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You are here: BAILII >> Databases >> England and Wales High Court (Administrative Court) Decisions >> Bocianski v Poland [2025] EWHC 658 (Admin) (19 March 2025) URL: http://www.bailii.org/ew/cases/EWHC/Admin/2025/658.html Cite as: [2025] EWHC 658 (Admin)

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

		19th March 2025

FORDHAM J This Judgment was handed down remotely at 10am on 19.3.25 by circulation to the parties by email and by release to the National Archives.

FORDHAM J:

Introduction

1. This is an extradition case about whether the requested person (RP) "was convicted in his presence" for the purposes of s.20(1) of the Extradition Act 2003 (EA). That question is the first of a statutory 3-stage sequence of questions, applicable in conviction extradition cases. They are designed to reflect Article 6 ECHR fair trial values. Conclusions adverse to the RP must be reached to the criminal standard of proof (s.206). Unless convicted in their presence (stage 1), the RP must (stage 2) have deliberately absented themselves from their trial (on which, see Bertino v Italy [2024] UKSC 9 [2024] 1 WLR 1483); and, if not, they must (stage 3) have a right of retrial (on which, see Merticariu v Romania [2024] UKSC 10 [2024] 1 WLR 1506). The present case is a stage 1 case. It comes before me as a rolled-up hearing. I am grateful to each Counsel for their clear and focused submissions.
2. DJ Clarke (the Judge) on 6 June 2024 ordered the Appellant's extradition to Poland, after an oral hearing on 29 April 2020 at which he and his partner gave oral evidence. The Judge recorded in her judgment that she was satisfied as to the stage 1 ("convicted in his presence") question. By this appeal, Ms Draycott for the Appellant submits that that stage 1 conclusion was wrong on the materials before the Judge, so that she should have discharged the Appellant or adjourned to allow Further Information (Merticariu §27) from the Respondent as requesting judicial authority (RJA). Armed with putative fresh evidence, Ms Draycott also says that the stage 1 conclusion is in any event wrong on the materials before this Court, so that I should discharge the Appellant or adjourn to allow Further Information from the Respondent. Mr Squibbs for the Respondent resists all of this. Nobody says that this case is answerable, on the present materials, by reference to considerations relevant to stage 2 (deliberate absence) or stage 3 (right of retrial).
3. The Appellant is aged 47. He is wanted for extradition to Poland. That is in conjunction with a conviction Extradition Arrest Warrant (ExAW) issued on 9 April 2019 and certified on 8 January 2023, on which he was arrested on 5 January 2024 after a police encounter. The index offences are ten non-domestic burglaries committed by the Appellant with accomplices in a period of 3 months in Poland. The first burglary was on 5 June 2014 and the tenth was on 11 September 2014. The ExAW records that a custodial sentence of 2y 6m was imposed. It records that 1y 9m of that prison sentence remained to be served. The Appellant accepted in his proof of evidence – adopted by him as his evidence in chief before the Judge – that he had spent "9 months in custody on remand" in Poland in respect of these offences. The ExAW explains that the sentence was imposed in a context where the index offending fell within 5 years of a previous custodial sentence for similar offending. The Appellant had a number of previous convictions in Poland including a January 2010 conviction which attracted a 4 year custodial sentence.

The ExAW

4. The ExAW identifies (in Box B) the "decision on which the [ExAW] is based" as the "enforceable … judgment of the Lublin-Wschod Provincial Court" which is "dated 5 December 2017". The "length of the custodial sentence" (Box C) is "2 years and 6 months imprisonment". Asked (in Box D) to "indicate whether the person concerned appeared at the hearing in person resulting in the decision", the RJA records: "Yes, the person appeared at the hearing in person resulting in the decision". Later (Box F), under "optional information" about "other circumstances relevant to the case", the RJA records that: "the Lublin-Wschod Provincial Court of Lublin, by its judgment dated December 5 2017, altered by the judgment of the District Court of Lublin dated May 30 2018, reference symbol of files: V Ka 409/18, sentenced Piotr Bocianski to 2 years and 9 months imprisonment. The judgment became legally valid on May 30 2018".
5. As it happens, Ms Draycott and Mr Squibbs (neither of whom appeared before the Judge) have agreed in oral submissions that what the ExAW is saying, when read as a coherent whole, is there was a 2y 9m sentence imposed by the Provincial Court on 5 December 2017, after conviction in that court, which was then reduced on appeal by the District Court on 30 May 2018 to 2y 6m.

