Piotr Zebracki v Regional Court in Torun, Poland

1. This is the judgment of the court.

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

3. This is an appeal in extradition proceedings.

4. The case raises issues about key aspects of the Extradition Act 2003 (“ the Act ”) and associated jurisprudence, including section 10 on double criminality; section 20 on rights waiver through deliberate absenting; section 14 on delay, oppression and fugitivity; and article 8 of the European Convention on Human Rights (“ECHR”).

5. The appeal is against an extradition order made by District Judge Tempia (“the Judge”) sitting at the Westminster Magistrates’ Court on 28 October 2024. The Judge ordered the return of the appellant Piotr Jan Zebracki (“the appellant” or “the requested person”), a Polish national born in Poland on 6 June 1985 and now aged 40, back to Poland (“the requesting state”). The respondent in the appeal is the Regional Court in Torun, Republic of Poland (“the judicial authority”). The 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). Permission was granted on a limited basis by Ritchie J on the papers on 22 May 2025.

6. The requesting state seeks the appellant’s surrender on a conviction warrant issued under the EU-UK Trade and Cooperation Agreement 2020 (“TACA”) on 21 January 2019. It was certified by the National Crime Agency (“NCA”) on 7 January 2022. Therefore, it should be noted, that there was a delay of almost three years before certification, a fact I must return to. The warrant seeks the appellant’s return to Poland to serve an outstanding sentence following a complicated series of events that will be set out in brief below. Put shortly, however, the parties agree that the appellant has 207 days’ imprisonment still to serve of an aggregated sentence of 3 years and 8 months’ custody for a series of ten offences in Poland between 2012 and 2015. They were principally offences of dishonesty, including burglary, fraud, forgery and theft, along with a driving offence.

7. The appellant does not consent to his extradition. The grounds Ritchie J granted permission on are under section 10 of the Act and article 8 of the ECHR. First, it is submitted that one of the offences founding the custodial sentence is not an “extradition offence” for the purposes of section 65(3)(b) which requires that “the conduct would constitute an offence under the law of the relevant part of the United Kingdom if it occurred in that part of the United Kingdom”. Second, surrender is opposed on the basis of article 8 on the basis that a return order would amount to a disproportionate interference with the appellant’s family life and that of his family and thus is incompatible with article 8.

8. Ritchie J refused permission on grounds arguing sections 14 and 20 of the Act . At the appeal hearing, the appellant renewed the permission application. I heard argument as a preliminary issue and granted permission. The merits of these further grounds are fully discussed below. I set out the relevant passages from the Judge’s lower court judgment under the relevant ground rather than providing an extended block of text at the outset.

9. The structure adopted is to examine the grounds in the order counsel jointly proposed to argue them. The relevant grounds, as reordered, are: Ground 1 : Section 10 – dual criminality Ground 2: Section 20 – no unequivocal waiver of article 6 Ground 3: Section 14 – limited fugitivity; resulting oppression Ground 4: Article 8 – disproportionate interference with article 8 rights

10. The appellant is represented by Ms Herbert of counsel; the respondent by Ms Beatty. I am grateful to both counsel for their economical and spirited submissions. II. Procedural history

11. There were two previous arrest warrants (“AWs”). AW1 was issued on 10 April 2017 and certified by the NCA on 6 June 2017. AW2 was issued on 7 February 2018 and certified on 23 March 2018. Extradition was ordered on both warrants. While the appellant appealed the extradition orders, the respondent informed the Crown Prosecution Service (“CPS”) on 21 January 2019 that a new aggregate sentence for all the offences had been passed. This was by the District Court of the Torun Penal Division on 3 August 2018.

12. Therefore, the arrest warrant under consideration at appeal warrant is based on the enforceable cumulative judgment of the District Court in Torun on 3 August 2018 which aggregates penalties from four case files (separate criminal proceedings): 12 September 2012 (II K 779/12), 12 May 2015 (VIII K 1583/14), 21 April 2016 (II K 27115) and 15 November 2015 (II K 1187/15).

13. The complicated procedural backstory may best become comprehensible by summary in a list of events (adapted with amendment and thanks from the table in Ms Herbert’s skeleton argument). • 24.2.12 II K 779/12: Offence 1 burglary committed • 25.2.12-27.2.12: II K 779/12: Offence 2 committed • 16.6.12: II K 779/12: Appellant informed of his duty to notify a change in address • July 2012: VIII K 1583/14: Offence 5 committed • 2.8.12: II K 779/12: Appellant summoned in writing, not collected • 12.9.12: II K 779/12: Trial and sentence without appellant • 13.9.12: II K 779/12: Copy of judgment sent to appellant, not collected, and valid on 5 October 2012 • 26-27.10.14: VIII K 1583/14: Offence 4 committed • 26.10.14-7.11.14: VIII K 1583/14: Offence 2 committed • 3-4.11.14: VIII K 1583/14: Offence 3 committed • 6.11.14-7.11.14: VIII K 1583/14: offence 1 committed 2015 Appellant comes to UK (on appellant’s account; precise date unstated) • 12.5.15: VIII K 1583/14: Sentence • 1.7.15: II K 271/16 Offence 1 committed • 15.7.15: II K 271/16 Offence 2 committed • 11.10.15: II K 1187/15: Offence 1 committed – ( Final offence committed in Poland ) • 16.11.15: II K 1187/15: Trial for this offence in absence (notified by court employee on 13.11.15) • 1.12.15: II K 1187/15: Appellant appealed conviction • 12.5.16: II K 1187/15: Appeal in absence - sentence upheld • 21.4.16: II K 271/16: Conviction and sentence • 10.4.17: First AW issued • 6.6.17: First AW certified • 12.11.17: Appellant arrested on First AW (Remanded) • 3.1.18: First AW – extradition hearing and judgment - extradition ordered - appeal issued • 7.2.18: Second AW- issued for II K 1187/15 • 23.3.18: Second AW certified • 23.4.18: Appellant arrested on Second AW (whilst in custody) • 3.8.18: Second AW - extradition ordered following hearing on 2.7.18 - Appeal filed • 3.8. 18: Torun District Court (Penal Division) imposes aggregated sentence for all case files • 13.12.18: Aggregate sentence for all offences (VIII K 9/18) upheld • 21.1.19: Current AW issued • 24.1.19: First and Second AW discharged. Appellant released >>> Three-year gap <<< • 7.1.22: Current AW certified • 28.1.24: Current AW- Appellant arrested • 29.1.24: Current AW- First appearance - adjourned under s.8A • 3.6.24: Appellant sentenced to dangerous driving - Grimsby Crown Court • 17.6.24: Appellant’s earliest release date for dangerous driving • 18.6.24: First appearance for consent current warrant - hearing opened • 26.9.24: Current AW- Extradition hearing • 28.10.24: Current AW- Extradition ordered • 29.10.24: Current AW- application for permission • 22.5.25: Current AW – Ritchie J (on the papers) grants permission to appeal on (a) sections 10 /64 ground and (b) article 8 ground; refuses on section 14 and section 20 grounds • 23.5.25: Current AW- renewal submissions refused grounds • 16.10.25: Appeal hearing

14. The case files for the various criminal proceedings record their details as below. Case reference II K 779/12: a. On 24 February 2012 at 90 Bydgoska Street in Toruń, the Appellant and another broke into a building and stole tools to a total value of 8,385.28 PLN to the detriment of Krzysztof Wawrzyn (approximately £1,700 at the time of the offence). Under Polish law, this conduct amounts to the offence of burglary contrary to Article 279 paragraph 1 of the Penal Code. b. In the period from 25th to 27th February 2012 in Torun he purchased the property in the form of welder for PCV pipes of Dedra make, angle grinder of flex type Back & Decker make of a total amount of 626.97 PLN, which was gained during the burglary to the flat at 90 Bydgoska Street m Torun to the detriment of Krzysztof Wawrzyn. (approximately £130 at the time of the offence). Under Polish law, this conduct amounts to the offence of dealing in stolen goods contrary to Article 291 paragraph 1 of the Penal Code. Case reference VIII K 1583/14: c. Between 6 and 7 November 2014 at 41A Wschodnia Street in Toruń, the Appellant broke into an office premises and stole three PCs to a value of 1,800 PLN (approximately £330 at the time of the offence). Under Polish law, this conduct amounts to an offence of burglary contrary to Article 64 paragraph 1 of the Penal Code. d. Between 26 October and 7 November 2014 at 41A Wschodnia Street in Toruń, the Appellant used a previously stolen key to enter a car, from which he stole a car radio to a value of 100 PLN (approximately £19 at the time of the offence). Under Polish law, this conduct amounts to an offence of burglary contrary to Article 64 paragraph 1 of the Penal Code. e. Between 3 and 4 November 2014 at 41A Wschodnia Street in Toruń, the Appellant used previously stolen keys to enter an office premises, where he then stole a PC and cash to a total value of 750 PLN (approximately £140 at the time of the offence). Under Polish law, this conduct amounts to an offence of burglary contrary to Article 64 paragraph 1 of the Penal Code. f. Between 26 and 27 October 2014 at 41A Wschodnia Street in Toruń, the Appellant used previously stolen keys to enter an office premises, where he then stole tools to a total value of 550 PLN (approximately £100 at the time of the offence). Under Polish law, this conduct amounts to an offence of burglary contrary to Article 64 paragraph 1 of the Penal Code. g. In July 2013 at 38 Wschodnia Street in Toruń, the Appellant stole a hammer to a value of 3,000 PLN (approximately £620 at the time of the offence). Under Polish law, this conduct amounts to an offence of theft contrary to Article 278 paragraph 1 of the Penal Code. Case reference II K 271/16: h. On 1 July 2015 at 36/7 Broniewskiego Street in Toruń, the Appellant submitted various forged documents to a loan company. Under Polish law, this conduct amounts to the offence of forgery contrary to Article 270 paragraph 1 of the Penal Code. i. On 15 July 2015 at 36/7 Broniewskiego Street in Toruń, the Appellant used the aforementioned forged documents above to obtain a loan, causing damage to the loan company in the sum of 400 PLN (approximately £68 at the time of the offence). Under Polish law, this conduct amounts to the offence of fraud contrary to Article 286 paragraph 1 and 64 paragraph 1 of the Penal Code. Case reference II K 1187/15: j. On 11 October 2015 on Młodzieżowa Street in Toruń, the Appellant drove a vehicle while intoxicated. The two breath alcohol readings taken were 1.99mg/l and 0.99mg/l respectively. Under Polish law, this conduct amounts to the offence of driving while intoxicated contrary to Article 178a paragraph 1 of the Penal Code. III. Ground 1 ( section 10 )

15. Section 10 of the Act requires the court to consider whether the offences specified in the warrant are extradition offences. Section 10(2) provides: “10 Initial stage of extradition hearing … (2) The judge must decide whether the offence specified in the Part 1 warrant is an extradition offence.”

16. Section 65(3)(b) provides that the conduct in the arrest warrant for which extradition is sought must “constitute an offence under the law of the relevant part of the United Kingdom if it occurred in that part of the United Kingdom.”

