Herbasz v The Regional Court In Gdansk, Poland

In extradition proceedings concerning a conviction European arrest warrant, bail is not subject to a presumption in favour of release. The court must assess afresh whether there are substantial grounds for believing that the applicant would fail to surrender or commit further offences, despite proposed conditions. Relevant considerations include the custodial sentence faced, previous absconding or non-compliance, conduct during the extradition proceedings, criminal history, the strength of evidence supporting personal circumstances, and the effectiveness of proposed safeguards. A claimed family or welfare motivation may be insufficient where it is unsupported by evidence or inconsistent with the applicant’s previous conduct.

The applicant sought bail while challenging an extradition order made by District Judge Snow on 24 September 2020. The extradition request concerned a conviction European arrest warrant and a three-year custodial sentence in Poland. Bail had previously been refused by District Judge Goozee and District Judge Snow. The respondent opposed release on the grounds that the applicant would fail to surrender and would commit further offences. The central issue was whether those risks remained substantial despite the proposed conditions, including residence, electronic monitoring, reporting, surrender of identity documents and security.

1. The application for bail was refused. The court considered the question afresh, following Tighe [2013] EWHC 3313.
2. Because the case concerned a conviction European arrest warrant, there was no presumption in favour of bail. The relevant assessment was whether there were substantial grounds for believing that the applicant would fail to surrender or commit further offences notwithstanding the proposed conditions.
3. There were substantial grounds for believing that the applicant would fail to surrender. The court relied on the three-year custodial sentence faced, his limited progress in resisting extradition, his refusal to attend the substantive extradition hearing, the District Judge’s finding that this was an attempt to frustrate the proceedings, the absence of adequate evidence concerning his claimed role as his son’s prospective primary carer, his criminal history and his previous absconding from trial in Poland.
4. The court was not entitled to go behind the District Judge’s findings for the purposes of the present risk assessment. The applicant’s failure to rely earlier on the asserted welfare circumstances concerning his son also reduced the weight that could be given to that claimed motivation.
5. There were independently substantial grounds for believing that the applicant would commit further offences. The court relied on a sustained pattern of offending, previous drug offending, the index offence involving drug dealing, and evidence of property consistent with drug supply found when he was arrested in the United Kingdom. Neither the asserted motivations nor the proposed conditions sufficiently reduced that risk.
6. The judgment noted that the welfare of a child would be relevant to an Article 8 ECHR analysis, but the evidence before the court did not establish the asserted present motivation or proposed arrangements.

• High Court (Administrative Court): bail application refused on 7 October 2020.
• District Judge Snow: extradition ordered on 24 September 2020; bail refused on 28 September 2020.
• District Judge Goozee: bail previously refused on 20 June 2020.