Kamil Kazimierz Sekowski v Polish Judicial Authority

1. SIR PETER LANE: The appellant, Mr Sekowski, appeals with permission granted by McGowan J against the judgment of District Judge Callaway on 13 November 2024 to order the appellant's extradition to Poland. The hearing before the district judge began on 28 June 2024. The appellant made an application to adjourn to produce medical evidence. The district judge said this at paragraph 3 of his judgment: "The application was listed for a final hearing before myself at this court on 28 June 2024 (day one). The case did not conclude on the date since the RP sought to raise and develop detailed medical issues in opposition to the extradition sought and the RP made an application that I permit that course. In an effort to be fair to the RP, and, in the interests of completeness, the objection of the JA notwithstanding, I permitted the adjournment sought and the matter was listed before me for a second time on 19 September 2024 (day two). The RP was able to file a considerable quantity of medical material and to which I shall refer in due course".

2. Before this court, the appellant applies for permission to adduce further medical evidence, as well as new witness statements from the appellant and his partner. The respondent is neutral as to that application. I have considered this evidence de bene esse and I shall have more to say about it in due course. BACKGROUND

3. The appellant is wanted on a conviction warrant issued by a Circuit Court of Lodz, Poland on 17 February 2021 and certified by the NCA on 23 October 2023. The warrant is based on the judgment of the District Court in Lodz on 9 March 2011 and valid from 17 March 2011.

4. The warrant is issued for a sentence of two years of which there is one year, nine months and 12 days remaining to be served. The warrant details that the respondent was present at the trial resulting in the decision.

5. The warrant is issued for a single offence of robbery which is described as follows. On night of 17 November 2011, the victim was returning home and was assaulted by the appellant, who tripped him from behind so that he fell to the ground. Whilst on the ground, the appellant searched the victim, held him down and stole from him a phone worth 190 sterling equivalent. The warrant details this is an offence of violent robbery within the terms of the Criminal Code. The judgment of the court was delivered following a plea bargain. The sentence of two years was originally suspended for a period of five years and the appellant was also fined.

6. The appellant was placed under the terms of a probation officer to do unpaid work and to refrain from alcohol. The judgment took effect from 17 March 2011.

7. On 25 June 2013,the sentence was activated. This was because the appellant was found to have committed an offence of theft; and this was treated as similar offending to that concerning the robbery. He was detained in prison on 27 August 2013. On 12 November 2013, the Court of Appeal, having considered the decision at first instance, referred the case back for a retrial and the appellant was released from prison. On 5 March 2024, following the retrial, the court of first instance activated the two-year sentence. On 12 May 2014, having considered an appeal lodged on behalf of the appellant against the decision, the Court of Appeal upheld the decision because the appellant had committed the offence of theft, had evaded supervision and had not paid the whole fine. The appellant was present at court when the issue of activation was considered, which took place on 12 May 2014. On 6 June 2014, the court deducted the time for provisional detention. That is the period 28 August to 12 November 2014. This documentation was served on an adult household member on 15 July 2014.

8. On 10 July 2024, it was ordered that the appellant appear at the remand centre and this, too, was served on the adult household member on 21 July 2024. The appellant, however, did not appear. Searches did not find him. It is said that his parents had said that he moved out and did not contact them. It is also said that neighbours had expressed the view that he had moved to the United Kingdom

9. On 21 August 2015, the court suspended enforcement and an arrest warrant was sent but not collected.

10. At paragraph 7 of his judgment, the district judge noted the appellant opposed extradition on three bases: section 14 of the Extradition Act 2003 concerning the passage of time, which would make it unjust or oppressive for the appellant to be extradited; article 3 of the ECHR, owing to the treatment to which the appellant said he would be subjected in Poland; and article 8 of the ECHR, whereby the appellant asserted that extradition would be a disproportionate interference with his rights under that article and with the rights of his partner and his two minor children. ECHR ARTICLE 8: EXTRADITION CASE LAW

11. I turn to the law on article 8 in the context of extradition. In Love v USA [2018] EWHC 172 (Admin) the Divisional Court said this: “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.”

12. In Andrysiewicz v Circuit Court in Lodz, Poland [2025] UKSC 23, the Supreme Court reviewed its case law on article 8 in the extradition context:. “33. In Norris v Government of the United States of America (No 2) [2010] UKSC 9; [2010] 2 ac 487, the role of article 8 in extradition proceedings was addressed in detail by this court. The US Government sought the extradition of Mr Norris to stand trial on three counts of conspiracy to obstruct justice. It was common ground that, as in most extradition cases, the extradition of Mr Norris would interfere with his exercise in the United Kingdom of his right to respect for his private and family life under article 8 and that this interference would be in accordance with the law. In his judgment Lord Phillips of Worth Matravers explained (at para 9) that the critical issue in the case was whether this interference was necessary in a democratic society for the prevention of disorder or crime. Resolving that issue involved a test of proportionality: the interference must fulfil a pressing social need and it must also be proportionate to the legitimate aim relied upon to justify the interference. Having surveyed the Strasbourg and domestic jurisprudence he expressed the following conclusions. (1) While there can be no absolute rule that any interference with article 8 rights as a consequence of extradition will be proportionate, the public interest in extradition nonetheless weighs very heavily indeed. It carries special weight when considering the interference extradition would cause to article 8 rights. It was certainly not right to equate extradition with expulsion or deportation in this context. It is of critical importance in the prevention of disorder and crime that those reasonably suspected of crime are prosecuted and, if found guilty, duly sentenced. Extradition is part of the process for ensuring that this occurs on a basis of international reciprocity (paras 51, 52). (2) Referring to the exceptions to the right to liberty under article 5 in the case of the arrest and detention of a suspect and detention while serving a sentence following conviction, he observed that such detention will necessarily interfere drastically with family and private life. However, in practice it was only in the most exceptional circumstances that a defendant would consider even asserting his article 8 rights by way of challenge to remand in custody or imprisonment. "Normally it is treated as axiomatic that the interference with article 8 rights consequent upon detention is proportionate." (para 52). Until recently it had also been treated as axiomatic that the dislocation to family life that normally follows extradition as a matter of course is proportionate. (para 54). (3) Rejecting a submission that it was wrong for the court when approaching proportionality to apply a categorical assumption about the importance of extradition in general he observed: "Such an assumption is an essential element in the task of weighing, on the one hand, the public interest in extradition against, on the other hand, its effects on individual human rights. This is not to say that the latter can never prevail. It does mean, however, that the interference with human rights will have to be extremely serious if the public interest is to be outweighed." (para 55) "The reality is that only if some quite exceptionally compelling feature, or combination of features, is present that interference with family life consequent upon extradition will be other than proportionate to the objective that extradition serves." (para 56). (4) Referring to the judgment of the European Commission on Human Rights in Launder v United Kingdom (1997) 25 EHRR CD 67, 73, he continued: "'Exceptional circumstances' is a phrase that says little about the nature of the circumstances. 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." (para 56). (5) Deciding whether extradition will be compatible with Convention rights is a fact-specific exercise. "[A]t this point … it is legitimate for the judge to consider whether there are any relevant features that are unusually or exceptionally compelling. In the absence of such features, the consideration is likely to be relatively brief. If, however, the nature or extent of the interference with article 8 rights is exceptionally serious, careful consideration must be given to whether such interference is justified." (para 62). (6) In such a situation the gravity, or lack of gravity, of the offence may be material (para 62). Rejecting a submission that the gravity of the offence can never be of relevance where an issue of proportionality arises in the human rights context, Lord Phillips continued: "The importance of giving effect to extradition arrangements will always be a significant factor, regardless of the details of the particular offence. Usually the nature of the offence will have no bearing on the extradition decision. If, however, the particular offence is at the bottom of the scale of gravity, this is capable of being one of a combination of features that may render extradition a disproportionate interference with human rights. Rejecting an extradition request may mean that a criminal never stands trial for his crime. The significance of this will depend upon the gravity of the offence." (para 63). (7) "When considering the impact of extradition on family life, this question does not fall to be considered simply from the viewpoint of the extraditee." (para 64) After referring to an immigration case, Beoku-Betts v Secretary of State for the Home Department [2008] UKHL 39; [2009] AC 115, he continued: "[T]he family unit had to be considered as a whole, and each family member had to be regarded as a victim. I consider that this is equally the position in the context of extradition." (para 64) "Indeed, in trying to envisage a situation in which interference with article 8 might prevent extradition, I have concluded that the effect of extradition on innocent members of the extraditee's family might well be a particularly cogent consideration. 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." (para 65).   "One has to consider the effect on the public interest in the prevention of crime if any defendant with family ties and dependencies … was thereby rendered immune from being extradited to be tried for serious wrongdoing. The answer is that the public interest would be seriously damaged. It is for this reason that only the gravest effects of interference with family life will be capable of rendering extradition disproportionate to the public interest that it serves." (para 82).

