On 2 November 2012, the District Court in Lodz stayed the enforcement proceedings and ordered a nationwide wanted notice. On 8 January 2019, the police received information that the Appellant might be staying in the UK.

In relation to the attempts to locate the Appellant; the following is said

“...on 25 January 2006 the court ordered the convict wanted on an arrest warrant, being satisfied that in view of the circumstances [the Appellant] was evading serving his custodial sentence.

The court in charge of the pretrial proceedings was regularly updated by the Police on the status of the searches for [the Appellant]. The measures taken by the Police were inconclusive.

Despite the intensive searches for [the Appellant] it was only in January of 2019 that the Police were able to establish that he might be residing in the United Kingdom which finding entailed issuing a European Arrest Warrant.”

In June or July 2005, the Appellant came to the UK.

In October 2019, a European Arrest Warrant was issued and certified by the National Crime Agency on 3 December 2019, and he was arrested in February 2020.

The extradition hearing before the District Judge at Westminster Magistrates Court took place on 2 June 2020. Before the District Judge the sole bar to extradition was Article 8 of the European Convention on Human Rights. The Appellant gave evidence.

Having heard his evidence, the Judge’s findings including the following:

“in cross-examination he confirmed the following:

Asked why he came to the UK immediately after a sentence of imprisonment had been imposed he replied, “to change my life, to start afresh”. When it was put to him that he came to the UK because he was aware that he was required to serve this sentence he replied, “why would I lie, I left the country to start a new life, because this sentence wasn’t fair”

He confirmed he did not tell the police or prosecution that he was leaving Poland. After he left, his mother received notice at his registered address that a letter had arrived by special delivery. Asked whether he believed this was a letter from the court he replied, “I was thinking about forgetting about Poland, I was just thinking about my mother.”

The Judge concluded that the Appellant became a fugitive in relation to case 270/05 when he failed to attend prison on 19 September 2005 and in relation to case 729/02 when he failed to attend prison on 6 February 2006. The Judge concluded that his private life in the UK had been built upon knowledge of the proceedings in Poland.

The District Judge accepted there had been delay in this case. She set out a chronology of the delay, as follows:

Having set out the chronology, the District Judge concluded as follows:

“42 I accept that there has been delay in relation to the order for a nationwide search in December 2012. However, I note that this delay was brought about by Mr Bojanowski leaving the country and placing himself beyond the reaches of the judicial authority, in breach of his obligations to notify the authorities of his change of address.”

The District Judge set out the factors in favour of, and against, extradition in accordance with the approach in Polish Judicial Authorities v Celinski [2015] EWHC 1274 (Admin) 1274. Apart from the public interest factors favouring extradition, the factors in favour of extradition were that: the offending behaviour is serious; the Appellant is a fugitive from justice; he is a single man with no dependants or dependant children; he lives alone; his mother who lives in Poland is in full time work and also receives a State pension; any delay has primarily been caused by the Appellant leaving Poland shortly after a lengthy sentence of imprisonment had been imposed and the Appellant has not led an altogether law-abiding life in this jurisdiction, having received a caution for assault occasioning actual bodily harm in 2009. Factors against extradition were that: the Appellant has been in the UK for a lengthy period (since 2005); he has not returned to similar offending behaviour since his arrival here; there has been some unexplained delay in the proceedings; he provides support to an elderly friend helping her in everyday activities including her shopping and gardening and offers her companionship; he helps his mother financially by sending money to her in Poland and he has worked consistently since his arrival here.

