Mariusz Tadeusz Przezminski v Regional Court in Wloclawek (Poland)

The Judge set out the principles succinctly as follows. As in noted later, this is an accurate summary of the position:

“21.

As was helpfully set out in the case of Ristin v Romania [2022] EWHC 3163(Admin), the core principle of fugitivity can be expressed in the following way:

“A person who has knowingly placed himself beyond the reach of a legal process is a fugitive. It is for the requesting state to establish fugitive status to the criminal standard. It must be shown that the requested person deliberately and knowingly placed himself beyond the reach of the relevant legal process.”

22.The case of Ristin also helpfully summarised three separate strands to the concept of fugitivity.

23.

Firstly, in the case of Wisniewski v Regional Court of Wroclaw, Poland [2016] EWHC 386 (Admin), a Requested Person may be treated as a fugitive where they have been given a suspended sentence of imprisonment, even though they may not know that the suspended sentence had been activated:

“…a person who breaches conditions of his sentence which require him to keep in contact thereby becomes somebody whose whereabouts are unknown to the authority which is entitled to know of them and puts it beyond the authority's power to deal with him. It is his conduct in breach of the suspended sentence that has given rise to his lack of knowledge that the sentence has been implemented. He has as a matter of choice placed himself beyond the reach of the criminal justice system concerned. I consider that he is properly to be regarded as a fugitive from the legal process in his case. Where he has, in this way, brought about the delay himself, the passage of time bar should not be available to him.”

24.

Secondly, in the case of Pillar-Neumann v Austria [2017] EWHC 3371 (Admin) there may be circumstances in which a person first became aware of the legal proceedings in relation to which the warrant has been issued when they were already outside of the requesting state. In circumstances where that person chooses to remain in the UK and resists extradition, it cannot be said that they are a fugitive.

25.

Thirdly, there is the case of De Zorzi v France [2019] EWHC 2062 (Admin), where a requested person “returns home” whilst the legal proceedings are ongoing and with permission of the court in the requesting state. In such circumstances, the Court has held that the person ought not to be regarded as a fugitive as they were under no [sic] restrictions on are simply choosing not to place themselves within the reach of the jurisdiction of the requesting state. The Divisional Court, in the case of Ristin, helpfully indicated that the factual circumstances of this case “was something distinctive and positive, more than simply the absence of a restriction on leaving the country.””

The judge recorded the submission on behalf of the Appellant that the case was analogous to that of De Zorzi and, the Requested Person was not required to take positive steps to place himself within the reach of the legal process once the decision had been taken to activate the suspended prison sentence to which this extradition request relates. He submitted that he had been living openly and continuously in the UK since before criminal proceedings against him were contemplated, and during the currency of those proceedings.

The Appellant’s submission was rejected. It was to the effect that the principle that a Requested Person was not required to take positive steps to place himself within the reach of the legal process applied to him once the decision had been taken to activate the suspended prison. She found that he was a fugitive, finding as a fact that he,

She did not accept he had been living openly and continuously in the UK since before the criminal proceedings against him were contemplated, and during the currency of those proceedings.

She noted that the Appellant was last in Poland on 24 May 2016 where he was questioned for a second time about the offences and “agreed to plead guilty and also to the terms of the suspended sentence that was ultimately imposed.” She reflected that it appears he was not present at the criminal proceedings himself, but a lawyer of his choosing appeared for him. The Appellant disputed that he knew about the activation. The District Judge did not believe that denial. She set out her reasoning for accepting the Judicial Authority’s submissions.

She said:

“28.

From the evidence available, it seems that the last time that the Requested Person was in Poland was on 24 May 2016, when he was interrogated (for the second time) by the prosecutor’s office in respect of these offences, he agreed to plead guilty and also to the terms of the suspended sentence that was ultimately imposed. The further information provided by the Judicial Authority suggests that he was not present at the criminal proceedings themselves, but that he was represented by a lawyer of his choosing.

29.

There can be no doubt in my mind that the Requested Person knew that the suspended sentence of imprisonment was liable to activation as a result of the offence(s) of which he was convicted in the UK. Although it is not commonplace to have suspended sentences activated as a result of offending committed within another jurisdiction, it is clear that this was something envisaged by the Judicial Authority, and therefore known to the Requested Person, as a result of the fact that the discussion which he had with his probation officer on 16 November 2016, involved a discussion about whether or not there were any criminal cases ongoing against him. There is a reasonable inference that this conversation took place owing to the fact that the suspended sentence would be liable to activation in the event that the Requested Person committed any further offences during the operational term of the suspended sentence order, whether in Poland or in the UK. And notably this conversation took place just eight days before the committing the dwelling burglary offence for which he was later convicted on 8 December 2016. It is absolutely reasonable therefore to conclude that, when the Requested Person committed that offence, it was within his contemplation that this could / would trigger the activation of the suspended sentence order.