17. The test for dual criminality is conduct-based ( Norris v USA [2007] EWHC 71 (Admin) , paras 65, 91). It does not depend on an identity of offence. The dual criminality objection advanced by the appellant is to the second offence specified in case reference II K 779/12. The relevant domestic offence was found by the Judge to be handling stolen goods under Section 22(1) of the Theft Act 1968 . This provides: “A person handles stolen goods if (otherwise than in the course of the stealing) knowing or believing them to be stolen goods he dishonestly receives the goods, or dishonestly undertakes or assists in their retention, removal, disposal or realisation by or for the benefit of another person, or if he arranges to do so.”

18. The description of the offences in the arrest warrant is as follows (with the paragraphs numbered for ease of reference and as translated): “on 24th February 2012 between 5.00 p .m. and 6.05 p .m. at 90 Bydgoska Street in Toruń, acting together and in concert with another person, having broken the plate protecting the entry to the staircase, and then having broken a wooden plate, he came to another door in which he had broken the lock and the hasp from the padlock and after that he came to the premises which were being decorated and he took therefrom, with the aim to misappropriate them, the following electro tools: two battery drivers of Macalister make, two glue mixers, three electric drills of Bosch, Macalister and Makita make, two small angle grinders of Bosch and Black&Decker make, big angle grinder, demolition and impact hammer of Macalister make, table saw of Macalister make, i.e. the property of a total value of 8,385.28 PLN to the detriment of Krzysztof Wawrzyn. [“Paragraph 1”] - in the period from 25th to 27th February 2012 in Toruń he purchased the property in the form of welder for PCV pipes of Dedra make, angle grinder of flex type Back & Decker make of a total amount of 626.97 PLN, which was gained during the burglary to the flat at 90 Bydgoska Street in Toruń to the detriment of Krzysztof Wawrzyn.” [“Paragraph 2”]

19. The appellant’s essential submission is that the Judge erred in finding that the conduct amounted to a handling offence as the appellant is accused and convicted of being both thief and handler. The respondent submits that the Judge was “entirely correct” as there is a sufficient lapse of time between the theft and the handling of the stolen goods to render the conduct otherwise than in the course of stealing for section 22 purposes. This decision is one of hard-edged law. It is not a matter of the Judge’s discretion. Either the conduct amounts to an extradition offence or it does not. Nevertheless, this is how the Judge dealt with the issue at para 15: “15. I am satisfied so I am sure the second description in the AW under II K 779/12 does constitute an offence of handling stolen goods because Box E states that the RP and another burgled the premises on 24th February 2012. Later, between 25th and 27th February 2012, the RP bought items stolen in the burglary. The burglary was committed with another, but the RP then separately bought items stolen in the burglary either from the other person who stole them or from a third party. It is a separate offence.” Discussion

20. I examine the six chief points made by the appellant.

21. First , I immediately clear away an argument touched on by the appellant that it is not certain under Polish law that the conduct in paragraph 2 amounts to a criminal offence. In the 2019 arrest warrant, the following is stated about the conduct in paragraph 2: “Under Polish law, this conduct amounts to the offence of dealing in stolen goods contrary to Article 291 paragraph 1 of the Penal Code.”

22. There is no evidence to suggest this is incorrect. Indeed, this was not the basis of the challenge to the Judge’s finding. That focused on whether the conduct amounted to a criminal offence under the law of England and Wales (the relevant part of the United Kingdom).

23. Second , it is clear that the welding device in Paragraph 2 (“welder for PCV pipes of Dedra make”) is not mentioned in the first paragraph. Therefore, there is a difference between the items alleged to be stolen by the appellant and then handled by him. He was not convicted of stealing the welder. Therefore, there cannot be a valid objection to his having handled it. However, the Black & Decker angle grinder may be one of the angle grinders stolen by him. Framed properly, there must be a doubt whether the Judge could safely find that it was a different angle grinder to those stolen by him, and in fairness to the appellant I proceed on this basis.

24. It is settled law that section 22 contains two distinct types of offending. First, dishonestly receiving. Second, dishonestly undertaking or assisting in the goods’ retention, removal, disposal or realisation by or for the benefit of another person, or if the accused so arranges. It is the first offence under section 22 that the respondent submits the paragraph 2 conduct amounts to – a receiving offence. When the Theft Act 1968 was enacted, this offence broadly replaced the previous offence under section 33 of the Larceny Act 1916 . The offence has several requirements. The goods must be stolen. The person must receive them. The term “receiving” is not defined in the statute, but what is vital is the element of control, which may exceed simple physical possession. The person must know or believe them to be stolen. The receiving must be otherwise than in the course of stealing. It is not disputed that the angle grinder was stolen and that if the appellant came into possession of it the next day, he knew or believed it was stolen as he had been involved in the tool’s theft. He was therefore dishonest.

25. From the warrant, the allegation is that the appellant “purchased” the items, including the angle grinder. In other words, he received them having exchanged value (presumably money, although this is unclear) for them. This would amount to an offence under our law subject to a vital definitional question arising under section 22 . Therefore, at least one item is potentially both stolen and handled. This is the focus of my analysis.

26. Third , this ground fundamentally turns on what is meant by “otherwise than in the course of stealing”. Put in simple terms, the warrant states that if the stealing was on Day 1, the receipt was on either Day 2, 3 or 4. To be fair to the appellant, I take the date most favourable to him: Day 2. The submission was put by him in different ways.

27. To begin, the starkest claim, as put orally: “it is not in the course of stealing because the items were gained during the course of the burglary that [the appellant] took part in and therefore they are received in the course of stealing.” In the appellant’s skeleton argument, it is submitted that for the purposes of the conduct test, the appellant “cannot be the ‘stealer’ and the ‘handler’” (para 28). In my judgment, the answer to the key statutory phrase is evident from the words Parliament has chosen. They are not “otherwise than having stolen”. That would require a judge to decide a materially different question. If the intention of the statutory provision was to prevent a person once she or he has stolen goods ever being capable of handling them, Parliament could and undoubtedly would have said that. It did not. The mischief is different.

28. The words are directed at preventing a person being guilty of stealing goods and at the same time as the during course of stealing being susceptible to being guilty of handling them. There is the obvious risk of unfair double jeopardy or punishment. When counsel for the appellant was asked whether a person involved in a theft on Day 1 could be a receiver of the same goods on Day 100, it was conceded that the person could be a receiver. Thus, the principle is established. One can steal at Time 1 and become a receiver of precisely the same goods one has stolen at Time 2. The question is when the course of stealing ends. The appellant’s earlier “never a handler” position seemed to me an unnatural reading of the statutory phrase.

29. This analysis is confirmed by the case of R v Dolan (1976) Cr. App. R. 36 (“ Dolan ”). The parties chose not to present the court with any authorities on the point, but during the course of judgment preparation, the court brought Dolan to the attention of counsel and naturally provided an opportunity for further written submission. It seems to settle the point of principle. The question then becomes a matter of evidence. Scarman LJ (as he then was) said at 39: “The old common law (its complications are succinctly summarised in Smith, Law of Theft (2nd ed., 1972), para. 486) has now gone. The combined effect of the Criminal Law Act 1967 , s. 1 and the Theft Act I968, s. 22 (1) is that, as Professor Smith suggests in paragraph 487 of his book, a thief ‘could be convicted of handling the goods stolen by him by receiving them - if the evidence warranted this conclusion ’ (our italics). If the defendant's handling of the goods occurs only in the course of the stealing, he cannot be found guilty of handling by receiving; see Theft Act 1968 , s. 22 (1) . But, if he handles them later, i.e. after the stealing, he commits an offence under the subsection. It is, therefore, perfectly possible for a man to be guilty of stealing and receiving the same goods.”

30. Fourth , it is submitted that the Judge erred in reading into the warrant that the appellant received the goods from a person who was also involved in the theft or a “third party”, whereas the warrant is silent on the identity of the seller. However, it seems to me that the Judge’s conclusion must be right. There are only two possible types of seller of the goods to him: someone involved in the theft or a third party. That covers the entire world comprehensively. This criticism is misplaced: the Judge was only expressing what is a logical inevitability.

31. Fifth , the principal criticism is that the appellant’s receipt was not otherwise than in the course of stealing because of an insufficient lapse of time. This is an issue that arises from time to time in criminal courts: when the course of stealing ends. As noted, the point of section 22 is to prevent a person involved in the theft immediately becoming a receiver or handler in the second sense at the point the appropriation is complete. The natural and ordinary meaning of the phrase “otherwise than in the course of stealing” is that the course of stealing involves the actual point of appropriation along with a limited but not extended time for the thief to make off with the goods and successfully complete the theft. Then the course of stealing is complete. However, I cannot think that this extends to the next day on most factual scenarios and certainly not in the case of what appears to be a commonly encountered burglary of premises, here those being decorated. There can be little doubt that by Day 2, the course of stealing has comfortably ended. The thieves have got away with the goods. The next day if one of the thieves – for whatever reason – is in a position to sell the fruits of the theft including the angle grinder in question to the appellant, in receiving the angle grinder from that other person, the appellant’s conduct amounts to the first section 22 offence under the Theft Act 1968 . The position is precisely the same if the seller the next day is a third party. The number of hands the goods the appellant has helped steal have then passed through before the sale to him is immaterial.

32. Sixth , I cannot accept the submission that “it makes no sense” that having been a joint thief, you then purchase some of the same goods the next day. One can immediately envisage a range of factual scenarios where exactly that happens, including a hierarchy of criminality. Those involved in crime frequently play different roles; some are dominant, some subordinate. But the chief point is that there is nothing under the statute that prevents it amounting to a section 22 offence. The submission is not a proposition of law but a species of jury point. Conclusion: Ground 1

33. It is important not to overcomplicate this. The proper construction of the statutory phrase “otherwise than in the course of stealing” is clear. The natural and ordinary meaning of the words does not exclude a thief on Day 1 becoming a handler of the fruits of her or his theft on Day 2. That is what the Polish judicial authorities allege here. The respondent has proved to the criminal standard that the conduct in paragraph 2 of the arrest warrant for the II K 779/12 case file amounts to an offence under the first limb of section 22 of the Theft Act 1968 . I conclude that the Judge was unquestionably right to find a relevant extradition offence and reject the section 10 objection. In appellate test terms, she is not wrong. Her section 10 decision should not be decided differently.

34. Ground 1 fails. IV. Ground 2 (Section 20)

35. This ground focuses on a single Polish case file, the same 2012 matter as examined in Ground 1 (II K 779/12). The argument falls into two parts. First, that the Judge was wrong at para 65 of her judgment to conclude that the arrest warrant was sufficiently clear for the purposes of the Framework Decision (“FD”) to be taken at face value. As such, the Judge was wrong in her conclusion that he must be taken to be deliberately absent from his trial as he has been summoned in accordance with article 4a paragraph 1.(a)(i) of the FD in a manner which, even though he may have been unaware of the scheduled date and place, does not violate article 6 ECHR.

