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	England and Wales High Court (Administrative Court) Decisions
You are here: BAILII >> Databases >> England and Wales High Court (Administrative Court) Decisions >> Guzdek v Circuit Court in Kalisz [2025] EWHC 177 (Admin) (30 January 2025) URL: http://www.bailii.org/ew/cases/EWHC/Admin/2025/177.html Cite as: [2025] EWHC 177 (Admin)

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IN THE HIGH COURT OF JUSTICE
KING'S BENCH DIVISION
ADMINISTRATIVE COURT

		Royal Courts of Justice Strand, London, WC2A 2LL
		30th January 2025

FORDHAM J Note: This judgment was produced and approved by the Judge, after authorising the use by the Court of voice-recognition software during an ex tempore judgment.

FORDHAM J:

Introduction

1. The Appellant is aged 43 and is wanted for extradition to Poland. This is his renewed application for permission to appeal, presented in writing and orally with great clarity by Mr Grayson. Also before the Court is an application dated 22 January 2025 for a stay pending the outcome in the Supreme Court of Andrysiewicz v Poland, an appeal about early release provisions and their relevance (if any) to Article 8 extradition evaluations. The point of law had been certified in Andrysiewicz on 19 July 2024 and permission to appeal had been granted by the Supreme Court on 16 October 2024. The judgment of Hill J in Marcisz v Poland [2024] EWHC 2441 (Admin) addresses the approach to be taken on applications for such stays.
2. The Extradition Arrest Warrant in this case is a conviction ExAW issued on 26 June 2023 and certified on 8 August 2023, on which the Appellant was arrested on 17 September 2023 and has been on extradition qualifying remand ever since. As Mr Grayson emphasises, there was an earlier Extradition Arrest Warrant dated 29 January 2011 and certified on 4 September 2011, on which the Appellant had originally been arrested on 27 December 2013. That matter was discharged. Mr Grayson tells me his understanding, which I accept, is that that was a s.4 discharge because the Appellant had initially been taken to the wrong magistrates' court. Mr Grayson also points out, and for the purposes of today I also accept, that the understanding as at 2016 was that the Polish authorities were not going to reissue an Extradition Arrest Warrant, but they then did and I have already given the relevant dates.
3. The index offending was a robbery and assault, which involved taking a mobile phone from the victim, on 6 December 2009. The Appellant was then aged 28. For that he received a custodial sentence of 2 years 2 months, of which there were originally 1 year 9 months and 8 days to serve, until the extradition qualifying remand started to serve to reduce that period. To put that offending into its context it was within a 5 year period of a relevant custodial sentence of more than 6 months, as the extradition papers record. The Appellant's offending record in Poland goes back at least to a 1998 burglary; then a suspended sentence in respect of criminal damage and burglary offences committed in 1999 and 2000; then an 8 month custodial sentence for domestic violence in November 2003; and then a 22 month sentence for battery and theft committed in March 2004. The subsequent sentence for the March 2004 offending was the relevant one for the purposes of the 5 year period. The Appellant had been present in Poland when sentenced in April 2010 for the index offending. He then failed to appear in June 2010 and came to the United Kingdom as a fugitive, as DJ Zani unassailably found in a judgment ordering extradition dated 29 April 2024 after an oral hearing.
4. There was and is evidence of a relationship with a partner and the now 7 year old daughter. Although the evidence suggests that the relationship with the partner had or has broken down, the relationship with the daughter was and is a subsisting one albeit in circumstances where the Appellant has since September 2023 been incarcerated.

The Appeal

5. So far as this Article 8 appeal is concerned, Mr Grayson emphasises the passage of time in the long period between the two Extradition Arrest Warrants. He emphasises the ongoing impact of the qualifying remand which, as at today, takes the Appellant down to some 5 months to serve in custody if extradited to Poland. He submits, and I accept, that this Court should approach the case on the basis that the Article 8 balance would fall to be retaken on the current position, not least because of the ongoing impact of the qualifying remand. That retaking of the balancing decision would also ensure that all points relating to the passage of time were considered in the Article 8 proportionality evaluation, together with all of the other features of the case.