30.

I am satisfied also that the Requested Person failed to comply with the requirement that he notify the Judicial Authority about any changes to his residence address. He accepted that he failed to notify the Judicial Authority about his move to Halifax, nor did he inform his probation officer about this change to his address on 16 November 2016. Based on the evidence from Ms Blezzard, who states that he moved from Huddersfield to Halifax at the end of 2015, he would have been living at an address not known to the Judicial Authority by the time that he had that conversation with probation and his failure to provide this information to the probation officer appears therefore to have been a deliberate attempt to render it impossible for them to ascertain his whereabouts.

31.

In this sense, I am satisfied that the Requested Person became “somebody whose whereabouts are unknown to the authority which … puts it beyond the authority's power to deal with him”, within the meaning of the case of Wisniewski and that he therefore “as a matter of choice placed himself beyond the reach of the criminal justice system concerned” – even though he technically did so at a time when he was in the UK. I also reject the submissions made on behalf of the Requested Person that he has lived openly throughout his time in the UK. Following Brexit, he has failed to regularise his immigration status and, accordingly, does not have any leave to remain in the UK. The fact that he has failed to engage with the Judicial Authority to regularise his immigration status in the UK – which in my view is surely because he knew that do so would result in an extradition request being made against him - very strongly supports the contention that he has sought to evade the Judicial Authority during his time in the UK and has, in this regard, deliberately placed himself beyond their reach.”

The judge considered the submissions under Article 8, beginning by citing the well-known authorities which reflect the very high public interest in ensuring extradition arrangements were honoured and no safe haven for criminals was created, and that very strong counterbalancing factors were needed where a Requested Person was a fugitive. She listed the factors in favour as the strong public interest, the sentence of three years, the seriousness of the offending which involved organised criminal activity over a significant period of time and involving considerable amounts of money, and in which the Appellant played a leading role.

She then found as follows

“iv)I have made a finding that the Requested Person is a fugitive from justice in this case. But even absent such a finding, he knew the terms of the suspended sentence of imprisonment that had been imposed upon him and the fact that it was liable to activation as a result of his breaches. He has consciously chosen not to return to Poland and has failed to face up to his responsibilities in respect of this matter. In this sense, the “safe haven” feature (referred to above) which increases the public interest in ordering extradition applies “in the more limited and diluted sense”, as per the case of Ristin.

“(v)

The Requested Person has committed offences since coming to the UK.

(vi)

He has no lawful right to remain in the UK.”

In the balance on the other side, she took into account the fact a suspended sentence only was imposed, that the offences were 10 years’ old, together with his age of 21 on first arrival were noted by the District Judge in the balance against extradition. He had good relationships with his partner and their four children also, who are all UK nationals whilst he is not and once extradited to serve the Polish sentence, they he may be separated but unwilling to join him in Poland, if he has, as he may, no entitlement to return here. She noted there had been no offences since 2017.

The reasoning included the findings:

“ 47 …As noted above, I am sure that, following the conversation with his probation officer on 16 November 2016 the Requested Person decided to deliberately place himself beyond the reach of the Judicial Authority by failing to inform them about his change of address to Halifax (as he was under an obligation so to do) and that, when he committed the offence of burglary just 8 days later (on 24 November 2016), he did so knowing that his suspended sentence of imprisonment was liable to activation. He has thereafter failed to regularise his immigration status and has deliberately hid himself from the Judicial Authority to avoid serving the sentence of imprisonment to which this extradition relates. Accordingly, very strong counter-balancing factors would need to apply before extradition could be said to be disproportionate.

