Lucasz Galadzun v Polish Judicial Authority (Regional Court in Gdansk)

Appellant. The appellant went to the Polish Embassy on 24 January 2014. In applying for a Polish passport, the Polish state became aware of his residency in the United Kingdom. The arrest warrant was issued and certified only in 2023. That amounts to a culpable delay. The judge found no culpable delay and thus was in error.

Respondent. The Polish Embassy in London and the criminal and judicial authorities in Poland, while both part of the Polish state, are distinct and separate institutional entities.

The court asked counsel on what evidence their submissions was made. Both accepted that the assertions about the structure of the Polish state were made in an evidential vacuum. There is no evidence either way about the internal arrangements within Polish authorities or “officialdom”, as Mr Joyes termed it, borrowing from RT v Poland [2017] EWHC 1978 (Admin). It is clear that the District Court of Kwidzyn did not know the appellant’s whereabout as at February 2016 because it ordered the suspension of the execution of his three sentences. Since the court did not know where he was, it ordered the clock to stop ticking so the Polish limitation period would not expire. Therefore, it is unarguable that the Polish judicial authorities did know that the appellant was in the United Kingdom. They plainly did not. The subsidiary argument advanced by Mr Joyes is that the court “ought to have known”. He submitted this because there ought to be proper and effective channels of communication between branches of the Polish state.

It seems to me that this is an overly ambitious and unrealistic submission. It means that whichever Polish consular building anywhere in the world a person walks into to apply for a passport, the regional court in Poland which imposed the evaded sentence maybe many years previously should be informed. In a perfect world, that may be desirable. While Mr Joyes submitted that the court should conclude that “the state talks to itself”, that only goes so far. He must submit that all parts of the state talk to all other parts, or at least, all relevant parts must be taken to mutually communicate. That said, I do not accept Dr Brieskova’s submission that the Embassy and the judicial authorities in Poland are “separate entities” entirely. They are different parts of the same Polish state. However, it seems to me that the disparate elements of a complex institutional organism like a national state cannot automatically be fixed with knowledge of another remote part of it – here in a different country - in the absence of evidence to this effect. I cannot accept that the District Court in Kwidzyn ought to be fixed with the knowledge of those who processed Mr Galadzun’s application for a passport when he applied in London. I therefore find the inference that Dr Brieskova invites me to draw that different institutional parts perform different functions to be significantly more realistic and reasonable.

It is certainly the case that, as Mr Joyes put it, “something happened in 2022”. Relying on the evidence of Mr Zygmont the Polish lawyer, he points out that the arrest warrant was issued in December 2022. It seems, however, that the wanted notice was not issued in respect of the first offence chronologically (Offence A) until September 2021. The sentence was imposed in October 2001. Therefore, there has been a delay in excess of 20 years in issuing the wanted notice. That is an inordinate delay. It is what Mr Joyes submits is the “unexplained factor”, and indeed Dr Brieskova is unable to provide any explanation for it. However, that is not the end of the matter. The Polish authorities were not dilatory about the other two offences. The wanted notice for Offence B was issued in November 2006, that is approximately six months after Mr Galadzun fled Poland for the United Kingdom. As far as Offence C, the wanted notice was issued in January 2007. There were local searches for the appellant in Poland, followed by nationwide searches with wanted notices. The authorities used internet, social media and other media to try to find him and entered his data in the SIS system. The court regularly checked with the police for news of progress. There is no doubt, to my mind, that the Polish authorities were actively looking for the appellant and wanted to find him.

In a series of judgments, this court examined cases where Poland as requesting state has not acted timeously thereby creating substantial delay (see, for example, Juszczak v Poland [2013] EWHC 526 (Admin); Tomasziewicz v Poland [2013] EWHC 3670 (Admin)). However, I find that there is no culpable delay in this case on the part of the respondent. The Judge did not err in his conclusion on culpability. The obligations where a requesting state does not know the location of a fugitive are clearly set out in Chamberlain J’s helpful judgment in Pabian v Circuit Court in Warszawa [2024] EWHC 2431 (Admin) at para 48:

“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.”

The Judge’s conclusion on culpable delay was not wrong.

Appellant. The appellant relied on the factors below in favour of a conclusion that extradition amounts to a disproportionate interference with his Article 8 rights. I exclude culpable delay as the court has found against this.

