Lukasz Adrian Dobrowolski v District Court in Bydgoszcz, Poland

This is an extradition appeal on Article 8 ECHR (the right to respect for private and family life) where the issues raised include questions about time left to serve, the prospect of discretionary early release, and reliance on evidence about foreign law as discussed in earlier case-law. The Appellant is aged 33 and is wanted for extradition to Poland. That is in conjunction with a conviction Extradition Arrest Warrant (“the ExAW”) issued on 15 June 2020 and certified on 27 July 2020, on which he was arrested on 21 September 2020. The index offending comprises four domestic burglaries in December 2012, an assault on police officers in February 2013 and an attempted burglary that same month. They were all committed aged 23. The Appellant was arrested in Poland and interviewed in relation to the offences. He was convicted and sentenced in March 2014 and was due to attend prison to commence serving his sentence in mid-December 2014. The sentence was two years 10 months (34 months). He came to the UK in November 2014 as a fugitive. After an oral hearing on 16 March 2022, District Judge Callaway (“the Judge”) ordered extradition on 22 March 2022, for reasons explained in a 37-paragraph judgment (“the Judgment”).

The Judge was considering the picture as at March 2022. He described the “case as a whole” as being “of huge concern”. At its heart were concerns about the Appellant’s mental health and the risk of suicide. The Appellant had worked in the UK in the construction industry after coming here in November 2014. In September 2019 he sustained a serious head injury at work. After his arrest in September 2020 he was remanded in custody in these extradition proceedings. He was placed on the ACCT (Assessment Care in Custody and Teamwork) programme for the first few weeks, and was initially prescribed anti-psychotic medication. From November 2020 he remained on anti-depressant medication. The Judge had a February 2021 psychiatric report from Dr Penny Brown and a April 2021 neuropsychiatric report from Dr Con Cullen. The Judge unassailably found that the high threshold for section 25 “oppression” on grounds of health or mental health was not crossed and permission to appeal to this Court was refused on that issue. But the Judge recognised the deleterious impact that extradition would have in the light of the Appellant’s mental health and depressive illness. The Judge conducted the requisite ‘balance-sheet’ exercise for the purposes of Article 8 ECHR (interference with private and family life). At the time of the Judgment the Appellant had served 18 months of qualifying remand, leaving 16 months of the 34 month sentence still to serve in Poland. The Judge included the Appellant’s serious mental health condition, together with the 18 months qualifying remand, within the balance sheet. He decided that the public interest considerations weighing in support of extradition outweighed the combined effect of those capable of weighing against it.

In granting permission to appeal on the Article 8 issue, on 15 July 2022, May J found it arguable that the balance had now shifted so that Article 8 was an arguable basis for resisting extradition. She envisaged the question of Article 8 justification and proportionality being re-evaluated on an up to date basis at a substantive appeal. Two things loomed large and featured in May J’s reasoning. The first was that the ongoing period of qualifying remand was by now 20 months served, with 14 months still to serve. The second were the remaining concerns regarding the Appellant’s health and mental health, as to which she gave directions for an updated psychiatric report from Dr Brown, so that it could be taken into account as appropriate by this Court.

I am giving judgment at the end of March 2023, after a substantive hearing on 8 March 2023. I have Dr Brown’s updated psychiatric report, as directed by May J. It is dated 29 November 2022. It is the nature of this appeal that this Court is looking, as permitted by section 27(4)(a) of the Extradition Act 2003, at all the evidence now available – including as to qualifying remand and mental health – to decide whether the case should now be “decided differently” and the Appellant “discharged”. It is common ground that it is appropriate for this Court to receive and consider Dr Brown’s new report, and should consider the current picture on qualifying remand, to see whether the fresh evidence is capable, alongside other features of the case, of being decisive. Four key features have clearly emerged in the present case as being of primary significance, alongside the circumstances of the case as a whole, in examining whether extradition is Article 8 compatible. But first, some elementary warnings.

Alongside invoking case-law which authoritatively identifies legal principles, there can be scope in extradition cases for a Court to find assistance in ‘working illustration’ cases. But I remind myself that these can be no more than examples of the application of principles on the facts of a case. It is essential always to remember that cases always turn on their own particular facts and circumstances. As does this one. There is never a direct read-across. In the context of Article 8 in particular, it is the weighing of the different features – for and against extradition – which provide the answer. That is what the famous Article 8 extradition ‘balance sheet’ is about. The fact that one case has a feature which strikes a chord for the instant case does not begin to mean that the outcome will be the same. To fixate on cosmetic resemblance, and to forget these basic lessons, is what can make the use of ‘working illustration’ case-law misleading and dangerous. When looking for assistance, and in comparing and contrasting, we must therefore proceed with great caution. There are further basic warnings. It is not for this Court to ask or answer the question whether someone should have early release. Nor to ask or answer the question whether they have served sufficient of their term of imprisonment or whether they have sufficiently been punished. These are all questions for the Polish authorities, not for the United Kingdom authorities, and not for this Court. The statutory human rights question that Parliament has identified through the Extradition Act 2003 section 21(1) is a very particular one. It focuses on the interference with family life or private life which extradition constitutes, and asks whether that interference for the purposes of extradition is justified as proportionate.

