Mikolaj Heidrych v District Court in Bydgoszcz, Poland

This is the Applicant’s renewed application for permission to appeal, against the order of District Judge McGarva sitting at Westminster Magistrates’ Court. The District Judge delivered his judgment on 28 March 2025 and ordered the Applicant’s extradition in respect of two offences. He ordered the Applicant’s discharge on a further two offences, having found that the dual criminality requirement was not satisfied. An extradition order was sealed on 11 April 2025. Permission to appeal was refused on the papers by Turner J.

The request for surrender arises from an accusation Arrest Warrant issued by Judge Roman Narodowski of the District Court in Bydgoszcz on 31 October 2018, and certified by the National Crime Agency (“NCA”) on 4 December 2024. The Applicant was arrested in the United Kingdom on 11 December 2024 and appeared the following day at Westminster Magistrates’ Court.

The warrant alleged four offences:

Further information confirmed that offences 1 and 2 were committed wholly in Germany.

The District Judge decided that offences 1 and 2 were not extradition offences within section 64 Extradition Act 2003 because the conduct occurred outside Poland, and the Judicial Authority had not demonstrated extra‑territoriality under section 64(4). He therefore discharged the Applicant on those counts under section 10(3). By contrast, offences 3 and 4 involved conduct in Poland and satisfied section 64(3).

The Applicant’s personal circumstances before the District Judge were that he had been detained in Poland from April 2015 to April 2016, then released on preventative measures including police supervision, financial surety, a prohibition on leaving Poland and notification requirements, all explained to him and acknowledged by signature. He left Poland and came to the UK in 2016, where he has worked continuously, paid tax, and has no UK convictions.

The District Judge treated fugitivity as a significant factor. He was sure that the Applicant had intentionally placed himself beyond the reach of the Polish court in breach of conditions. The Applicant accepted that he was a fugitive.

A further feature of the case was delay. The period between issue of the warrant and NCA certification was some six years. Evidence from the NCA indicated that the UK’s departure from the EU resulted in the loss of access to the SIRENE system and EU records, and that a UK connection for the Applicant was not identified until December 2024, whereupon the warrant was executed.

The material part of the statement from the NCA said:

“Due to the loss of SIRENE data and the de-coupling through the UK’s exit from the EU, I am unable to confirm if a SIRENE case was in existence for this subject and if any action was taken on it between 2015-2020. INTERPOL case was created on the 17/09/2024, following notification from the Home Office indicating that subject may be located in the UK. Further checks identified the existence of the Red Diffusion issued on 25/11/2018 by Polish Authorities. Initial de-confliction checks were conducted on 17/09/2024 which did not establish a UK Connection. Further location checks were conducted on 03/12/2024 which established a viable UK footprint. The European Arrest Warrant was requested for the subject from Interpol Warsaw on 03/12/2024. Later on the same day, the European Arrest Warrant in the original language and its English translation were received from Polish Judicial Authorities. The EAW was certified without delay on 04/12/2024 and issued to the National Extradition Unit for execution.”

The District Judge accepted this evidence as a partial explanation for delay.

Having discharged the applicant on offences 1 and 2, the District Judge assessed Article 8 and section 21A exclusively by reference to offences 3 and 4. He weighed the constant and weighty public interest in extradition and the impact of fugitivity against the personal circumstances relied upon by the Applicant, including delay, his work history, family support in Coventry, and time already served in custody (about 16 months across Poland and the UK). He concluded that the public interest remained compelling and that extradition was compatible with Article 8 and proportionate under section 21A.

The appeal was lodged on 16 April 2025; perfected grounds were filed on 1 May 2025 and the Respondent’s notice on 14 May 2025. Turner J refused permission on 17 December 2025; a renewal application was filed on 23 December 2025 and came before me on 25 February 2026.

The renewed application advances a single ground, that the District Judge (and Turner J on the papers) erred in the Article 8/section 21A analysis by failing to treat the six‑year certification delay as culpable delay weighing materially against extradition. It is said that there was no proper evidential basis to attribute any part of the delay to the Applicant’s fugitivity, because, on the Applicant’s case, the Respondent (and/or UK authorities) must be taken to have known of the Applicant’s presence in the UK from the date of the English translation of the warrant, which appears to have been undertaken on 10 November 2018, yet offered no explanation for the time taken to certify, to 4 December 2024.