36. The appellant submits that the arrest warrant contains ambiguity. As such, there must be a proper examination of whether the respondent has proved that the appellant deliberately absented himself from his trial; the warrant cannot be taken at face value. The Judge ought to have concluded that the section 20 test has not been proved. The appeal should be allowed on this ground.

37. The respondent counters that the Judge was correct to find that article 4a was satisfied. There is thus no need to consider section 20. But if so, the Judge was correct that the appellant deliberately absented himself from trial.

38. Section 20 provides: “Case where person has been convicted (1) If the judge is required to proceed under this section (by virtue of section 11) he must decide whether the person was convicted in his presence. (2) If the judge decides the question in sub section (1 ) in the affirmative he must proceed under section 21 . (3) If the judge decides that question in the negative he must decide whether the person deliberately absented himself from his trial. (4) If the judge decides the question in subsection (3) in the affirmative he must proceed under section 21 .”

39. The relevant parts of the relevant warrant are: “* b. the person was not summoned in person but by other means actually received official information of the scheduled date and place of the trial which resulted in the decision, in such a manner that it was unequivocally established that he or she was aware of the scheduled trial, and was informed that a decision may be handed down if he or she does not appear for the trial in cases: Il K 779/12, VIII K 1583/14, II K 271/16” The warrant continues (in summary) that on 2 August 2012 the Appellant was summoned in writing to his address given in preparatory proceedings. He did not collect the correspondence and it was deemed served. He had an obligation to notify the court of change in address and that letters sent would be deemed served.

40. There are two relevant paragraphs in the lower court’s judgment, paras 37 and 65: “37. In respect of reference II K 779/12 Box D confirms the RP did not attend the trial but was summonsed in writing on 2nd August 2012 to the trial on 12th September 2012 and informed that a decision may be handed down if he did not appear. It was sent to an address the RP provided in the preparatory proceedings. He was also informed on 16th June 2012 that he had to notify any change of address exceeding seven days. The RP’s written evidence does not deal with what he knew about each of the proceedings, but he was questioned by Ms Beatty in respect of each of the judgments. In respect of this one he said he knew he was being prosecuted for the offence, but it was hard to tell after such a long time but when it was put to him there was an obligation on him to notify a change of address he refuted that saying that he was a free man and there was no obligation to do so. He said no documents were sent to him. …

65. I do not agree with Ms Herbert’s submissions in respect of this judgment. The AW states that the warrant was served by other means informing the RP of the date of the trial and that it could go ahead without him being present. As Ms Beatty submits that should be read as stated at [ Cretu v Romania [2016] EWHC 353 (Admin) (“ Cretu ”)] at 35 but the endorsement ought to be taken at face value. Furthermore, her argument in respect of this being I case falling within paragraph 58 of Bertino [ Bertino v Italy [2024] UKSC 9 (“ Bertino ”)] is persuasive because the warrant says the RP was notified of his obligation to provide an address for service and to notify any change of address lasting longer than seven days on 16th June 2012. He then failed to collect summonses for his trial and a copy of the sentence pass there is no evidence to suggest that this was not served correctly on him and in respect of Ms Herbert’s submission that there is no evidence the RP new of the investigation before being summonsed that was not his evidence when he said under cross examination that it was possible he knew he was being prosecuted for the events but it was hard for him to tell after such a long time.” Discussion

41. I examine the article 4a point first, then the rival arguments on section 20. Article 4a

42. Article 4a provides materially: “Article 4a Decisions rendered following a trial at which the person did not appear in person

1. The executing judicial authority may also refuse to execute the European arrest warrant issued for the purpose of executing a custodial sentence or a detention order if the person did not appear in person at the trial resulting in the decision, unless the European arrest warrant states that the person, in accordance with further procedural requirements defined in the national law of the issuing Member State: (a) in due time: (i) either was summoned in person and thereby informed of the scheduled date and place of the trial which resulted in the decision, or by other means actually received official information of the scheduled date and place of that trial in such a manner that it was unequivocally established that he or she was aware of the scheduled trial; and (ii) was informed that a decision may be handed down if he or she does not appear for the trial”

43. The relevant passage of the Divisional Court’s judgment in Cretu is at paras 34-35: “34. In my judgment, when read in the light of article 4a section 20 of the 2003 Act , by applying a Pupino conforming interpretation, should be interpreted as follows:- … “An accused must be taken to be deliberately absent from his trial if he has been summoned as envisaged by article 4a paragraph 1.(a)(i) in a manner which, even though he may have been unaware of the scheduled date and place, does not violate article 6 ECHR”

35. It will not be appropriate for requesting judicial authorities to be pressed for further information relating to the statements made in an EAW pursuant to article 4a save in cases of ambiguity, confusion or possibly in connection with an argument that the warrant is an abuse of process. The issue at the extradition hearing will be whether the EAW contains the necessary statement. Article 4a is drafted to require surrender if the European arrest warrant states that the person, in accordance with the procedural law of the issuing Member State, falls within one of the four exceptions. It does not contemplate that the executing state will conduct an independent investigation into those matters. That is not surprising. The EAW system is based on mutual trust and confidence. Article 1 of the 2009 Framework Decision identifies improvement in mutual recognition of judicial decisions as one of its aims. It also contemplates surrender occurring very shortly after an EAW is issued and certified. To explore all the underlying facts would generate extensive satellite litigation and be inconsistent with the scheme of the Framework Decision. Article 4a provides additional procedural safeguards for a requested person beyond the provision it replaced in the original version of the Framework Decision, but it does not call for one Member State in any given case to explore the minutiae of what has occurred in the requesting Member State or to receive evidence about whether the statement in the EAW is accurate. That is a process which might well entail a detailed examination of the conduct of the proceedings in that other state with a view to passing judgment on whether the foreign court had abided by its own domestic law, EU law and the ECHR. It might require the court in one state to rule on the meaning of the law in the other state. It would entail an examination of factual matters in this jurisdiction, on which the foreign court had already come to conclusions, but on partial or different evidence. None of that is consistent with article 4a of the Framework Decision.”

44. In passing, I note Ms Beatty’s point that the present warrant was executed after the United Kingdom withdrew from the European Union on 30 December 2020, and the position is therefore governed by TACA rather than the Framework Decision. However, Article 601(1)(i) of TACA is materially identical to article 4a of the FD. As such, the case law pertaining to article 4a remains highly persuasive when interpreting the requirements of both Article 601(1)(i) of TACA and section 20 of the Act .

45. Having set out the background, I can deal with the article 4a point briefly. It is not suggested that there is an abuse of process. The appellant frames his objection on the basis of ambiguity, although “confusion” may also cover the objection. The question under article 4a is whether the warrant states that the appellant was informed of the trial in accordance with the “further procedural requirements” in the law of the issuing Member State, here Poland.

46. While the appellant was not summoned in person, the warrant states in terms that the appellant received notification “by other means”. This was by service of the summons at the address he had nominated to the Polish authorities. The further extract from the warrant states that the summons is “deemed served” by service at his nominated address. This is the procedural requirement under the Polish process. The ambiguity identified by the appellant is said to be that the warrant states his awareness of the trial was “unequivocally established” and yet the warrant also states that he did not collect the summons and so could not be aware of the trial date. This objection does not engage with the deeming effect of service at nominated address. The point of this Polish procedure is to cater for individuals who decline to engage with criminal proceedings. There is no argument presented to me that the Polish deeming arrangements are not in accordance with the ECHR and no authority to that effect has been placed before the court. A refusal to collect a summons cannot by itself frustrate or subvert lawful proceedings. There must be a mechanism for proceedings to progress in face of non-cooperation of the accused. This analysis is supported by Recital 8 of the 2009 Framework Decision, which provides, as material (and cited by the Divisional Court in Cretu at para 27): “In accordance with the case law of the European Court of Human Rights [“ECtHR” or “Strasbourg Court”], when considering whether the way in which the information is provided is sufficient to ensure the person’s awareness of the trial, particular attention could, where appropriate, also be paid to the diligence exercised by the person concerned in order to receive information addressed to him or her.”

47. At para 31 of Cretu , the Divisional Court proceeded to cite from the ECtHR: “A leading decision of the Strasbourg Court on this topic is Collozza and Rubinat v Italy (1985) 7 EHRR 516 which held that an accused had a right to be present and take part in criminal proceedings but that a trial in absentia could be acceptable if the state had diligently but unsuccessfully given the accused notice of the hearing. The Strasbourg Court applies a principle that depends upon “unequivocal waiver”.”

48. To my mind, there is no ambiguity nor confusion in the arrest warrant. The two differing passages relate that the appellant had the requisite awareness of the trial by reason of the Polish procedural deeming arrangements. There is no argument presented to me that Poland’s procedural arrangements are in contravention of the Convention. I note what Burnett LJ said in Cretu at para 32: “The Framework Decisions do not contemplate an investigation by the courts of one Member State into the circumstances in which a court of another Member State decided to proceed in the absence of an accused. Still less could it be consistent with the concept of mutual confidence that courts in one Member State should be making findings on past compliance with article 6 ECHR in the courts of the other Member States.”

49. Poland proceeded to trial on the case file in question having served a summons in accordance with Polish procedure. It is difficult to know what it should have done when the judicial authorities had served the summons for trial at the address the appellant nominated. As such, in accordance with Cretu , the Judge was entitled to take the arrest warrant at face value and rely on it. She was not wrong to do so.

50. Therefore, Ground 2 fails for this reason. However, I have considered the section 20 deliberate absenting argument in the event a different view is taken on this conclusion. I now set out my reasoning. Section 20

51. The phrase in section 20(3) “deliberately absented himself from his trial” resonates with ECtHR case law in relation to fair trial rights guaranteed by article 6 of the ECHR. The underlying idea is to determine whether an accused person has unequivocally waived her or his right to be present at trial. Article 6 is an important right under the Convention. Lord Bingham of Cornhill recognised this at para 8 of his opinion in R v Jones [2002] UKHL 5 , referring to Strasbourg authority, where he underlines the “capital importance” of the right to be present at one’s trial. However, article 6 is a qualified right. It can be waived. This is evident throughout the Strasbourg jurisprudence, and finds expression in Recital 1 to 2009 Framework Decision states that the accused may “by his own free will, expressly or tacitly but unequivocally, waive that right.”

52. Thus the test in section 20(3) is broadly a statutory expression of the unequivocal waiver test established by Strasbourg jurisprudence. As the Supreme Court put it at para 47 of Bertino : “47. The Strasbourg Court has emphasised the “capital” importance of the right of defendants to be present at their trials ( Poitrimol v France (1993) 18 EHRR 130 para 35) and also that a fair hearing requires that defendants are notified of the proceedings against them ( Colozza v Italy (1985) 7 EHRR 516 , para 35). Moreover, as was reiterated in Sejdovic at para 89, the notification of the formal “accusation” to the defendant plays a crucial role because it is then that the defendant is put on notice of the factual and legal basis of the charges.”

53. I remind myself that the Supreme Court made clear in Bertino (para 58), having carefully examined the Strasbourg decisions, that the ECtHR was careful “to leave open the precise boundaries of behaviour that would support a conclusion that the right to be present at trial had been unequivocally waived”. I follow this approach. I examine the evidence holistically in determining whether the section 20 statutory test is proved by the respondent. In appellate test terms, I consider whether the Judge was wrong to conclude that it was.