I turn to the first key feature. It is the position in relation to health and mental health, and the impact of extradition. It is common ground that these are matters which fall within the ambit of Article 8 (respect for private and family life). The position is as follows. The updated evidence of Dr Brown records that the Appellant has made a “near full recovery” from the serious head injury. There is now no evidenced cognitive impairment. The Appellant still has depressive symptoms, but these are currently “mild”. As to the risk of suicide, this is assessed as “low” to “moderate”. If the Appellant is extradited, assesses Dr Brown, the “symptoms of his mental disorder will get worse”, and the suicide risk will increase to “moderate”. I accept this evidence. It means that the situation in relation to this feature is appreciably better than it was in March 2022. By way of comparison with a working illustration case, there is not in this case the evidence of a present “moderate depression” with a risk of suicide assessed as becoming “high” on extradition, as was the evidence in Kruk v Poland [2020] EWHC 620 (Admin) (Steyn J 26.2.20) at §§17, 27. Having said that, mental health and suicide risk remain a significant concern needing to be given proper weight in the proportionality balancing exercise.

The second key feature is the position so far as concerns qualifying remand. Having heard this appeal (8.3.23) a requested period for written submissions (13.3.23 and 14.3.23) and time for circulating the confidential draft judgment, my Order and judgment mean there is now qualifying remand of just over 30 months served, leaving just under 4 months of the 34 month sentence to be served. This is very different from the picture in March 2022, and July 2022. It is also relevant to have in mind that surrender would not be immediate: it would involve at least a week or two. Mr Joyes makes three points about qualifying remand, by reference to other working illustration cases:

Ms Burton rightly reminds me that there is a line of authority which explains why extradition to serve even a relatively short remaining period can be fully justified in Article 8 terms. She cites Molik v Poland [2020] EWHC 2836 (Admin) at §11 where I said this:

The third key feature is the position so far as early release in Poland is concerned. Subject to a principled objection raised by Ms Burton, Mr Joyes relies on a line of cases concerned with the Polish early-release regime and a judicially perceived likelihood of early release. The line of cases start with Janaszeck v Poland [2013] EWHC 1880 (Admin) (Foskett J 3.7.13). What happened in Janaszeck was that Foskett J reserved judgment on the appeal (on 15.4.13) with a view to the CPS obtaining clarification about a limitation period point and a sentence aggregation point (§39). The Respondent then produced a letter to the Court (21.5.13) (§40) from which some information emerged (§41):

In Borkowski v Poland [2015] EWHC 804 (Admin) (King J, 29.1.15), the Court’s judgment included this reference to a “well-known fact” (at §16):

In Sobczyk v Poland [2017] EWHC 3353 (Admin) (Gross LJ & Nicol J, 20.12.17) Counsel had submitted (§27) that “that matters have now moved on since the District Judge made her decision in the sense that the Appellant has been in custody in the UK for a longer period (about 9 months) and is only 11 weeks short of the half way point of his sentence when he would be able to apply for discretionary release”. The Divisional Court in Sobczyk recorded (§28) that: “We thought it right to find out what the position was”. On the Court’s behalf, the CPS posed questions, including (§28ii):

This line of authority involves the Judges of this Court relying on information about the operation of the Polish provisions, including information as elicited and recorded in earlier judgments, and then making material observations about the likely implications of Polish law as perceived by the Judge in this jurisdiction. In Chmura, Ouseley J’s view was that early release appeared to have “good prospects”. He said (at §25):

To these Polish cases about early release after an extradition surrender can be added the Bulgarian case of Chechev where the Divisional Court said this (at §79):

Relying on this line of authority, Mr Joyes submits that – without ‘second-guessing’ a discretionary decision which would be for the Polish authorities – this Court should “have regard to the reality” (RT §65). He relies on the criteria from Article 77 of the Polish Criminal Code (Janaszeck §41) and the focus on whether the Appellant “will after release respect the legal order” and “will not re-offend”. He emphasises that the Appellant is significantly beyond both the half-way and the two-thirds mark, that he has no convictions since coming to the UK in 2014 aged 24, notwithstanding his previous convictions and custodial sentences (aged 18-23) in Poland, including the 6 years with no convictions when he was at liberty living in the UK, between November 2014 and September 2020 (aged 24-30). Mr Joyes says that I can properly form the judicial perception that the Appellant would have “good prospects” of early release, that it is “difficult to see” why there would not be early release, and that early release is “likely”.