34. In a concurring judgment, Lord Hope of Craighead, at para 87, stated: "It would not be right to say that a person's extradition can never be incompatible with his right to respect for his family life under article 8 of the European Convention on Human Rights. But resisting extradition on this ground is not easy. The question in each case is whether it is permitted by article 8(2). Clearly some interference with the right is inevitable in a process of this kind, which by long established practice is seen as necessary in a democratic society for the prevention of disorder or crime. That aim extends across international boundaries, and it is one which this country is bound by its treaty obligations to give effect to." Lord Hope did not think that there were any grounds for treating extradition cases as falling into a special category which diminished the need to examine carefully the way the process would interfere with the individual's right to respect for his family life (para 89). He considered, at para 91, that: "…[T]he reality is that it is only if some exceptionally compelling feature, or combination of features, is present that the interference with the article 8 right that results from extradition will fail to meet the test of proportionality. The public interest in giving effect to a request for extradition is a constant factor, and it will always be a powerful consideration to which great weight must be attached. The more serious the offence the greater the weight that is to be attached to it. … Separation by the person from his family life in this country and the distress and disruption that this causes, the extent of which is bound to vary widely from case to case, will be inevitable. The area for debate is likely to be narrow. What is the extra compelling element that marks the given case out from the generality? Does it carry enough weight to overcome the public interest in giving effect to the request?"

35. In his concurring judgment Lord Brown of Eaton-under-Heywood agreed (at para 95) that it would be only in the rarest cases that article 8 would be capable of being successfully invoked under section 87 of the Extradition Act 2003. He expressly endorsed the observation of Lord Phillips that only the gravest effects of interference with family life will be capable of rendering extradition disproportionate to the public interest it serves. Referring (at para 95) to Lord Phillips' example concerning impact on innocent family members at para 65 (para 33(7) above) as a rare case where the "defence" might succeed, he added that it was difficult to think of many others, particularly where the charges were plainly serious. He concluded (at para 99): "Seemingly it is now the section 87 (section 21 in Part 1) 'defence' based on the extraditee's article 8 rights which is regularly being invoked. The incidence of this too may be expected to decline in the light of the court's judgments on the present appeal. The reality is that, once effect is given to sections 82 and 91 of the Act, the very nature of extradition leaves precious little room for a 'defence' under section 87 in a 'domestic' case. To my mind section 87 is designed essentially to cater to the occasional "foreign" case where (principally although not exclusively) article 2 or 3 rights may be at stake."

36. This court returned to the question of article 8 in the context of extradition in H(H) v Deputy Prosecutor of the Italian Republic, Genoa [2012] UKSC 25, [2013] 1 AC 338 ("H(H)"). In the joined appeals before the Supreme Court the return of the individual was sought pursuant to a European arrest warrant in order that they might either stand trial or serve custodial sentences in the requesting State. Each resisted extradition on the ground that it would be incompatible with their and their children's rights to respect for their private and family life under article

8. One issue was therefore: where the rights of children of a defendant are arguably engaged, how should their interests be safeguarded?

37. In her judgment, at para 8, Baroness Hale of Richmond drew the following conclusions from Norris. "(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." We consider that the shift from the reference to "private and family life" in (6) to "family life" in (7) was deliberate.

38. We also note the following particularly relevant note of caution sounded by Lord Judge CJ (at para 132): "At the same time, we must exercise caution not to impose our views about the seriousness of the offence or offences under consideration or the level of sentences or the arrangements for prisoner release which we are informed are likely to operate in the country seeking extradition."

39. In Polish Judicial Authority v Celinski [2015] EWHC 1274 (Admin), [2016] 1 WLR 551 ("Celinski") a Divisional Court of the Queen's Bench Division (Lord Thomas of Cwmgiedd CJ, Ryder LJ and Ouseley J) took the opportunity to restate the correct approach to article 8 in extradition cases in the light of Norris and H(H). It considered that, in applying the principles set out in those cases the following matters should be borne in mind: (1) H(H) was concerned with the interests of children (para 8). (2) The public interest in ensuring that extradition arrangements were honoured was very high (para 9). (3) The decisions of the judicial authority of a Member State of the EU making a request should be accorded a proper degree of mutual confidence and respect (para 10). (4) The independence of prosecutorial decisions must be borne in mind when considering issues under article 8 (para 11). (5) In the case of accusation warrants, it should be borne in mind that factors that mitigate the gravity of the offence or culpability will ordinarily be matters that the court in the requesting State will take into account. Although personal factors relating to family life will be factors to be brought into the balance under article 8 by a court considering extradition, these will also form part of the matters considered by the court in the requesting State in the event of conviction (para 12).”

