Grzegorz Gorczyka v Regional Court of Krosno, Poland

THE HON. MR JUSTICE DEXTER DIAS

This is the judgment of the court.

To assist the parties and the public to follow the main lines of the court’s reasoning, the text is divided into nine sections, as set out in the table of contents above. The table is hyperlinked to aid swift navigation.

This is an appeal against an extradition order.

The case engages questions about the Extradition Act 2003 (“the Act”) and its associated jurisprudence, including article 8 of the European Convention on Human Rights (“ECHR”) and the legal concept of fugitivity.

The appeal is against an extradition order made by District Judge Snow (“the Judge”) sitting at the Westminster Magistrates’ Court on 14 January 2025. The order followed an extradition hearing on 10 January 2025. The Judge ordered the return of the appellant Grzegorz Gorczyca (also “the requested person”) back to Poland. He is a Polish national, born in Poland on 10 March 1987 and now aged 38.

The respondent in the appeal is the Regional Court in Krosno, Republic of Poland (“the judicial authority”). The appellant is represented by Mr Hepburne Scott of counsel; the respondent by Ms Engineer of counsel. The court is grateful for their concise and informed submissions.

The extradition order is made under section 21 of the Act. Poland is a Category 1 territory under the Act and thus extradition is governed by Part 1 of the statute, with the initial decision to be made by a district judge, as has happened here. Such an extradition order may be appealed to the High Court with leave (under section 26 of the Act). On 21 May 2025, Eady J refused permission on the papers. Permission was granted on a limited basis by Ellenbogen J at an oral renewal on 15 August 2025. The sole ground permission was granted on is article 8.

The requesting state seeks the appellant’s surrender on a conviction warrant first issued on 23 June 2016. It was certified by the National Crime Agency (“NCA”) on 14 August 2024. Therefore, it should immediately be noted, that there has been a delay of almost eight years before certification, a fact I must return to. The warrant seeks the appellant’s return to Poland to serve an outstanding sentence of 12 months’ custody for assault, committed in Poland on 20 February 2012.

The appellant was arrested in the United Kingdom on the conviction warrant on 19 September 2024 and granted conditional bail by the English court on 26 September 2024. He remains on bail and attended the appeal hearing with his partner Ms Krak.

The appellant does not consent to his extradition.

The brief facts are taken from those not in dispute between the parties and as found by the Judge (and not challenged).

The appellant has lived in the United Kingdom on and off since 2006. He met Ms Krak in his hometown of Krosno in Poland. They have been together for around 20 years and although they have no children, would like to start a family. Ms Krak is employed as a cleaner. The appellant has a small building business in which he employs several staff. They both rent a room in Ms Krak’s mother’s house. If the appellant is extradited, Ms Krak will experience a drop in her standard of living, but she may be able to claim benefits if necessary. The appellant suffers from haemorrhoids that may require an operation. He has no convictions in the UK and no cautions since 2013, having accepted cautions here in 2006 (shoplifting) and 2013 (common assault and battery).

The appellant disputes his guilt in the Polish conviction and did not attend his trial. The background is that while the appellant had been living in England for a number of years, he returned to Poland to visit his mother in February 2012. The following account is adapted from the judgment in the lower court. There was a factual dispute at the extradition hearing about whether the appellant knew of the Polish criminal proceedings. On appeal, there remains a dispute whether the Judge erred in finding that before he returned to the United Kingdom in 2013, the appellant knew about the trial date and his procedural obligations in Poland.

The allegation underlying the conviction offence is that on 20 February 2012, in Kroscienko Wyzne, the appellant exposed Gabriel Glaza to an immediate danger of loss of life by hitting him with fist and kicking him all over the body. This caused a displaced nasal fracture, a haematoma in both eyelids, and numerous facial abrasions. This resulted in bodily injury or an impairment to health exceeding seven days, one the legal categorisations of level of offence in Poland. The conviction was for “fights and beatings” contrary to Article 158(1) of the Polish Criminal Code.

The appellant was interrogated during which he indicated his place of residence as Krosno, ul. Krakowska 132/24. During the interrogation before the Public Prosecutor in January 2013, he indicated the same address and declared that he would appear whenever summoned and that correspondence was to be received by his mother whom he had authorised to do so. A preventative measure in the form of a ban on leaving Poland was imposed during the preparatory proceedings, but was subsequently lifted by the Public Prosecutor on 14 January 2013.

The appellant was informed in the preparatory proceedings of his obligation to appear whenever summoned while the criminal proceedings were pending and to advise the agency conducting the proceedings of any change of residence or sojourn exceeding seven days. He was also informed and that in case of staying abroad, he would be obliged to indicate the addressee for service in Poland, and that in case of failure to do so or such address being unavailable, the letters sent to the last known address in Poland would be attached to the case filed and under Polish law deemed to have been duly delivered. He was also informed that in case of failure to provide a new address or changing his place of residence or not residing at the address indicated by him, a letter sent to such address would be deemed to have been duly delivered. The appellant appeared to have confirmed the above information as it was confirmed with his own signature. As indicated, there was a dispute at first instance and on appeal about his state of knowledge about these procedural requirements.

On 18 April 2013, the appellant did not appear at the trial that resulted in the conviction, the relevant decision for extradition purposes. The appellant was initially sentenced to a custodial sentence with conditional suspension for a probation period of two years. On 25 May 2015, the District Court in Krosno ordered him to serve the conditionally suspended custodial sentence. On 3 July 2015, this sentence was activated; accordingly, he was summoned to appear at a penitentiary. He failed to do so. On 24 September 2015, the court ordered a search for the appellant on the grounds of his hiding from justice and the enforcement proceedings were suspended. This failed to result in his apprehension. He had by this point returned to the United Kingdom and not informed the Polish authorities of his change of address.