Respondent. Against this, Dr Brieskova relied on the following factors:

There are no material factual disputes on the proportionality analysis. The contest between the parties is principally about factor evaluation. The determination of an Article 8 bar to extradition depends on the outcome of a weight-sensitive balancing exercise. In Celinski the Divisional Court commended a “check list” approach. This is undoubtedly to introduce welcome organisational and structural rigour, as in other notable checklists such as that under section 1(3) of the Children Act 1989 when evaluating child welfare (a statutory checklist). However, a checklist approach should not be confused with a tick-box exercise. What counts is substance over form; not numerical multiplicity of factors but their measured weight.

On Issue 1, the court has found that there is no culpable delay on the part of the respondent. That being so, the principal and operating cause for delay here is Mr Galadzun’s deliberate fugitivity. He accepted (finally) when giving evidence before the Judge that he left Poland and came to the United Kingdom to avoid serving his prison sentences in Poland. That much was evident from the chronology, even should he have not admitted the same. This is because he left Poland for the United Kingdom the month after the Polish court revoked his release on parole for Offence A and he was due to surrender to prison to begin his custodial sentences. He failed to turn up. Instead, he left the country for the United Kingdom. Therefore, from that point in the middle of 2006, the true explanation for the delay has been the appellant’s determined effort to stay out of the reach of the Polish judicial authorities by residing in Britain and avoid the prison sentences he is due to serve.

Turning to the nature of the offences, I cannot accept that they are “minor”. They do not appear in the Criminal Practice Direction table (para 12.2.4) for section 21A(3)(a) seriousness of conduct evaluations that require “exceptional circumstances” before extradition is deemed proportionate. These are three burglaries. Two are of commercial premises and were group offences. The parties agreed that one was of a basement or cellar of a domestic residence. These were not connected offences but occurred over the span over three or four years. It is true that the appellant was much younger, aged between 17 and 21, and was addicted to drugs. But the Polish court undoubtedly will have considered all these matters in setting the level of sentencing.

While Mr Galadzun has settled in this country, the basis of how he has settled is significant. He was in the United Kingdom as a fugitive from Polish justice. He had a duty to inform Polish authorities of changes of address over seven days in duration. He did not do this. In 2022, he made an application for settled status and misled the British authorities by failing to disclose his Polish convictions. As Dr Brieskova informs the court, the Home Office, understandably, is having to reconsider his grant of status given the deception. Shortly after his application for settled status, he committed a burglary in the United Kingdom. This offending resonates with his Polish criminality. While I emphasise that I place little store in the other criminal cautions he has here, it cannot be said that he has led an unblemished life in this country. He fails to fit Lady Hale’s description in HH of a life that is “new, useful and blameless” (para 47). He has had a prison sentence imposed on him by the United Kingdom criminal court and deceived the public authorities in an application for settled status. Both of these are significant matters to be weighed.

He is close to his sister who lives here, whom he describes as “his support in life”. However, he does not live with her, nor provides care for her. As a protective factor, her influence has not prevented him from committing a criminal offence meriting a sentence of imprisonment. He has no dependent children and does not support his sister. He retains ties in Poland. His mother lives there and she remains in contact with him. Indeed, she came from Poland to visit him in the United Kingdom. Therefore, on return to Poland he would not be entirely without support. The loss of family life from widening the physical distance between him and his sister is mitigated in effect by the gain of moving back closer again to his mother. He says that he is close to his mother and she would visit him in Poland.

However, extraditing him to Poland would return him to the country where, as is evidenced in the expert reports, he suffered physical and emotional abuse from his father “from a very young age”. This damaging history should never be underestimated. However, he is now a man in his forties. There is a very substantial period of time – nearing two decades – since he was last in Poland. Therefore, the impact of that early trauma may be somewhat different now as a mature adult to the effect if this court were considering returning him in his very early twenties and thus much closer to the original traumatic events. It is important to contextualise the evolving situation.

Dr Suesse, a clinical forensic psychologist, told the court below that there is a “credible threat” of potential suicide. I operate on the basis that this remains the situation. However, the one time he did attempt suicide was when he was a very young man in Poland. There is no evidence of a repeated attempt in nearly 20 years. That seems to me significant. Mr Joyes makes the point that the critical factor for Article 8 purposes is the increased threat of suicide should he be extradited. I can accept that submission on the evidence, supported as it by Dr Suesse’s evidence. I can envisage, given he has lived in this country for almost 20 years, that being returned to Poland will have an adverse impact on his mental health. How should the court view this? There is no reason to believe that the Poland prison authorities could not provide support for his mental health in a similar way to the British authorities. Indeed, I accept the submission that there must be a strong presumption that this is the case, in the absence of contradictory evidence, given that Poland is a European Union state. Dr Suesse’s opinion is that the appellant would be at “high risk” of attempting suicide if returned to Poland. Regrettably, in any prison institution, it is impossible to completely prevent self-harm and suicide attempts. However, as Mr Joyes realistically conceded, the court can proceed on the basis that “Poland can safeguard his mental health in the absence of any other evidence.” It is noteworthy that while in prison custody in this country, the appellant has been relatively stable. I take all this into account, remaining realistic about the absence of any universally failproof safeguarding measures. Of significance also is that the appellant’s mental health did not prevent him engaging with the hearing below and, moreover, he was able to give evidence to the Judge.

