Grzegorz Pabian v Circuit Court in Warszawa, Poland

In HH (Italy), at [8], Lady Hale held that delay on the part of the authorities was relevant to the question whether extradition was compatible with Article 8, whether the delay was attributable to the issuing or executing state. At [46], when addressing F-K, a Polish case joined with HH’s, she made clear that this was so even in a case where the appellant was a fugitive. This was because, whatever the reasons for it, a lack of urgency in bringing the requested person to justice was some indication of the importance attached by the authorities to the offending. Delay was particularly relevant in a case where in the intervening period the appellant had made a “new, useful and blameless life” in the UK without any reason to believe that the authorities of the requesting state were seeking his or her return: [47]. As respects F-K’s case, the other members of the Supreme Court agreed with Lady Hale.

In a series of subsequent cases, Article 8 appeals were allowed in part on the ground of delay by the NCA in certifying warrants, even where the appellant was a fugitive from justice, often in cases where there had also been significant delay by the requesting state in issuing the European arrest warrant.

In Juszczak, the appellant was a fugitive from justice: see [12]. There was significant delay by the Polish authorities in issuing the warrant and then further unexplained delay of 3½ years by the NCA in certifying it. Collins J considered the NCA’s delay to be particularly unacceptable: see [13]-[14]. The appeal was allowed on Article 8 grounds: [18]-[19].

Similarly, in Tomasziewicz, there were delays both by the Polish authorities in issuing the European arrest warrant and by the UK authorities in certifying it. As to the latter, Collins J said this at [8]:

“The European arrest warrant was, it seems, issued in July 2007. However, it was not certified by SOCA in this country until 2012, so it took some five years for SOCA to get around to pursuing it. No explanation has been given for that five-year delay, save that it was the practice of SOCA, I am told, not to take steps to deal with a warrant until they had information as to the whereabouts of the individual in this country. Since he had signed on for the Home Office up until 2004, and there is no reason to doubt that he had been working here since, it is a little difficult to follow why SOCA found it so difficult to locate him in this country. Certainly there seems little excuse for that substantial delay. I appreciate of course that it is not a matter which is the fault of the prosecuting authority of Poland, nonetheless it is a substantial delay which must affect the proportionality of return in a case such as this.”

Collins J said at [17]-[18] that, taking account of the substantial delay, extradition would be disproportionate even though the appellant was a fugitive, at least in relation to one of the matters for which he was sought.

In Wolack v Poland [2014] EWHC 2278 (Admin), where the Article 8 appeal failed, Collins J sounded a note of caution, saying this at [9]:

“It is, in my judgment, quite wrong for this court to assume culpability in any delay unless it is so excessive or there are factors which indicate that it really was not reasonable for the authority to fail to issue a warrant earlier than it did. Furthermore, even when a warrant is issued, it may take time for it to be appreciated where the appellant precisely is in this jurisdiction. It is all very well to say it should not have been difficult to find him but one must also bear in mind that there are priorities that have to be adopted by the authorities here.”

But in Oreszcyynski [2014] EWHC 4346 (Admin), where the appellant was a fugitive, the NCA received a European arrest warrant in November 2010 and made an initial attempt to trace the appellant through an NHS database, but did not follow up when their initial enquiries received no response: see [4]-[5]. No checks were made with the Home Office, even though the appellant was registered with them. Blake J allowed the Article 8 appeal, saying this:

“9… I have no hesitation in reaching the conclusion that the failure to make any inquiries of the appellant’s whereabouts after 15 November 2010, let alone inquiries with one of the most obvious ports of call, the Home Office that deals with foreign national generally and Polish workers in particular at that time, is astonishing…

10.

I am unimpressed with the submission that there is no statutory duty on the NCA to investigate the possible whereabouts of the fugitive. On that submission an EAW could gather dust over the decades unless and until the happenstance of a police encounter were to incur. A delay in taking reasonable steps to execute an EAW engages issues of human rights.”