On 19 April 2016, a motion was filed with the Regional Court in Krosno to issue a European Arrest Warrant (“EAW”). On 23 June 2016, the respondent issued the EAW. On the 14 August 2024, the NCA certified this arrest warrant.

As often happens in appeals, the issues both narrow and attain a clearer focus. Leave has been granted permission on the sole article 8 ground and there was no further application to extend the scope. There are three elements to the article 8 challenge (1) fugitivity (Section V); (2) delay (Section VI); (3) electronically monitored curfew (“EM curfew”) (Section VII). I take these in turn before considering my conclusions on each issue to review the overall article 8 balancing exercise (Section VIII).

I flesh out the law pertinent to each specific issue as appropriate within those dedicated sections of the judgment. By way of legal foundation, the relevant overarching law is now set out. The appeal is brought under section 26 of the Act. Section 27 provides the relevant appeal test:

The proper approach to the application of the appeal test was considered by the Divisional Court in Love v USA [2018] EWHC 172 (Admin) (“Love”). The court said at para 26:

“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.”

The court must consider the ECHR compatibility of a proposed extradition order, particularly in respect of article 8 and the associated proportionality question. In addition to the recent Supreme Court case of Andrysiewicz v Poland [2025] UKSC 23 (“Andrysiewicz”) (see particularly paras 31-43), I have considered the seminal cases of Norris v United States of America [2010] UKSC 9 (“Norris”), HH v Deputy Prosecutor of the Italian Republic, Genoa [2012] UKSC 25 (“HH”), and Celinski v Poland [2015] EWHC 1274 (Admin) (“Celinski”). In Celinski, Lord Thomas CJ said in the Divisional Court (para 13):

“13.

Sixth in relation to conviction warrants:

(1)

The judge at the extradition hearing will seldom have the detailed knowledge of the proceedings or of the background or previous offending history of the offender which the sentencing judge had before him.

(2)

Each member state is entitled to set its own sentencing regime and levels of sentence. Provided it is in accordance with the Convention, it is not for a UK judge to second guess that policy. The prevalence and significance of certain types of offending are matters for the requesting state and judiciary to decide; currency conversions may tell little of the real monetary value of items stolen or of sums defrauded. For example, if a state has a sentencing regime under which suspended sentences are passed on conditions such as regular reporting and such a regime results in such sentences being passed much more readily than the UK, then a court in the UK should respect the importance to courts in that state of seeking to enforce non-compliance with the terms of a suspended sentence.

(3)

It will therefore rarely be appropriate for the court in the UK to consider whether the sentence was very significantly different from what a UK court would have imposed, let alone to approach extradition issues by substituting its own view of what the appropriate sentence should have been. As Lord Hope of Craighead DPSC said in HH [2013] 1 AC 338 , para 95 in relation to the appeal in the case of PH, a conviction warrant:

“But I have concluded that it is not open to us, as the requested court, to question the decision of the requesting authorities to issue an arrest warrant at this stage. This is their case, not ours. Our duty is to give effect to the procedure which they have decided to invoke and the proper place for leniency to be exercised, if there are grounds for leniency, is Italy.”

Reduced to its bare minimum, the article 8 issue is that identified by Lady Hale in HH at para 8(3):

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

The fugitivity issue can be further divided into the following four sub-issues (1) whether there is permission to challenge the Judge’s findings about the primary facts; (2) if so, whether the Judge erred in the facts he found; (3) if he did, whether the fugitivity finding is wrong; (4) if he did not, whether the finding on fugitivity is wrong in any event.

The order granting permission on article 8 grounds contains the following recital:

“AND UPON it appearing to the Court that it is reasonably arguable that: (1) the lower court’s finding of fugitivity, made on a basis other than that for which the Respondent had contended, was wrong”

The appellant submits that such grant must include a challenge to the finding of fact the Judge made in reaching the conclusion that the appellant was a fugitive. I am far from convinced that this is correct. There was a distinct dispute between the parties upon which permission was sought. The respondent in the lower court submitted to the Judge in opening (para 24, opening note, 3 January 2025) that fugitivity was established as follows:

“24.

It is submitted that the RP is a fugitive as he was aware of the sentence imposed on him and left the jurisdiction without informing the authorities where he was going and it is submitted in order to avoid serving the sentence”.

The Judge found fugitivity on a different basis. It is important to set out the findings from para 31 of the judgment entitled “Evidential findings”:

“31.

I approach the further information provided by the JA on the basis of

mutual trust and respect. I can see no reason to doubt its veracity. I accept that:

a)

The RP was questioned by the prosecutor after his return to Poland in January 2013.

b)

I do not believe his evidence that he was unaware of those proceedings. I note that his evidence has changed from an acceptance in his proof that he was questioned in 2013, implicitly about this matter, to a claimed lack of knowledge about being questioned about the offence at all. The further information is clear that he was placed under obligations to notify the JA of any change in his residence lasting for longer than 7 days and provide an address in Poland for the service of documents if he moved abroad, whilst the proceedings were pending. He confirmed that he would appear when summonsed. He acknowledged his responsibilities by his signature. I am sure that he was aware that the proceedings were on-going.

c)

Box D should be read as a whole. He was summonsed in person to court. He acknowledged receipt of the summons by signing for it on 25 March 2013. He was warned that his trial may take place in his absence if he failed to attend. The trial took place on 18 April 2013. I am satisfied that, given the short time scale between receipt of the letter and the hearing, that the warning about trial in absence was included with the summons. I am sure the RP deliberately absented himself from his trial in the knowledge that it may proceed in his absence.

d)

I am sure that he left Poland shortly after being questioned by the prosecutor, in the knowledge that he faced on-going proceedings. I am sure that he left Poland as a fugitive from justice.”