Early Release

6. So far as early release is concerned, my attention is invited – both in the Article 8 arguments and through the application for the stay – to the provisions of article 77 of the Polish Penal Code which empowers a Polish court to release the prisoner early on licence after serving one-half or two-thirds of their sentence (Marcisz §2).
7. I asked Mr Grayson what the "platform" was, for the purposes of the present case, for saying that the Appellant is a person who ought to be regarded by an extradition court in this jurisdiction as being likely to be given early release, or standing to be given early release. That is, in my judgment, an important question. This Court can, and in my judgment should, approach the early release point – and the issue of a stay – by taking the position, from the requested person's perspective, at its highest. But what is that position? I am conscious that there are cases which say that a demonstrated reality, or likelihood of a positive decision, so far as early release is concerned can be a proper factor for an extradition court to consider, alongside other factors in an Article 8 evaluation. Other cases doubt that. And a third option has been ventilated, namely that there is a duty on the extradition court, always to consider and evaluate the prospect of early release. I am not aware of any case that adopts that third option, but I am aware that it has been placed on the table for the purposes of consideration by the Supreme Court (Marcisz §35).
8. Mr Grayson's response in the present case to the "platform" question included reference to the Polish criterion which concerns "the likelihood that the requested person would 'respect the legal order'", on which basis "substantial periods of law-abiding conduct in the UK" can have a "particular relevance" (Marcisz §34). Mr Grayson recognises that there is an offending background in Poland to which I have referred. He also recognises that there are offences in the UK, but he submits that these are "small" and "spread out". He says that early release decision-maker in Poland would be looking at all the circumstances, including the behaviour in the round of the Appellant, but would also be informed by the small length of time left to serve and by other considerations including the Appellant's daughter in the United Kingdom. That, then, is the early release "platform".

Analysis

9. Taking the Appellant's case at its highest, and positing the most generous legal approach to early release, I cannot accept in this case that there is a proper "platform" for an extradition court taking a favourable view of the prospect of early release, viewed against the factual profile of the present case. There is the background of offending in Poland. And, of course, there is the act of the Appellant evading serving his 2 year 2 month sentence through his fugitivity. Added to which there is the sequence of the Appellant's subsequent offending in the United Kingdom. I will put to one side for today a Class B possession offence in December 2013. There are then 3 separate offences of battery. One in August 2016 and a second in October 2016, which together led to an aggregate 10 week sentence of immediate custody. The third battery offence was in April 2020 and led to a further 12 month community sentence. I bear in mind that there is no offending in the period since 2020 and the Appellant's extradition rearrest in September 2023. But I am unable to see, even arguably, how this is a candidate case in which an extradition court would be able to say that the Appellant's early release would be likely.
10. I step back, having regard to all of the circumstances of the case, and close regard to the best interests of the blameless young daughter and the impact which extradition of her father will have for her. This is a case where the outcome – recorded by the Judge in the April 2024 judgment, in respect of which Sheldon J could see no viable appeal when he considered the papers in September 2024 – in my judgment is the same outcome which a substantive appeal would have. I posit such an appeal taking place today. It is not, in my judgment, reasonably arguable that at a substantive hearing this Court would conclude – looking at the facts and circumstances as they are today – that extradition is disproportionate in Article 8 terms. On the contrary, the strong public interest factors in favour of extradition – beyond reasonable argument – decisively outweigh those capable of counting against it. That is so, even assuming – as I have – the legal position most favourable to the Appellant in relation to early release as a relevant Article 8 consideration.

Conclusion

11. For those reasons, and in those circumstances, I will refuse the renewed application for permission to appeal and will refuse the application for the Andrysiewicz stay.

30.1.25