In Miller, an Article 8 appeal also succeeded. The appellant was a fugitive who had come to the UK to avoid serving a sentence of just over 18 months’ imprisonment for supplying cannabis between 2001 and 2003: see [1] and [3]. A European arrest warrant was issued in 2009. The NCA (or its predecessor) did not certify it until 2012 and then took over three years to execute it. When granting permission, the judge said that the NCA needed to account for the delay. They provided no evidence on this: see [4]. It was in that context that Collins J described the 6-year delay as “nothing short of disgraceful” and “inexcusable”. In that period, the appellant had consolidated his life in this country. At [7], he added:

“This appellant was properly regarded as a fugitive. So far as any delay in Poland is concerned, that would weigh little in his favour in considering his Article 8 claim. But the situation is somewhat different when one considers delay by the NCA or its predecessor. The fact that he was a fugitive, of course, is material but it is not a matter which can weigh so heavily against him when one is considering delay which ought not to have occurred but which was not the responsibility of the requesting state. It was solely the responsibility, and resulted from what appears to be the disgraceful incompetence, of those responsible.”

In Cieczka v Poland [2016] EWHC 3399 (Admin), there was a six year delay in certifying European arrest warrants: see [3]. The appellant was a fugitive, but the Polish authorities knew from an early stage that he was in the UK. Mitting J regarded the fact of the delay as “highly relevant”, as was the fact that it was unexplained. The Article 8 appeal succeeded.

In Zimackis, Garnham J allowed an appeal on Article 8 grounds in a case where the appellant was a fugitive. He said this:

“25… it seems to me right to acknowledge that the court should be slow to criticise the NCA given the competing burdens that fall on that organisation. Nonetheless, it is evident that prior to the UK’s accession to the SIRENE arrangements, the NCA’s approach to responding to receipt of EAWs depended on their being notified, by one means or another, of the presence of the subject of the EAW in this country. In this case, an enquiry of the Home Office would have revealed that the appellant was living in Yorkshire. An enquiry of the Department for Work and Pensions would have had a similar effect.

26.

It is not necessary for me to decide whether or not the NCA are culpable on the facts of this case, but it is material for me to observe and conclude, as I do, that it would have been possible for the British authorities to have discovered the appellant’s presence in this country, had a simple enquiry been made of the department responsible for the presence of Latvian nationals at the time in the UK.”

However, in RT, where the Article 8 appeal failed, the Divisional Court took an approach which, on its face, appears different. The appellant had been sentenced to three years’ imprisonment for a violent robbery, of which 2 years and 10 months remained to be served. He failed to surrender to custody and a domestic arrest warrant was issued in 2005. It was another four years before a European arrest warrant was issued, in November 2009. At that time, the NCA’s predecessor had no information suggesting he was in the UK, although he had made an application to the Home Office. In November 2013, intelligence was received by the NCA from Poland that the appellant was living and working in the UK. The warrant was certified in the same month and issued a few days later to the local police force. The appellant was not arrested until two and a half years later, though there was evidence that the police had been looking for him two years before that and he had spent nights away from home as a result: see [10]-[11]. At [62], Burnett LJ and Ouseley J said this:

“It is a frequent submission that someone has been living in the United Kingdom openly, often having had contact with various official bodies here. But neither the foreign judicial authority nor the NCA can be expected to explore the byways and alleyways of British officialdom to discover whether someone is in this country. In this case, it is true that the local police took a long time to arrest the appellant, although as we have noted the evidence suggests they had tried earlier and the appellant was taking steps to avoid them.”

In Wanagiel, another fugitive case where there was a delay of nine years between the issue of the European arrest warrant and its certification by the NCA, the appeal also failed. At [8], Ouseley J cited a well-known passage from Gomez v Trinidad & Tobago [2009] UKHL 21, [2009] 1 WLR 1038, in which Lord Brown said this at [26]:

“If an accused… deliberately flees the jurisdiction in which he has been bailed to appear, it simply does not lie in his mouth to suggest that the requesting state should share responsibility for the ensuing delay in bringing him to justice because of some subsequent supposed fault on their part, whether this be, as in his case, losing the file, or dilatoriness, or, as will often be the case, mere inaction through pressure of work and limited resources. We would not regard any of these circumstances as breaking the chain of causation (if this be the relevant concept) with regard to the effects of the accused’s own conduct.”