The appellant notes in his skeleton argument that the Judge “expressly predicated” the fugitivity finding on the appellant’s own evidence that he had been questioned regarding the offences by the Polish prosecutor in January 2013, the Judge concluding the appellant had fled following this interview, in the knowledge of potential legal proceedings.

It appears that the appellant challenges the Judge’s finding of primary fact about what the appellant knew. The submission is that the Judge was “not reasonably entitled to make the finding of fugitivity on the basis of the evidence that was available (and not available) to him.” The key finding of the Judge was that contained in para 31(c) above. The timings are everything.

The appellant was interviewed in January 2013 about the extradition offence. On 14 January 2013, the travel ban was lifted by the Polish prosecutor. At that point he was free to travel to the United Kingdom. He claims that he travelled to the United Kingdom on 20 March 2013. The significance of that date (which he relates to his birthday) is that it comes before the delivery of a registered letter to his nominated address in Poland on 25 March 2013. He says he left because “all his business was finalised” by 20 March 2013. The Judge did not accept his evidence. Whether he signed for the registered letter or not is critical.

The Judge found that the appellant received the letter and signed for it. On appeal, the appellant challenges this finding of fact at para 31(c) of the judgment. The law on the appellate challenging of findings of fact made by first instance judges in extradition proceedings is clear. In Celinski, Lord Thomas CJ said at para 24 that “Findings of fact, especially if evidence has been heard, must ordinarily be respected.” This is repeated at para 53. The Divisional Court also touched on this topic in Love, where the court said at para 25:

“25.

… 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.”

The appellant submitted that while it was only in “rare” cases would the appellate court interfere with a finding of fact below, this was such a case. The Judge could not be sure of the fact of signing to the criminal standard. The reason such respect is granted to the lower court’s factual findings is that where it has heard oral evidence that has informed the finding of fact, the appellate court is invariably in an inferior position, not having seen and heard the relevant witness or witnesses. While it may interfere with findings of primary fact made below, the appeal court will only do so in limited circumstances. This is where there has been a clear error which consequently displaces the default position that findings of fact must “ordinarily” be respected.

The Judge made an adverse credibility finding against the appellant at para 31 when he said in terms “I do not believe his evidence that he was unaware of those proceedings”. This is because the appellant had changed his account about whether he knew of the criminal proceedings in Poland. In his proof of evidence, he had conceded that he had been questioned in 2013. Given the manifest inconsistency, the Judge was perfectly entitled to have doubts about the appellant’s veracity. Against this, the appellant points to the documentation and submits that it supports his credibility, certainly in respect of whether he knew of the trial date or whether he had left Poland before he was notified about it, a fact potentially relevant to fugitive status. The appellant’s submission is that the Judge was “not entitled” to reach the finding about the appellant signing for the registered letter due to inconsistencies in the documentation supplied by the respondent. In the arrest warrant it states that “by means of registered letter”, the appellant “was summoned and informed about the trial date … which led to the [relevant] decision”. He “confirmed the reception thereof on March 25, 2013.” In the further information it states:

“The convicted person was informed in the preparatory proceedings of his obligation to appear whenever summoned while the criminal proceedings were pending and to advise the agency conducting the proceedings of any change of residence or sojourn exceeding 7 days. He was also informed and that in case of sojourning abroad he would be obliged to indicate the addressee for service in Poland, and that in case of failure to do so or such address being unavailable, the letters sent to the last known address in Poland would be attached to the case file and deemed to have been duly delivered. He was also informed that in case of failure to provide a new address or changing his place of residence or not residing at the address indicated by him, a letter sent to such address would be deemed to have been duly delivered. The convicted person was aware of the above information which fact was confirmed with his own signature.”

The inconsistency is said to be that Box D1.b) was checked. It states:

“b)

The person concerned has not been summoned in person but otherwise informed of the date and place of the hearing which led to the decision, which explicitly allows stating he was as well informed that the decision might be rendered in absentia in case he would not appear at the trial” (emphasis provided)

To my mind, there is no obvious contradiction. The documentation reveals that rather than being summoned in person, the appellant was “otherwise informed” about the trial details. This is plainly through the registered letter. The appellant argues that the Judge should have preferred his evidence that he did not know about the proceedings. However, the appellant had the opportunity to give that evidence and be cross-examined about it. The Judge heard his account and rejected it as inconsistent because he had earlier accepted that he had been questioned in 2013. This was a finding the Judge was perfectly entitled to make having heard and seen the evidence. It is clear from his judgment that he carefully considered the documentation and the testimony together.

Putting aside momentarily the question of permission, and applying the test in law for challenging findings of fact on appeal, the Judge’s finding of fact does not come close to being wrong, let alone plainly wrong. In fact, it was plainly right. Having heard the appellant’s different account, the Judge was right to have concerns about its core inconsistency. The construction of the documentation does not support the appellant, but materially supports the Judge’s adverse credibility finding.

Therefore, on sub-issue (1), I remain unpersuaded that the appellant was granted permission to challenge the Judge’s findings of primary fact.

On sub-issue (2), the Judge’s finding of fact on the appellant’s state of knowledge about proceedings in Poland is not wrong or plainly wrong. There was sufficient evidence for the Judge to reach the finding of fact he did to the requisite standard. There was no rational basis that demanded the Judge prefer the appellant’s evidence to that provided by the respondent, nor was the respondent’s evidence inherently weak or flawed. The finding therefore stands. I proceed on the factual basis that the appellant signed for the registered letter on 25 March 2013.

I can deal with sub-issue (3) immediately as it falls away as the Judge did not err on the facts.