54. Subsequent to Bertino , courts have closely considered and applied para 58 of the Supreme Court’s judgment, which has been taken as a central and authoritative expression of the law. Para 58 says: “58. The certified question on this issue poses a choice in black and white terms: “For a requested person to have deliberately absented himself from trial for the purpose of section 20(3) of the Extradition Act 2003 , must the requesting authority prove that he had actual knowledge that he could be convicted and sentenced in absentia?” The Strasbourg Court has been careful not to present the issue in such stark terms although ordinarily it would be expected that the requesting authority must prove that the requested person had actual knowledge that he could be convicted and sentenced in absentia. As we have already indicted, in Sejdovic at para 99 (see para 38 above), on which Miss Malcolm KC relied, the court was careful to leave open the precise boundaries of behaviour that would support a conclusion that the right to be present at trial had been unequivocally waived. The cases we have cited provide many examples where the Strasbourg Court has decided that a particular indicator does not itself support that conclusion. But behaviour of an extreme enough form might support a finding of unequivocal waiver even if an accused cannot be shown to have had actual knowledge that the trial would proceed in absence. It may be that the key to the question is in the examples given in Sejdovic at para 99. The court recognised the possibility that the facts might provide an unequivocal indication that the accused is aware of the existence of the criminal proceedings against him and of the nature and the cause of the accusation and does not intend to take part in the trial or wishes to escape prosecution. Examples given were where the accused states publicly or in writing an intention not to respond to summonses of which he has become aware; or succeeds in evading an attempted arrest; or when materials are brought to the attention of the authorities which unequivocally show that he is aware of the proceedings pending against him and of the charges he faces. This points towards circumstances which demonstrate that when accused persons put themselves beyond the jurisdiction of the prosecuting and judicial authorities in a knowing and intelligent way with the result that for practical purposes a trial with them present would not be possible, they may be taken to appreciate that a trial in absence is the only option. But such considerations do not arise in this appeal, where the facts are far removed from unequivocal waiver in a knowing and intelligent way.”

55. Therefore, there must be what the Supreme Court terms an “unequivocal waiver” of the right to attend trial. The Bertino test has received helpful recent consideration by the Divisional Court (Holroyde LJ, Jay J) in Mohammed & Oprea v Romania [2025] EWHC 1671 (Admin) (“ Mohammed ”). The court said about Bertino : “45. The failure to notify the Italian authorities of the change of address amounted to a lack of due diligence. Taken in isolation, it was not sufficient to lead to a conclusion of deliberate absence. This was because Mr Bertino had not been charged with a criminal offence and whilst he was a suspect had done nothing which might permit the inference to be drawn that he was evading the criminal process . (emphasis provided) … The Supreme Court did not address the hypothetical question of whether Mr Bertino would or might have been deliberately absent if he had been charged and then, once in this country, failed to notify the Italian authorities of his change of address. Nor did the Supreme Court address the issue of deliberate absence on the hypothesis that, instead of doing nothing, Mr Bertino whilst in this country and still a suspect, was contacted by the Italian authorities and actively misled them with the intention of evading future prosecution. […]

47. Counsel subjected [paragraph 58 of Bertino ] to close analysis. It is common ground that Mr Mohammed and Mr Oprea were not warned, contrary to the practice in our courts, that a trial might proceed in their absence. All the possible factual scenarios in which a Respondent is able to prove to the necessary constituents of deliberate absence cannot be presaged although a clear steer is given by para 99 of the judgment of the ECtHR in Sedjovic . What is required is (1) a knowing and intelligent awareness of the criminal proceedings and the charges being faced, and (2) an unequivocal intention (usually proved inferentially) not to participate in a trial or to escape prosecution. In extradition cases the accused person will by definition have placed himself beyond the jurisdiction of the prosecution authorities, and that by itself is insufficient to prove deliberate absence. However, once these two limbs of the para 58 test is fulfilled, the Court is then permitted as a matter of inference to conclude that the accused also knew or appreciated that for all practical purposes a trial with him present would not be practical, or that a trial in absentia would be the only practical option. In reality, unless a prosecuting authority decides no longer to proceed at all, a trial in the accused’s absence will be the only practical option. I cannot accept Mr Perry’s submission that the only correct course would be to issue an accusation warrant.”

56. I consider what the Divisional Court in Mohammed called the “two limbs of the para 58 test” in Bertino as a structured path to determining “unequivocal waiver”. Relying on Bertino and Mohammed , I summarise (without reformulating) the test as follows in the interests of systematic analysis: Limb 1: “awareness” . The awareness of the existence of (a) criminal proceedings and (b) the nature and cause of the accusation (the charges); Limb 2: “intention” . An intention to evade criminal proceedings established (often inferentially) from the whole of the surrounding facts from the conclusion that the individual has (a) no intention to take part in the trial or (b) wishes to escape prosecution. Section 20

57. I examine six points.

58. First , the point of embarkation is to have well in mind that the appellant does not dispute that he deliberately absented himself in all matters save for the 2012 case file II K 779/12. This is not without significance in the drawing of inferences about conduct and intention. The appellant’s submission is that while he deliberately absented himself from all other trials he did not attend, he did not fail to attend the 2012 proceedings trial deliberately. This submission rests on the fact that there is no evidential basis to prove that he received the summons with the trial date that was served at his home address which he nominated to the Polish authorities. His failure is simply one of a lack of diligence as in the case of the requested person Mohammed.

59. It is important to note that for unequivocal waiver, there is no need for the requested person to know of a specific trial date. The test in Bertino explicitly focuses on waiver through awareness of criminal proceedings and charge. This makes obvious sense: if a person nominates an address for service of the summons containing the trial date and then deliberately avoids retrieving the summons from the address he has nominated, his claim that he has a perfect bar to extradition due to his own evasive action rings hollow. That cannot be and is not the law.

60. Second , the lack of diligence that the Divisional Court attributed to Mohammed’s actions was, as the court made plain, reached “not without some hesitation” (para 60). However, as the court also emphasised at para 45 in Bertino, the requested person could not be inferred to have deliberately absented himself from a failure to notify a change of address “taken in isolation”. Bertino was not charged. This appellant was. The Judge noted his oral testimony in her judgment and noted at para 37 that he said he knew he was being prosecuted for the offence, but it was hard to tell after such a long time”. She recorded at para 65 that it was “possible he knew he was being prosecuted for the case file in question, but it was hard for him to tell after such a long time”. The submission is that this is insufficient for the Judge to conclude that the section 20 test had been met. This requires a careful examination of the applicable test.

61. Third , each case is fact-specific, as the Supreme Court emphasised in Bertino at para 38. I therefore derive little assistance from the appellant’s comparison of his case with Mohammed’s (skeleton argument, para 44). The proper approach is to examine all the relevant circumstances of the instant case and determine whether the Bertino test is proved by the respondent. Nothing else need be done. It is to that exercise I turn.

62. Fourth , Limb 1 focuses on the appellant’s awareness. The fallacy in his argument is in placing great emphasis on his lack of awareness of the trial date. He chose not to be aware of that date by not retrieving the summons dated 2 August 2012 duly served at the address he nominated. That was his choice. He could either have collected the summons, or arranged for someone to do so, or notified the Polish authorities that he needed serving at a different address. There is no evidence that he took any of those simple stems and thus he remained unaware of the date set for trial on 12 September 2012 due to his actions. However, even if the fact of his being served with the trial date does not necessarily fix him with the awareness of the trial, it is not what the Bertino test demands. It requires awareness of the criminal proceedings and the nature of the case against him.

63. Fifth , he said at the extradition hearing in 2024 that he possibly knew about being prosecuted for the 2012 offences. He contends that this is insufficient to establish relevant element of the Bertino test. This is misconceived. He gave the Polish authorities an address for the service of summons in what is recorded as “preliminary proceedings”, which plainly mean the pre-trial stages of the criminal proceedings under the case file. It is important to note that the warrant does not speak about his being under police investigation. No argument was presented to me orally that he lacked knowledge of the 2012 charges. I have carefully reviewed the detailed and helpful skeleton argument filed on his behalf and nowhere is it suggested that he did not know of the 2012 charges. It makes little sense that he would have provided his address for service of a trial summons when he did not know the nature of the case the summons would relate to.

64. I mention briefly the point made on his behalf that he did not receive an adverse credibility finding like Mohammed did ( Mohammed at para 60). At para 42 of her judgment, the Judge said: “42. The RP’s written evidence does not support what he said in oral evidence but his proof was only 15 paragraphs and general in its content. At times I found that he did not answer questions straightforwardly but when pressed gave more details and found him to be credible in what he was recalling a number of years ago and in relation to a number of cases.”

65. This is not the same as saying she accepted what he said about this particular case file. The “possibly” being prosecuted does not sit easily alongside his having provided an address in the preliminary proceedings for the service of a trial summons, and together these plainly amount to a safe inference to the criminal standard that he knew of criminal proceedings (for Bertino Limb 1).

66. The appellant criticises the Judge’s finding about awareness of trial dates at para 42 as being only “general”: “However, I am satisfied so I am sure from the evidence that I have set out from the judicial authority and from the RP’s in respect of some of the cases that he was aware of the trial dates and failed to attend and by doing so he knowingly and deliberately put himself beyond the reach of the legal process.”

67. The submission is that due to its generality, it cannot amount to a finding that he knew of the 12 September 2012 trial date for case file II K 779/12. The submission fails to engage with the Bertino test to support a section 20 bar. It is awareness of criminal proceedings that is crucial. As explained, it is clear that this element of Limb 1 is established.

68. Overall, I am quite satisfied that Limb 1 is proved on the material before the Judge.

69. Sixth , as to Limb 2, the question is one of intention. The issue is whether it can be inferred to the criminal standard that the appellant had no intention to take part in the trial and/or wished to escape prosecution. He knew of the criminal proceedings. He failed to collect the summons at the address he provided to the Polish judicial authorities where notification about his trial in those criminal proceedings could be served. He failed to notify any change of address. He plainly disengaged from the proceedings. In such circumstances, there can be no doubt but that Limb 2 is proved.

70. It is submitted that “all he did wrong was not notify a change of address”. That does not reflect the established facts. I recognise that the deliberate absenting test is different from the requirements of fugitivity and here they are directed at different matters (essentially, waiver of article 6 rights versus the significance of “passage of time” for section 14 of the Act ). The appellant has demonstrated a strong and consistent pattern of being firmly intent on evading Polish criminal justice. It is recorded in Box D of the arrest warrant that the appellant failed to attend five trials. In addition to these proceedings, he was absent from II K 9/18, VIII K 1583/14, II K 271/16 and II K 1187/15. It is noteworthy that the section 20 argument originally advanced in respect of II K 1187/15 was abandoned in the skeleton argument (para 38). Therefore, it is safe to conclude that the appellant has deliberately absented himself from four other trials. This has not been disputed. In the appellant’s perfected grounds of appeal dated 12 November 2024, he had previously sought to mount a section 20 challenge in respect of case file II K 1187/15 (the driving offence) on the basis that he did not deliberately absent himself. The relevant “trial” for statutory purposes was the appeal and not the first instance trial as that was where the ultimate decision was made. It took place on 3 August 2018. However, the appellant no longer submits that a section 20 bar applies to that warrant. In other words, it is no longer disputed that he deliberately absented himself from the trial.