Mr Galadzun still had 2 years, 3 months and 17 days of his Polish prison sentence still to serve as of the hearing date before me. This is a substantial outstanding sentence. He has evaded it for two decades. But the Polish authorities must decide what to do with his case as it now stands and the extent to which, once he becomes eligible for early release, the facts of the delay due to his fugitivity can discount his sentence. That is not a matter for this court. Indeed, originally there were to be submissions about the early release provisions in Poland, but as events unfolded, Mr Joyes, correctly to my mind, did not pursue the point – another example of his sober and sensible approach.

I find that extradition would interfere materially with Mr Galadzun’s Article 8 rights. Such a conclusion is inescapable on these facts. Article 8 being engaged, the question turns to the proportionality of the interference.

I find that the circumstances of this case are a long way from the “exceptional” ones deemed necessary by Lord Phillips in Norris (para 56). Here the interference with the appellant’s Article 8 rights is not disproportionate once properly measured. Such interference remains far from what Baroness Hale termed in HH the “exceptionally severe” (para 8, proposition 7). I do not accept that this is a finely balanced case, but judge the factors in favour of extradition to significantly outweigh those against. That said, I recognise that even in case of proven or accepted fugitivity, the fact of delay, especially substantial delay, can weigh in the individual’s favour. But the delay here has not been culpable; the judicial authorities in Poland did not know where the appellant was. Accordingly, the effect of the non-culpable delay does not weigh in any great measure in the appellant’s favour. However, the cold fact of delay of nearly two decades is a factor against extradition and particularly when combined with the mental health and self-harm concerns. This court takes such matters seriously. More positively, he appears stable presently, receiving medication and is compliant with that treatment. It is important not to lose sight of what Dr Suesse actually said. It is that the appellant is a credible threat of suicide in this country, but that risk increases if he is returned to Poland (summarised in judgment below, para 38). There have been no suicide attempts for two decades and the context of that distant attempt is critical: the appellant was then “in a bad place”, as the Judge put it, taking drugs and mixing “with a bad crowd” (ibid., para 40). All this reduces the weight of the mental health concerns without eradicating them. Vitally, at no point does Dr Suesse suggest that the suicidal risk on return would be unmanageable.

Therefore, to my mind it is clear that the balance falls clearly and unmistakably in favour of extradition because of an array of factors of far more substantial weight. The appellant has been a fugitive from justice for almost 20 years; he came to the United Kingdom in a calculated way to avoid the lawful sentence of the Polish court; the delay is therefore directly attributable to his attempts to evade Polish justice; he has committed a similar criminal offence here to those he is evading prison sentences for in Poland; he deliberately misled British authorities in making a settled status application; he has his mother as a protective factor in Poland; and there is a strong public interest in a person who has evaded a prison sentence being obliged to serve it. In promoting that objective, the United Kingdom honours its international treaty obligations with Poland and pays respect to the judicial determinations of its treaty partner. I remind myself of another of Baroness Hale’s propositions in HH, where she said (para 8, proposition 4):

“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.”

This accurately encapsulates the position here. The above factors when aggregated, significantly overwhelm those against extradition.

For the purposes of section 27(3)(a) statutory test, I judge that the question of the appellant’s extradition should not be decided differently. There was no culpable delay. On proportionality, using the taxonomy set out by the Lord Neuberger in Re B at para 93, this case falls into Limb (ii): the Judge’s proportionality conclusion was “right”. While the appellant’s Article 8 rights are engaged, extradition would not be a disproportionate interference with them.

That said, I remain mindful of the evidence about suicide risk, a concern that has been assiduously managed in this country. Certainly, there is no evidence placed before me to suggest that Poland as an EU state would ignore mental health concerns exhibited by the appellant. But it remains essential that on his return the United Kingdom and Polish authorities cooperate to ensure that relevant medical records are passed across so effective risk management and medical support, if indicated, can continue.

The appeal is dismissed.

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