I accept those submissions. True, the Appellant is a fugitive, as were the requested persons in Chmura (§8), RT (§58) and Kruk (§25). True, the Appellant has previous convictions in Poland, as did the requested person in Borkowski (§6). True, the index offences are matters of seriousness, as were those in RT (§58) and Kruk (§3). A feature of these ‘working illustration’ cases, in a context where the Polish criteria for early release focus in particular on the likelihood that the requested person would “respect the legal order” (Chmura §22), is that there are substantial periods of law-abiding conduct in the UK. This was the context for a positive judicial perception of the prospect of early release in Poland. So, there were 8 years in the UK of having “respected the legal order” in Chmura (§§10-11, 22); 8 years as a good and responsible citizen with no criminal activity in the UK in Jesionowski (§18); 7 years of law abiding life in the UK in Borkowski (§18); 13 years in the UK having not re-offended in RT (§64); and a 5 year clean record since coming to the UK in Kruk (§27). In the present case, the Appellant had – by the time he was placed on remand in these extradition proceedings – lived 6 years of law-abiding life with no convictions, since coming to the UK in 2014. I am satisfied – in all the circumstances – that I can properly form the judicial perception that the Appellant would have “good prospects” of early release, that it is “difficult to see” why there would not be early release, and that early release is “likely”.

In arriving at that conclusion, I am rejecting a principled objection raised by Ms Burton. It concerns the source of information on which this Court can rely. Ms Burton says it is wrong in principle to go down the road seen in the line of authorities on which Mr Joyes relies. She says the Appellant needed to adduce evidence of foreign law, to satisfy this Court as to the criteria applicable to discretionary early release in Poland. She says it is quite wrong to piggy-back on a discussion in earlier judgments of information elicited in other cases. She relies on Jankowski v Poland [2016] EWHC 3792 (Admin) (Simon LJ and Flaux J, 10.3.16), where the district judge had sought to rely on “further information” which had been given in another case (Grabowski). The Court rejected that course, on the basis that what was needed was “clarifying evidence” filed in the instant case. The reasons were reasons of principle. Simon LJ said this:

I am unable to accept those submissions. In my judgment there is no exclusionary bar prohibiting a requested person from pointing to an instrument of the requested state’s law, discussed in a judgment in an earlier extradition case, especially in the context of a human rights argument. True, the Court may need to proceed with caution. True, there may be limits on the reliance which can be placed on such matters. But this caution and those limits engage weight rather than admissibility. The case of Jankowski was concerned with a specific problem. The EAW there needed to comply with the rigours of the statutory scheme, to the criminal standard. As is familiar in extradition law, the EAW was said to be deficient in its substantive content, viewed against prescribed requirements. Established principles apply to when and to what extent a “lacuna” or “gap” in an EAW can be treated as filled by reference to a requesting state’s “further information” or “external” evidence. That was what Jankowski was about. It was the context in which the impermissibility was being identified.

What the early-release cases illustrate is that there are other contexts in which the ability to ‘read across’ from evidential materials, judicially accepted and discussed in another case, is a positive virtue. It is not necessary for repeat, bespoke expert reports to be obtained and adduced. It is not necessary for repeat requesting state information to be obtained and adduced. Adjournments can be avoided. So can the burden to the public purse. It is familiar that what one extradition court may uncover – including as to arrangements in the requesting state – can be relied on in other cases. To take an example, there is an established practice of identifying ‘lead cases’ to address points of principle, whether about judicial independence or prison conditions or something else. The assessment is at least capable of being relied on to other ‘stayed’ extradition cases. The Courts do not require the constant repetition of identical materials produced for different judges in each individual case. Nor would the Courts countenance in a human rights case the requesting state disavowing as irrelevant an identifiable parallel factual picture, which would or may render extradition incompatible with human rights, simply because there has not been the production of a parallel or identical expert witness statement or volume of domestic instruments. Such an approach would neither promote human rights nor the coherence of the legal system nor the overriding objective, including considerations of cost and burden to the public purse.