13. The Supreme Court summarised the article 8 position as follows: “42. Contrary to Lord Brown's prediction in Norris, the incidence of extradition cases in which article 8 is invoked has shown no sign of declining. On the contrary, it appears that it is continuing unabated. We were told by Mr Louis Mably KC that a random and unscientific sample of contested extradition hearings before the Westminster Magistrates' Court between 10 and 21 March 2025 showed that article 8 was invoked in 22 out of 23 cases examined. It seems that an article 8 "defence" is raised almost as a matter of course in virtually every extradition case.

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.”

14. Two particular legal matters regarding the operation of article 8 call for specific mention. The first is the significance of delay on the part of the authority and the requesting state and/or on the part of the authority in England and Wales, which is required to identify, locate and arrest the person concerned so as to bring that person before Westminster Magistrates' Court. If the person concerned is found to be a fugitive from justice, the courts will generally be disinclined to regard any such delay as having a material bearing on the proportionality assessment to be conducted in relation to article

8. The precise position is, however, more nuanced.

15. In Pabian v Poland [2024] EWHC 2431 (Admin), Chamberlain J carried out a careful review of the authorities. Beginning at paragraph 32 of his judgment, Chamberlain J traced the evolution of the case law concerning delay under article 8 beginning with HH v Italy [2012] UKSC 25: “32. In HH (Italy), at [8], Lady Hale held that delay on the part of the authorities was relevant to the question whether extradition was compatible with Article 8, whether the delay was attributable to the issuing or executing state. At [46], when addressing F-K, a Polish case joined with HH's, she made clear that this was so even in a case where the appellant was a fugitive. This was because, whatever the reasons for it, a lack of urgency in bringing the requested person to justice was some indication of the importance attached by the authorities to the offending. Delay was particularly relevant in a case where in the intervening period the appellant had made a "new, useful and blameless life" in the UK without any reason to believe that the authorities of the requesting state were seeking his or her return: [47]. As respects F-K's case, the other members of the Supreme Court agreed with Lady Hale.

33. In a series of subsequent cases, Article 8 appeals were allowed in part on the ground of delay by the NCA in certifying warrants, even where the appellant was a fugitive from justice, often in cases where there had also been significant delay by the requesting state in issuing the European arrest warrant.”

16. Chamberlain J also considered the more recent case law on delay in the article 8 context, This included Wolack v Poland [2024] EWHC 2278 (Admin); Savickis v Latvia [2017] EWHC 315 (Admin)]; RT v Poland [2017] EWHC 1978 (Admin); Cieczka v Poland [2016] EWHC 399 (Admin) and CIS v Poland [2022] EWHC 980 (Admin). Beginning at paragraph 48 of his judgment, Chamberlain J summarised the position as follows: “48. 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.

49. It is important, however, to note that, in the Divisional Court's reasoning in RT, what the issuing state could not be expected to do was make enquiries "to discover whether someone is in this country". As the careful analysis of Choudhury J in Cis makes clear, the position may be different where the authorities of the issuing state know that the requested person is in this country, as in Cieczka. In such a case, there is a step which those authorities could be expected to take, namely, make a direct request to the authorities here. There may, of course, be an explanation why that step was not taken. If so, the authorities in the issuing state should be prepared to give it. If no satisfactory explanation is given, the UK court is likely to assume that there is none. This is a factor that can be relevant to the Article 8 balancing exercise.

50. Once the UK authorities have received a direct request, a question may arise as to the significance to be attached to any subsequent delay between the receipt of the request and the arrest of the requested person. The court is unlikely to be impressed with a complaint made by a requested person who has taken steps to evade arrest or hide his location in the UK, as had the appellant in RT. Furthermore, as was recognised in Wolack and Zimackis, the court must be realistic about the resource constraints operating on the NCA and on UK police forces. But a long delay can properly be weighed in the Article 8 balance in cases where it would have been easy to locate the requested person and the UK authorities have failed to take even the most minimal steps to do so. 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.

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

17. The second, somewhat narrower legal issue that is relevant in the present case concerns the part to be played in an article 8 proportionality assessment by a restriction on liberty in the form of an electronically-monitored curfew imposed upon a person facing extradition as a condition of bai,.

18. In Leszczynski  v Poland [2025] EWHC 1024 (Admin) Morris J said this: “47. I have been referred to a substantial number of extradition cases where the issue of time spent on an electronically monitored curfew and other bail conditions has been considered, namely: R (Einikis) v The Ministry of Justice, Lithuania [2014] EWHC 2325 (Admin); Dezda v Regional Court in Olsztyn (Poland) [2022] EWHC 838; Prusianu v Braila Court of Law (Romania) [2022] EWHC 1929 (Admin); The King on the Application of Muizarijis v The Prosecutor General of the Republic of Latvia [2022] EWHC 2751 (Admin); Hojden v Poland [2022] EWHC 2725 (Admin); Brindusa v Law Court of Targoviste (Romania) [2023] EWHC 3372 (Admin); Begum v District Court of Zutphen (Netherlands) [2023] EWHC 3291 (Admin); Toma v Romania [2024] EWHC 183 (Admin); Mario Bakai v District Court in Dunaiska Streda (A Slovakian Judicial Authority) [2024] EWHC 1768 (Admin); and, most recently, Polom v Regional Court in Bydgoszcz (Poland) [2024] EWHC 2708 (Admin). From these authorities, I derive the following principles: (1) For the purposes of domestic law on sentencing, "qualifying curfew" is an electronically monitored curfew of at least 9 hours duration a day. However, it is clear that, in an extradition case, both qualifying curfew and non-qualifying curfew (i.e. less than 9 hours duration per day) in the UK is capable of being a factor properly to be taken into account in the Article 8 balancing exercise: Hojden §49. (2) What falls to be assessed is the degree of the deprivation of liberty or restriction on freedom of movement and autonomy: Prusianu §49. This might arise both from an electronically monitored curfew and from an obligation to report to a police station (Einikis) (or perhaps other bail conditions) or a combination of these elements. The court will consider whether the curfew has had a material effect on a person's ability to work, study or maintain family life, in which case the curfew will be afforded greater weight (than, for example, merely preventing late-evening socialising): Hojden §50. (3) Each case turns on its own facts. The assessment of a curfew as a relevant factor and the overall balance is an intensely fact-specific exercise: Polom §44. Little is to be gained by comparing the facts of previous cases. The cases vary as regards the seriousness of the underlying offence, the length of sentence to be served, the number of hours of the daily curfew and the amount of time that the requested person has been subject to that curfew. (4) In the cited cases where curfew was considered, in some cases, extradition was ordered; in others it was taken into account as a factor which led to extradition being discharged. As a matter of fact, the shortest curfew duration which has been taken into account in the cases referred to above, was a curfew of 4 hours in the case of Prusianu. (5) Amongst the factors relevant to the court considering the issue is whether or not it has before it evidence as to how the requesting state will deal with the time spent under UK curfew: see, for example, Polom §44. (6) As a matter of general principle, where the public interest in extradition is otherwise very strong, time spent on curfew is unlikely to tip the balance against extradition. On the other hand, in a case which is otherwise marginal, time spent on curfew might tip the balance against extradition.” THE DISTRICT JUDGE’S JUDGMENT