The Judge's Article 8 Fugitivity Analysis

6. As part of the analysis in the judgment, the Judge needed to address Article 8 ECHR and whether extradition would be a disproportionate interference with the rights to respect for private and family life of any or all of the following: the Appellant, his partner, and their 12-year-old son. Article 8 failed as a ground to resist extradition and it is not advanced on this appeal. However, as part of the Article 8 assessment, the Judge addressed whether (to the criminal standard) the Appellant had left Poland as a "fugitive". What she said in relation to that has featured as relevant in the stage 1 s.20 analysis on this appeal.
7. The Appellant's story was as follows. He accepted that: "I attended one court hearing at which I pleaded guilty to all the offences". He said he was then released, having served 9 months in custody on remand, after which he went back to his address in Poland and "heard nothing about the case" and then "left Poland around January/February 2015, to come to the UK as my brother had arranged a job for me in construction with my current employer, Teampol". He also said: "I have instructed a lawyer in Poland to apply for the sentence to be transferred to the UK". All of this was in his proof of evidence, adopted as his evidence in chief, and set out in the judgment.
8. The Judge was not satisfied, to the criminal standard, that the Appellant had left as a fugitive. She said she was "missing some key information" from the RJA. She knew from the ExAW that the December 2017 Provincial Court sentence had been "altered" by the May 2018 District Court. But she did not know what the alteration was. She countenanced as one possibility that the original sentence had been "equivalent to the time he had spent in custody" (ie. the 9m on remand), increased by the District Court in May 2018 to 2y 6m. If the original sentence had been time-served (9m), then the Appellant would not have known he had any sentence outstanding when he came to the UK. On that basis, he could not be said to have fled to evade it. In fact, this has proved to be a generous view of the Provincial Court sentence, borne out of the fact that the Judge did not have the same assistance I had from different Counsel on both sides, who accept that the ExAW records the Provincial Court's sentence as having been the 2y 9m mentioned in Box F, altered to 2y 6m by the District Court on the appeal.

The Judge's Section 20 Analysis

9. Here is what the Judge said about s.20 (the AW is what I have labelled ExAW; the JA is what I have labelled as the RJA):

Section 20 EA. [35] I will deal with this challenge briefly, as it was raised only at the end of the hearing. The RP says in his proof of evidence that he came to the UK in 2015. The effective date in this case for the purposes of section 20 of the EA is the 5th December 2017. As a result, it is submitted by Mr Smith that there is doubt about the requirements of Section 20 being met. [36] There is nothing in this challenge in my view. The AW is clear and unambiguous in this regard. Whilst I would have preferred to have more information from the JA in order to deal with fugitivity, on this point it is clear. The relevant box is ticked, it says that the RP was present at the trial resulting in the decision. The RP accepts that he was present at a hearing and entered a guilty plea. [37] Considering Cretu v Romania [2016] EWHC 353 (Admin) I am entitled to take the AW at face value and need not look behind it. The AW is clear and therefore I take it at face value. As a result, therefore I am satisfied to the criminal standard that the RP was convicted in his presence and as such the requirements of Section 20 EA are met.

