 |
[Home] [Databases] [World Law] [Multidatabase Search] [Help] [Feedback] | |
England and Wales High Court (Administrative Court) Decisions |
||
|
You are here: BAILII >> Databases >> England and Wales High Court (Administrative Court) Decisions >> Galadzun v Polish Judicial Authority (Regional Court in Gdansk) (Rev2) [2025] EWHC 163 (Admin) (31 January 2025) URL: http://www.bailii.org/ew/cases/EWHC/Admin/2025/163.html Cite as: [2025] EWHC 163 (Admin) |
||
[New search] [Printable PDF version] [Help]
KING'S BENCH DIVISION
ADMINISTRATIVE COURT
Strand, London, WC2A 2LL |
||
B e f o r e :
____________________
| Lucasz Galadzun |
Appellant |
|
| - and – |
||
| Polish Judicial Authority (Regional Court in Gdansk) |
Respondent |
____________________
Lucia Brieskova (instructed by Extradition Unit, Crown Prosecution Service) for the Respondent
Hearing date: 15 January 2025
____________________
Crown Copyright ©
Mr Justice Dexter Dias :
| Section | Contents | Paragraphs |
| I. | Introduction | 3-7 |
| II. | Arrest warrant | 8-13 |
| III. | Judgment below | 14-17 |
| IV. | Legal framework | 18-22 |
| V. | Issues | 23-24 |
| VI. | Issue 1: culpable delay | 25-31 |
| VII. | Issue 2: Article 8 | 32-45 |
| VIII. | Disposal | 46-48 |
| Appendix A | Materials |
§I. INTRODUCTION
§II. ARREST WARRANT
Conduct I) – A/ case ref. II K 596/01 ("Offence A")
On 27 May 2001, in Prabuty, acting jointly and in concert with other persons, having first ripped a metal sheet and wooden planks off a shop wall, he took 10 beverages of various kinds and 10 packs of chips representing the total value of PLN 70 (approx. £13.60) from inside the shop, thus acting to the detriment of Wieslaw Sztylak.
Conduct II) – B/ case ref. VIK 473/03 ("Offence B")
On the night of 19-20 October 2003, in Prabuty, in Ogrodowa Street, he ripped off the padlock securing the entry door to a basement and broke into it, from where he took electronic devices, namely a Kawasaki strimmer and a Black-Decker drill representing the total value of PLN 1,750 (approx. £340), intending to appropriate the items dishonestly, thus acting to the detriment of Dariusz Wierzchowski.
Conduct III) – C/ case ref. II K 379/05 ("Offence C")
On 15 June 2005, in Prabuty, acting jointly and in concert with other persons, he and the others broke a window pane and broke into the rooms of the 'BIL' grocery store, from where they took 100 packs of cigarettes of different brands, 6 disposable cigarette lighters, electronic scales, and a fiscal cash register tray, intending to dishonestly appropriate the items which represented the total value of PLN 2,128 (approx. £414), thus acting to the detriment of Leszek Szczegielniak, where the Appellant committed the above before the lapse of five years from having served no less than 6 months of the penalty of prison imposed on him for a similar intentional offence in the judgement of the District Court in Kwidzyn of 26 October 2001, case ref. II K 596/01 (Conduct I).
Conduct I – contrary to section 279§1 of the Criminal Code
Conduct II – contrary to section 279§1 of the Criminal Code
Conduct III – contrary to section 279§1 of the Criminal Code in conjunction with section 64§1 of the Criminal Code
Offence A/ 1 year imprisonment - 5 months and 15 days to serve
Offence B/ 2 years imprisonment - 2 years to serve
Offence C/ 1 year and 6 months imprisonment - 1 year, 3 months, and 12 days to serve
Total imposed 4 years 6 months – total left to serve 3 years 8 months 27 days [there is now significantly less outstanding, a matter I will come to]
§III. JUDGMENT BELOW
(1) There is always a very weighty public interest in upholding extradition requests and treaty obligations alongside offenders serving sentences imposed and ensuring that the UK does not come to be seen as a 'safe haven' for those seeking to evade justice.
