Piotr Nosek v District Court of Lublin, Poland

In an extradition appeal, fugitivity depends primarily on the requested person’s state of mind when leaving the requesting state. A person may be a fugitive even where departure was motivated by work or family circumstances, if he knew of ongoing proceedings and thereby placed himself beyond the prosecution process. Later open residence in the United Kingdom or voluntary surrender after learning of an arrest warrant does not necessarily alter that conclusion.

Where a person was convicted in absence, deliberate absence may be established by his knowledge of the proceedings, obligations to attend and notify changes of address, and failure to engage with the trial. Article 8 requires a balancing exercise, but the public interest in extradition is strong. Delay, family life, health and immigration difficulties will not make extradition disproportionate unless the interference is exceptionally severe.

The applicant sought permission to appeal the decision of District Judge Clarke dated 15 January 2024 ordering his extradition to Poland. The conviction warrant concerned fifteen fraud offences, for which he had been convicted in Poland and sentenced to four years’ imprisonment.

The proposed appeal grounds were that the District Judge wrongly found that the applicant had deliberately absented himself from his trial and wrongly concluded that extradition would not disproportionately interfere with his and his family’s rights under Article 8. The High Court considered the application for permission and, if appropriate, the appeal on those grounds.

1. Permission refused on both grounds. The District Judge was entitled to find that the applicant had deliberately absented himself from his trial. He knew the charges, had acknowledged obligations to attend when summoned and to notify changes of address, had attended earlier hearings and had instructed a lawyer. The lawyer’s attendance at only three of 21 later hearings did not, without more, establish absence from the trial. The court would not investigate the extent of communications between lawyer and client, particularly given privilege concerns. (paras [65]–[68])
2. Alternatively, there was ample evidence that the applicant knowingly failed to engage with continuing proceedings. He left Poland while the trial remained ongoing, supplied no United Kingdom address, made no effective attempt to obtain information about the proceedings and did not take steps to replace or contact his lawyer when communication ceased. (paras [67]–[68])
3. Fugitivity is assessed principally by the person’s state of mind when leaving the requesting state. It is enough that, knowing of ongoing criminal proceedings, he knowingly placed himself beyond the reach of the prosecution. Economic or family motives for leaving do not prevent a finding of fugitivity. Open life in the United Kingdom and surrender after learning of the arrest warrant were relevant to knowledge but did not make the District Judge’s conclusion arguably wrong. (paras [69]–[73])
4. The District Judge applied the required Article 8 balancing exercise. The public interest in extradition, the seriousness and persistence of the offending, and the substantial sentence to be served outweighed the applicant’s family life, health, delay and residence in the United Kingdom. The District Judge had not addressed immigration status and possible re-entry, but that omission could not realistically have altered the result. The impact on the applicant and his family was not sufficiently severe to outweigh the public interest in extradition. (paras [74]–[76])

• High Court (Administrative Court): District Judge Clarke ordered extradition on 15 January 2024. Mrs Justice Cutts refused permission to appeal on both grounds. [2024] EWHC 3119 (Admin)