19. It is now time to turn to the judgment of District Judge Callaway. At paragraph 14, the district judge noted that the appellant came to the United Kingdom in July or August 2024. He had a partner and two children, who at the time the date of the hearing before the district judge were aged seven and three. The district judge noted the settled status in the United Kingdom of the appellant and that he had a stable address over the past seven years. It was said that he worked as a self-employed builder. However, the district judge recorded that over the past one or two months prior to the hearing, the appellant had not worked as a consequence of poor health and the fact that he was awaiting a scan, scheduled for September 2024, owing to what the appellant described as water on his lungs.

20. There were medical records put forward in connection with the hearing before the district judge. He said that he had considered those records. I pause here to say that I have done so also. Indeed, I have considered everything that was before the district judge, as well as the additional material that I have admitted de bene esse.

21. At paragraph 15, the district judge noted that the appellant said he had been struggling with his mental health over the past three years. That was a condition exacerbated, the district judge noted, by the appellant's cocaine use over the past four years. Comment was made in relation to chest pains, lung function deficiencies, asthma or pleural infection and a feeling of generalised weakness.

22. There was a report from Dr Wood, who recorded that there was no current suicidal ideation. The appellant did report symptoms of depression with clear deterioration in the level of functioning over the pursuant three years. However, Dr Wood considered that there were no psychotic symptoms and that the appellant had good insight and capacity.

23. At paragraph 17, there was a suggestion from Dr Wood that the appellant had what were described as potential elements of PTSD.

24. At paragraph 18 and following, the district judge made clear findings that the appellant was a fugitive from justice. Nevertheless, at paragraph 20, the district judge noted that the conviction was of some age. However, the district judge considered that the appellant could not rely on the passage of time where a person had deliberately fled the jurisdiction. In such circumstances, the person concerned would have contributed to the delay.

25. In paragraph 23, the district judge dealt with the issue of injustice or oppression. I will return to this in due course. At the moment, however, it is relevant to note that the district judge found at paragraphs 23 and 24 that there was no oppression. He also applied a test relating to exceptionality and I shall return to that in due course.

26. At paragraph 25, the district judge set out the factors against extradition and those in favour of extradition. In paragraph 26, he concluded that it would not be oppressive to order extradition in the present case. Again, I shall have more to say about that. NEW EVIDENCE

27. The new evidence that the appellant seeks to adduce comprises addendum witness statements from the appellant and his partner and a considerable amount of medical documentation. There is, however, no further expert report on the appellant.

28. There is a referral letter from Wembley Park Medical Centre ,apparently produced by a Mr Olayinka, who is a mental health practitioner. This referral letter is dated June 2025. The referral letter describes the appellant as saying that he feels constantly sad, he sleeps excessively, he is unable to function and that his head is like a tsunami: he feels overwhelmed and confused about what to do. There is then a reference to "two previous suicide attempts: first, overdose of the diazepam, cocaine and alcohol (six or seven tablets); second, self-harm by cutting body and limbs, both attempts resulted in hospital admission".

29. The letter says that the appellant’s symptoms had worsened during the recent three-week period when the appellant's children were in Poland for Easter holidays. Then again a reference is made to two previous suicide attempts with hospital admission. The appellant is recorded as being asthmatic. As for medication, it is said that he is not on any psychotropic medication.

30. He reported auditory hallucinations relating to threats from what were said to be former football gang associates. Those concerned being killed if imprisoned in Poland. He heard voices telling him he would be killed when he goes to prison in Poland.

31. Reference is made to current suicidal ideation being denied due to the presence of children at home. He states that he cuts himself when he is distressed. He expresses a fear of being killed by his former associates if extradited.

32. So far as accommodation in the United Kingdom is concerned, the letter notes that the appellant had been renting accommodation of some years, but the family were facing potential eviction as the landlord wanted to sell the property. That is something confirmed in the recent witness statement of the appellant's partner.

33. There are a number of issues with the cogency of the evidence to which I have just made reference. First, it is largely based on the appellant's self-reporting. It is not the product of a doctor specialising in such matters; secondly, the reports appear to contradict the assessment that there have been two suicide attempts by the appellant. At page 140 of the bundle, where we see the most recently adduced evidence, there is a report that refers to the appellant living alone and having family in Poland. This describes him as having been discharged from Northwick Park Hospital following an overdose of diazepam and cocaine. The appellant reported taking two diazepam to help him sleep and not with suicidal intent.

34. At page 144 of the bundle, there is a letter from Harrow Liaison Psychiatric Services to the appellant's GP practice. This is dated 2 April 2025. It says that there was some concern that the appellant had taken the overdose with the intent to end his life "however, we were unable to clarify his specific intent".

35. The evidence also suggested that there was reason to question whether the appellant had lived with his partner and the two children throughout the relevant time. I have referred to the statement in the evidence that the appellant was living alone. It was, of course, possible that the writer was mistaken and that the partner and children were only absent temporarily over Easter. However, at page 215, there is a record produced by the London North-East Healthcare NHS Trust that reports as follows: "The partner said the children and herself were living in a different house from patient". This record is dated 20 September 2021. Somewhat unusually, perhaps, the partner's latest witness statement does not specify her address. That statement is dated 26 May 2025. She confirms the potential problem regarding the landlord wanting to have possession of the property in which the family were living. She describes the children as being her whole world and they are doing well overall. The younger child is very little and does not fully understand what is happening, which is said to be a small blessing. The older child is more aware. The parents have been trying to prepare the child gently by telling her that her father might have to go away for work but she asks questions that are hard to answer.