(2) The RP [requested person, the appellant] is a fugitive.
(3) The offences within the warrant are serious since they concern dishonesty offences of dwelling/non-dwelling burglary where the RP acted in joint enterprise with others.
(4) The sentences imposed/to be served are significant. Even with time on remand accounted for he would still have 35 months to serve.
(5) There has been no delay in seeking the RP to serve his sentence, it is plain from the detailed chronology provided that the matters have been taken very seriously and been acted upon.
(6) The RP has recent previous conviction for like offences in the UK, and previous convictions in Poland.
(7) In MG11 provided by the Home Office [for settled status in the United Kingdom] it is stated that:
a. When the RP applied for his settled status, he stated he did not have any previous convictions.
b. There is nothing to suggest he declared his previous convictions in Poland, and
c. This may have impact on his status and attached rights.
a. These offences are old, dating back to 2001, 2003 and 2005.
b. The RP was a child of 17 when he committed the first offence, 20 when
he committed the second and 21 when he committed the third. He is now in his 40s.
c. He has lived in England since 2006 openly, applied for his NI number in 2008, renewed his [Polish] passport in 2014 and he has been working and paying taxes.
d. He has, at times, struggled with poor mental health, and been a suicide risk. In this respect he relies on the report of Dr Suesse. It is apparent there is a credible risk of suicide if extradited.
e. He has indefinite leave to remain.
f. He has qualified for permanent social housing.
g. He has been remanded in custody on these matters since 16 June 2023
"62. It is accepted the index offences are old even by extradition standards 2001-2005, there has been a significant delay since the RP left Poland in 2006.It was submitted this is culpable delay, that the RP has lived openly and not attempted to evade detection or arrest. In 2023 it was 17 years since he left. Against that is my finding that the RP is a fugitive, he left Poland to avoid a sentence of Imprisonment and his life here albeit lengthy has been in the knowledge that at some point that would catch up with him. The chronology prepared fully discloses the efforts made to locate him searching for him locally and nationally, steps were taken, the JA have not sat on their hands.
63. It was submitted by Miss Waterstone that the release pre-sentence surrender date was unusual, again with respect I have to disagree, prison spaces in Poland and elsewhere in Europe are space dependant, I was satisfied he knew he had to surrender to serve it and simply chose to come to the UK to avoid doing so.
64. The RP cannot say he has led a blameless life here, he has offended and been sent to prison [granted due to homelessness] for offences as recent as October 2022, his life cannot have been that good to have had to break into an unoccupied dwelling for shelter.
65. I accept the evidence of Dr Suesse cannot be ignored, she was an impressive expert witness, she had clear concerns over the RP s mental health and suicide risk. It was clear from her evidence if the RP was to be extradited, he would lose the two most important protective features, his sister and the desire to remain in the UK. He is on medication but still feeling suicidal, it is unlikely talking therapy would help alleviate his mental health issues. On the other hand, her assessment was in October 2023, there was and is no up to date assessment available, the RP himself said he felt better than before.
66. The previous suicide attempt was years ago in different circumstances, he is medicated in custody and feeling better for that, his mother is in Poland as a future protective feature and steps could be taken to protect him in prison in Poland as they can in the UK. There is a strong presumption as an EU state and signatory to the ECHR that Poland would discharge such obligations within their prison system.
67. Dr Bhanot's report discloses issues with the RPs low IQ and ability to understand, his key finding relates to the finding of an abusive childhood at the hands of his father. To return to Poland takes him back to the location of that trauma and to the place he previously attempted suicide. In contrast, there is no suggestion of any learning disability here, the RP was able to function in society as detailed [ante]there is no mention of suicide within his report.
68. Dr Zymots report was unchallenged by the JA, he describes the offences as minor without aggravating features, no violence used. The fact a warrant was not issued until 2023 makes extradition disproportionate and inexpedient. He opines that the sentences could be replaced by a tagged curfew and that as a young offender at the time of offending there should be a more lenient approach adopted. He too suggests that the delay in arrest infers this has not been taken seriously by the authorities' As Dr Brieskova submits this is a Polish lawyer re visiting the original sentences and passing opinion upon them, I cannot attach any real weight to his report, it is not for me to challenge the imposition of sentences from within another international jurisdiction unless they are flagrantly unfair and unjust. That does not seem to me to be the case here.