The Provincial Court Point

10. Ms Draycott has two lines of argument. The first is about presence in the Provincial Court. It runs as follows. The Judge's conclusion as to conviction "in his presence" in the Provincial Court was – or exposed by fresh evidence is – wrong. The Judge relied on ExAW Box D read with Box B. But the Appellant's evidence was that he had left Poland for the UK in Jan/Feb 2015, having attended one hearing and pleaded guilty. Added to which, a Teampol "reference letter" dated 1 February 2024 said he had been employed "since March 2016". The fresh evidence includes a statement from advocate Malgorzata Banach who writes to "declare" that the Appellant was "not present at the hearing[] on 05.12.2017".
11. I have not been persuaded that this line of argument is viable (reasonably arguable); nor that adjourning for Further Information is warranted. Box D is clear. It is referable to the Provincial Court judgment, described in Box B. It refers to the "hearing … resulting in the decision". It says the Appellant "appeared … in person" at that hearing. That meets the Cretu principle: Merticariu §26. There is no ambiguity or confusion: Merticariu §27. That is the end of it. The Judge did not believe this could be displaced or overridden by the Appellant's assertions or by the Teampol reference letter. Nor do I. Even if one countenances that collateral evidence could introduce doubt, I find it unsurprising that the Judge was unimpressed. The Teampol letter (a job from "March 2016") did not fit with the Appellant's own story (about supposedly going to the UK for a Teampol job in January/February 2015). Further, the Appellant's story did not work, put alongside what is known. He cannot have been starting the 9m period he described, spent in prison on remand for these matters, until some date which was after he had committed burglary number ten (11 September 2014). He could not have served those 9m in custody – still less having then "remained" in Poland, as he said, for a period "living at the same address" – and yet have left Poland as he asserted in January/February 2015. His story simply did not add up. Nor, in any event, was it supported by any real evidence. No 'footprint' documentation was produced, to show the Appellant living a life in the UK in 2015; or in 2016; or in 2017. Even on this appeal, with putative fresh evidence, that is a cupboard which remains bare. Added to which there is this. Advocate Banach says that her "declaration" about his absence in December 2017 is "based" on Court documents; and she says she has provided those documents. But those documents speak for themselves. They relate only to the District Court in 2018. They do not record absence in the Provincial Court in 2017. The Judge had been given nothing to undermine the description in the ExAW, even if it were permissible by collateral evidence. Nor have I.

The District Court Point

12. Ms Draycott's second line of argument is about presence in the District Court. It runs as follows. By reference to the position in the District Court, the Judge's conclusion was – or exposed by fresh evidence is – wrong. There is a date question, a presence question and an evidential picture:

i) As to the date question, the Judge said the "effective date" for s.20 purposes was 5 December 2017. But that was wrong in law. The Judge's analysis missed the legal significance of the alteration of the sentence on appeal to the District Court in May 2018. The Judge recognised the alteration in the District Court. She recognised an absence of information from the RJA about it. This featured in her analysis of fugitivity for Article 8. What her s.20 analysis then failed to recognise was the legal principle that a sentence-alteration on appeal is part of the "trial" for s.20 purposes, provided that the alteration is merits-evaluative and not automatic/arithmetical: see Zdziaszek (Case C-271/17PPU) [2017] 4 WLR 189 §96, applied in Taylor v Italy [2019] EWHC 2938 (Admin) at §§74-78. Here, the ExAW involved "ambiguity" and/or "confusion". That is because Box F describes the Provincial Court judgment as having been "altered" by the District Court, and there is the reference (Box F) to 2y 9m which became (Box C) 2y 6m. All of this begs, but does not answer, the question of whether the sentence-alteration in the District Court was merits-evaluative or automatic/arithmetical. That means presence in the District Court matters at stage 1.

ii) As to the presence question, the Judge rightly proceeded on the basis that the Appellant had been absent from the hearing in the District Court. That was central to her fugitivity analysis. Had she been applied the Zdiaszek principle, she would have discharged or adjourned for Further Information. This Court has the fresh evidence. Advocate Banach has communicated to "declare" that the Appellant was not present at the District Court hearing on 30 May 2018, when the District Court's judgment was given. She has produced the court documents which record that nor was he present during the hearing of the arguments on 29 May 2018.

iii) Putting all of this together, the evidential picture involves at best ambiguity or confusion (Merticariu §27). This Court needs clarification from the Respondent and should adjourn to obtain it. What was the nature of the 2017 Provincial Court judgment being "altered" in the 2018 District Court? If not automatic/arithmetical, how do the 3-stages of s.20 analysis apply? The Court cannot be satisfied, still less to the criminal standard, without this missing information. There is nothing which supports the conclusion that the alteration was automatic/arithmetical. The lack of clarity is closely linked to the missing information about the District Court proceedings, which after all is what prevented the Judge from making a fugitivity finding. The same criminal standard applies to s.20 stage 1.