36. The partner describes the appellant as a devoted father. He spends as much time as he can with the children; they are very close. They carry out activities together, such as cycling and playing in the park. The partner says she works during school hours to help support the family. The appellant has always done his best to provide for them too. Even though he suffers from asthma and sometimes has bad attacks, the appellant tries to take on small jobs so as to be able to contribute financially

37. The partner considers that the children would be heartbroken if the appellant were extradited. They are settled in their school, have close friendships and speak English fluently.

38. The appellant's new statement is also dated 26 May 2025. He begins by saying that he has been on an electronically-monitored curfew for one year and eight months and that it feels like he is imprisoned in his own home every night. He cannot socialise in the evenings, he cannot attend any events. He cannot even consider going away for a weekend or holiday. All of this, he says, has significantly restricted his liberty.

39. Since the judgment at Westminster Magistrates' Court, the appellant says his general health has deteriorated. He has breathing difficulties, with frequent coughing. This is particularly so when he feels under stress or is panicked, which is most days at present. He becomes tired very easily and finds it hard to motivate himself. On top of all this, he suffers blood pressure fluctuations, which can leave him feeling lightheaded and unwell. He regularly experiences headaches and severe migraines,

40. The appellant says his mental health has also severely deteriorated over time, particularly since the proceedings began. He constantly worries about his family. His children mean everything to him and are the reason that he tries to keep going. He is terrified of being separated from them.

41. The appellant said that he had had suicidal thoughts around the holiday period. When he was left alone without his children and partner, his thoughts became particularly dark. That period triggered what he said is a serious suicidal episode.

42. All of this is placing a heavy emotional burden on the appellant 's partner and children. The appellant says that he is due to undergo a medical examination and endoscopy to investigate ongoing stomach issues. He was due to have this procedure prior to making the witness statement, but was told that the appointment had been cancelled, although it is said that he had a follow- up appointment booked for the end of June.

43. So far as the appellant's asthma is concerned, I note that there is a clinical out-patient summary of a review that was undertaken at the Royal Free London in August 2023. This records that, whilst the appellant had stopped smoking cigarettes, he was still smoking marijuana and the clinicians discussed with the appellant the benefits of avoiding all inhaled substances.

44. During the hearing on 22 July 2025, Miss Herbert, who appears for the appellant, asked to take her client's oral instructions about certain matters in the additional evidence to which I have made reference. Having done so, she said that the position was as follows. In 2021, the partner and the children had, indeed, moved out of the property in which the appellant was then residing, The partner did so as a result of the appellant's cocaine use. They went to stay with a neighbour. After a short period, they moved back with the appellant and have remained together since. The partner and the children did go on their own to Poland for several weeks earlier in 2025. It was, the partner said, during their absence that the appellant took both diazepam and cocaine, which resulted in his hospitalisation.

45. Miss Herbert's instructions are that the references in the medical documentation to the appellant living alone earlier in 2025 are as a result of a misunderstanding. The appellant was only living temporarily alone, owing to the absence of the remainder of the family in Poland,

46. It is perhaps regrettable that these matters were not identified earlier and proper steps taken to address them, including by way of witness statements. That said, I am, nevertheless, prepared to take the appellant's case at its highest and to accept what Miss Herbert has said about the family's past and present circumstances.

47. I am also prepared to accept that the appellant may have made what some healthcare professionals have now categorised as two suicide attempts.

48. I have admitted the new evidence de bene esse. But whether it should be substantively admitted will depend upon whether, taking it in the round with all the other evidence, it would have caused the district judge to decide the matter before him differently. In other words, I must be satisfied that the evidence, viewed in that context, would have been decisive. THE ERRORS IN THE JUDGMENT

49. I turn to the challenge to the legal basis upon which the district judge approached article

8. I find that there are two errors in the district judge's article 8 assessment, which mean that his assessment was "wrong", in the sense of Love v The USA. First, the district judge approached article 8 by exclusive reference to part of the test in section 14 of the 2003 Act,; namely, whether it would be "oppressive" to extradite the appellant owing to the passage of time. In paragraph 8 of the judgment, the district judge said this: “8. During the course of argument on day two of the case, the RP submitted that, with the exception of the article 3 challenge, the section 14 challenge could be subsumed within the overall article 8 challenge. This was a sensible approach, since the age of the case necessarily interfaces with the change in the personal and social circumstances manifest in the challenge as a whole and are more conveniently considered accordingly".

50. At paragraph 25, the district judge set out the factors against and in favour of extradition. He then said this at paragraph 26: "26. Upon a careful analysis of the facts of this case, I am clear that the RP has failed to establish to the appropriate standard that it would be oppressive to make him subject of extradition in this case. Accordingly, article 8 is hereby held to fail".

51. Paragraph 26 needs to be understood in the context of paragraph 23 of the judgment. In that paragraph, the district judge directed himself to the meaning of "oppression". He cited Kakis v Government of Cyprus (1978) 1 WLR 779 concerning the meaning of that term under former extradition legislation. Kakis, however, was decided some 22 years before the coming into force of the Human Rights Act 1998 and the incorporation of article 8 into this country's domestic law.

52. The use of oppression as a test in the article 8 analysis found in paragraph 24 of the judgment: "24. I take as a starting point the young family of the RP. The loss of the breadwinner in any family must represent a devastating blow to the RP as a primary carer and to the family as a whole, However this is not an exceptional event in extradition work in general and cases which come before the courts in particular. Many such cases involve persons with a young family who may experience that loss and the detrimental to their welfare as a consequence. I can see nothing in this case which is capable of making the matter exceptional so that oppression, as the appellate courts have defined the same, may be engaged. In this case, the RP is no longer working as a consequence of his health and circumstances".

53. So far as oppression is concerned, it is clear that the district judge fell into error by effectively using the test of oppression as the lens through which to view the multifactorial article 8 assessment.

54. There is a further problem, concerning the approach of the judge to exceptionality. For the respondent, Mr Findlay submitted that, in saying what he did about exceptionality, the district judge was proceeding entirely compatibly with the judgment of the Supreme Court in Andrysiewicz. In paragraph 37 of the judgment in that case, Lord Lloyd Jones and Lord Hamblin quoted with approval the passage in paragraph 8 of the judgment of Lady Hale in HH that "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 particularly severe".

