Mateusz Kazimierz Swiatek v Regional Court In Lodz, Poland

For the reasons I have given, I have reached the clear view that the Judge ought to have decided the question of section 14 oppression (and injustice) by reason of the passage of time differently and, doing so, would not have been required to order the RP's discharge on the section 14 ground. In those circumstances, I am going to quash the order discharging the RP and remit the case to the Westminster Magistrates Court for a hearing. That will be a hearing at which the Article 8 ECHR issues can be evaluated, on an up-to-date basis. As I explained in the context of the cross-appeal, that is something which the RJA accepted would be the appropriate consequence were its appeal on section 14 to succeed, as it now has.

Whether the Appellant’s extradition would be compatible with his rights pursuant to section 21A(1)(a) of the Act and Article 8 of the European Convention on Human Rights, and

Whether the Appellant’s extradition would be proportionate pursuant to section 21A(1)(b) of the Act.

From June 2010 to at least 28 April 2014, an organised criminal group operated in Łódź, whose members manufactured and traded drugs in the form of amphetamine and marijuana. The group was headed by Krzysztof Wejchan- Rotowicz, who coordinated its activity, organised financing and supplying drugs in the Province of Łódź and organised an illegal drug ring. One of the persons involved in the described drug trafficking and belonging to the said drug ring was Artur Ziarko, with whom Mateusz Świątek cooperated. Artur Ziarko dealt in amphetamine and marijuana sourced from Krzysztof Wejchan-Rotowicz. Once or twice a week, Mateusz Świątek and his partner Karolina Brzezińska bought 5 (five) to 10 (ten) grams of amphetamine and then sold the drug. Between January 2013 and 28 April 2014, Artur Ziarko sold them at least 600 (six hundred) grams of amphetamine. They informed him that they intended to sell the amphetamine. All of the described drug transactions took place in Karolina Brzezińska’s flat in Zachodnia Street in Łódź

It was a result of a long-lasting international search that the wanted person's residence address in Great Britain was established. The suspect's attitude and conduct during the criminal proceedings impeded the course of the said proceedings conducted and resulted in a stay of the investigation for a few years. Mateusz SWIATEK is charged with being involved in trading in significant quantities of psychotropic substances in the form of amphetamine sulphate, i.e., an offence characterised by a high level of harm to society which carries a severe custodial sentence. The circumstances concerning the fleeing and going into hiding as well as severity of the anticipated penalty constituted the reasons for the Polish courts to deliver the order to apply a pre-trial detention against the aforementioned person and subsequently, the Arrest Warrant.

In the assessment of the Public Prosecution Service, it is only by bringing Mateusz SWIATEK to Poland as a result of an extradition and by conducting procedural actions with him in Poland by the public prosecutor will it be possible for the investigation to return to its due course and to complete the criminal proceedings which have been pending for many years.

Given that the investigation against Mr Świątek is in its early stage (i.e., prior to his first questioning and prior to indictment being filed with the court), access to the case files was highly restricted. ln total, the case files against all defendants amount to 25 volumes (each volume has approx. 200 pages), however we have been granted access only to the documents which pertain strictly to the charge against Mr Mateusz Świątek and served as evidence for the court to order Mr Świątek's preliminary detention. ln summary, we have been granted access to 203 pages out of 4,865 pages in the case files. The files of the investigation with respect to other suspects involved in the proceedings were not made available to us.

The case files of the investigation contained only the sentencing parts of both the judgments (without written motives for the conviction, which is a separate part of the judgment issued only upon request of the party to the proceedings) ……. Therefore, we do not possess the written motives for this judgment, and we are unable to opine on the reasoning and factual background of Ms Brzezińska's conviction.