69. It was submitted I should take notice of early release provisions in accordance with Dobrowolski v Poland 2023 EWHC 763 of course it may be the RP is given early release for the reasons submitted but it is not guaranteed and a discretionary power under Article 77 in Poland. In any event even with such considered it is still a substantial sentence and the RP has been at large since 2006.
70. Taking all of the evidence together and considering the submissions on the facts of this case I have to take the view, despite the age of the offences and delay that the balance tips for the JA. The public interest is a weighty factor here, a substantial sentence to serve and a clear decision to become a fugitive to avoid it."
§IV. LEGAL FRAMEWORK
"27 Court's powers on appeal under section 26
(1) On an appeal under section 26 the High Court may—
(a) allow the appeal;
(b) dismiss the appeal.
(2) The court may allow the appeal only if the conditions in subsection (3) or the conditions in subsection (4) are satisfied.
(3) The conditions are that—
(a) the appropriate judge ought to have decided a question before him at the extradition hearing differently;
(b) if he had decided the question in the way he ought to have done, he would have been required to order the person's discharge."
"21. …we heard substantial argument on the passages in the judgment of Lord Neuberger [in Re B (A Child) [2013] UKSC 33 ("Re B")]. Lord Neuberger set out at paragraph 93 the ways an appellate judge might consider a trial judge's conclusion on proportionality:
"There is a danger in over-analysis, but I would add this. An appellate judge may conclude that the trial judge's conclusion on proportionality was (i) the only possible view, (ii) a view which she considers was right, (iii) a view on which she has doubts, but on balance considers was right, (iv) a view which she cannot say was right or wrong, (v) a view on which she has doubts, but on balance considers was wrong, (vi) a view which she considers was wrong, or (vii) a view which is unsupportable. The appeal must be dismissed if the appellate judge's view is in category (i) to (iv) and allowed if it is in category (vi) or (vii).
94. As to category (iv), there will be a number of cases where an appellate court may think that there is no right answer, in the sense that reasonable judges could differ in their conclusions. As with many evaluative assessments, cases raising an issue on proportionality will include those where the answer is in a grey area, as well as those where the answer is in a black or a white area. An appellate court is much less likely to conclude that category (iv) applies in cases where the trial judge's decision was not based on his assessment of the witnesses' reliability or likely future conduct. So far as category (v) is concerned, the appellate judge should think very carefully about the benefit the trial judge had in seeing the witnesses and hearing the evidence, which are factors whose significance depends on the particular case. However, if, after such anxious consideration, an appellate judge adheres to her view that the trial judge's decision was wrong, then I think that she should allow the appeal."
23. In the light of the argument before us, we entirely endorse the general approach adopted by Beatson LJ and Aikens LJ, but consider that application of that approach by use of the analysis in the judgment of Lord Neuberger is likely to achieve a more consistent approach that is compliant with Article 8 and the provisions of the 2003 Act dealing with appeals.
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, applying what Lord Neuberger said, as set out above, 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."
"25. The statutory appeal power in section 104(3) permits an appeal to be allowed only if the district judge ought to have decided a question before him differently and if, had he decided it as he ought to have done, he would have had to discharge the appellant. The words "ought to have decided a question differently" (our italics) give a clear indication of the degree of error which has to be shown. The appeal must focus on error: what the judge ought to have decided differently, so as to mean that the appeal should be allowed. Extradition appeals are not re-hearings of evidence or mere repeats of submissions as to how factors should be weighed; courts normally have to respect the findings of fact made by the district judge, especially if he has heard oral evidence. The true focus is not on establishing a judicial review type of error, as a key to opening up a decision so that the appellate court can undertake the whole evaluation afresh. This can lead to a misplaced focus on omissions from judgments or on points not expressly dealt with in order to invite the court to start afresh, an approach which risks detracting from the proper appellate function. That is not what Shaw or Belbin was aiming at. Both cases intended to place firm limits on the scope for re-argument at the appellate hearing, while recognising that the appellate court is not obliged to find a judicial review type error before it can say that the judge's decision was wrong, and the appeal should be allowed.