71. Further, when he came to the United Kingdom in 2015, having not attended the September 2012 trial, he accepts that he was a fugitive from Polish justice. Therefore, he accepts that he was evading Polish justice and deliberately placing himself beyond the reach of the Polish judicial authorities. While subsequent behaviour cannot definitively determine earlier behaviour, it is capable of being evidence in support of an inference. It is capable of being an evidential signpost. This is a simple cross-admissibility of evidence point. A primary finder of fact is not artificially restricted to only using previous or contemporaneous conduct to support inferences. One may look at everything and draw such inferences as are appropriate about patterns of behaviour and states of mind, whether from earlier, contemporaneous or later conduct, so long as due allowance for weight is made.

72. The task of this court is to assess whether the Judge’s decision at para 76 to reject the section 20 argument for II K 779/12 was wrong. It was not. The Judge’s conclusion that the absence from the September 2012 trial “falls within” para 58 of Bertino is not wrong. It was undoubtedly right. This is because a clear and convincing sufficiency of evidence exists to prove to the criminal standard that the appellant deliberately absented himself from his September 2012 trial.

73. The section 20 submission fails. Conclusion: Ground 2

74. Ground 2 fails on both bases advanced: article 4a and section 20 . V. Ground 3 ( Section 14 )

75. Section 14 of the Act provides a time bar to extradition in cases where surrender would be “unjust or oppressive” by reason of “the passage of time”. Section 14 provides as relevant: “Passage of time A person’s extradition to a category 1 territory is barred by reason of the passage of time if (and only if) it appears that it would be unjust or oppressive to extradite him by reason of the passage of time [since he is alleged to have— (a) committed the extradition offence (where he is accused of its commission), or (b) become unlawfully at large (where he is alleged to have been convicted of it)”

76. The appellant submits that the Judge erred in rejecting the section 14 bar submission. The appellant observes that he was arrested on the first arrest warrant on 12 November 2017 and discharged from those warrants on 24 January 2019. As a consequence, it is submitted, once he has been arrested (and remanded) he is no longer a “fugitive” as he is not knowingly putting himself beyond the reach of the Polish judicial authorities. Thus, the period of time between arrest in 2017 to the date of the appeal hearing, is said to be relevant under the oppression aspect of section 14 .

77. The appellant further relies on the well-known passage in the judgment of Lord Diplock in Kakis v Cyprus [1978] 1 W.L.R. 779 at 783: “As respects delay which is not brought about by the acts of the accused himself, however, the question of where responsibility lies for the delay is not generally relevant. What matters is not so much the cause of such delay as its effect; or, rather, the effects of those events which would not have happened before the trial of the accused if it had taken place with ordinary promptitude. … My Lords, in the chronology of events that I have summarised which extends over some four and three-quarter years from April 5, 1973, to December 16, 1977, the failure of the prosecuting authorities to begin criminal proceedings against Mr. Kakis during the first 15 months until the coup in July 1974 was due to his own action in going into hiding in the mountains. So the starting point for the period of time that requires to be considered is July 1974.”

78. Lord Diplock stated that delay attributable to the accused fleeing the requesting state, concealing his whereabouts or evading arrest, cannot be relied upon to resist extradition due to injustice or oppression. The essential thrust of the appellant’s argument is succinctly captured at para 33 of his skeleton argument: “It is submitted that there is a tension here between someone coming to the UK without the [judicial authorities’] knowledge and in breach of a condition to notify a change of address in 2015 where the Appellant could be considered a fugitive. And, following arrest and remand and discharge in this jurisdiction where the [judicial authorities] knew the Appellant was in the UK that he can ‘still’ be considered a fugitive. The Appellant is within reach of the legal process in Poland as the Polish authorities know where he is and can seek his request to return (following proper legal process under the Extradition Act 2003 ).”

79. The respondent submits that this analysis is misconceived. The appellant came to the United Kingdom as fugitive; he remains one. The Judge was correct to reject the section 14 time bar. He was at all times a fugitive.

80. I examine first the fugitivity question and then the dispute between the parties about section 14 . Fugitivity

81. Placed before the court are several conflicting conceptions of the extent to which the appellant was a fugitive and whether that status changed. To begin, the finding of fact made by the Judge is at para 42 (set out in Ground 2, but meriting repetition for convenience here): “I am satisfied so I am sure from the evidence that I have set out from the judicial authority and from the RP’s in respect of some of the cases that he was aware of the trial dates and failed to attend and by doing so he knowingly and deliberately put himself beyond the reach of the legal process.”

82. At para 52, the Judge said, “I have already found that the RP is a fugitive at [34-42] above and therefore he cannot rely on section 14 .” Later at para 93, the Judge said that “The RP is not a fugitive since the cumulative sentence because the JA knew he was in the UK.” It is for this reason the appellant submits that the Judge “made some inconsistent findings on this issue.”

83. The appellant also maintains that following arrest, remand and discharge in this jurisdiction, and particularly once the respondent knew the appellant was in the UK, he should not be considered a fugitive. He was within reach of the legal process in Poland. The appellant therefore makes two points (1) a “whereabouts” point; (2) a “process reach” point.

84. The respondent submits that the appellant was a fugitive in 2015 when he came to the United Kingdom and evaded the Polish legal process. Both of the appellant’s points are misconceived. He remained and remains a fugitive. Law

85. As a reminder, the significance under the Act of being a fugitive is that, save in exceptional circumstances, it prevents the fugitive relying on delay as a bar to extradition because of injustice or oppression under section 14 . The concept of fugitivity was considered by the Divisional Court in Wisniewski v Poland [2016] EWHC 386 (Admin) (“ Wisniewski ”) at para 58, per Lloyd Jones LJ (as he then was). The court said: “58. ‘Fugitive’ is not a statutory term but a concept developed in the case law, in particular in Gomes's case [2009] 1 WLR 1038 which elaborates the principle stated in Kakis's case [1978] 1 WLR 779 . In the context of Part 1 of the 2003 Act it describes a status which precludes reliance on the passage of time under section 14 . Before this rule can apply, a person's status as a fugitive must be established to the criminal standard; Gomes's case, para.27.

59. …Where a person has knowingly placed himself beyond the reach of a legal process he cannot invoke the passage of time resulting from such conduct on his part to support the existence of a statutory bar to extradition. Rather than seeking to provide a comprehensive definition of a fugitive for this purpose, it is likely to be more fruitful to consider the applicability of this principle on a case by case basis …”

86. Two Divisional Court judgments further assist in understanding the concept of fugitivity: Pillar-Neumann and Versluis v the Netherlands [2019] EWHC 764 (Admin) (“ Pillar-Neumann ”) and De Zorzi v France [2019] EWHC 2062 (Admin) (“ De Zorzi ”). It will assist to summarise the court’s reasoning in these cases to illustrate the proper approach to the assessment of fugitivity, while always remembering that the status is highly fact-sensitive. Pillar-Neumann

87. In Pillar-Neumann , Hamblen LJ (as he then was) said at para 62: “The essential question is therefore whether the Requested Person has knowingly placed himself beyond the reach of legal process. Fleeing the country, concealing whereabouts or evading arrest are examples of so doing.”

88. The requested person had been resident in the United Kingdom since 1998 as the wife of a British citizen before the criminal investigation into her began in Austria six years later in 2004. By that time, Britain was her home. She had lived openly throughout, had taken no steps to conceal her identity or location, including placing herself on the electoral role and paying UK taxes. The requesting state’s argument was that when Austria issued an arrest warrant in 2004, by her not travelling to Austria to face it, she became a fugitive from Austrian justice.

89. Therefore, she did not deliberately place herself beyond the reach of the Austrian legal process. She was already beyond the reach and so “she took no positive steps to place herself anywhere” (para 70). She did not conceal her identity or whereabouts; she took no positive steps to evade arrest. She did not knowingly or deliberately take any step to avoid the Austrian criminal proceedings (legal process). She was “simply carrying on living in her country of residence, as she was lawfully entitled to do” (para 69).

90. The Divisional Court concluded she was not a fugitive. De Zorzi

91. The facts are “not entirely straightforward” as Garnham J, sitting with Rafferty LJ, said at para 3. They require some elaboration to understand the court’s reasoning.

92. The requested person was resident in the Netherlands. In 2000 she was arrested in France for suspected drug trafficking. She was released under French “judicial supervision” and permitted to leave France, but on the understanding that she would return upon summons and notify any change of address. Once back in the Netherlands, she received the French summons and returned to France in answer to it in 2001. She was convicted on 28 June 2001 by a court of first instance in France. The judgment was handed down in her absence and she had left the court with the court’s permission (para 55). She was sentenced to 3 years’ custody. She returned to the Netherlands. She was arrested in the Netherlands in December 2001 pursuant to a French extradition request. She appealed the sentence and the appeal was due to be heard in February 2002 and then adjourned until June 2002. She was summoned but did not attend, instead having legal representation at the appeal. It was dismissed and a warrant was issued for her arrest.

93. The French authorities sought her extradition from the Netherlands. She was arrested in 2003 and resisted extradition. In September 2005, a European Arrest Warrant (“EAW”) was issued, but not enforced. In October 2005, the Dutch courts refused the extradition request. The Dutch Minister of Justice confirmed the decision in January 2007.

94. Close to a decade passed until the French authorities published an alert for the 2005 EAW in 2015. It was certified by the NCA in October 2016. In July 2018, she was arrested at Manchester Airport pursuant to the EAW when attempting to travel back to the Netherlands after a trip to the United Kingdom. A second EAW was issued in September 2018 “for reasons that are opaque” (para 21) and certified by the NCA in the same month. There were then extradition proceedings in this country.

95. When she left France for the Netherlands in 2001, she left with the French court’s permission. Therefore, she did not knowingly and deliberately place herself beyond the reach of the French legal process. She had been granted permission to leave court. She was informed of her conviction in Paris when she was already back in the Netherlands. When in 2002 she declined to answer the summons to attend the appeal hearing, she was, as the Divisional Court said at para 59: “declining to surrender herself to the requesting state [which] does not constitute knowingly placing herself beyond the reach of a legal process. It amounts instead to declining to place herself within the reach of that process.”

96. The Divisional Court held that she was not a fugitive and the decision of the first instance judge to the contrary was wrong (para 62). Helpfully, the court set out the implications of a counterfactual (para 63): “had the Judge found as a fact that the Appellant had fled back to Holland during the course of the French proceedings and without the Court's permission; or was told on 28 June 2001 at the French Court that she had been convicted and sentenced, so that she knew that that was the position when she returned to the Netherlands, I would have held that the Judge's conclusion on fugitive status was correct, albeit for the wrong reasons.”