Providing an exact and certain answer to the question of what sentence might be imposed on Mr Świątek if he were found guilty is not possible, since the court has a wide margin of discretion when deciding on the penalty, being bound only by statutory limits of minimum and maximum penalty, which are widely framed, While deciding on a penalty, the court will be taking into account many factors, both prescribed by law and resulting from the individual circumstances of the case and Mr Światek's personal situation and his personal traits, about which we do not have any information. The court will also have a wide range of applicable measures, which it may apply when considering a sufficient penalty, including suspension of prison sentence

I accept that since I considered this case back in March 2022 much has moved on and most particularly the fact that the RP has remained in custody and, in the ordinary course, would be entitled to have this further period taken into account as part of what might be described as 'early release provisions in this JA I have been referred to the case of Dubrowolski v Poland [2023] EWHC 763 Admin and whilst, unlike the position that pertains in the UK, a defendant is not entitled to automatic release once he has served half of any sentence imposed, the Polish Criminal Code permits a discretionary release at the half-way point, but I have no evidence as to whether the JA would consider this case in that form.

The difficulty I have found in this difficult and finely balanced case, however, is the emphasis which is placed by the RP upon what the JA is likely to do in this case were extradition to take place. For example, the expert evidence filed in this matter and already made the subject of comment is restricted in the material available to the author and the JA submit that the weight that can be placed upon the same is, therefore, minimal. Further, this court is asked to make comparisons with other defendants in the case, and in particular a co-defendant. I do not think that this court is able to affect such an exercise upon the limited material before it and that before the RP expert.

20: The difficulty does not end at that point. I am asked to consider this case from the perspective that any conviction 'would not result in a substantial custodial sentence …', and in this context to factor the time already spent in custody over and above that which he has served as of the date of the last hearing. Whilst the point is well taken, I question whether this is a matter which this court can properly take into account given that this is not a court of trial but an extraditing court. In short, I do not consider it is the business of this court to investigate an accusation and seek to pre-judge or to predict how a court of trial would judge the role of this RP, especially given the absence of evidence or material that would make this possible.

I have considered the personal circumstances of the RP Whilst there are undoubtedly sad aspects of the matter especially relating to the Iost or minimal contact he has with his daughter, he is not a primary carer for this child, contact with the mother has been lost and a significant time has elapsed since meaningful contact has been experienced. Naturally the latter point is not fault based on the part of the RP, but the reality is that family ties such as they may be described in this case are weak.

Ground 1: The Judge failed to ascribe proper weight to the expert evidence of Mr Lasek.

Ground 2: The Judge failed to conduct a proper assessment of the likely sentence upon conviction by reference to domestic sentencing guidelines, and accordingly failed to account for the real possibility that the 2 years and 4 months the Appellant has spent in custody to date may exceed any sentence that he would receive if convicted.

Ground 3: The Judge erred in concluding that there was no information from the Requesting State on the issue of likely sentence upon conviction, and consequently failed to account for the fact that the Appellant’s co-defendant received a suspended sentence in respect of identical conduct.

Ground 4: The Judge failed entirely to address the required question of proportionality under section 21A(1)(b) of the Act and the specified matters set out at section 21A (3).

21A Person not convicted: human rights and proportionality

If the judge is required to proceed under this section (by virtue of section 11), the judge must decide both of the following questions in respect of the extradition of the person (“D”)—

whether the extradition would be compatible with the Convention rights within the meaning of the Human Rights Act 1998.

whether the extradition would be disproportionate.

In deciding whether the extradition would be disproportionate, the judge must take into account the specified matters relating to proportionality (so far as the judge thinks it appropriate to do so); but the judge must not take any other matters into account.

These are the specified matters relating to proportionality—

the seriousness of the conduct alleged to constitute the extradition offence.

the likely penalty that would be imposed if D was found guilty of the extradition offence.

the possibility of the relevant foreign authorities taking measures that would be less coercive than the extradition of D.

The judge must order D's discharge if the judge makes one or both of these decisions—

that the extradition would not be compatible with the Convention rights.

that the extradition would be disproportionate.

There may be a closer analogy between extradition and the domestic criminal process than between extradition and deportation or expulsion, but the court has still to examine carefully the way in which it will interfere with family life.

The question is always whether the interference with the private and family lives of the extraditee and other members of his family is outweighed by the public interest in extradition.