At [9] of his judgment in Wanagiel, Ouseley J said the passage quoted at [41] above from RT and at [10] said this:

“It does not lie in the mouth of a person who has fled a jurisdiction which had properly, as he knew, sentenced him to imprisonment, and required him to serve it, to say further that it was an obligation on the UK or Polish authorities to find him, when he had made no contact with them. It is not for them to search around amongst the various UK authorities that might have revealed exactly where he was in order to arrest him. The obligation is on the person, who is the fugitive, to tell the Polish judicial authorities exactly where he is.”

In Cis, the Article 8 appeal also failed. Choudhury J distinguished Oreszczynski on the ground that in that case no inquiries were made as to the appellant’s whereabouts for a number of years. He distinguished Cieczka because in that case (contrary to the finding of the district judge) there was evidence that the Polish authorities knew the appellant was in the UK. He cited the above passages from Wanagiel and RT. On the facts, there was no failure to take obvious steps. However, Choudhury J concluded at [24]:

“it does not lie in the mouth of a fugitive who has evaded justice in his home country to blame authorities for not finding him in the meantime. Although the appellant lived an open life in the UK, the one step he did not take, having become a fugitive, was to inform the Polish authorities directly of his whereabouts. In fact, as is noted in the social worker’s report, having left Poland to escape his sentence the appellant never travelled back to Poland for fear of being arrested.”

It has been said that, as long as the general principles are understood, it is generally unnecessary to cite decisions of single judges in Article 8 appeals: see e.g. Celinski v Poland [2015] EWHC 1274 (Admin), [2016] 1 WLR 551, [14(iii)]. This reflects the fact-sensitive nature of the Article 8 balancing exercise. The facts of one case are never the same as those of another. Even if they were, the chief relevance of previous decisions lies in the principles they establish, not in the application of those principles to particular facts. In this area the principles are for the most part adequately set out in the decisions of the Supreme Court in set out in Norris v USA [2010] UKSC 9, [2010] 2 AC 487 and HH and of the Divisional Court in Celinski.

As I have said before, however, this point should not be elevated into a hard rule: see e.g. Killoran v Belgium [2021] EWHC 1257 (Admin), [56]. Previous decisions, including those of single judges, can sometimes be helpful in identifying a principle or direction of travel governing the approach to a particular issue. The proper approach to delay in cases where the appellant is a fugitive is one such issue.

On a quick review of the case law, it would be tempting to agree with Ms Herbert’s submission for the respondent that the Divisional Court’s decision in RT marked a step change in the approach to this issue. But a careful reading of the judgment in RT, and subsequent decisions citing and applying it, shows that the position is somewhat more nuanced than that.

Before identifying the key principles, it is necessary to say something about the practical working arrangements of the system of judicial cooperation established by Framework Decision 2002/584/JHA, which established the European arrest warrant. Often, the judicial authority of the issuing state does not know in which Member State the requested person is located. In such cases, an alert is issued using SIS, which is now available to all EU Member States. When an alert is entered on to SIS, a copy of the warrant in the official language of the issuing state must be attached. Translations can also be attached but are not required. The data on SIS is managed by a national system known as SIRENE. There is a SIRENE bureau in each Member State. Once an individual the subject of an alert on SIS is arrested, the issuing state must send a translated copy of the warrant to the executing state. Since the UK’s exit from the EU, it has lost access to SIS. In cases where the issuing state knows the Member State in which the requested person is located, it generally sends the warrant directly to the judicial authority of the executing Member State, accompanied by a translation into the official language of that state.

When an issuing state seeks an individual who has fled outside its borders to evade its justice system, without indicating which country he has fled to, that state is under no obligation to devote resources to making enquiries about his whereabouts. By the same token, a decision by an issuing state to enter an alert on SIS, without more, does not trigger an obligation on the judicial authority or police force of every other Member State to check its own official records or otherwise search for the individual concerned. In this situation, as the Divisional Court put it in RT, “neither the foreign judicial authority nor the NCA can be expected to explore the byways and alleyways of British officialdom to discover whether someone is in this country”. This informs the approach to questions of delay in Article 8 cases where the appellant is a fugitive.