I turn to sub-issue (4) and whether the Judge’s finding of fugitivity was wrong. This must proceed from the established facts.

They are that on 25 March 2013, the appellant was notified about his forthcoming trial which would take place on 18 April 2013. He failed to attend the trial. Although there is no challenge to the Judge’s section 20 finding, I note that the Judge found that the appellant deliberately absented himself from the trial. In this also, the Judge was clearly right. The appellant’s failure to attend was flatly contrary to the obligations he was subject to in the Polish criminal proceedings, as the Judge also correctly found. He left for the United Kingdom at a point after 25 March 2013 – this much is certain as he had signed for the registered letter on that date – and did not notify the Polish authorities of his change of address. This was also in breach of his obligations. He has remained in the United Kingdom since 2013.

I now turn to the fugitivity test. It is a subjective test without unitary or prescriptive formulation. What matters is the overall totality of the individual’s conduct and whether it leads to the conclusion that they knowingly (hence the subjective element) placed themselves beyond the reach of the criminal justice system that seeks them (Wisniewski v Poland [2016] EWHC 386 (Admin) (“Wisniewski”), especially paras 59-64). As said by Lloyd Jones LJ (as he then was), fugitive status is best considered on a case-by-case basis (para 59). This is what I do, examining the totality of conduct and assessing the inferences the Judge made.

To my mind, there is no doubt that the appellant left Poland knowing that he was obliged to attend his trial on 18 April 2013. Whether he left between 25 March 2013, the last ascertainable date of presence in Poland, and the trial or after the trial matters not. He left Poland to knowingly place himself beyond the reach of the Polish legal process. This was a reasonable inference for the Judge to have made about the appellant’s state of mind and one I entirely concur with. The fact of the so-called travel ban having been lifted does not assist the appellant here. Fordham J said in Ristin v Romania [2022] EWHC 3163 (Admin) at para 28 that a person not subject to restrictions on travel or nor specific obligations is not immune from a fugitivity finding. This is another instance of Lloyd Jones LJ’s maxim that everything depends on the individual facts. In any event, the travel ban was eased conditionally. The appellant was required to attend his trial and failed to do so; he was obliged to notify changes of address in excess of seven days and deliberately ignored this obligation for years.

Therefore, my conclusion on sub-issue (4) is that the Judge was undoubtedly correct to conclude that the appellant left Poland “as a fugitive from Polish justice”.

I add that there is nothing of substance in the differing bases of fugitivity point. However the respondent put its case in an opening document at the extradition hearing, the question is always whether the facts as found by the Judge justify a finding of fugitivity. They do.

The consequence is that the overall article 8 balancing exercise must be evaluated on the plain understanding that the appellant was and has remained a fugitive from Polish justice.

There is on any view substantial delay in this case. Put shortly, there is a delay of 14 years since the offence and was one of eight years between the issuing of the arrest warrant by the Polish authorities in 2016 and the certification by the NCA in 2024.

As to the latter matter, there is scant coherent justification by the respondent for the certification delay. As in many cases around the time of Brexit and immediately following it, there was the loss in information due to SIRENE system difficulties. But I cannot think that this could properly account for an eight-year delay. It is important to note that the Polish authorities cannot be criticised. Following the suspended sentence the appellant had imposed on him being activated due to the flight from the jurisdiction, they promptly issued an arrest warrant. The appellant accepts that there could be “no criticism” of the Polish judicial authorities: his whereabouts became unknown and they could not enforce the lawful custodial sentence of the Polish court against him. However, for article 8 purposes, that is not the end of the matter. One must fairly assess the impact on the private and family life of the individual and those closest to him. That said, a finding of fugitivity is significant for the question of delay. This is not an application for an oppression bar under section 14 of the Act. However, delay remains a potentially relevant factor under article 8. The Judge dealt with delay at para 50:

“50.

The weight that I give to the age of the offending and the RP’s residence in the UK is substantially lessened as he is a fugitive from justice. I give weight to the unexplained delay in certification, without finding that the JA were responsible for that delay. However, that weight is lessened by the RP’s fugitive status.”

The Judge was correct in his approach when he found that the fact that the appellant was a fugitive “substantially lessened” the weight that can be attached to delay. His approach was entirely orthodox and correct. It is noteworthy that the Judge did not regard fugitivity as eliminating the weight of delay. This is consonant with the observation of Lady Hale in the F-K appeal conjoined in HH (para 46). She held that even in a fugitivity case, the “overall length of the delay” remains relevant to article 8 and may be weighed. The weight depends on the circumstances.

For its part, the respondent sought to limit the significance of the overall delay. I reject the respondent’s submission that the court should not speculate about whether the NCA failed to make enquiries about the appellant’s whereabouts in the United Kingdom. While speculation is impermissible, that is not the end of it. I adopt the approach of Chamberlain J in Pabian v Poland [2024] EWHC 2431 (Admin) at para 50:

“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.”

I make precisely this assumption. There was an opportunity to detail the NCA’s steps towards execution. No explanation was provided. Further, I accept the appellant’s submission that it was likely to be possible to find the appellant sooner. He has cautions in the country in 2006 and 2013. There was an address in Newark. I recognise, as the respondent points out, that by his arrest in 2024, he was in the east London and Essex area, but the arrest statement records no great difficulty in finding him. He was living openly. It is unlikely to have been difficult to locate the appellant who ran a construction business using, as builders often do, his initials in the company name. The warrant execution statement reveals how straightforward it ultimately proved:

“Intelligence enquiries around finances and telephones have led me to understand GORCZYCA works as a builder/tradesman running a company called GSG SDS Ltd. I have contacted the number associated with this company requesting a quote for work in the Buckhurst Hill area which the subject agreed to attend and price up. I have attended Hills Road, Buckhurst Hill, IG9 at 0700hrs and waited for the subject to arrive who stated the night before he would be there sometime before 9AM.”