and

“ … he pleaded guilty to the offences to which this extradition request relates, and he also pleaded guilty to the offence of burglary that was committed during the operational period of the suspended sentence order, and he admitted having committed other offences that were taken into consideration at the time that he was sentenced in the UK. In so doing, he clearly understood that the terms of the suspended sentence imposed upon him could be activated. And any refusal to admit him re-entry into the UK following the conclusion of his sentence would therefore be as a direct consequence of his offending both in the UK and in Poland, rather than as a result of extradition. But any decision on re-entry into the UK would also likely take into consideration his poor attitude towards immigration control in the UK and the fact that he has been unlawfully resident here for a number of years. Any separation from his family that was caused as a result of his return to Poland would not therefore in my view be as a direct consequence of his extradition, but rather as a result of his own criminality and deliberate actions to remain in the UK unlawfully for such a considerable period of time. Even were the Brexit uncertainty point something that were capable of weighing heavily against ordering extradition in this case, I note also that the Requested Person has adduced no evidence to [quantify] the risk that he would be refused readmission to the UK following the completion of his sentence. It therefore makes it very difficult for this court to give this factor any meaningful weight at this stage.”

She regarded the time elapsed since the last offending as very significant, and recognised the disadvantage to his family were he to be extradited. She characterised the difficulties as largely of his own making, and noted his partner had a support network. There was no evidence that she would be unable to cope in his absence and she characterised the disadvantages as those which were unfortunate, but ordinarily flow from extradition.

The Appellant relied upon the case of De Zorzi v Appeal Court of Paris, France [2019] EWHC 2062 at [48], [59] in this court in support of the proposition that a person in his position was as a matter of general principle not required to put himself within reach of the legal process instituted in Poland. He had no obligation, when summoned to serve the sentence, to leave this jurisdiction, his home, and to surrender to the Judicial Authority because of acts committed after he had left Poland.

I disagree. De Zorzi concerned a person who had lived in the Netherlands since 1985. The Requested Person Ms De Zorsi was arrested during a visit to the UK pursuant to a European Arrest Warrant issued in France in 2018. France wished for her to return to serve a sentence of imprisonment imposed following a conviction for offences in 2001. It was found as a fact that she had returned to the Netherlands with the express permission of the court before their judgement had been delivered. Thereafter, she was convicted and sentenced. She had made an appeal but not attended, although summonsed by the court. In 2005 she resisted an application to extradite her to France. Allowing her appeal against an extradition order made here in the UK, the court observed that she had not evaded arrest, nor concealed her whereabouts, she had returned home with the court’s permission, had been required to indicate a change of address, and had so indicated - indeed had been communicated with - at the address she had given. To leave the territory of the Judicial Authority before the outcome of her case was finally known in these circumstances did not make her a fugitive. The Appellant’s position is not equivalent to this on its facts.

The Respondent before me, as before the District Judge, drew particular attention to the case of Ristin v Romania [2022] EWHC 3163 a decision of Mr Justice Fordham. In that case the Appellant also sought to bring himself within the circumstances of De Zorzi , but Fordham J distinguished his position. There, the District Judge had held that Mr Ristin had chosen to leave Romania whilst his appeal against sentence was still being considered by the court. He held that he was sure that he had come to England to avoid the prison sentence that hung over him intending to avoid the reach of the relevant legal process. This amounted to taking positive steps to evade the authorities in the Requesting State. Even though he was going back to a country where he had previously been living (like Ms De Zorzi), and even though no legal obligation had been placed on him to remain in Romania. Fordham J determined this was different from De Zorzi where the factor of leaving the court with permission of the court was something distinctive and positive.

In the course of considering the cases Fordham J made observations with regard to two features of the case advanced on behalf of Mr Ristin namely “feature (2”) that he was not the subject of any domestic warrant requiring that he surrender to custody, and “feature (3)” that there had been no restriction on Mr Ristin leaving court or on leaving Romania, which was equivalent to him being “free to leave” as in De Zorzi. The following is of relevance to the present case:

This makes clear, in order to be found a fugitive, a Requested Person need not have been in breach of an express restriction as, for example, the requirement to notify his address. Likewise, leaving a Requesting State at a time when there was no duty at that point to surrender, does not mean that a person may not be a fugitive. He will not be unlawfully at large, but he may nonetheless leave the requesting country as a fugitive.