It is important, however, to note that, in the Divisional Court’s reasoning in RT, what the issuing state could not be expected to do was make enquiries “to discover whether someone is in this country”. As the careful analysis of Choudhury J in Cis makes clear, the position may be different where the authorities of the issuing state know that the requested person is in this country, as in Cieczka. In such a case, there is a step which those authorities could be expected to take, namely, make a direct request to the authorities here. There may, of course, be an explanation why that step was not taken. If so, the authorities in the issuing state should be prepared to give it. If no satisfactory explanation is given, the UK court is likely to assume that there is none. This is a factor that can be relevant to the Article 8 balancing exercise.

Once the UK authorities have received a direct request, a question may arise as to the significance to be attached to any subsequent delay between the receipt of the request and the arrest of the requested person. The court is unlikely to be impressed with a complaint made by a requested person who has taken steps to evade arrest or hide his location in the UK, as had the appellant in RT. Furthermore, as was recognised in Wolack and Zimackis, the court must be realistic about the resource constraints operating on the NCA and on UK police forces. But a long delay can properly be weighed in the Article 8 balance in cases where it would have been easy to locate the requested person and the UK authorities have failed to take even the most minimal steps to do so. Where there has been a long delay between a direct request from the authorities of the issuing state and the execution of the warrant in the UK, the NCA should be prepared to give at least a brief explanation of any steps taken to execute the warrant. If no such explanation is given, the court may assume that there is none. This too is a factor which may be of relevance to the Article 8 balancing exercise.

Delay may be relevant to the Article 8 balance in one or both of two ways. As Lady Hale said in HH, inadequately explained delay on the part of the issuing state may cast light on the seriousness attached by that state to the offending in respect of which extradition is sought. Inadequately explained delay on the part of the executing state is unlikely to bear on that issue, but may still be relevant when assessing the weight to be given to any interference with private and/or family life to which extradition gives rise. This is likely to be of particular importance in cases where extradition would disrupt family relationships which have started or significantly developed during the period of delay, but it may also be relevant where the requested person has built up a private life in this country during that period. The weight to be given to the interference is attenuated, but not extinguished, by the fact that the requested person came to this country as a fugitive from justice.

The evidence discloses two periods of delay. The first was between the appellant’s failure to surrender to custody following the activation of his suspended sentences and the issue of the European arrest warrants. This delay was just over one year for the first warrant and just over eighteen months for the second. Ms Herbert submitted that, given the finding that the appellant was a fugitive, the Polish authorities were entitled to search for the appellant in Poland before issuing a European arrest warrant. The difficulty with this is that, as the respondent’s evidence confirms, the appellant had corresponded with the court from an address in the UK; and the appellant’s conviction for possession of class A drugs at Snaresbrook Crown Court was the reason why the suspended sentence was activated. In those circumstances, the respondent has not shown that the delays in issuing the two European arrest warrants were justifiable. That said, these delays were not particularly substantial in comparison with the norm in extradition cases.

The delay between the issuing and the certification of the warrants, by contrast, was more than 4 years. This was undoubtedly substantial. Unfortunately, the evidence does not adequately explain it. The lack of an adequate explanation cannot be excused purely by reference to the UK’s exit from the EU and the consequent loss of access to SIS. The respondent could have given evidence about when the warrants were registered on SIS and about whether and when any direct approach was made to the UK authorities. If no such approach was made, there is nothing to indicate why not, given that the Polish authorities had corresponded with the Appellant at an address in the UK and knew of the conviction at Snaresbrook. Equally, the NCA could have given evidence from its own records to explain what action (if any) it took between 2015 and 2020 or, if it took no such action, why not. The termination of the UK’s access to SIS does not excuse the absence of evidence on these matters. Having been given no adequate explanation, I must assume that there is none; and that steps that could have been taken by either the Polish authorities or the NCA or both were not taken.