The Judge concluded as follows on Article 8:

“46 I have taken account of these competing considerations in order to determine whether the public interest in extradition outweighs the interference with Mr Bojanowski’s article 8 rights. Mr Bojanowski committed crimes of a serious nature: over a significant period of time he has been involved in a criminal gang group concerned with the supply of large quantities of drugs, including cocaine. Notwithstanding the imposition of a suspended sentence of imprisonment, he continued his offending behaviour until 2004. He was prosecuted for the new offences and was present in court when an immediate sentence of imprisonment was imposed. Thereafter rather than surrender himself to the relevant prison, as he was required to do, he left Poland, and he has remained unlawfully at large and a fugitive from justice until his arrest in these extradition proceedings. Whilst I accept the judicial authority could have acted more expeditiously in conducting a nationwide search for him, any delay in these proceedings has in my view been brought about by Mr Bojanowski placing himself beyond the reach of the legal process. Mr Bojanowski is a single man with no dependent children. He’s established a private life in this jurisdiction through his work record and the support of an elderly friend, but he did so in full knowledge of these outstanding sentences. In my judgement, there are no compelling features in this case which overrides a strong public interest in extradition. I’m satisfied Mr Bojanowski’s extradition remains proportionate and necessary.”

Judgment was handed down and extradition ordered on 7 July 2020.

This appeal has been delayed because it has been stayed behind the lead case on whether Poland was a valid judicial authority (Wozniak v The Circuit Court in Gniezno, Poland [2021] EWHC 2557 (Admin)).

The legal framework was common ground.

This Court may only allow the appeal if the District Judge ought to have decided a question before her differently so as to lead to the discharge of the requested person or if a new issue or fresh evidence would have led to a different outcome (Section 27(3) & (4) of the Extradition Act 2003).

It was common ground that the Appellant has no family life in this country and he therefore relies on his private life rights. There is no dispute that extradition would interfere with his private life, that the interference would be in accordance with the law and that it would have a legitimate aim namely the prevention of disorder or crime. The issue was therefore whether the interference was necessary in a democratic society, i.e., proportional (“whether the impact of the rights infringement is disproportionate to the likely benefit of the impugned measure” (Bank Mellat v HM Treasury (No 2) [2014] AC 700 per Lord Reid 74)).

As regards the general approach to the assessment of proportionality in the context of extradition, the question is whether the interference with the Appellant’s private life is outweighed by the public interest in extradition as to which there is a constant and weighty public interest. It is likely that the public interest in extradition will outweigh the Article 8 rights unless the consequence is that the interference will be exceptionally severe, albeit there is no test of exceptionality (R (HH) v Westminster Magistrates’ Court [2013] 1 AC 338 [8]).

The single question for the Appellate Court is whether or not the District Judge made the wrong decision. Findings of fact, especially if evidence has been heard, must ordinarily be respected. The focus must be on the outcome, that is on the decision itself. Errors and omissions in the District Judge’s reasoning do not of themselves necessarily show that the decision on proportionality itself was wrong, albeit the Judge's reasons must be considered with care (Polish Judicial Authority v Celinski & Ors [2015] EWHC 1274 (Admin))

On behalf of the Appellant, it is submitted that the District Judge was wrong to find that extradition was a proportionate interference with the Appellant’s right to a private life pursuant to Article 8 ECHR. In particular, the Judge gave insufficient weight to the length of the delay in this case between 2006- 2012. There is no proper explanation by the Judicial Authority for the delay and it ought to be regarded as culpable. In addition, the Judge erred in placing insufficient weight on the offending occurring when the Appellant was young (19-21years) when he is now a responsible and hardworking 41-year-old man; the Appellant’s exemplary work record in the UK and the impact on his ability to provide for his mother in the event of extradition. Brexit uncertainty is raised as a new issue and it is submitted that the Appellant will have difficulties entering the UK if he is extradited. The Judge would have been bound to order the Appellant’s discharge had she considered the impact of Brexit uncertainty coupled with the delays in this case.

On behalf of the Judicial Authority, it is submitted that the District Judge was not wrong to order extradition. As regards the delay in issuing the national arrest warrant (2006-2012), it is not known why it was not done sooner. However, as the Appellant had in fact already left Poland, on his own evidence, earlier, issuance of the national warrant would have had no effect. There has been no impact, therefore, on the Appellant of this period of delay. Further action could only be taken once the police were notified of the Appellant’s whereabouts in the UK in 2019. In any event the Judge was right to afford less weight to the delay because it had been brought about by the Appellant’s own behaviour. This is not a borderline case and the District Judge was correct not to undertake the invidious task of attempting to apportion any delay to the Polish authorities. The Judge properly took into account the impact of the delay through noting the changes to the Appellant’s life in the meantime. The Judge did not err in her assessment of the other factors. As regards Brexit uncertainty, there is no evidence before the Court in respect of the Appellant’s immigration status or any concerns about re-entering the UK. The Appellant should not be permitted to raise the issue now.