There is a constant and weighty public interest in extradition: that people accused of crimes should be brought to trial; that people convicted of crimes should serve their sentences; that the United Kingdom should honour its treaty obligations to other countries; and that there should be no “safe havens” to which either can flee in the belief that they will not be sent back.

That public interest will always carry great weight, but the weight to be attached to it in the particular case does vary according to the nature and seriousness of the crime or crimes involved.

The delay since the crimes were committed may both diminish the weight to be attached to the public interest and increase the impact upon private and family life.

Hence it is likely that the public interest in extradition will outweigh the article 8 rights of the family unless the consequences of the interference with family life will be exceptionally severe.

The extradition process involves the proper fulfilment of our international obligations rather than domestic sentencing principles. So far as the interests of dependent children are concerned, perhaps the crucial difference between extradition and imprisonment in our own sentencing structures is that extradition involves the removal of a parent or parents out of the jurisdiction and the service of any sentence abroad, whereas, to the extent that with prison overcrowding the prison authorities can manage it, the family links of the defendants are firmly in mind when decisions are made about the establishment where the sentence should be served.

Nevertheless, for the reasons explained in Norris the fulfilment of our international obligations remains an imperative. ZH (Tanzania) did not diminish that imperative. When resistance to extradition is advanced, as in effect it is in each of these appeals, on the basis of the article 8 entitlements of dependent children and the interests of society in their welfare, it should only be in very rare cases that extradition may properly be avoided if, given the same broadly similar facts, and after making proportionate allowance as we do for the interests of dependent children, the sentencing courts here would nevertheless be likely to impose an immediate custodial sentence: any other approach would be inconsistent with the principles of international comity. At the same time, we must exercise caution not to impose our views about the seriousness of the offence or offences under consideration or the level of sentences or the arrangements for prisoner release which we are informed are likely to operate in the country seeking extradition. It certainly does not follow that extradition should be refused just because the sentencing court in this country would not order an immediate custodial sentence: however, it would become relevant to the decision if the interests of a child or children might tip the sentencing scale here so as to reduce what would otherwise be an immediate custodial sentence in favour of a non-custodial sentence (including a suspended sentence).

Section 21A creates two separate bars to extradition in an accusation case, whether extradition would be incompatible with a Convention right and whether extradition would be disproportionate. While the factors influencing those decisions may overlap, they require separate consideration [paragraph 29].

The words in brackets in section 21A (2) [“so far as the judge thinks it appropriate to do so”] mean that the judge is permitted to arrive at their conclusion without regard to one or more of the specified matters in subsection 3 [seriousness, likely penalty, less coercive measures] but should explain their reasons for proceeding in that way [paragraph 33].

The Court referred to the District Judge considering domestic criminal law, stating that in the assessment of seriousness [for subsection 3a] the conduct is initially to be judged against domestic standards [paragraph 36], and in the assessment of the likely penalty [for subsection 3b] the judge was “entitled” to have regard to domestic sentencing practice [paragraph 38]. The Court reached those conclusions after hearing submissions founded on Lord Judge’s judgment in HH, as extracted above.

25.The statutory appeal power in section 104(3) permits an appeal to be allowed only if the district judge ought to have decided a question before him differently and if, had he decided it as he ought to have done, he would have had to discharge the appellant. The words “ought to have decided a question differently” (our italics) give a clear indication of the degree of error which has to be shown. The appeal must focus on error: what the judge ought to have decided differently, so as to mean that the appeal should be allowed. Extradition appeals are not re-hearings of evidence or mere repeats of submissions as to how factors should be weighed; courts normally have to respect the findings of fact made by the district judge, especially if he has heard oral evidence. The true focus is not on establishing a judicial review type of error, as a key to opening up a decision so that the appellate court can undertake the whole evaluation afresh. This can lead to a misplaced focus on omissions from judgments or on points not expressly dealt with in order to invite the court to start afresh, an approach which risks detracting from the proper appellate function. That is not what Shaw or Belbin was aiming at. Both cases intended to place firm limits on the scope for re-argument at the appellate hearing, while recognising that the appellate court is not obliged to find a judicial review type error before it can say that the judge’s decision was wrong, and the appeal should be allowed.