Reading [30]-[32] of the District Judge’s judgment as a whole, it does not appear that the delay by the respondent and/or the NCA was properly taken into account in the balancing exercise. This may be because the District Judge considered that it was irrelevant in any case where the appellant was a fugitive or because he attached weight to the fact that the appellant no longer resided at the address from which he had corresponded with the Polish court. If the former, this in my judgment was an error of law. If the latter, the conviction at Snaresbrook postdated the correspondence with the Polish court and, as the District Judge said, this “revealed his location and residential circumstances”, so a question did arise as to why it took so long for action to be taken to issue and then execute the warrant. Either way, the balancing exercise falls to be retaken by me.

Despite my concerns about the delay in this case, I have nonetheless concluded that extradition would not be disproportionate. The main significance of the delay is that it delineates the period upon which it is necessary to focus in evaluating any private or family life interests which may have developed. In this case, there is no evidence of any relevant family life. The appellant’s friendship with his landlady is relevant as a relationship that forms part of his private life, as is the practical and emotional assistance he provides for her, but I am not able to attach any more than limited weight to the effect of extradition on this non-familial relationship. I have borne in mind that the appellant has created a stable life for himself in the UK and has only one relatively minor conviction (in 2016) in this jurisdiction.

It is possible that the activation of the appellant’s suspended sentences proceeded on a misapprehension as to the nature of the conviction at Snaresbrook. It is now clear that this conviction was for simple possession, and not supply, of controlled drugs. But it is the Polish court, rather than the UK courts, which must assess whether and to what extent the disclosure of the true position matters. For the time being, I have to proceed on the basis that the Polish sentences, which have not been set aside or varied, stand. It would be wrong to place too much store by the age of the offences for which extradition is sought. It is true that these offences were committed long ago, but the appellant could have avoided extradition for these offences had he complied with the conditions on which his sentences were suspended.

The key date so far as any evaluation of delay is concerned is 2017, when the Polish courts activated those sentences and the appellant failed to surrender to custody. The strength of the public interest in extradition is attenuated by the delay after that point, part at least of which is attributable to the respondent state. But the overall length of time left to serve (8 months and 26 days on the first warrant; 1 year, 3 months and 28 days remained on the second warrant) remains substantial. (Sir Duncan Ouseley was mistaken about the length of time left to serve on the second warrant.) Although the offending took place some time ago, and was not of the most serious kind, it was part of a pattern of offending and the Polish courts were entitled to take that into account in imposing the sentences they did. In those circumstances, despite the delay, there remains a significant public interest in the appellant’s extradition.

While the medical evidence establishes two relevant mental disorders, moderate depression and ADHD (or at least symptoms consistent with ADHD), the District Judge was right to say that neither is particularly unusual and there is no basis to doubt that treatment would be available from the Polish authorities for both, if such treatment were medically indicated. I have carefully considered both of Dr Galappathie’s reports. (I read the second report de bene esse in advance of considering its admissibility.) I note that the appellant’s depression remains “moderate” in severity. I also note the conclusion in the second report that if extradition were ordered there could be a recurrence of previous suicidal thoughts. However, neither of Dr Galappathie’s reports suggests that the risks attendant upon suicidal thoughts are unmanageable. Provided that those responsible for detaining and removing the appellant and the Polish authorities who receive him are given up-to-date information about his medical condition, there is no reason why they could not put in place proper measures to prevent him from acting on such thoughts.

In the light of these conclusions, the challenge to extradition on the ground of oppression must also fail, given the high threshold that has to be reached where an appellant’s mental condition is the basis for the objection: see Turner v USA, [28]. On this aspect of the case, the District Judge’s summary of the medical evidence before him cannot be faulted, nor can his application of the legal principles to that evidence. The further report of Dr Galappathie does not add materially to the analysis.

For these reasons, I conclude that, despite the unexplained delay in this case, extradition is not barred by either s. 25 or s. 21 of the 2003 Act. The appeal is therefore dismissed.