13. I have not been persuaded that this line of argument is viable (reasonably arguable); nor that adjourning for Further Information is warranted.
14. No criticism can be levelled at the Judge for not looking at the May 2018 District Court hearing for s.20 purposes, by reference to the Zdziaszek line of cases The s.20 point was only raised belatedly, at the end of the hearing. It is clear, that the focus of the argument was on presence in the Provincial Court; not the District Court. There is no indication that the Judge was addressed on the District Court; nor on the Zdziaszek line of cases.
15. In my judgment, there is a clear answer. It comes from the fresh evidence and involves presence in the District Court. Advocate Banach is not just a Polish lawyer who has consulted the Court records for 2018 and has produced documents. She is not just a Polish lawyer instructed by the Appellant – after his January 2024 extradition arrest – to apply for the sentence to be transferred. She is not just a lawyer of whom the fresh evidence application says there had been insufficient time for the Appellant's UK solicitors to make inquiries ahead of the oral hearing before the Judge. Nor is she a court-appointed lawyer about whom the Appellant knew nothing but about whom he happens now, somehow, to have found was his lawyer (she does not say this; nor does he; and it is wholly implausible). She was the Appellant's trial lawyer, instructed by him at the time of the District Court hearing in May 2018. Her statement declares that the Appellant was not present at the hearing of his May 2018 appeal. His absence is borne out by the District Court document which she produces. But that court document also records that Advocate Banach was the Appellant's Polish lawyer for that District Court appeal. This was not an "ex officio" lawyer appointed by the Polish state to represent the Appellant's interests in his absence, unknown to him; while proceedings continued unknown to him. The Court document for 29 May 2018 makes a clear distinction between the Appellant's defence attorney-at-law "full-time" and "on file"; and an attorney who appeared for a co-appellant D Oleszek, who had been "appointed ex officio". Advocate Banach was instructed by the Appellant. That is how he could so readily get back in touch with her. She attended on his behalf, as his lawyer. Attendance by an instructed (mandated) lawyer is presence: Cretu §34iii. I am confident of this on the materials, to the criminal standard. That is the end of it.
16. That means stage 1 (presence) is met in respect of the District Court proceedings in May 2018, because the Appellant's instructed lawyer was appearing and advancing the appeal in his absence and on his behalf. This is fatal to the appeal. Unsurprisingly so. I have not been able to see what Article 6 (fair trial) value is undermined where an individual has pleaded guilty, is convicted and sentenced, and then chooses to leave it in the hands of their lawyer to pursue an appeal, at which appeal the sentence is reduced in their favour.
17. Mr Squibbs had another answer. He says an alteration in the District Court, by which 2y 9m became 2y 6m, may very well have been automatic/arithmetical, rather than merits-evaluative. That being so, there is nothing about the ExAW which is "ambiguous" or "confused" (Merticariu §27). There is no tension or contradiction. Mutual trust and confidence starts from the position that the RJA understands the applicable legal standards, and faithfully applies them. Nor is any tension or contradiction is introduced by the putative fresh evidence. The Court documents do not say that the alteration was merits-evaluative, rather than automatic/arithmetical. Advocate Banach – who appeared at the District Court appeal for the Appellant – does not say that there was an alteration which was merits-evaluative, despite the opportunity to explain the position. I would have accepted this answer, given the cumulative force of these points, had it mattered.

Conclusion

18. For the reasons I have given, the appeal is not reasonably arguable. There is no basis for adjournment or deferral. I will refuse permission to appeal. As to the putative fresh evidence from Advocate Banach, I will grant permission to adduce it. I have relied on it, to provide the answer to the very question which it was being relied on to pose. Notwithstanding that it could with due diligence have been deployed before the Judge, it was appropriate in the interests of justice that I should know and be able to record that the Appellant's lawyer represented him at the appeal in the District Court in May 2018. I refuse permission to adduce the vague and unsubstantiated assertions within two further letters from Teampol, one of which is identical in substance to the "reference letter" which was before the Judge. A properly documented footprint of UK presence – if it existed – could with due diligence have been adduced. These letters are quite incapable of being decisive.