Mr Henley, who also appeared in front of the District Judge, accepted candidly that he had not spotted the date of the English translation at the time of the extradition hearing although the document was in the bundle before the court. He submitted that it had been open to the Respondent to give a proper explanation of the reason for delay, but it had not done so.

In argument, reliance was placed by Mr Henley on Pabian v Poland [2024] EWHC 2431 (Admin), for the proposition that even in fugitive cases, unexplained delay must be weighed against extradition.

The Judge considered Pabian in his judgment saying:

“I have been referred to the case of Pabian and District Court of Warsaw [2024] EWHC 2431 (Admin) on the issue of delay. This is relevant because in this case there was a 6-year gap between the issue of the warrant and it being certified by NCA. Miss Engineer for the judicial authority relies on the case of RT v Poland [2017] EWHC 1978 (Admin) which includes a dicta statement that the judicial authority does not have to search “by ways and alleyways” to try and locate a requested person who is a fugitive. Pabian is a case where it was held delay should be taken into account even where the requested person was a fugitive. It does not purport to overrule RT and is a single judge decision as against RT which was decided by the Divisional Court. Also, whilst cases do make points of principle, they can also be fact sensitive. Perhaps the most telling factor in Pabian is that having concluded the District Judge was wrong not to take into the account the delay, once the balancing exercise was carried out again taking into account the delay the result was the same, that is extradition was compatible with the requested person’s article 8 rights. In this case it is open to me to conclude that some of the delay is due to the requested person’s fugitivity. It must also be the case that based on the statement from the NCA some of the delay must be due to the loss of access to EU records and SIRENE. I will take into account the fact there has been delay in the balancing exercise.”

In Pabian, Chamberlain J analysed the development of the law in relation to Article 8 and delay and distilled the principles that emerged from the case law. That exercise was undertaken principally because of the respondent’s submission in Pabian that there had been a step change in the law as a result of the decision in RT v Poland. As Chamberlain J demonstrated, the position is more nuanced. He said [51]:

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

In summarising his conclusions on Article 8, the District Judge said:

“23.

The question is whether the impact on the requested person’s private and family life would outweigh the constant and weighty public interest in extradition. The public interest in extradition in this case is particularly high, the requested person fled to Britain explicitly to avoid prosecution. The likely sentence is a matter for debate, and I do take into account he has already served 16 months in custody. It is however not necessarily disproportionate to extradite someone to serve a relatively short period and in this case as it is an accusation warrant, I would be depriving the judicial authority of the opportunity to try the requested person which would be contrary to the public interest and would create the “safe haven” impression.

24.

The requested person is not a carer although it is accepted, he is part of a close-knit family. He has built a successful life here and has turned over a new leaf here. That said his private life here is built on the sham of his fugitivity. The impact of extradition would not be exceptionally severe in this case and although he has already spent a significant time in custody it would be contrary to public policy to let a fugitive escape prosecution. I have of course taken into account the fact I have discharged him for 2 serious offences on dual criminality grounds which does have a significant effect on the gravity of the offending I am considering. I have taken into account only the cannabis importation in this balancing exercise.”

The Respondent’s position, as set out in the Respondent’s Notice, is that the District Judge directed himself impeccably, set out factors for and against extradition, and reached the only sustainable conclusion on the evidence. The Applicant’s fugitivity was conceded and weighs heavily. The NCA material provided a coherent explanation for aspects of the delay post‑Brexit, and there was no evidential basis to assert that the authorities knew where the Applicant was prior to December 2024. In any event, the Respondent submits that, as the District Judge concluded, even taking delay fully into account, the balance under Article 8 and section 21A still favoured surrender on offences 3 and 4.