The Judge was correct that the appellant’s fugitivity substantially reduces the weight that can be properly placed on the length of delay without eliminating it. Equally, the largely unexplained and unsatisfactory delay in certification by the NCA remains relevant to the article 8 balancing exercise. Nonetheless, I reject the appellant’s submission that the length of delay should be given “very substantial weight”: the appellant was significantly responsible for the delay by being a fugitive from Polish justice.

The sub-issues in respect of the EM curfew are two-fold (1) admissibility of fresh evidence; (2) if admitted, its significance for article 8.

The appellant seeks to adduce two pieces of evidence (a) an opinion from a Polish lawyer about the treatment of curfew in Polish sentencing practice; (b) a further witness statement from the appellant dealing with the impact of the curfew. The parties very sensibly and helpfully agreed that I consider the evidence de bene esse and provide my ruling in the body of the judgment. This I now do.

The respondent objects to admission on Fenyvesi grounds (Hungary v Fenyvesi [2009] EWHC 231 (“Fenyvesi”)). The law is settled and so frequently restated by the courts that it needs no over-elaboration here. While there is a series of subsequent cases following Fenyvesi, the essence of the approach remains intact. The proper approach to fresh evidence applications on extradition appeal flows from the combined effect of the Divisional Court’s decision in Fenyvesi and the express statutory provisions in the Act at section 27(4). In Fenyvesi, the court said at paras 32-35:

“32.

In our judgment, evidence which was “not available at the extradition hearing” means evidence which either did not exist at the time of the extradition hearing, or which was not at the disposal of the party wishing to adduce it and which he could not with reasonable diligence have obtained. If it was at the party's disposal or could have been so obtained, it was available. It may on occasions be material to consider whether or when the party knew the case he had to meet. But a party taken by surprise is able to ask for an adjournment. In addition, the court needs to decide that, if the evidence had been adduced, the result would have been different resulting in the person's discharge. This is a strict test, consonant with the parliamentary intent and that of the Framework Decision, that extradition cases should be dealt with speedily and should not generally be held up by an attempt to introduce equivocal fresh evidence which was available to a diligent party at the extradition hearing. A party seeking to persuade the court that proposed evidence was not available should normally serve a witness statement explaining why it was not available. The appellants did not do this in the present appeal.

[…]

34.

… there may occasionally be cases where what might otherwise be a breach of the European Convention in Human Rights may be avoided by admitting fresh evidence, tendered on behalf of a defendant, which a strict application of the section would not permit…

35.

Even for defendants, the court will not readily admit fresh evidence which they should have adduced before the district judge and which is tendered to try to repair holes which should have been plugged before the district judge, simply because it has a Human Rights label attached to it. The threshold remains high. The court must still be satisfied that the evidence would have resulted in the judge deciding the relevant question differently, so that he would not have ordered the defendant's discharge. In short, the fresh evidence must be decisive.”

The statutory provision under the Act is not strictly a test of admissibility, but one of legal effect. Summarising greatly, to be admissible, the evidence must have been either non-existent at time of trial or unobtainable with reasonable diligence. If it passes that threshold condition, then the additional question for the appeal more widely is whether it is decisive in the sense of causing the trial judge to decide “a question before him [or her]” differently in the very specific sense of leading to the appellant’s discharge.

First, I accept that being subject to an electronically monitored curfew is a material infringement of the appellant’s article 8 rights. It plainly interferes with his private and family life.

Second, the respondent submits that the evidence could have been obtained with reasonable diligence for the extradition hearing in January 2025. This is true as far as it goes. However, at that point the appellant had been subject to the curfew since September 2024. I cannot think that the curfew would have held much significance at the extradition hearing. The proceedings have worn on. The position now is to my mind different a year later. I judge that the real relevance of the curfew arises as its impact over many months increasingly bites. Therefore, I proceed by rejecting the respondent’s objection to admissibility due to the first part of the test.

Third, decisiveness. This depends on how the rights’ interference caused by the curfew should be viewed. It is neither necessary nor desirable for the court here to attempt a precise month-and-day calculation of what the equivalent reduction in a United Kingdom sentence (“credit period”) would be due to the curfew under our domestic sentencing arrangements. However, I am prepared to identify an order of magnitude. This is a non-qualifying curfew. This is because of the definition of a qualifying curfew condition under the Sentencing Act 2020. The threshold is nine hours within a 24-hour period as set out in sections 325 and 326:

“325 Time on bail under certain conditions: declaration by court

(1)

This section applies where—

(a)

a court passes a determinate sentence on an offender in respect of an offence (see subsection (5)),

(b)

the offender was remanded on bail by a court in course of or in connection with proceedings for the offence, or any related offence, and

(c)

the offender's bail was subject to a qualifying curfew condition and an electronic monitoring condition (“the relevant conditions”).

(2)

The court must specify the credit period for the purposes of section 240A of the Criminal Justice Act 2003 (time remanded on bail to count towards time served) in relation to the sentence.

(3)

In section 325—

“curfew requirement” means a requirement (however described) to remain at one or more specified places for a specified number of hours in any given day, which—

(a)

is imposed by a court or the Secretary of State, and

(b)

arises as a result of a conviction;

“electronic monitoring condition” means any electronic monitoring requirements imposed under section 3(6ZAA) of the Bail Act 1976 for the purpose of securing the electronic monitoring of a person’s compliance with a qualifying curfew condition;

“qualifying curfew condition” means a condition of bail which requires the person granted bail to remain at one or more specified places for a total of not less than 9 hours in any given day.”