26. The true approach is more simply expressed by requiring the appellate court to decide whether the decision of the district judge was wrong. What was said in Celinski and Re B (A Child) are apposite, even if decided in the context of article 8. In effect, the test is the same here. The appellate court is entitled to stand back and say that a question ought to have been decided differently because the overall evaluation was wrong: crucial factors should have been weighed so significantly differently as to make the decision wrong, such that the appeal in consequence should be allowed."
(1) "There may be a closer analogy between extradition and the domestic criminal process than between extradition and deportation or expulsion, but the court has still to examine carefully the way in which it will interfere with family life.
(2) There is no test of exceptionality in either context.
(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.
(4) There is a constant and weighty public interest in extradition: that people accused of crimes should be brought to trial; that people convicted of crimes should serve their sentences; that the United Kingdom should honour its treaty obligations to other countries; and that there should be no "safe havens" to which either can flee in the belief that they will not be sent back.
(5) That public interest will always carry great weight, but the weight to be attached to it in the particular case does vary according to the nature and seriousness of the crime or crimes involved.
(6) The delay since the crimes were committed may both diminish the weight to be attached to the public interest and increase the impact upon private and family life.
(7) Hence it is likely that the public interest in extradition will outweigh the article 8 rights of the family unless the consequences of the interference with family life will be exceptionally severe."
"instead of saying that interference with article 8 rights can only outweigh the importance of extradition in exceptional circumstances it is more accurate and more helpful, to say that the consequences of interference with article 8 rights must be exceptionally serious before this can outweigh the importance of extradition. 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."
§V. ISSUES
(1) Was the Judge's finding on culpable delay in bringing the appellant to court wrong?
(2) Was the Judge's conclusion on Article 8 wrong?
§VI. ISSUE 1: CULPABLE DELAY
Submissions
Discussion
Conclusion: culpable delay
"When an issuing state seeks an individual who has fled outside its borders to evade its justice system, without indicating which country he has fled to, that state is under no obligation to devote resources to making enquiries about his whereabouts. By the same token, a decision by an issuing state to enter an alert on SIS, without more, does not trigger an obligation on the judicial authority or police force of every other Member State to check its own official records or otherwise search for the individual concerned. In this situation, as the Divisional Court put it in RT, "neither the foreign judicial authority nor the NCA can be expected to explore the byways and alleyways of British officialdom to discover whether someone is in this country". This informs the approach to questions of delay in Article 8 cases where the appellant is a fugitive."
§VII. ISSUE 2: ARTICLE 8
Submissions
- There is very significant delay of around 20 years;
- The offences in Poland are "minor" objectively;
- The circumstances leading to the offending include that the appellant was young (aged 17, 20 and 21) and addicted to drugs and moving in "bad" circles; he was suffering from trauma from an abusive father, according to his sister;
- He has settled in the United Kingdom;
- He has led a lawful life here save for one conviction;
- He has roots here now, including his sister who is his closest support;
- He has significant mental health problems with a credible risk of suicide;
- A return to Poland will increase his risk of suicide, including being returned to the place he was traumatised and maltreated by his father.
- The explanation for the delay is the appellant's fugitivity;
- The Polish offences were not trivial;
- There remains a "long time for him to serve in Poland";
- His ties to the United Kingdom are "not so strong";
- He has a criminal conviction in the United Kingdom;
- He did not disclose his previous offending to the Home Office in his application for settled status;
- There is no evidence of recent attempts at suicide.
Discussion
Conclusion: Article 8
"There is a constant and weighty public interest in extradition: that people accused of crimes should be brought to trial; that people convicted of crimes should serve their sentences; that the United Kingdom should honour its treaty obligations to other countries; and that there should be no "safe havens" to which either can flee in the belief that they will not be sent back."
§VIII. DISPOSAL
| Item | Pages |
| Hearing bundle | 209 |
| Authorities bundle | 263 |
| Applicant skeleton | 11 |
| Respondent skeleton | 14 |