The District Judge did not make any findings as to the uncertainty occasioned by the UK’s departure from the European Union and any consequential probability that the Appellant might be unable to return to the United Kingdom following completion of his sentence, nor was she asked to do so.  

Ms Grudzinska submitted that a number of authorities have dealt with the issue since the District Judge’s ruling in 2020 and that this is therefore a new issue not raised at the hearing (s29(4) Extradition Act 2003).  She relied on the case of Piekarski v Poland [2022] EWHC 1088 (Admin) (in particular paragraph 23), to submit that the Appellant will have difficulties re-entering the UK if extradited.  He would have to identify a relevant ground for entry (e.g., as a skilled worker).  Even if he can do this, Rule 9.4.1 of the Immigration Rules provides that an application for entry clearance, permission to enter or permission to stay ‘must be refused where the applicant …a) has been convicted of a criminal offence in the UK or overseas for which they have received a custodial sentence of 12 months or more’.  Further, she submitted that any application process will result in substantial delays in relation to his work (he has been established in the UK since 2005) and any inability to return to the UK will have a significant impact on his mother who relies on his financial contributions. Whilst the Appellant has not said expressly that he wants to return to England in the event he is extradited, it is apparent from his proof of evidence and work references that his entire life has been in the UK since 2005.

Ms Bostock submitted that Brexit uncertainty is not a new issue and there is no evidence before the Court as to the Appellant’s immigration status or as to any concerns about re-entering the UK. It is notable that the Appellant does not have family here.  She rejected the reliance placed by Ms Grudzinska on the case of Piekarski saying it was no more than another case in a series of first instance decisions, some of which appear to be in conflict with each other, but all of which turn, in any event, on their facts.

In Piekarski, it was agreed between the parties and accepted by the Judge that the extradition of the appellant would make a highly material difference to his immigration position (§27 of the judgment). Linden J was therefore prepared to accept that the difficulties which the appellant would face if he seeks to re-enter the UK after he had served his sentence were a consequence of his extradition and should form part of the balancing exercise (§26 and §27).

There is, however, no agreed evidence before me to the same effect.  Having given Counsel an opportunity to consider the issue, Counsel were agreed (whilst emphasising that they were not immigration specialists) that the ability of the Appellant to return to the UK after serving his sentence in the event of extradition is likely to depend on whether he has settled status. If he has settled status, he can return providing he is not away from the UK for more than 5 years, which on the basis of a sentence of over 2 years he ought not to be. If, however, he has pre-settled status he can only return if he is away for not more than 2 years, which he is likely to be, given the length of his sentence.  There is however no evidence before the Court as to whether the Appellant has settled or pre-settled (or any other) status.

Whilst I accept that there may be circumstances where Brexit uncertainty is a factor to be weighed in the balance, I do not consider that Brexit uncertainty is a significant factor in the circumstances of the present case. It was not raised before the District Judge even though Brexit uncertainty had been apparent well before the extradition hearing in 2020.  The Appellant makes no point about it in his proof of evidence. Without any information on his current immigration status, there is no evidence before me that Brexit uncertainty causes him any particular distress. I am not prepared to infer that it does (although I acknowledge that the extradition itself may do). The Appellant is single and does not have family here. Whilst he has worked in the UK for many years, there is nothing to suggest that he would be unable to find employment elsewhere. 

In the context of Article 8, the overall length of the delay since the crimes were committed may diminish the weight to be attached to the public interest in extradition, in that it may be indicative of a lack of importance attached by the prosecuting authorities to the extradition of the requested person. Delay may also increase the impact of extradition upon private and family life even where, as here, the requested person is a fugitive (HH at [8] and [56]).