55. Here Lady Hale was, in turn, drawing on a number of conclusions from the earlier Supreme Court case of Norris v Government of the USA (No 2) [2010] UKSC

9.

56. Mr Findlay submitted that at paragraph 24 of his judgment in the present case, the district judge had, in effect, anticipated paragraph 43 of Andrysiewicz (see paragraph 13 above). I do not agree. In order to explain why, it is instructive to consider the position in the immigration jurisdiction, where article 8 is frequently deployed by persons facing removal from the United Kingdom under the Immigration Acts. At paragraph 20 of his judgment in Razgar v. Secretary of State for the Home Department [2004] UKHL 27, Lord Bingham addressed proportionality in article 8, which he had characterised earlier as question five. “20. The answering of question (5), where that question is reached, must always involve the striking of a fair balance between the rights of the individual and the interests of the community which is inherent in the whole of the Convention. The severity and consequences of the interference will call for careful assessment at this stage. The Secretary of State must exercise his judgment in the first instance. On appeal the adjudicator must exercise his or her own judgment, taking account of any material which may not have been before the Secretary of State. A reviewing court must assess the judgment which would or might be made by an adjudicator on appeal. In Secretary of State for the Home Department v Kacaj[2002] Imm AR 213, paragraph 25, the Immigration Appeal Tribunal (Collins J, Mr C M G Ockelton and Mr J Freeman) observed that: "although the [Convention] rights may be engaged, legitimate immigration control will almost certainly mean that derogation from the rights will be proper and will not be disproportionate." In the present case, the Court of Appeal had no doubt (paragraph 26 of its judgment) that this overstated the position. I respectfully consider the element of overstatement to be small. Decisions taken pursuant to the lawful operation of immigration control will be proportionate in all save a small minority of exceptional cases, identifiable only on a case by case basis”.

57. Following Razgar, the question arose whether Lord Bingham had there set out a legal test based on exceptionality. In Huang Secretary of State for the Home Department [2007] UKHL 11, the House of Lords answered that question as follows: “20.In an article 8 case where this question is reached, the ultimate question for the appellate immigration authority is whether the refusal of leave to enter or remain, in circumstances where the life of the family cannot reasonably be expected to be enjoyed elsewhere, taking full account of all considerations weighing in favour of the refusal, prejudices the family life of the applicant in a manner sufficiently serious to amount to a breach of the fundamental right protected by article

8. If the answer to this question is affirmative, the refusal is unlawful and the authority must so decide. It is not necessary that the appellate immigration authority, directing itself along the lines indicated in this opinion, need ask in addition whether the case meets a test of exceptionality. The suggestion that it should is based on an observation of Lord Bingham in Razgar above, para

20. He was there expressing an expectation, shared with the Immigration Appeal Tribunal, that the number of claimants not covered by the Rules and supplementary directions but entitled to succeed under article 8 would be a very small minority. That is still his expectation. But he was not purporting to lay down a legal test.”

58. It is also helpful to consider the more recent judgment of the Supreme Court in HA (Iraq) v Secretary of State for the Home Department [2022] UKSC

22. There, the issue was the attempt by Parliament in Part 5A of the Nationality, Immigration and Asylum Act 2022 to articulate circumstances in which article 8 might be breached in the immigration context and, as a corollary, when it would not. In KO (Nigeria) v Secretary of State for the Home Department [2-18] UKSC 53, Lord Carnwath addressed the provision in section 117C(5) of that Act. This provides an exception to the fact that the deportation of a foreign criminal sentenced to imprisonment of four years or more is required in the public interest. The exception applies if the effect of deportation of partner or child of a particular kind would be unduly harsh. In paragraph 23 of KO (Nigeria), Lord Carnwath said, "One is looking for a degree of harshness going beyond what would necessarily be involved for any child faced with the deportation of a parent".

59. The Supreme Court in HA (Iraq) had this to say about that statement of Lord Carnwath:

23. The argument of Mr Marcus Pilgerstorfer QC for the Secretary of State focused on the emphasised sentence in the passage cited above from para 23 of Lord Carnwath’s judgment. He submitted that Lord Carnwath was there stating that the unduly harsh test requires a comparison to be made with “the degree of harshness which would necessarily be involved for any child faced with the deportation of a parent” and that undue harshness means a degree of harshness which goes beyond that. It is this “notional comparator” which provides the baseline against which undue harshness is to be evaluated. …

31. First, I consider that far too much emphasis has been placed on a single sentence in Lord Carnwath’s judgment and that if his judgment is considered as a whole it is apparent that he was not intending to lay down a test involving the suggested notional comparator. It is correct that in para 23 of his judgment Lord Carnwath was recognising that the unduly harsh test involves a comparison, but the comparison made was between the level of harshness which is “acceptable” or “justifiable” in the context of the public interest in the deportation of foreign criminals and the greater degree of harshness which is connoted by the requirement of “unduly” harsh. As Underhill LJ pointed out, Lord Carnwath was not seeking to define the level of harshness which is “acceptable” or “justifiable”. Had this been his intention he would have addressed the matter in considerably more detail and explained what the relevant definition was and why. Similarly, if he had been intending to lay down a test to be applied in all cases by reference to the suggested notional comparator he would not only have so stated but he would have explained the nature of and justification for such a test. The reference to the harshness which would be involved for “any child” is to be understood as an illustrative consideration rather than a definition or test.

32. This is borne out by the self-direction in MK which Lord Carnwath endorsed as providing “authoritative guidance” at para 27 of his judgment. This does not involve any notional comparator. If that was intended to be the applicable test then the approved self-direction would have had to be expanded and explained.

33. It is correct, as Mr Pilgerstorfer pointed out, that the “main reasoning” of the Upper Tribunal Judge at paras 43 and 44 of the decision which Lord Carnwath found “difficult to fault” included references to “nothing out of the ordinary” being identified and to the disruption being no different “from any disruption of a genuine and subsisting parental relationship arising from deportation” which involve echoes of the notional comparator approach. These considerations were not, however, being put forward as a test or essential touchstone and the reasoning being approved related to the application of an appropriately elevated threshold.

34. Secondly, as Underhill LJ observed, a test based on what would necessarily be involved for “any child” cannot be read literally. “Any” child would encompass children for whom the deportation of a parent would be of no real significance, despite having a genuine and subsisting relationship with that parent. For such a child there would be little or no harshness involved, in which case the baseline level of “due” harshness would be very low. That is clearly contrary to the high standard which Lord Carnwath was envisaging, as illustrated by his criticism of the too low standard applied by the Upper Tribunal Judge at para 35 of his judgment and the need to give “much stronger emphasis” to the words unduly harsh.