The approach to credit has variously been set out, but in the EM Protocol (September 2023 update) it is said:

“2.8

There are no statutory minimum or maximum curfew hours for bail cases. Where an EM curfew of 9 hours or over per day has been imposed, each compliant day will lead to a reduction of half a day of custody, should there be a custodial sentence to be served following sentencing.”

Thus, neither of the appellant’s curfew spells qualify as being “compliant”, being for eight and then seven hours overnight. The approach of our criminal courts is not to ignore non-qualifying curfews, but to exercise the court’s discretion in mitigation. The approach has been that the English court must have strict regard to the statutory credit provisions authorised by Parliament, but as a matter of fairness may make an appropriate non-statutory allowance for a non-qualifying curfew in mitigation.

The appellant has been on EM curfew for around 16 months now. I have no doubt that if he were sentenced in the English courts, this factor would be taken into account in mitigation as a matter of fairness and discretion, without a definitive alternative credit period being specified. The Court of Appeal reconsidered the proper approach recently in R v Rice [2025] EWCA Crim 352 (“Rice”). In his judgment for the court, Edis LJ (para 37) rejected the suggestion that the discretion should only be exercised in rare or exceptional cases, instead recognition of the infringement of liberty should be “carried across” to non-qualifying curfews. He helpfully identified relevant factors in the discretionary exercise at para 41-42:

“41.

There will be many factors which may be relevant in deciding whether or not to exercise the discretion to reduce the final sentence to reflect time spent on a non-qualifying curfew. It may be helpful to identify some of those which feature in this case. This is not an exhaustive list of all possible relevant factors. The level of restriction actually imposed on the accused by the non-qualifying curfew is of great importance. It is unlikely that most bail conditions will justify any adjustment at all. Where there is a 12 hour curfew with a “doorstep” condition this is likely to be enough to start the process of deciding whether and, if so, how to make an adjustment to sentence. The length of time that the accused had spent on the non-qualifying curfew will also be important. It is likely that only long periods of time will lead to an adjustment. If the reason for the onerous bail conditions is some further misconduct by the accused, this may negative or reduce any adjustment. Any evidence of non-compliance with those conditions is likely to have the same effect. Evidence of particular difficulty caused to the accused, over and above the simple fact of the restriction caused by the non-qualifying curfew, may lead to a more generous adjustment.

42.

Where the court concludes that there was a lack of engagement with the proceedings by or on behalf of the accused and the case was not progressed efficiently as a result, this may lead to an adjustment to sentence being refused or reduced. The CrimPR impose a duty to engage, and a breach of this duty is important. The court will also seek to ensure that the final sentence is not deprived of its intended effect, because it has already been served while the offender is not in custody, but rather at home. These are, in our judgment, the critical factors in the present case.”

I have full regard to the Court of Appeal’s approach. It reinforces my earlier conclusion that it was premature to expect the appellant to raise the modest rights’ infringement caused by the curfew by the time of the extradition hearing. In Rice terms, it was not at that point “a long period”. However, the difficulty with the appellant’s position is two-fold.

First, that this court must respect the sentencing practices of other European nations wherever possible as a matter of comity (Celinski, para 13). As Lord Hope said in HH at para 95, “this is their case, not ours”. Further, the respondent submits, “nothing in fact changes” as a result of the curfew as he still has 12 months’ custody to serve in Poland due to the domestic arrangements in Poland, a Convention country, that this court must respect.

Second, and on any view, even if one were to engage in the intellectual experiment of imagining a discretionary effect on mitigation of the curfew, the appellant still would have had a substantial custodial term to serve in this country. It certainly would not be reduced to the “very short period” that might exceptionally result in a discharge (Molik v Poland [2020] EWHC 2836 (Admin) (“Molik”), para 9).

However, the sentence was imposed in Poland. Our jurisprudence on the question of article 8 infringements that will not equate with reductions in the requesting state is clear. In Dobrowolski v Poland [2023] EWHC 763 (“Dobrowolski”), the court said (para 5) that the English court is not the body to determine whether a person “has been sufficiently punished”. In Molik, the court emphasised that the English court “does not evaluate whether sufficient time has been served” (para 11).

On this basis, I conclude that on its own the impact of the EM curfew, supported by the fresh evidence sought to be adduced under this head, is not decisive in the way Fenyvesi requires. The respondent is correct that it will not reduce the sentence in Poland. I judge that it has only a modest impact on the article 8 balance. However, I am conscious that article 8 requires a holistic assessment. I turn to this to examine all the factors globally.

Having examined the three sub-issues contained within the article 8 ground, I approach the article 8 balancing exercise in two ways, by (1) examining the Judge’s analysis, then (2) standing back.

First, I review the balancing exercise performed by the Judge, set out at his paras 48-57. Para 48 identifies the relevant factors for and against:

“Factors in favour of extradition

48.

The following factors weigh in favour of extradition:

a.

There is a strong public interest in the UK honouring its international extradition obligations.

b.

There is a strong public interest in discouraging persons seeing the UK as a state willing to accept fugitives from justice.

c.

Decisions of the issuing judicial authority should be accorded a proper degree of confidence and respect.

d.

The independence of prosecutorial decisions must be borne in mind when considering issues under Article 8.

e.

The RP is sought to serve a sentence of 1 year’s imprisonment for a violent offence.

f.

He is a fugitive from justice.

Factors against extradition

48.

The following factors weigh against extradition:

a.

The RP has lived in the UK since 2011.

b.

The offending occurred in 2012.

c.

The loss in the standard of living which will be suffered by Ms Krak.

d.

The loss of his business and the effect on his employees.

e.

His haemorrhoids.

f.