Ms Grudzinska pointed in this regard to the consideration of delay in the case of Oreszczynsi v Poland [2014] EWHC 4346, in which the Court drew on the judgment of Lord Bingham in EB Kosovo [2008] UKHL 41, noting that whilst it concerns immigration, the analysis of delay is reflected in the judgment of the Supreme Court in the well-known case (in this context) of HH v Italy [2012] UKSC 25. Lord Bingham considered that delay may be relevant in one of three ways. First, the applicant may during the period of any delay develop closer personal and social ties and establish deeper roots in the community than he could have shown earlier. The longer the period of the delay, the likelier this is to be true. To the extent that it is true, the applicant's claim under Article 8 will necessarily be strengthened. Delay may be relevant, he said, in a second, less obvious, way. An immigrant without leave to enter or remain is in a very precarious situation, liable to be removed at any time. Any relationship into which such an applicant enters is likely to be, initially, tentative, being entered into under the shadow of severance by administrative order. This is more true where the other party to the relationship is aware of the applicant's precarious position. This has been treated as relevant to the quality of the relationship. But, if months pass without a decision to remove being made, and months become years, and year succeeds year, it is to be expected that this sense of impermanence will fade and the expectation will grow that if the authorities had intended to remove the applicant they would have taken steps to do so. This result depends on no legal doctrine but on an understanding of how, in some cases, minds may work, and it may affect the proportionality of removal. Delay may be relevant, thirdly, in reducing the weight otherwise to be accorded to the requirements of firm and fair immigration control, if the delay is shown to be the result of a dysfunctional system which yields unpredictable, inconsistent and unfair outcomes. He concluded his analysis with reference to once it is accepted that unreasonable delay on the part of the Secretary of State is capable of being a relevant factor, then the weight to be given to it in the particular case was a matter for the tribunal (§14-§16).

In the present case, Ms Grudzinska sought to challenge the District Judge’s assessment that the cause of delay was primarily due to the conduct of the Appellant. She submitted that there was no proper explanation by the Judicial Authority for the lengthy delay between 2006 – 2012 and it ought to be regarded as culpable for three reasons:

Ms Bostock submitted that it would be invidious for this Court to examine further the causes of delay, unless the Article 8 balancing exercise is borderline, which in this case it is not. She relied in this respect on the analysis of Lord Brown in Gomes and Goodyer v Trinidad and Tobago [2009] UKHL 21 that:

“[I]t will often be by no means clear whether the passage of time in requesting the accused’s extradition has involved fault on the part of the requesting state and certainly the exploration of such a question may not only be invidious (involving an exploration of the state’s resources, practices and so forth) but also expensive and time consuming. It is one thing to say…that in borderline cases, where the accused himself is not to blame, culpable delay by the requesting state can tip the balance; quite another to say that it can be relevant to and needs to be explored even in cases where the accused is to blame” (§27)

As Ms Bostock accepted, the analysis in Gomes was in the context of Section 14 of the 2003 Act. She submitted nonetheless, that the proposition that it may be an ‘invidious’ task to attempt to delve into the reasons for any delay is equally applicable to consideration in Article 8 cases. In the context of Article 8, the delay may suggest a lack of importance attached by the prosecution authority to the offending relevant to the public interest in extradition, or it might equally be attributable to a lack of resources. Which of those might be applicable, ought only to be ‘bottomed out’ in a borderline case, not least because of the principle of mutual trust and confidence. When considering delay in relation to Article 8, it is the impact of the delay that is most relevant as opposed to the cause. If the delay is caused primarily by the actions of the requested person, then it is an impact which they foresaw and accepted.  

On analysis, the parties may not be that far apart in this regard. 

Ms Grudzinska acknowledged the pertinence of the following passage in Oreszczynski v Poland:

“8.