35. Thirdly, in recognition of this difficulty, Mr Pilgerstorfer suggested that the appropriate notional comparator should be not merely a qualifying child — ie one with a genuine and subsisting relationship with the deportee — but one of “similar age, living circumstances giving rise to a genuine and subsisting parental relationship, and nationality/time in the UK”. He described these as “sensible baseline characteristics” but no support for them is to be found either in Lord Carnwath’s judgment or in the statutory wording. Mr Pilgerstorfer submitted that these characteristics “readily arise from the statutoryrequirements” but living circumstances, age, nationality (beyond being British) and time in the UK (beyond seven years for non-British children) are alien to the statute. The suggested characteristics may be sensible but they are an invention.

36. In any event, there are too many variables in the suggested baseline characteristics for any comparison to be workable. How does one determine what are the material “living circumstances”? Age does not take into account a child’s maturity. Time in the UK does not take into account to what extent the child is integrated into the UK or whether the child has travelled in and out of the UK to the country in which it is proposed to remove the proposed deportee. In reality there is no satisfactory way to define what the relevant characteristics of a notional comparator child are to be or to make any such comparison workable.

37. Fourthly, a test involving a notional comparator child is potentially inconsistent with the duty to have regard to the “best interests” of the child in question as a primary consideration in accordance with section 55 of the Borders, Citizenship and Immigration Act 2009. This requires having “a clear idea of a child’s circumstances and of what is in a child's best interests” and carrying out “a careful examination of all relevant factors when the interests of a child are involved” — see Zoumbas at para

10. The focus needs to be on the individual child, but the discounting of what are said to be the “normal” or “ordinary” effects of deportation by reference to a notional comparator child risks the court or tribunal ignoring the actual impact of deportation on the particular child in a search for features which are outside the supposed norm. As Lord Carnwath stated at para 15 of his judgment in KO (Nigeria), the presumption is that the statutory provisions are intended to be consistent with the general principles relating to the “best interests” of children.

38. Fifthly, the notional comparator approach gives rise to the risk that a court or tribunal will apply an exceptionality threshold. Searching for particular features which take the facts of an individual child’s case outside the ordinary run of cases is likely to mean looking for exceptional or rare cases. As Underhill LJ stated at para 56: “… if tribunals treat the essential question as being ‘is this level of harshness out of the ordinary?’ they may be tempted to find that Exception 2 does not apply simply on the basis that the situation fits into some commonly-encountered pattern. That would be dangerous. How a child will be affected by a parent’s deportation will depend on an almost infinitely variable range of circumstances and it is not possible to identify a baseline of ‘ordinariness’. Simply by way of example, the degree of harshness of the impact may be affected by the child’s age; by whether the parent lives with them (NB that a divorced or separated father may still have a genuine and subsisting relationship with a child who lives with the mother); by the degree of the child’s emotional dependence on the parent; by the financial consequences of his deportation; by the availability of emotional and financial support from a remaining parent and other family members; by the practicability of maintaining a relationship with the deported parent; and of course by all the individual characteristics of the child.”

39. Sixthly, the Secretary of State’s suggested approach is likely to lead to perverse results. The respondents give the example of a case involving the impact of parental deportation on an eight year old who cohabits and has a very close relationship with the parent. As the norm for “any child” in that qualifying child’s position would be that the effect of separation would be considerable, it would allow the significant effect of that deportation to be treated as acceptably harsh and thereafter discounted from further consideration. This can be contrasted with the case of a 17 year old who lives separately from the parent and whose relationship is at the very lowest end of the genuine and subsisting relationship spectrum. As the norm for “any child” in that qualifying child’s position would be that the effect of separation would be of much more limited significance, it is likely to be easier to satisfy the unduly harsh test because it will be more straightforward to identify particular features that take the case above the much lower baseline level than the higher bar set for the highly dependent eight year old.

40. Finally, all these highlighted difficulties reinforce the conclusion that Lord Carnwath cannot have been contemplating a notional comparator test. None of them are considered. Had it been intended to introduce such a test there is no doubt that many of these issues would have needed to be and would have been addressed. There is no hint of that in the judgment of Lord Carnwath, or indeed in the arguments before the court.”

60. HA(Iraq) is instructive, because it lays bare the difficulties that arise if "exceptionality" is deployed as an actual legal test ,as opposed to a description of the consequences of applying some other legal test.

61. In a case of extradition, the proportionality exercise to be undertaken in respect of article 8 will only exceptionally produce an outcome in favour of the person resisting extradition because, in the great majority of cases, the weight to be given to the factors in favour of extradition will be so significant that only the most compelling factors weighing against extradition will be likely to prevail.

62. Requiring a person actually to show that his or her case is exceptional is conceptually different. It inevitably requires the court to examine the facts of other cases. That may be difficult to establish and/or may be misleading. It shifts the focus from where it needs to be; namely, on the effects of extradition on the individual concerned and those family members who are within the ambit of the article 8 exercise.

63. For these reasons, I do not accept that paragraph 43 of Andrysiewicz establishes or recognises a legal test of exceptionality in relation to article 8 in the context of extradition. On the contrary, I consider that the paragraph reaffirms what Lady Hale said in HH and that it follows the approach in Razgar and Huang.

64. Accordingly, I find that, in saying what he did at paragraph 24 of his judgment in the present case, the district judge was deploying exceptionality in an incorrect way. RE-MAKING THE DECISION ON ARTICLE 8

65. For these reasons, it falls to this court to conduct the proportionality balancing exercise itself. That does not, however, mean everything in the district judge's judgment falls away. In particular, the district judge found the appellant to be a fugitive (paragraph 21 of the judgment). There is no challenge to that finding.

66. This brings me to the issue of delay. Miss Herbert submits that in the period since 2011, the appellant has not committed any criminal offences. I accept he does not have any criminal convictions in this jurisdiction during that period.

67. I do not find that any delay by the authorities in Poland or in England and Wales lessens the importance of extraditing the appellant. Miss Herbert submits that the police knew in 2015 that the appellant was in the United Kingdom, but they did not ask the court in Poland to issue a warrant until October 2020.

68. In Pabian, however, the authorities knew for a certainty that the appellant was in the United Kingdom. This is because he had corresponded with the court in Poland from an address in the United Kingdom (see paragraph 52 of the judgment). By contrast, in the present case, all we have is the somewhat exiguous suggestion that unspecified neighbours considered the appellant was in the United Kingdom. The further information states that "when the police diffused (sic) that the appellant was likely to be in the UK, on 28 October 2020 the court was requested to issue an EAW".