In fact, in the line of Polish cases on early release the Court was not receiving expert evidence filed by the legal representatives acting for the requested persons. What they instead involved was the Courts having elicited a reliable description emanating from the respondent requesting state. It was requesting state’s further information that gave rise to Janaszek §41. It was with requesting state counsel that Ouseley J put down his marker in Chmura at §35. It was with the requesting state that the Court in Sobczyk raised its question at §28. In any case – including one in which a requested person draws attention to a discussion in previous case-law – there is nothing to stop the respondent requesting state to check the position, and to provide the court with a reliable updated picture. The requesting state is perfectly placed to do that. There is no reason why an adjournment would not, if needed, be provided to that end. There is no suggestion in the present case that the picture identified in the relevant line of Polish authorities as to the halfway or two thirds eligibility point for applying for discretionary early release, and as to the applicable criteria, has become outdated or unreliable.

This approach to Jankowski is supported by recent authority. In Stanciu v Armenia [2022] EWHC 3368 (Admin) (Bean LJ and Jay J, 23.12.22), the Divisional Court was addressing Article 3 ECHR arguments about prison conditions in Armenia. Reliance was sought to be placed on the evidence of three witnesses: an Armenian lawyer, the head of the CPT delegation which had undertaken prison visits; and a legal expert and national consultant of the Council of Europe. Their evidence was the subject of judicial evaluation in the judgment of Deputy Chief Magistrate Ikram (§65). That was a much clearer case to raise the principled objection based on Jankowski. It concerned making reference to expert evidence which had been given in another case, as discussed in the judgment in that case. The objection was raised. The argument was that the expert evidence was inadmissible (§71) based on Jankowski. The Divisional Court rejected that argument, reasoning as follows (§§72-74):

The fourth and final key feature of the present case relates to the passage of time. This did not loom large before the Judge or in the Judgment. The point that is raised is this. The Further Information filed by the Respondent in October 2020 says this:

I accept that argument. Ms Burton points out that the Further Information does not say that it was “established” in “March 2015” that the Appellant was “on the territory of Great Britain”. Rather, what is said is that this was “established” during “the course of” the search that was “ordered” in March 2015. I have not been persuaded by this answer. I can see that there would have been three distinct things: (a) the ordering of the search (March 2015); (b) the start of the search; and (c) the establishing of the Appellant’s whereabouts. In theory, the search ordered in March 2015 could have been commenced in May 2020. In theory, the search ordered in March could have been commenced in March 2015 but the Appellant’s whereabouts established only in May 2020. In my judgment, neither of these is a natural understanding of the Further Information. The clear message is that a January 2015 order promptly failed but a March 2015 search promptly succeeded. Had there been years of fruitless searching and only belated discovery, I think the Respondent would have wanted to spell this powerful point out and would have done so. Nor has it done so. The interpretation of the Further Information invited by the Appellant was identified in a skeleton argument (7.12.22) and there has been ample opportunity to provide information of clarification or contradiction.

In my judgment, the present case is a model example of why Article 8 operates as a ‘balancing’ and ‘balance-sheet’ exercise. It is also a model example of how Article 8 cases are intensely fact-specific. If I were to weigh each of the four features which I have emphasised, individually, against the public interest considerations in favour of extradition, this appeal would fail. But what matters is putting all four features onto the scales, so that they can weigh collectively and cumulatively in the balance. That combined effect, moreover, reflects the special facts of the present case. I prefer not to speak of one or more factors ‘tipping the balance’. They only do so because of what is already included in the balance, and logically it does not matter whether a factor is being placed in the balance first, or last.

I recognise of course that there are strong public interest considerations in favour of extradition: the public interest in honouring extradition arrangements; in respecting the pursuit of the Polish authorities of an individual wanted in relation to matters of seriousness, to discharge the responsibility of serving the custodial sentence properly imposed; the public interest in the UK not standing as a safe haven, specifically for fugitives, and more generally for those seeking to avoid facing their responsibilities under foreign criminal process. The 34 month custodial sentence is to be respected in its entirety. The period of nearly 4 months to serve is not a period so short as to provide a standalone basis for finding a disproportionate interference with Article 8 rights. This is not a case involving the impacts on a partner, or on a child or children. The relevant Article 8 rights are the private law rights of the Appellant. I remember that it is not my function to decide early release under the Polish Criminal Code, nor in any event can I achieve an early release on licence or conditions. It is irrelevant whether I would – had I the jurisdiction to do so – direct that the Appellant serve the remainder of the sentence in the UK. It is not my function to ask whether the Appellant has been punished enough, by serving so substantial a proportion of his prison sentence, at a time of serious mental health and suicide risk concerns, and during the additional punitive effects of the pandemic. However, when I put into the balance the fact-specific combination of the four features of this case – each of which I have identified and examined in detail earlier in this Judgment – I am persuaded by Mr Joyes that extradition of the Appellant would be incompatible with his Article 8 rights. The appeal is allowed and the Appellant will be discharged.