26.The true approach is more simply expressed by requiring the appellate court to decide whether the decision of the district judge was wrong. What was said in Celinski and Re B (A Child) are apposite, even if decided in the context of article 8. In effect, the test is the same here. The appellate court is entitled to stand back and say that a question ought to have been decided differently because the overall evaluation was wrong: crucial factors should have been weighed so significantly differently as to make the decision wrong, such that the appeal in consequence should be allowed.

Seriousness: The Judge concluded the offence was serious, as was made clear within his Celinski assessment where [at paragraph 22 of his judgment] he wrote, “the allegations in this case are serious and involve the RP being part of a criminal enterprise appertaining to drug smuggling over a significant period of time”. For the reasons I have set out in my consideration of both HH and Miraszewski, while a judge can perfectly properly make reference to domestic sentencing guidelines, there is no obligation to do so. In my view the Judge was expressing, as a matter of judicial common sense, an obvious conclusion.

Likely penalty: I accept that if the Judge had reached the conclusion that the Appellant was likely to have served all, or almost all, of any likely prison sentence then that would have been a powerful argument in any consideration of both the section 21A bars to extradition. Once more, I refer back to my consideration of both HH and Miraszewski and conclude that the Judge was not obliged to refer to domestic sentencing guidelines. In his judgment, however, the Judge gave a sound reason for not being able to take a view on a likely sentence when, at paragraph 20 of his judgment, he wrote, “I question whether this is a matter which this court can properly take into account given that this is not a court of trial but an extraditing court. In short, I do not consider it is the business of this court to investigate an accusation and seek to pre-judge or to predict how a court of trial would judge the role of this RP”. A trial that results in a conviction will shed light on the role of the accused, and that role will be central to the sentence that follows. Without knowing what role, the trial court would assign to the Appellant, the Judge was simply not in a position to proceed on the basis that was urged upon him, that the Appellant would be found to have played a minor role such that no severe punishment would follow. In consequence the Judge was faced not only with an expert who was unable to predict what sentence the Polish court would pass, but he had no sound basis to assess where in the domestic guidelines the Appellant would fall, given the role of the offender is a central feature therein.

On the facts of this case the proportionality ground was always weaker than the Article 8 ground, as the latter had all the same arguments plus the Appellant’s family connection in the UK. As such, once the Judge had reached his conclusions on the section 21A(2)(a) submissions, it was inevitable he would also dismiss the section 21A(2)(b) argument.

In Love v USA the Divisional Court [at paragraph 25] spoke of “a misplaced focus on omissions from judgments or on points not expressly dealt with”. While the Judge’s failure to deal with one of the two substantive submissions being advanced may be a larger omission than the Court had in mind, in my view the overlap between the two arguments is such that this omission should not lead me to take a fresh decision in the substantive merits of this case.

Any decision on proportionality would have been founded on seriousness, on which the Judge had taken a sensible view, as above. The Judge in terms declined to take a stance on the likely penalty, a decision he was entitled to take, for reasons set out above, and his reasons for declining to take that stance were fully justified in his written judgment. Given those decisions, his conclusion on the section 21A(1)(b) argument would inevitably have been to reject it.

In the alternative, were I to have to take the decision afresh I would arrive at the same conclusions as the Judge given the “constant and weighty public interest in extradition” [to quote Baroness Hale in HH, as above].

While the decisions taken in other appeals are fact sensitive, I note that in one of the three cases considered in Miraszewski the Divisional Court accepted the District Judge had failed to address the section 21A(1)(b) submissions but simply expressed the view the proportionality argument failed for the same reasons as the article 8 submissions [Miraszewski, paragraphs 16 and 45]. Thus, the obvious overlap in the two distinct arguments may on occasions permit a judge on appeal to deal with the argument briefly.