The delay in certification of the warrant.”

He then explained his reasoning in the balancing exercise he made:

“The balancing exercise

49.

I have firmly in mind the guidance given by the former Lord Chief Justice in Polish Judicial Authorities v Celinski and others [2015] EWHC 1274 in considering whether it is incompatible with the RP’s Article 8 rights to order his surrender. I remind myself that there is a very high public interest in ensuring that extradition arrangements are honoured, as is the public interest in discouraging persons from seeing the UK as a state willing to accept fugitives from justice. The request of the JA should be accorded a proper degree of mutual confidence and respect.

50.

The weight that I give to the age of the offending and the RP’s residence in the UK is substantially lessened as he is a fugitive from justice. I give weight to the unexplained delay in certification, without finding that the JA were responsible for that delay. However, that weight is lessened by the RP’s fugitive status.

51.

I give some weight to the impact of extradition on Miss Krak. This is reduced as she is an adult, she will continue to live with her mother, she has been granted pre-settled status, she is employed, she will have access to their savings and will be entitled to benefits if necessary.

52.

I give weight to the loss of the RP’s business and the fact that his employees will lose their work. Given the shortage of construction workers there are grounds for optimism that they will find alternative employment. The consequences for the RP’s business arise from his own behaviour.

53.

I give little weight to the RP’s health. There is no evidence that his condition requires surgery. There is no evidence to rebut the presumption that he will receive adequate care in Poland.

54.

At paragraph 39 of Celinski, the judgment of the court went on to say, importantly, that a proper balancing act needs to be carried out with detailed reasons to be provided….. ``The important public interests in upholding extradition arrangements, and in preventing the UK being a safe haven for a fugitive as Celinski was found to be, would require very strong counter-balancing factors before extradition could be disproportionate``.

55.

The very strong counter-balancing factors do not exist in this case. I am satisfied that it is not incompatible with the RP’s Article 8 rights to order his surrender.

56.

I am satisfied that it is incompatible with the Article 8 rights of the RP to order his surrender.”

There was no error of law. He identified the correct factors for and against extradition at para 48 as they then existed before him. I have regard to the words of the Divisional Court in Celinski at para 24:

“Although the district judge’s reasons for the proportionality decision must be considered with care, errors and omissions do not of themselves necessarily show that the decision on proportionality itself was wrong.”

That said, I find no error in the Judge’s analysis.

Second, however, I am invited by the appellant to stand back as set out in Love, and particularly in light of the evolving circumstances. The Divisional Court stated in Love at para 26:

“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.”

I am prepared to stand back. I carefully review all the factors identified by the Judge at para 48. The weight he attached to each factor was a matter for him have conducted the extradition hearing. That said, there is no apportionment of weight that should have been weighed “significantly differently” and was wrong. On its own terms, then, the Judge’s article 8 conclusion was correct.

Further, I note what was said in Chechev v Bulgaria [2021] EWHC 427 (Admin) (“Chechev”) in the Divisional Court. Singh LJ for the court said at para 77:

“However, as I have said, in the present case it is common ground that this Court must consider for itself whether Article 8 would be breached in the light of the circumstances as they now are.”

The Supreme Court recently clarified the nature of appellate assessments of proportionality (Shvidler v Secretary of State for Foreign, Commonwealth and Development Affairs; Dalston Projects Limited v Secretary of State for Transport [2025] UKSC 30 (“Shvidler”)). The proper approach is not to proceed by way of review, but to assess whether the “measures” are a proportionate interference with the person’s Convention rights. Thus, reconsideration of first instance proportionality decisions are not classic review exercises. Rather the court is concerned with whether on the evidence the Convention rights of the individual are infringed in a way that is disproportionate using the now widely recognised tests (Bank Mellat v HM Treasury (No. 2) [2013] UKSC 38, per Lord Reed at para 74, a four-step formulation).

I take the appellant’s case on article 8 at its highest, giving him the benefit at each point to the extent I fairly can and recognising that there has been a change of circumstances due to the impact of the curfew. The significance of an EM curfew was considered by Fordham J in Bakai v Slovakia [2024] EWHC 1728 (Admin) (“Bakai”). He said at para 31:

“Unlike qualifying remand which – by operation of applicable extradition law – is deducted from a requesting state's custodial sentence, there is no such function for a tagged-curfew, even where and to the extent that such a curfew would reduce a sentence in the UK. States have different arrangements for credit, just as they have different arrangements for early release. In domestic sentencing law in England and Wales, the line is drawn at 9 hours per day as a qualifying curfew, where every 2 days on qualifying curfew count as 1 day's credit against the prison sentence. In extradition, the strong starting point is to respect the requesting state's rules and autonomy in making decisions about them. It is not said that the Slovakian authorities, applying Slovakian law and practice of sentencing, would reduce the 12 month sentence.”

In the instant case, there is positive evidence that Poland will not reduce the outstanding custodial term due to the EM curfew. This court must respect the domestic arrangement in Poland. Fordham J continued at para 34:

“In the present case, I accept that the curfew is a factor properly to be borne in mind in the Article 8 balancing exercise. I accept that it is substantially longer than it was before the Judge and so calls for evaluation afresh (cf. Brindusa §14). I accept that it is a real (cf. Prusianu), and a substantial, restriction on freedom of movement and autonomy (though I avoid the phrase "deprivation of liberty" which has Article 5 connotations). I accept that it has served as a "reminder" and that it can be relied on to say that "impunity" would be incomplete.”

