Emil Sebastian Grabowski v Circuit Court in Swidnica (Poland)

For extradition purposes, a requested person may properly be treated as a fugitive where they leave the requesting state after reoffending in breach of a suspended sentence, even though activation of that sentence remains discretionary and was not inevitable.

In assessing compatibility with Article 8, the best interests of each child are a primary consideration, and the court must consider the effects of extradition on all affected family members. Those interests may nevertheless be decisively outweighed by the public interest in honouring extradition arrangements, discouraging the United Kingdom from becoming a refuge for fugitives, and securing punishment for a serious offence where most of the sentence remains outstanding.

The appellant challenged an order for his extradition to Poland to serve 23 months and 29 days of a custodial sentence imposed for attempted robbery. The District Judge ordered extradition on 29 July 2022 after finding that the appellant had left Poland following further offending in breach of a suspended sentence and had come to the United Kingdom as a fugitive.

The appellant renewed an application for permission to appeal after Farbey J refused permission on the papers. He challenged the finding of fugitivity and the conclusion that extradition was compatible with Article 8, relying also on fresh evidence concerning his partner, their five children and the medical history of one child. The central issues were whether the fugitivity finding was sustainable and whether the Article 8 assessment had any realistic prospect of being overturned.

1. Fugitivity. The finding that the appellant was a fugitive was unassailable. The relevant breach was his further offending while the suspended sentence was operative, not the later act of leaving Poland. It was unnecessary to establish that activation of the suspended sentence was inevitable. The fact that activation involved judgment or discretion did not prevent the appellant’s departure from supporting a finding that he had fled to avoid punishment.
2. Article 8 assessment. The District Judge was entitled to characterise the attempted robbery, involving an imitation firearm and threats to a shop assistant, as a serious offence of violence. Almost the whole of the two-year custodial sentence remained to be served. The Judge properly considered the appellant’s private and family life, the effects on all family members, and the best interests of each child as a primary consideration.
3. The evidential criticisms were unsustainable. The partner’s statement was unsigned and undated, and she did not attend the hearing, but the appellant adopted and gave oral evidence covering the relationship, the children and the child’s medical condition. The Judge was entitled to accept that evidence. The fresh evidence, including updated family and medical material, was not arguably capable of being decisive.
4. The public interest in honouring extradition arrangements, discouraging the United Kingdom from being seen as a refuge for fugitives, the seriousness of the offence, the substantial outstanding sentence and the appellant’s flight decisively outweighed the factors against extradition.
5. Permission to appeal was refused. Permission to rely on the fresh evidence was also refused.

• District Judge: Extradition ordered on 29 July 2022 following an oral hearing on 15 July 2022.
• High Court (Administrative Court): Farbey J refused permission to appeal on the papers on 31 March 2023.
• High Court (Administrative Court): The renewed application was refused, and permission to rely on fresh evidence was refused.