In the case of Wisniewski v Regional Court of Wroclaw, Poland [2016] EWHC 386 (Admin), it was determined that a person may be treated as a fugitive in circumstances where they were given a suspended sentence of imprisonment but breached a condition of the sentence which required them to keep in contact. In this way they became a person whose whereabouts were unknown to the authority – knowledge to which they were entitled - so he put himself beyond the Judicial Authority’s power to deal with him. Ignorance of the fact that the suspended sentence had been implemented was due in that case to choosing to put himself beyond the reach of the criminal justice system concerned, and he was a fugitive. In context, it is not a material point in the Appellant’s favour, as argued on his behalf, that he did take the step, as required, of phoning his probation officer. The terms of that conversation support the inference drawn by the District Judge. Mr Bartholomeusz submitted for the Appellant that it could not be reasonably inferred that he as a lay person would understand his sentence would be activated. I do not agree. Again, in the context of his interview and guilty pleas, and the representation by his lawyer at the sentencing hearing, and his following up on the probation officer requirement, this was a reasonable inference to make.

The nub of the Appellant’s case is it was not the case that committing the offence in one jurisdiction was sufficient to render a person a fugitive from another. There was no positive duty to place oneself within the reach of the legal process of a Judicial Authority. De Zorzi was relied upon for this proposition as stated it does not support it. Like Mr Justice Fordham, it seems to me that the particular fact of the judge’s express permission to the Requested Person in that case (that she might leave the jurisdiction in the course of proceedings), is very different and is a particular feature not present here. Ms De Zorzi was required to keep in touch with the Judicial Authority and did so. That is not the case for this Appellant. Further, as a matter of general principle on the facts which this District Judge found and in light of the authorities, this is a proper finding of fugitivity. It is not the case as argued by the Appellant, that there were no “ongoing legal proceedings”.

As a matter of principle the Appellant’s submission must fail. In Makowska v Regional Court in Torun [2020] 4 WLR 161 Mr Justice Fordham analysed the state of being a fugitive into three notions: of moving place, lack of information, and intended elusiveness (see his paragraph [28]), not as a litmus test, but as themes in the concept of fugitivity. They link to the natural meaning of the word “fugitive”, and directly, to the underlying idea of extradition delay being consequential upon an individual’s own choices. He considered the Pillar-Neumann case as falling the other side of the line - she who did not take any positive steps to put herself beyond legal process, but who was not in breach of obligation to keep in touch etc. In Makowska the facts were different. The judge said there, that a person who breached conditions of a suspended sentence from within the UK (failing to pay the monetary element of a sentence) where there is no suggestion of a contact breach or of whereabouts being or becoming unknown was in a materially different position from the person in the case of Wisniewski who breached conditions of their sentence which required them to keep in contact. They became someone whose whereabouts were unknown to the authority – which was entitled to know them. The comparison of Wisniewski with the present case is obvious.

Here the Appellant challenges the facts found as a matter of inference by the District Judge. That challenge must fail. Here was a person subject to a suspended sentence which suspension was due to last five years. He had pleaded guilty in person, at interview, to the 53 warrant offences in Poland, and had expressly agreed the consequences of that plea. It is a fully reasonable inference from this that the Appellant knew the precise terms of his suspended sentence. He himself attended the interviews, and he had a solicitor acting for him in court. As the District Judge held, it is an inference properly to be made, one might even say an irresistible inference, from his conversation with his probation officer as well (as recorded in the Warrant and Further Information), when he canvassed the fact (at that date true) that he had been convicted of no further offences, that he knew the import of a conviction in the UK. I do not accept as submitted that “the proceedings were effectively over” when the Appellant left Poland. The caselaw (see in particular the cases of Wisniewski (supra) and Wanagiel v [2018] Local Court in Strzelice (Poland)) [2018] EWHC 3370 (Admin)) does not support such a proposition. I accept as argued by Mr Davies for the Respondent that a suspended sentence carries with it the risk of revocation: it is still a part of the legal process, and a person’s status who is so subject, is not equivalent to being completely at liberty.

I have set out at some length the material parts of the Further Information from the Judicial Authority. It is in my judgement plain from this material, on which the District Judge did and was entitled to rely, that the Authority made a case to the criminal standard that the elements of fugitivity were present in the case. Nothing in the Appellant’s evidence, as analysed by the District Judge disturbed that conclusion.