An appeal lies to this court only with permission. The threshold is whether the proposed grounds are properly arguable with a real prospect of success (or otherwise raise a compelling reason). In extradition appeals, this court will only intervene if the judge erred in law, took into account an irrelevant consideration, failed to take into account a relevant consideration, or reached a conclusion not open to him on the material.

Where Article 8 is in play, the court performs a structured balancing exercise. There is no formal test of exceptionality, but successful challenges are likely to be rare given the constant and weighty public interest in honouring extradition obligations; particular weight is placed on fugitivity. The proportionality cross‑check under section 21A of the 2003 Act examines seriousness, likely penalty, and the availability of less coercive measures. These principles are well‑established and were expressly applied by the District Judge.

The Applicant’s case rests on the proposition that the authorities must be taken to have known he was in the UK from November 2018 by reason of an English translation of the warrant, such that the subsequent delay to December 2024 was unexplained and should have carried decisive weight in his favour. As far as the authorities in this country are concerned, that submission is not borne out by the material. The District Judge referred to the NCA evidence explaining the post‑Brexit loss of access to EU databases (including SIRENE), the creation of an Interpol case in September 2024, and the first identification of a UK link in December 2024, whereupon the warrant was promptly executed. Any delay by the Respondent could be attributed to fugitivity, in part at least. The full weight of the submission that knowledge of the Applicant’s whereabouts after he had fled could be inferred rests on the date of the English translation of the warrant. For my part I would be reluctant to draw such an inference on that basis alone but even if it would be correct to do so delay was not ignored in the balancing exercise.

The District Judge took delay into account and expressly recognised that not all of it could safely be attributed to fugitivity; he accepted that some was systemic and related to the UK’s changed access to EU systems. He then factored delay into the Article 8 balance. That was a lawful and orthodox approach.

Even if it were arguable that further criticism could be levelled at the explanation for delay, the Applicant must still show that, had the District Judge approached delay differently, the outcome would realistically have been different. On the facts found, the Applicant was a fugitive who had left Poland in breach of conditions imposed after a year’s detention, was aware of ongoing proceedings, and had deliberately placed himself beyond reach. He had close family support but no dependants or caring responsibilities in the UK. The criminal conduct remaining in issue, importing almost a kilogram of cannabis into Poland with others, was serious. Those were weighty countervailing factors.

The Applicant accepted fugitivity before the District Judge. The Judge’s finding to the criminal standard was properly reasoned: the preventative measures (including a prohibition on leaving Poland and notification obligations) were explained and acknowledged in writing; the Applicant nonetheless left Poland and failed to notify a change of address. That finding was plainly open to the Judge.

The District Judge approached Article 8 and section 21A in a structured way: he identified and weighed the public interest (including the specific weight of fugitivity and the undesirability of the UK being seen as a safe haven), considered the seriousness of the conduct (importation close to category 3 harm on the Sentencing Council framework), acknowledged the Applicant’s positive private life factors and the delay, and evaluated the time already spent in custody (approximately 16-months across both jurisdictions). He concluded that extradition remained proportionate. That reasoning discloses no error of law and cannot be said to be outside the range of reasonable assessments based on the evidence.

In refusing permission Turner J observed:

“[The District Judge] was entitled to conclude on the evidence before him that the applicant, as a fugitive, shared some of the blame for the delay. Even if he was not so entitled and the applicant was not responsible for any of the delay, the conclusion that extradition should be ordered would have been inevitable. In particular, the applicant had not started or significantly developed any family relationship during the period of delay”.

The Applicant’s renewed ground, at its highest, invites this court to re‑weigh factors which were already squarely before and conscientiously addressed by the District Judge. That is not a proper basis for granting permission. The mere possibility that another judge might have given somewhat greater weight to delay does not render the decision arguably wrong. On the District Judge’s findings, the powerful public interest in honouring extradition requests, amplified by fugitivity and seriousness, remained determinative notwithstanding delay and the Applicant’s successful life in the United Kingdom.

The renewed application fails to identify any arguable legal error in the District Judge’s approach to delay, Article 8, or section 21A. Nor does it disclose any other basis on which the appeal would have a real prospect of success. The renewed application for permission to appeal is therefore refused.