97. The reasoning of the court on these alternative facts is clear: she would be taking a relevant action – fleeing the French jurisdiction. She would have the necessary intention: she would be fleeing to evade the French legal process. Discussion: the instant case

98. There is no permission to challenge the Judge’s finding of fact on initial fugitivity, which is in any event admitted. The argument presented is that the appellant’s fugitive status changed. As noted, the submission in the lower court was put on the basis that the requested person ceased being a fugitive from “when the AW was issued in January 2019 to date” because the Polish judicial authorities “knew he was in the UK and there was a delay in certification. The period from 2019 to the date can be therefore considered under section 14 .” The two points made by the appellant about whereabouts and process reach are combined Ms Herbert’s succinct encapsulation that “If they know where you are, you are not beyond their reach.” I consider the appellant’s two points in turn before offering a more general discussion. Point 1: process reach

99. It is wrong to submit that the Polish legal process infiltrates the jurisdiction of this country. Both are sovereign nations. Polish law and criminal process have no effect in this country. That is why the Polish state and its judicial authorities are known as the “requesting state”. It is a request for assistance, not a mandate. Obviously, questions of treaty and comity apply, but that does not extend the reach of the Polish legal process into the jurisdiction of the United Kingdom. An analysis of the Divisional Court decisions in Pillar-Neumann and De Zorzi confirms this. For example, in Pillar-Neumann at para 70, the court said: “70. Nor was she knowingly placing herself beyond the reach of a legal process. She took no positive steps to place herself anywhere. The Respondent's case is that she was somehow obliged to place herself within the reach of a legal process instituted in another country and to leave and give up her home and lawful residence in the UK in order to do so. Not surprisingly, we have been shown no case in which it has been found, or even suggested, that failing to act in this way makes someone a fugitive.”

100. When the appellant was in the United Kingdom, she was beyond the reach of the Austrian legal process. Similarly, in De Zorzi at para 57: “It cannot be said that that person knowingly placed herself beyond the reach of a legal process when they were already beyond its reach.”

101. When the appellant in De Zorzi was in the Netherlands (and indeed in the United Kingdom), she was beyond the reach of the French legal process. We do not have the interpenetration of the reach of sovereign legal processes. This submission is misconceived. Point 2: whereabouts

102. The submission on “whereabouts” is incorrect. The argument is that the appellant ceased being a fugitive “as his whereabouts were from that point known” and that “he is a fugitive up until the authorities know where he is”, whether that is November 2017 (first arrest warrant) or 2019 (reissued arrest warrant).

103. The submission would entail that every fugitive from justice would cease to have fugitive status upon arrest and the ascertaining of her or his whereabouts. The ascertaining of whereabouts may affect fugitivity if there are subsequent proceedings in the requesting state, but not those already initiated. The fallacy in the argument arises from a failure to recognise that concealing whereabouts is a relevant act for the action element of the elements of fugitivity, but not the only relevant action and the concept is a subjective one about what the requested person did and why it was done in evading justice (if that is the case). One must examine the facts in the round and examine the requested person’s actions in respect of already-initiated legal processes in the requesting state.

104. Here the Judge made a finding that the appellant “deliberately and knowingly put himself beyond the reach of the legal process”. It was inevitable that she made such a finding. I have in Ground 2 discussed the appellant’s state of mind and actions and confirmed that the Judge was correct to conclude that for the case file II K 779/12 (the burglary and handling offences in 2012) he deliberately absented himself. For the 2014 burglaries and thefts, he was represented by a lawyer and attended the trial on 15 May 2015. He said he was not sure whether he was convicted but “yes probably” (para 38). For the II K 271/16 forgery and fraud offences, he agreed that he admitted guilt in a (presumably police) interview and agreed the appropriate sentence with the prosecutor (para 39). With this background, it is inevitable that the Judge found that he “knowingly and deliberately put himself beyond the reach of the [Polish] legal process” (para 42).

105. When he came to the United Kingdom, he changed his address from the Polish one he had notified to the Polish authorities. He did not inform them of the change. His whereabouts were then unknown. Once he was arrested in the United Kingdom, his whereabouts became known. On arrest, he was not ceasing in his attempts to evade Polish justice, but had been apprehended and detained in the country he had fled to. It cannot be right that every person detained in a state of flight ceases to be a fugitive on arrest in that second state which is beyond the reach of the requesting state’s legal process. Everyone would cease being a fugitive on such arrest and fugitivity established for the already-initiated legal process that has been evaded is eradicated by the act of discovery. Simply stating that bare consequence reveals the argument’s inherent flaw. The submission is misconceived. General discussion: fugitivity

106. Having rejected the appellant’s two key points, I examine the question in more general terms to test the analysis. A person is not just a fugitive in the abstract. A person is a fugitive from something. It is from the legal process initiated against that person in the requesting state. This is evident from the House of Lords’ decision in Gomes . The court said at paras 26-27: “26. … This is an area of the law where a substantial measure of clarity and certainty is required. If an accused like Goodyer deliberately flees the jurisdiction in which he has been bailed to appear, it simply does not lie in his mouth to suggest that the requesting state should share responsibility for the ensuing delay in bringing him to justice because of some subsequent supposed fault on their part, whether this be, as in his case, losing the file, or dilatoriness, or, as will often be the case, mere inaction through pressure of work and limited resources. We would not regard any of these circumstances as breaking the chain of causation (if this be the relevant concept) with regard to the effects of the accused's own conduct. Only a deliberate decision by the requesting state communicated to the accused not to pursue the case against him, or some other circumstance which would similarly justify a sense of security on his part notwithstanding his own flight from justice, could allow him properly to assert that the effects of further delay were not “of his own choice and making”. (emphasis provided)

27. There are sound reasons for such an approach. Foremost amongst them is to minimise the incentive on the accused to flee. There is always the possibility, often a strong possibility, that the requesting state, for want of resources or whatever other reason, may be dilatory in seeking a fugitive's return. If it were then open to the fugitive to pray in aid such events as occurred during the ensuing years—for example the disappearance of witnesses or the establishment of close-knit relationships—it would tend rather to encourage flight than, as must be the policy of the law, discourage it. Secondly, as was pointed out in Diplock para 2, deciding whether “mere inaction” on the part of the requesting state “was blameworthy or otherwise” could be “an invidious task”. And undoubtedly it creates practical problems. Generally it will be clear one way or the other whether the accused has deliberately fled the country and in any event, as was held in Krzyzowski , given that flight will in all save the most exceptional circumstances operate as an almost automatic bar to reliance on delay, it will have to be proved beyond reasonable doubt (just as the issue whether a defendant has deliberately absented himself from trial in an inquiry under section 85(3) of the Act ). But it will often be by no means clear whether the passage of time in requesting the accused's extradition has involved fault on the part of the requesting state and certainly the exploration of such a question may not only be invidious (involving an exploration of the state's resources, practices and so forth) but also expensive and time consuming. It is one thing to say—as Lord Edmund-Davies said in Kakis and later Woolf LJ said in Osman (No. 4) and Laws LJ in La Torre — that in borderline cases, where the accused himself is not to blame, culpable delay by the requesting state can tip the balance; quite another to say that it can be relevant to and needs to be explored even in cases where the accused is to blame.”

107. As is clear from Goodyer’s case within the conjoined appeal in Gomes , fleeing the jurisdiction in breach of bail conditions can amount to the necessary fugitive action. In De Zorzi , the Divisional Court offered an instructive counterfactual at para 63: “had the Judge found as a fact that the Appellant had fled back to Holland during the course of the French proceedings and without the Court's permission; or was told on 28 June 2001 at the French Court that she had been convicted and sentenced, so that she knew that that was the position when she returned to the Netherlands, I would have held that the Judge's conclusion on fugitive status was correct, albeit for the wrong reasons.”

108. Therefore, a person fleeing in the midst of proceedings can be fleeing the legal process. If De Zorzi knew she was convicted and sentenced in Paris and then fled to the Netherlands without the permission of the French court (unlikely to be granted), that would amount to the requisite action. In Pillar-Neumann , the criminal proceedings were initiated when the appellant was already settled in the United Kingdom. The key moment was the initiation of the criminal proceedings (legal process) in Austria. The accused could not be a fugitive as she did not flee to evade the legal process. Therefore, a key question is whether the individual is seeking to evade the legal proceedings and their consequences.

109. It is not disputed that the appellant was a fugitive when he came to the United Kingdom in 2015. He therefore deliberately and knowingly placed himself beyond the reach of the Polish legal process initiated against him, or more accurately, the four legal processes, one for each case file. After that, and to borrow directly from Gomes at para 26, at no point was there “a deliberate decision by the requesting state communicated to the accused not to pursue the case against him”. Further, there is no “other circumstance which would similarly justify a sense of security on his part notwithstanding his own flight from justice.” It is difficult to understand how that could arise. The Polish judicial authorities had already applied twice successfully and obtained extradition orders against him (January 2018/AW 1; August 2018/AW2). During all this, at some point towards the beginning of 2018 the appellant applied to the Polish court to consolidate his various sentences. This requires further examination.

110. The court asked the parties for further details about the aggregation proceedings, but some facts remain unknown. However, there is sufficient known to reach a conclusion about all this. What is clear is that it was the appellant who initiated the aggregation process and asked the Polish authorities to consider aggregating his sentences. He said at the 2024 extradition hearing (that resulted in the order now challenged) that his initiation was sometime at the beginning of 2018, but no exact date is before the court. The aggregation hearing in Poland was held on 23 July 2018. He had been notified of the date in writing at the United Kingdom address he ultimately provided to the Polish authorities. The appellant was in custody at HMP Wandsworth at the time of the hearing and had a lawyer appointed to represent him in Poland. He knew the hearing would go ahead in his absence and that he would be legally represented. He then appealed the aggregated sentence imposed, although the date of his application to appeal is not known. The appeal hearing was on 13 December 2018. He was represented by the same lawyer, as he was still in custody in the United Kingdom. The appeal was dismissed.

111. While it might be argued that in a highly technical sense the aggregation proceedings were different criminal proceedings, or to use the language deployed in this discourse, a different “legal process”, this is a most strained and artificial analysis. To my mind, it ignores the practical reality of the situation. The aggregation proceedings were initiated at the appellant’s request. They were not founded on any new or different criminal charges or accusations. The underlying substance of the proceedings was the same. There was no new trial at which the appellant’s guilt was being determined. He had been found guilty of everything and had already been sentenced for everything. He sought what was in effect a review of his sentences. The resulting aggregated sentence handed down in August 2018 was appealed and the appeal was dismissed in December 2018. The Polish judicial authorities wrote to the CPS shortly after that on 21 January 2019 to inform the relevant United Kingdom authority that an aggregated sentence had been passed. A fresh arrest warrant was issued on the same date to reflect this procedural development. Three days later the original two arrest warrants were discharged. Nothing that the Polish state did indicated that the appellant was not required to serve the aggregated sentence of 3 years and 8 months’ imprisonment. There was never a gap in coverage in warrants from the first one issued on 10 April 2017 until this appeal hearing. However, by 2019 and the arrest warrant relevant to this appeal, the appellant had placed himself beyond the reach of the Polish legal processes that produced the sentences that were then aggregated at his request.