The District Judge was fortified in this conclusion by the Appellant’s approach to his immigration status. In my judgement it is quite wrong to characterise the Appellant as living openly in this country. He was effectively, by his manner of existing, under the radar. He had a cash in hand job (one evening a week), so he was not traceable through the usual channels of tax payment and employment, had not engaged with the UK authorities to regularise his position post- Brexit, for which an implausible reason of lack of knowledge was given, and he had failed to communicate his move within the country to a new address so the Judicial Authority could exercise their powers if and when necessary. I disagree with the suggestion from Mr Bartholomeusz on behalf of the Appellant that it was improper to take into account the absence of Brexit regularisation. It was open to the Appellant to seek to regularise his stay. Whilst conditions of registration and public knowledge may have differed over the years from 2016, the absence of any evidence of an attempt at regularisation, coupled with the other material was properly taken into account as part of the Appellant’s activities in relation to fugitivity. He had also not returned to Poland since the activation of the suspended sentence, he was asked about this. The evidence is set out by the District judge in her paragraph 13, which appears above at para [18].

In my judgement it was clearly open to the District Judge, who saw the Appellant give oral evidence, to disbelieve an assertion that he did not know the basic facts of his sentence, did not know about regularising his stay in the UK after Brexit, and did not know of the requirement to communicate to the Judicial Authority as to where he was now living, and (evidently) to regard with scepticism the reason for not going back to Poland once his sentence had been activated. The solidity of these conclusions is not affected by what appears to be an error in her recording of the import of the pre-suspended sentence telephone call on 16 November 2016 with his probation officer (para 30).

It was also said that, had those findings been wrong, the absence of a fugitivity finding would necessarily have so affected any balancing exercise that extradition would be an unjustifiable interference with the Appellant’s Article 8 rights: this court would come to a different conclusion from the District Judge.

The Appellant argued that it was wrong to take into account any of the findings of the District Judge given that the exercise must be performed afresh to determine whether extradition is a disproportionate interference.

Again, I disagree. I accept that I would, if required to consider Article 8, perform the Article 8 balancing exercise for myself. Nonetheless I would be obliged to be guided by the tribunal who saw the Appellant give evidence as to those matters reflecting a judgement on the evidence given, and the inferences from his answers that were drawn. In the current case, the matters drawn to the attention of the District Judge as counting against extradition were fairly, and in my judgement generously characterised by her when conducting the balancing exercise - there was no error of principle. The District Judge set out the well-known cases, about which properly no issue is taken, on the approach to Article 8 and a balancing exercise was carried out. Necessarily the criminality of the Appellant was taken into account. She put weight upon the fact that the Appellant had, just before offending again, had a conversation with the probation officer, assuring him there had been no further offending, She legitimately saw a connection with, just over a week later, the Appellant committing a burglary for which he received a significant sentence in the UK. In light of her finding he had deliberately hidden himself from the Judicial Authority, had reassured his probation officer then almost immediately committed a condition-breaching crime, which he admitted and pleaded guilty to (with others taken into consideration) these were serious matters that affected not only his extradition, but also his putative position seeking to re-enter the UK. She did not accept what he said about the state of his knowledge of his own sentence was accurate. Further she noted in more than one place, an absence of evidence as to what might happen to him or to the family.

The compelling feature from his family life was rather, as she noted, that it could be suggested that he had kept out of offending since that family was being formed. In judging these matters for myself, it is clear that the position is that the Supreme Court in Andrysiewicz v Circuit Court in Lodz, Poland [2025] UKSC 23 has, since the District judge was required to consider this case, delineated the very narrow extent to which a submission founded on Article 8 family life will succeed. At paragraph [43] the Supreme Court said this:

“43.

We have set out above relevant passages in Norris, H(H) and Celinski at some length because it is clear that there is a need to reiterate the essential points they make. Cases in which a submission founded on article 8 ECHR may defeat the public interest in extradition will be rare. It is most unlikely that extradition will be held to be disproportionate on the ground of interference with private life. 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”.

In the present case the balancing exercise must take into account the position of this Appellant as a convicted burglar in this jurisdiction, with now a number of offences to his name as well as the 53 to which he pleaded guilty in Poland. Given the organised crime background, the numerous fraud offences, and the not insignificant sentence, there is a real public interest in his extradition. Further, on the premiss, as this determination of Article 8 must be, that he is not a fugitive, the flight to the UK nonetheless and commission of further crime when under a suspended sentence increases the public interest in his extradition from the UK which otherwise risks characterisation as a safe haven.

Had I been required to do so, I would, aside from the authority of Andrysiewicz have determined afresh that it was not disproportionate by reference to Article 8 for this Appellant to be extradited. The family circumstances, although doubtless painful and disruptive, just cannot be described as exceptionally severe. In light of Andrysiewicz the submission on these facts, must very clearly fail.

This appeal must be dismissed.