Recently, the decision in Bakai was followed by Sweeting J in Kwit v Poland [2025] EWHC 1679 (Admin). In line with the approach of Fordham J, I regard the operation of the EM curfew as a material infringement of the appellant’s article 8 rights. Therefore, I consider the impact on him as set out in his last witness statement and taking into account Rice. The appellant states that the curfew has impacted all spheres of his life. I can accept that such a curfew will infringe a person’s private and family life. However, it is an overnight curfew and set for periods below the qualifying threshold which gave the appellant more flexibility than many people on EM curfews enjoy. Nevertheless, I do weigh in the balance the significant time spent on curfew, a factor not considered by the Judge through no failing of his as the point was not raised, nor relevant in Rice terms as at January 2025. I am conscious, and accept, that the article 8 infringement because of the curfew will not be deducted from the sentence in Poland. However, in my judgment the impact of a non-qualifying curfew on the overall article 8 balance is limited and modest (see references above to Dobrowolski and Molik). It certainly does not attain the level of being decisive in Fenyvesi terms on its own or in combination with other factors.

The weight attached to the length of delay is reduced but not eliminated by the appellant’s fugitivity. The delay has undoubtedly been protracted by the NCA’s inaction. During this time, the appellant has developed and deepened his family life and roots in this country. He has led a lawful life in this country since his return here in 2013, with no convictions or cautions after that point. I recognise the impact on his family life if the appellant is separated from his long-time partner with whom he wishes to start a family. In conformity with Norris (paras 50-65), the proper approach is to view the article 8 rights of the family as a whole, including how innocent family members may be affected. While his partner is innocent in all this, the appellant has deepened his roots here in full knowledge of his fugitivity.

I recognise as stated in HH at para 8 by Lady Hale that delay since the offending can diminish the public interest. One of the reasons is because delay by the requesting state may indicate the importance with which the offending is regarded. In the instant case, however, the delay not attributable to the appellant principally lies with the unexplained actions of the NCA. The delay cannot be laid at Poland’s door. Thus, there is no material culpable delay by the requesting state in the issuing of the arrest warrants. However, as noted in HH, delay remains a factor relevant to article 8 compatibility. The cardinal issue remains that identified by Lady Hale in HH at para 8(3): whether the overall interference with article 8 rights is outweighed by the public interest in extradition.

I have well in mind the observations of Lord Phillips in Norris at para 56 that

“A judge should not be criticised if, as part of his process of reasoning, he considers how, if at all, the nature and extent of the impact of extradition on family life would differ from the normal consequences of extradition.”

All enforced separations and relocations involve a degree of hardship, familial distress and disruption (see the discussion in Debiec v Poland [2017] EWHC 2653 (Admin) at para 35, per Julian Knowles J). In all these circumstances, I am not persuaded that the impact of extradition on family life in this case is outside the norm of impact in extradition cases. As to private life, Andrysiewicz makes clear (para 43) that private life interference is “most unlikely” to render extradition disproportionate. That said, his employment history in this country cannot be discarded completely.

The appellant deliberately put himself beyond the reach of Polish justice to evade the criminal proceedings and the lawful sentences of the Polish courts. He must bear substantial but not exclusive responsibility for delay, given the NCA’s unexplained delay. The Polish court imposed a substantial custodial term, indicative of the seriousness with which it considered, and was entitled to consider, the appellant’s violent crime.

There are several interlocking public interest factors in favour of extradition:

This last factor has particular weight for an offender who has deliberately sought to evade the lawful custodial sentence imposed by the Polish court. I must respect the judgment of the properly constituted court in Poland. As said by the Supreme Court in Norris, in an authority also considered by the Judge, in order to outweigh the public interest in extradition of a fugitive, the interference with human rights must be “extremely serious” (para 55). Lord Phillips continued at para 56:

“The reality is that it is only if some quite exceptionally compelling feature, or combination of features, is present that interference with family life consequent upon extradition will be other than proportionate to the objective that extradition serves … Instead of saying that interference with article 8 rights can only outweigh the importance of extradition in exceptional circumstances it is more accurate and more helpful, to say that the consequences of interference with article 8 rights must be exceptionally serious before this can outweigh the importance of extradition.”

The court explained at para 82 of Norris that

“only the gravest effects of interference with family life will be capable of rendering extradition disproportionate to the public interest that it serves”

That is not the case here. Mindful that the Supreme Court later clarified in HH (para 32) that exceptionality is a “prediction” not a test, I cannot see how the article 8 interferences viewed as a whole outweigh the “constant and weighty” (HH, para 8) public interest considerations in this case. As explained by the Supreme Court in Andrysiewicz v Poland [2025] UKSC 23 at paras 42-43:

“42.

… It seems that an article 8 “defence” is raised almost as a matter of course in virtually every extradition case.

43.

… Cases in which a submission founded on article 8 ECHR may defeat the public interest in extradition will be rare. … Even in cases where interference with family life is relied upon, it will only be in cases of exceptionally severe impact on family life that an article 8 ECHR “defence” will have any prospect of success.”

Turning back to the “single question” identified in Celinski (para 24) for article 8 bars, the Judge’s decision on proportionality is not wrong. I have examined everything so ably put before me by Mr Hepburne Scott on behalf of the appellant and made every legitimate allowance in his favour I can, but cannot find any rational basis to indicate that the balancing exercise should have resulted in a different outcome. The interference with family life in this case is not close to severe, or exceptionally severe and is decisively outweighed by the strong public interest in extradition. Thus, an extradition order in the instant case is not disproportionate nor incompatible with the appellant’s article 8 rights and those of his family, viewed holistically.

The article 8 balancing exercise should not have been decided differently by the Judge. Having full regard to the evolving circumstances in Chechev (para 77) terms, the article 8 decision should not be decided differently now.

I formally refuse the fresh evidence application, the evidence being incapable of decisive status.

The article 8 ground fails. The appeal is dismissed.