112. It is difficult to understand how when he does not dispute that he deliberately evaded Polish justice by his move to the United Kingdom and not informing the Polish judicial authorities of his change of address, that fugitivity evaporates on his sentences for ten offences being aggregated on his application. To borrow from Gomes v. Government of the Republic of Trinidad and Tobago; Goodyer v. Government of the Republic of Trinidad and Tobago [2009] UKHL 21 (“ Gomes ”) at para 27, the extinguishing of fugitive status by seeking sentence aggregation does nothing “to minimise the incentive on the accused to flee”. Both the extraditees Gomes and Goodyer fled to the United Kingdom from Trinidad in breach of their bail conditions. They were each, the House of Lords held at para 39, a “classic fugitive”. When the appellant came to this country, on his acceptance of initial fugitive status, he knowingly and deliberately placed himself beyond the reach of the Polish legal process (as properly understood and explained above). His case is not that he was never a fugitive, but that his fugitive status changed (by the latest) on sentence aggregation. It is misconceived.

113. If in this appellant’s case, the 2019 arrest warrant were in respect of different criminal proceedings based on different allegations and initiated after he had arrived in the United Kingdom from Poland, he would not have knowingly and deliberately left Poland for this country and evaded that fresh legal process. I can envisage that if the original legal proceedings had been discontinued and then revived on fresh evidence after he had already arrived in the United Kingdom, he may be able to mount a similar type of argument. Naturally, that is no guarantee such an argument would succeed; mount is not the same as bringing home. As repeatedly emphasised in authority, each decision is inescapably fact-based.

114. In any event, here the facts are different. Each of the case files (the four legal processes) was initiated while he was in Poland. He has not and credibly could not dispute being a fugitive in respect of each of them in 2015. The question is whether that status changed and why. I cannot think that his fugitive status ends when his whereabouts are known. He simply becomes a fugitive whose whereabouts in the United Kingdom are known. The fugitivity is a subjective concept focusing on the requested person’s actions and the motivation for them in respect of initiated legal processes. Equally, I cannot think he ceases being a fugitive when the already-imposed sentences for precisely the same offences are aggregated at his request.

115. What he can do legitimately is point to any delay that he did not cause. If there are exceptional circumstances, he may still mount a section 14 bar argument. However, there are not exceptional circumstances here. I will next examine the Judge’s conclusion that there is no section 14 bar. If the appellant cannot avail himself of section 14 , it remains open to him to invite the court to consider any delay for which he is not culpable in the article 8 balancing exercise, subject to the qualification noted by Laws LJ in La Torre v Italy [2007] EWHC 1370 at para 37, “The extraditee cannot take advantage of delay for which he is himself responsible.” On this, I will come to the Judge’s analysis in Ground 4. But the appellant’s argument that he ceases to be a fugitive from the Polish legal process from the point of his whereabouts in the United Kingdom becoming known or from his sentence aggregation is flawed. Conclusion: fugitivity

116. Therefore, I reject the appellant’s fugitivity argument. The appellant was and remains a fugitive in respect of the relevant legal process (or processes). There is a mass of evidence on which the respondent has proved it.

117. I briefly return to the fact that the Judge accepted the appellant’s argument at para 93. To my mind, this was generous to the appellant. Nevertheless, on appeal I am concerned primarily with whether the Judge’s ultimate conclusion that section 14 provides no bar to extradition is wrong. To this I turn. Section 14

118. Having determined that the appellant was and remained a fugitive, I examine section 14 . The Judge concluded at para 53: “53. I do not find that it would be unjust/oppressive to extradite the RP since the judgment on 3rd August 2018. He has spent time on remand and in relation to other warrants but this is something the Polish courts will take into account and deduct his sentence if he is extradited. She also prays in aid the fact that he has now had his son who was born in 2021. As I have already indicated I do not have a lot of information about his home circumstances. However between 3rd August 2018 and 24th January 2019 the RP was in custody and that would have impacted on his family life because he was not that with his partner at that time. I accept that in 2021 his son was born. But also during this time he committed an offence of dangerous driving in this jurisdiction and received a custodial sentence of 12 months imprisonment on 3rd June 2024. He has been in custody in relation to this AW since 29th January 2024. He has spent substantial amount of time in custody since 2018 which reduces the argument about the hardship to him resulting from his change in circumstances during the period to be taken into consideration because he has been in custody for a substantial amount of that time.”

119. A finding of fugitivity is not an absolute bar to section 14 . However, there must be exceptional circumstances (see the helpful summary of the law in Zengota v Poland [2017] EWHC 191 (Admin) at para 32). I detect no exceptional circumstances here and nor did the Judge, quite correctly.

120. But in another sense, it is academic. The section 14 test requires that the requested person proves injustice or oppression on a balance of probabilities. It is conceded that this is not an injustice case. As to oppression, Lord Brown said in Gomes at para 31: “… And, so far as concerns oppression, it is worth noting too Lord Diplock’s statement in Kakis v. Government of the Republic of Cyprus [1978] 1 WLR 779 , 784 that: “the gravity of the offence is relevant to whether changes in the circumstances of the accused which have occurred during the relevant period are such as would render his return to stand his trial oppressive …” That said, the test of oppression will not easily be satisfied: hardship, a comparatively commonplace consequence of an order for extradition, is not enough.”

121. I recognise that the appellant and his partner had a son in 2021. The appellant was not in custody for 2 years and 3 months following the child’s birth. I cannot think that the effect of the unexplained three-year NCA delay in this case comes anywhere near to amounting to section 14 oppression. More precisely, there is no basis for the appellant to prove on the balance of probabilities that there is oppression here. In such finding, the Judge was not wrong. Conclusion: Ground 3

122. This ground fails. There is no section 14 bar to extradition. VI. Ground 4 (article 8)

123. The failure of the previous grounds is of prime importance to Ground 4 and the appellant’s article 8 ground, although such failure does not entail that Ground 4 must also fail. They do not stand or fall together.

124. However, the importance of Ground 1 is seen from para 52 of the appellant’s skeleton argument, where it is submitted that “if the court is with [the appellant]” on Ground 1, there is one fewer offence to consider. This is said to affect the balancing exercise so that the factors “should have been weighed so significantly differently as to make the decision wrong”. The force of such argument is contingent on Ground 1 succeeding, but it did not. Equally, whether the appellant was and remained a fugitive is relevant to the public interest in the Celinski balancing exercise ( Polish Judicial Authorities v Celinski and Others [2015] EWHC 1274 (Admin) (“ Celinski ”)). That said, the failure of the section 14 ground does not render the question of the unexplained NCA delay and its impact on the appellant’s family life irrelevant. Therefore, I move on to consider the remaining elements of the article 8 submission.

125. I subdivide the analysis into (1) early release; (2) the Judge’s Celinski balancing exercise; (3) my article 8 discussion. (1) Early release

126. I deal first with the early release submission. In Andrysiewicz v Poland [2025] UKSC 23 (“ Andrysiewicz ”), the Supreme Court considered the impact of early release provisions in foreign states. The court said at paras 77-78: “77. It is unrealistic not to recognise the existence of article 77 of the Polish Penal Code so ordinarily it will be appropriate to take account of the bare possibility of early release in Poland. However, again in agreement with Swift J, save in rare cases, a court in this jurisdiction should not embark on predicting the likelihood of the outcome of the application in Poland. This is for reasons of international comity and because of the strong practical considerations which mean that, save in the most exceptional circumstances, there cannot be any accurate prediction by a judge in this jurisdiction as to the outcome of an application in Poland for early release. It is also because account should be taken in the Celinski “balance sheet” of the fact that a court in this jurisdiction cannot impose licence conditions or impose any probationary period when discharging an offender. If these factors are included as “pro” factors in favour of extradition then whatever assessment is made as to the likelihood of a Polish court ordering early release on licence featuring on the “cons” side of the balance sheet, will be outweighed by these important countervailing public interest on the “pros” side of the balance sheet.

78. Because (save in rare cases) a court in this jurisdiction should not embark on predicting the likelihood of the outcome of the application in Poland, the bare possibility of early release on licence adds “little weight” in determining whether extradition is a disproportionate interference with article 8 ECHR rights.”

127. About the significance of early release, the appellant submitted that although it only carries “little weight”, where there is only “a very short remaining sentence to serve, this is a strong factor against ordering extradition”. The respondent refutes the relevance of early release in this case for essentially Andrysiewicz reasons.

128. The early release submission would have greater cogency if Ground 1 had succeeded and the outstanding term of extradition offences were reduced. In its absence, the length of outstanding sentence is, by agreement at appeal (there having previously been a difference in figures), 207 days. Therefore, between 6 to 7 months’ custody remains to be served in Poland. This is not “very short”. I do not accept the submission at para 50 of the appellant’s skeleton argument that the appellant has at the date of this appeal served “such a substantial period in custody that extradition would now be disproportionate.” The outstanding term remains a substantial sentence and significantly above the length of the minimum floor of four months’ imprisonment for a conviction case in a Category 1 case under section 65(3) (b) of the Act .

129. As to the proper approach to questions of early release, it is vital to have regard to what the Supreme Court actually said in Andrysiewicz at para 80: “80. We envisage that a rare case is confined to cases where there is agreed or uncontested evidence sufficient to demonstrate an overwhelming probability: (a) that the requested person would be released under article 77 of the Polish Penal Code upon an application; (b) as to when that release would take place; (c) as to what the probation period and conditions attached to that release would be; and (d) that the inability of a court in this jurisdiction to provide for such a probationary period and to attach such conditions would not adversely affect the interests of the offender or of the public.”

130. There is no agreed or uncontested evidence sufficient to demonstrate “an overwhelming probability” that the appellant would be released under early release provisions in Poland, nor when that release would take place, nor what probation period or conditions would be attached. It cannot be said that the inability of this court to attach such conditions or a probationary period would not “adversely affect” the interests of the public.