I recognise that there is a difference between the passage of time and culpable delay by a public authority. Culpable delay can only arise when something ought to have been done quicker than it was and there is no good explanation for why it was not. It will not be easy to draw the inference of culpable delay from the mere passage of time for a number of reasons, many of which were identified in Jabcysnki: 

i.

where the appellant is a fugitive from a requesting state there is no purpose of issuing an EAW in a particular language unless there is some reason to believe that the fugitive is in the relevant country; 

ii.

there are resource issues for any public authority dealing with a large number of applications and the court will be in no position to know what priority should be given to the particular case; 

iii.

there is no duty on the requesting state or its agents to spend potentially fruitless time and effort in making inquiries as to the whereabouts of the fugitive if there is no good information available likely to inform.”

Ms Grudzinska also sought to rely on the cases of Podowski v Poland [2013] EWHC 3593 (Admin) and Adamak v Poland [2018] EWHC 578, which she submitted had comparable periods of delay (10 years) as in the present case and both of which involved fugitives and comparable offending and in both of which the Courts had ordered the discharge of the Appellant.  In the latter, the Court concluded that the delay was unexplained, lacking any cogent explanation and accordingly culpable. Ms Grudzinska invited the Court to follow the approach of these cases.

I do not find the cases of assistance. As the Court in Celinski said, it will rarely be helpful to cite other first instance decisions in such a fact specific exercise. I note however, that in Adamek the Court observed that the authorities on delay cited to the Court (including Oreszcnysky also relied on by Ms Grudzinska) were cases where the balance in relation to the interference with the Appellant’s Article 8 rights was a fine one and where in each case the Court concluded that unexplained (culpable) delay tipped the balance.

In the present case, the District Judge concluded that the delay was ‘primarily’ due to the Appellant becoming a fugitive. She was nonetheless prepared to accept that some of the delay was unexplained. She included unexplained delay as a factor militating against extradition. In addition, she properly took into account the impact of the delay on the Appellant by acknowledging (as factors militating against extradition) his long-established working history in the UK and the absence of similar offending since his arrival in the UK.

The Requesting Authority has explained that there were ‘intensive searches’ for the Appellant between 2006 – 2012 and that ‘the court in charge of the pretrial proceedings was regularly updated by the Police on the status of the searches.’  As it transpired, the lack of success in locating the Appellant was because he had left the jurisdiction despite knowing of his convictions and sentence. There is no dispute that the Polish authorities only became aware of the Appellant’s whereabouts in 2019 when informed he was in the UK, which lead to the issue of a European Arrest Warrant. The effect of Ms Grudzinska’s submissions is to invite the Court to go behind the Requesting Authority’s explanation as to the attempts to locate the Appellant, which may require exploration of the Requesting State’s resources and practices in circumstance where Ms Grudzinska does not suggest there is a duty on the requesting state to spend potentially fruitless time and effort in making inquiries as to the whereabouts of a fugitive if there is no good information available likely to inform them.

Nor am I persuaded that this is a borderline or finely balanced case where delay might tip the balance so as to merit further investigation. For the reasons given above, I am not persuaded that Brexit uncertainty is a significant factor in this case. Ms Grudzinska submitted that the Judge erred in placing insufficient weight on the offending occurring when the Appellant was young; his exemplary work record in the UK and the impact on his ability to provide for his mother in the event of extradition. I am not however persuaded by these submissions. The Judge took account of the Appellant’s lengthy period in the UK and his work record as factors militating against extradition, but the fact remains that his private life in the UK has been established in the knowledge of the proceedings against him.  Leaving aside the question of delay, this is a case with serious offending (including organised crime) where the Appellant is a fugitive from justice; a single man with no dependent children who has established a private life in the UK in full knowledge of the outstanding sentences. In the circumstances, it cannot be said that this is a finely balanced case where delay merited more investigation than that undertaken by the District Judge who accepted some unexplained delay as a factor militating against extradition, whilst considering it was primarily due to the appellant leaving the country, before concluding that ‘there are no compelling features in this case which overrides a strong public interest in extradition’.

The question for this Court is whether I am satisfied that the decision of the District Judge was wrong. I may not simply second guess the decision.  I do not consider that the District Judge’s decision falls into that category of case. Accordingly, the appeal is dismissed.