69. Taking this further information at face value, it seems that, for whatever reason, the police did not come to the conclusion that the appellant was sufficiently likely to be in the United Kingdom until 2020; but, when they did, they requested the court to issue the warrant, and the issuing of the warrant occurred less than four months after the request was conveyed.

70. Turning to the position in the UK, the NCA did not certify the warrant until 23 October 2023, a period of some 20 months. I do not consider that this delay is so reprehensible as to require the factors in favour of extradition to be materially diminished. Indeed, the period stands in stark contrast to the period of more than four years between the issuing and certification in Pabian (see paragraph 53). Nevertheless, I accept that the passage of time falls to be considered in the context of the appellant's family life with his partner and children and his own private life; but particularly the article 8 rights of the two children, which are a primary consideration.

71. The district judge found that the appellant's extradition would have an adverse impact on the family (see paragraph 24). As a general matter, that must of course be so. There is, however, an absence of reliable evidence as to the actual effects that extradition would have on the children. There is nothing from their school or other professionals, such as social workers, deposing to any adverse current effect on the children as a result of the present uncertainty, or what might happen in the event of extradition. Apart from some from school and nursery attendance and progress reports, the evidence regarding the children is confined to the witness statements of the partner and the appellant, both of which are lacking in detail. They certainly do not demonstrate that extradition will cause serious immediate or longer term consequences to the children. That is not to suggest that the experience will be anything other than unpleasant for the children. In so finding, I have treated the interests of the children as a primary consideration.

72. Importantly, considering the position if extradition is ordered, the appellant is not the sole breadwinner for the family. As we have already seen, the partner manages to work as well as to care for the children.

73. I have already dealt at some length with the appellant's health issues, both as regards the evidence before the district judge and in the new evidence which is sought to be adduced. I need, however, to return to the health of the appellant. At the heart of the appellant's mental health case is that he says he was raped by members of a football gang in Poland. This appears to have occurred in 2013, when the appellant was in detention in Poland (paragraph 7 of his witness statement of 24 June 2024). There is, however, again a striking absence of detail.

74. The medical records are problematic. Overall, I find myself in agreement with the submission of Mr Findlay on this issue. He points out that at no point during the almost 13-month period when the appellant's matter was at Westminster Magistrates' Court did the appellant provide any independent medical and/or forensic evidence to substantiate the claim concerning the factors which he says led to his fear of return to Poland. Indeed, that remains the case today. The district judge adjourned the hearing in June 2024 until September for the specific purpose of enabling the appellant to obtain further evidence regarding his mental and physical health. All of this explains McGowan J's decision not to accede to the belated application to adduce expert medical evidence.

75. I do not accept Miss Herbert's submission that there was really nothing that could be done by way of a report which might corroborate or otherwise the allegation of rape that is said to have led to much of the mental health problems of the appellant. Appropriate experts routinely consider such matters in the context of making findings regarding such matters as PTSD.

76. I am prepared to accept that the appellant is likely to be suffering from depression and I also reiterate my acceptance that he may well have deliberately self-harmed in the way described in the most recent letter from the GP practice; but to what extent this can be attributed to other factors, such as his drug use, is still unclear.

77. The present position, therefore, revealed by the new evidence, is that the appellant has been referred by his GP practice to a mental health team. Even assuming there is a degree of suicidal ideation, there is nothing in the evidence to suggest that any resultant risk cannot be adequately addressed in the United Kingdom, and in Poland. More generally, there is nothing to suggest that any mental health problems which remain following extradition cannot be treated satisfactorily in Poland. The same is true of the appellant’s other medical conditions, including his asthma and what he describes in his latest statement as blood pressure fluctuations and migraines. The appellant has referred to a planned endoscopy procedure. Again, there is no reason to suppose that this cannot be undertaken in Poland and any treatment which might result from it be appropriately given in that country.

78. Apart from the medical records and the updated evidence, and the report of the doctor considered by the district judge, to which I have also had regard, the only third party opinion on the appellant's mental and physical state is a report of 10 June 2024 from a coaching institution in Poland. The contents of this report, however, are extremely problematic and Miss Herbert quite understandably placed no reliance on them.

79. The offence for which the appellant is sought is robbery. That is in itself serious, albeit that the particular circumstances do not place it at the higher end of the spectrum.

80. The factors in favour of extradition are the weighty public interest in the United Kingdom adhering to its treaty obligations; the weighty public interest in ensuring the United Kingdom does not become a safe haven for criminals; the seriousness of the offence in terms that I have just described; and the fact the appellant is a fugitive from justice.

81. In view of my findings in respect of the appellant's position and the position of that of his partner and his children, the effect of extradition on the article 8 rights of all those concerned is not such as to make extradition disproportionate, either alone or in combination with any other factor weighing on the appellant's side of the balance.

82. One such factor is the issue of the electronically-monitored curfew. I am told the curfew has effect from midnight to 4 am. Part of the period during which the appellant has been subject to this curfew came about because the appellant was not ready to present evidence to Westminster Magistrates' Court concerning his mental health in 2024. In any event, the evidence of the effect of the curfew on the appellant is sparse. He complains of his inability to socialise, which he says has impacted on his life. That is, however, difficult to accept, given the modest curfew hours, which would seem likely to have been framed in light of the appellant's previous work in the construction industry. It is also unsupported by any objective evidence.

83. Miss Herbert sought to draw a comparison generally between the circumstances of the present appellant and the appellant in XY v Public Prosecutor's Office, Oost Nederland [2019] EWHC 64 (Admin). The facts of that case were, however, strikingly different. XY was released from custody in the Netherlands in 2013, as he thought he had served his sentence, only to find himself liable to serve a five-year sentence; and that he was not to be given any credit for serving the four-year sentence (see paragraph 49 of the judgment). XY suffered from PTSD that had been properly diagnosed and this condition was found to be at risk of becoming untreatable in prison. He also had been found, professionally, to be at a high risk of suicide (see paragraph 50).

84. In conclusion, I do not consider that the new evidence would be decisive, either alone or in combination with the previously admitted evidence. I therefore formally refuse the application to admit it. I find that extradition of the appellant would not be disproportionate in terms of article 8 and, although not pursued before me, I also find that it would not be oppressive in terms of section

14.

85. This appeal is accordingly dismissed. __________ EpiqEurope Ltd hereby certify that the above is an accurate and complete record of the proceedings or part thereof. Lower Ground, 46 Chancery Lane, London WC2A 1JE Email: [email protected]