131. Therefore, the appellant fails the Supreme Court's “rare case” test. I judge that this is not one of the “rare cases” envisaged by Andrysiewicz where the court should embark on predicting the likely outcome of the application of Polish early release provisions. To my mind, the prospect of early release, which only remains a “bare possibility” with an unevidenced likelihood, adds “little weight” to the balancing exercise and can only be of modest assistance to the appellant. I note that the approach of the Judge, taken before the Supreme Court’s judgment, is presciently in conformity with it. (2) The Judge’s analysis

132. Next, I note that the Judge performed the necessary Celinski balancing exercise at paras 83-96 of her judgment. The relevant factors for and against extradition, recorded by the Judge in her judgment in October 2024 were characterised as follows (based on the respective cases of the parties, not necessarily her findings): “Factors against extradition • The RP has been living in the UK since 2015 and has acquired a private and family life. • He has been in a relationship with his partner since 2012 and they have 3-year-old son born on 2nd November 2021. • The RP has been working since his arrival in the UK and since 2019 has worked as a self- employed builder. • The RP has completed almost 2/3 of his sentence and will be entitled to benefit from the early release provisions in Poland. • There has been culpable and unexplained delay on the part of the NCA not certifying the re- issued warrant dated 21st January 2019 until January 2022. • The RP is not a fugitive since the cumulative sentence because the JA knew he was in the UK. Factors in favour of extradition • There is a constant and weighty public interest in extradition that those convicted of crimes should be sought to serve their sentences. In this case the RP has a sentence of 3 years, 8 months’ imprisonment to serve for multiple offences committed over a period of time, albeit he has spent 1 year, 2 months and 12 days on remand in respect of previous extradition proceedings. • There is high and weighty public interest that extradition arrangements are honoured. • There is a strong public interest that the UK should not become known as a safe haven for those who do not want to serve their sentences. Weight is added to this factor because I have found the RP to be a fugitive. • The RP is not a man of good character in this jurisdiction having been sentence to 12 months imprisonment by Grimsby Crown Court on 3rd June 2024 for an offence of dangerous driving. • The RP has a partner and three-year old son, but very little detail has been given about their circumstances and how the RP’s remand has affected them and how his extradition will affect them. No statement has been received from her.”

133. The Judge presented her conclusion on the balancing exercise at paras 94-98: “94. I have considered all the evidence when undertaking the balancing exercise. I have found the RP to be a fugitive from justice when he left Poland being aware of the proceedings against him, but as Ms Herbert has submitted that the balancing exercise should take into account the fact that he is not a fugitive since the cumulative sentence was imposed because the JA knew that he was in the UK. I accept that two previous warrants have been issued for the RP's arrest prior to him applying for the cumulative sentence. However that does not detract from the fact that in respect of all the judgments he was a fugitive from justice and even since the cumulative judgment he has spent a considerable time in prison which would impact on both his private and family life.

95. Furthermore, the RP is not a man of good character in the UK having been sentenced to 12 months imprisonment by a UK court on 3rd June 2024 for an offence of dangerous driving. He has been in the UK since 2015 and works as a self-employed builder. He has been in a relationship with his partner since 2012 and they have a three-year old son who was born in 2021. Since 2018 the RP has been on remand on and off only in relation to these extradition proceedings but also in relation to two previous warrants. This lessens the impact on his family life because he has been in and out of prison for a number of years albeit there has been an unexplained delay about why the NCA did not certify the warrant for three years I have already indicated that the loss of SIRENE may have affected that. I do not have an explanation but I still do not find that the delay impacts on the RP's family life for the reasons I have already given. [96. … agreeing with the approach of Swift J in Andrysiewicz , then at first instance.]

97. I have been told nothing about the impact on his family if he were extradited. He says his partner relies on him emotionally and financially, but he has been in prison for a substantial amount of time and his evidence about this was that he has saved money to financially provide for his family and that he speaks to his partner twice a day over the phone and by letters.

98. I have also considered in the balance the very strong and weighty importance to be given to upholding extradition agreements and that the UK should not be seen to be a safe haven for those who do not want to serve their sentences. The strong counterbalancing factors that would be required in the case of a fugitive to result in extradition being disproportionate are not found in this case (Celinski [39]) and I do not find it would be against the RP’s Convention rights to order extradition.” (3) Discussion: article 8

134. Last on this, I return to the consequence of my having rejected Grounds 1, 2 and 3 of the appeal. This means that the Judge’s analysis remains intact. I note in particular that the Judge proceeded on the basis that the NCA delay was unexplained. Undoubtedly, she correctly identified and applied the law given my conclusion on the three preceding grounds, save the fugitivity point, which in any event was exercised the appellant’s favour. The approach I take to the article 8 question is that set out with clarity in Celinski at para 24: “The single question therefore for the appellate court is whether or not the district judge made the wrong decision. It is only if the court concludes that the decision was wrong… that the appeal can be allowed. Findings of fact, especially if evidence has been heard, must ordinarily be respected. In answering the question whether the district judge, in the light of those findings of fact, was wrong to decide that extradition was or was not proportionate, the focus must be on the outcome, that is on the decision itself. 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.”

135. Since the impugned decision, the Supreme Court handed down its judgment in Andrysiewicz . However, the approach commended in that judgment on the article 8 balancing exercise was no different to the Judge’s approach. The Supreme Court said at para 43: “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.”

136. Therefore, in addition to Andrysiewicz , it is appropriate to have regard to 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 . I note that the Judge cited all three cases in her judgment at para 78. I have reviewed her analysis provided at paras 83-98. She considered all the relevant factors. She did not err in fact or law, nor ascribe undue weight to any factor.

137. It is submitted that the Judge erred in her analysis of “culpable delay”. I have rejected the Ground 3, but the appellant submits that it has a wider article 8 (Ground 4) application. It assists to set out the submission as advanced: “There is no explanation provided by the NCA as to why they did not certify the warrant between the period 21 January 2019 and 7 January 2022 during which the Appellant has quite understandably got on with his life and had a child, born on 2 November 2021. The case of Pabian v Poland [2024] EWHC 2431 (Admin) [“ Pabian ”] at [49-50] supports the submission that where it would have been easy to locate the requested person in the UK and the authorities have failed to take even the most minimal steps to do so, and where there is no explanation that this is a relevant factor. Here the Appellant was released from custody 3 days after the issuance of the warrant, the UK authorities knew exactly where he was and yet did not certify the warrant. Absent any explanation this is culpable delay and does, now in 2025 with such a de minimis sentence to be served make extradition unjust and oppressive. The argument in the alternative is made under s.21 of the Act (Article 8 ECHR).”

138. As to the NCA’s delay, I respectfully adopt the approach of Chamberlain J in Pabian 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. This too is a factor which may be of relevance to the Article 8 balancing exercise.”

139. The lack of explanation from the NCA is puzzling and unsatisfactory. If there is justification, it should be given. It has not been. I proceed on the basis that there is none. Thus, it seems to me that the NCA’s delay has article 8 relevance. I note, as did the Judge in the lower court, that the appellant has been in the United Kingdom since 2015. However, he was a fugitive and remained a fugitive from Polish justice in respect of the relevant legal processes. That said, the delay by the NCA’s certification has significance because in the period the appellant understandably developed his family life. 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 principally arises due to the unexplained actions of the NCA and cannot be much laid at Poland’s door. There is no material culpable delay by the requesting state in the issuing of the arrest warrants. However, another aspect of delay remains highly relevant: its effect. As said in Pabian at para 55: “… The main significance of the delay is that it delineates the period upon which it is necessary to focus in evaluating any private or family life interests which may have developed.”

140. As noted in HH , delay remains a factor relevant to article 8 compatibility. This is so even where, as here, the requested person is a fugitive (see the Supreme Court’s observations on the F-K case at para 46, joined in HH ). In the hiatus, in 2021 the appellant had a child born in the United Kingdom with a partner he says he remains with. However, there is no confirmation of this from his partner and indeed no evidence whatsoever from her. It seems the Judge proceeded on the basis that the relationship persists, and I am not prepared to go behind the Judge’s approach in fairness to the appellant. Added to this family life development, there is the private life factor of his labouring when not in custody. These are factors weighing against the making of an extradition order and the Judge noted and weighed them.

141. Reduced to its bare minimum, the cardinal issue remains 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 of his family is outweighed by the public interest in extradition.”

142. 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.”

143. While the appellant now has a son born in the United Kingdom, he is not the child’s sole carer. The appellant has spent limited time not in custody since his son’s birth. The parties agree that this amounts to around 2 years 3 months from the child being born. Thereafter the appellant has been in imprisoned due to the criminal offending here or remanded awaiting the outcome of the extradition proceedings. 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. As Ms Herbert confirmed to this court, there is no witness statement from the appellant’s partner confirming what his contribution to her and the child has been or, much more importantly, what the impact on them would be if surrender took place. The Judge was in the same position.

144. 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. However, I note the example given by Lord Phillips in Norris at para 65 of the degree of interference where article 8 rights may outweigh the public interest in extraditing the requested person: “If extradition for an offence of no great gravity were sought in relation to someone who had sole responsibility for an incapacitated family member, this combination of circumstances might well lead a judge to discharge the extraditee under section 87 of the 2003 Act ”

145. These offences are a decade or more old now. But the offender deliberately put himself beyond the reach of Polish justice to evade the criminal proceedings and the lawful sentences of the Polish courts, a fact that attenuates the significance of the delay. He must bear substantial but not exclusive responsibility for it, given the NCA’s unexplained delay. While it should also be noted that individually each offence is not of “great gravity”, to borrow Lord Phillips’ phrase, the aggregated sentence of 3 years and 8 months’ custody is a substantial term and indicative of the seriousness with which the Polish court considered, and was entitled to consider, his course of persistent criminal offending. On the other side of the scales, the impact on his article 8 rights and more broadly those of his family is not “exceptionally severe”. I observe that his family life was developed in the knowledge that he came to the United Kingdom as a fugitive from Polish justice. 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.

146. The courts have repeatedly emphasised that this nation must both honour extradition arrangements it has subscribed to and ensure that the United Kingdom does not become a safe haven for fugitives who would evade justice. There is a strong public interest in ensuring that offenders who have evaded lawful custodial sentences serve them. This, to my mind, is simply an expression of the qualification to article 8 recognising what is necessary in a democratic society for the prevention of crime and disorder. This aspect of the public interest has particular weight for an offender who has sought to evade the lawful custodial sentences imposed by the Polish court for offending including burglary, fraud, forgery and theft. His offending spanned a protracted period from February 2012 to October 2015, shortly after which, despite his obligation to notify the Polish judicial authorities of a change of address (extending to more than seven days), he left Poland for the United Kingdom without notification and thus in deliberate breach of his notification obligation. His deliberate actions made his whereabouts unknown until he was arrested in November 2017. Once in the United Kingdom, he did not lead a “new, useful and blameless life”, as put in HH at para 47. Instead, he committed an offence of dangerous driving of such gravity that the Crown Court imposed an immediate sentence of imprisonment of 12 months. He had, as noted, received a custodial term for a serious driving offence in Poland.

147. I must respect the judgment of the properly constituted Polish court. 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). The court said at para 82 that “only the gravest effects of interference with family life will be capable of rendering extradition disproportionate to the public interest that it serves”

148. That is not the case here. 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. Thus, to answer the “single question” identified in Celinski (para 24) for article 8 appeals, the Judge’s decision on proportionality is not wrong: an extradition order is not disproportionate nor incompatible with the appellant’s article 8 rights and those of his family, viewed holistically. I have examined everything put before me on behalf of the appellant and cannot find any rational basis to indicate that the balancing exercise should have resulted in a different outcome.

149. It has not been necessary to conduct a fresh balancing exercise. If I had, I would have unhesitatingly concluded that the public interest considerations significantly outweigh the interference with appellant’s family and private life. Extradition is not disproportionate nor incompatible with the engaged Convention rights or any of them. Conclusion: Ground 4

150. Ground 4 fails. VII. Disposal

151. All four grounds fail. The appeal is dismissed.