Damian Leszczynski v Regional Court in Warsaw, Poland

In an extradition appeal under the Extradition Act 2003, the court must respect factual findings unless no reasonable judge could have made them, while reviewing the ultimate Article 8 proportionality assessment for material error. Delay, youth at the time of offending, private and family life, immigration consequences, health, fugitivity and bail restrictions must be weighed cumulatively.

Post-Brexit immigration consequences require clear evidence and submissions addressing both likely re-entry after extradition and the counterfactual effect of the foreign conviction without extradition. Fresh evidence must be unavailable with reasonable diligence and decisive. An electronically monitored curfew of less than nine hours may be relevant, but its weight is fact-specific and is unlikely to outweigh a strong public interest in extradition.

The Appellant appealed against District Judge Minhas’s order of 28 March 2024 directing his extradition to Poland to serve one year of imprisonment remaining from a sentence for robbery. He relied on Article 8 of the Convention, section 21 of the Extradition Act 2003, and an application to adduce fresh evidence under section 27(4). He also sought to rely on a two-hour electronically monitored curfew and police reporting conditions imposed during the extradition proceedings.

The appeal challenged findings that he was a fugitive, the treatment of delay, the effect of Brexit-related uncertainty, the educational element of the Polish sentence, and the proportionality assessment. The central issue was whether the district judge ought to have concluded that extradition would be a disproportionate interference with the Appellant’s private and family life.

1. Appeal dismissed. The district judge had undertaken a careful and cogent Article 8 balancing exercise. None of the matters considered below should have been given materially different weight, and the additional matters raised on appeal did not decisively alter the balance.
2. Under section 26(3) and section 27(3)(a) of the Extradition Act 2003, the appellate court may intervene where the district judge ought to have decided a question differently. Factual findings, particularly findings based on oral evidence and credibility, ordinarily attract substantial respect. A finding may be challenged where no reasonable judge could have reached it. The appellate court should not substitute its own proportionality assessment merely because it would have attached different weight to individual factors, but may intervene where the overall evaluation was wrong.
3. The finding that the Appellant was a fugitive was open to the district judge. Having returned to the United Kingdom after serving part of his sentence while aware that the educational requirement remained outstanding, he had placed himself beyond the Polish authorities’ reach.
4. The “Brexit factor” had been properly considered. Following Gurskis v Latvian Judicial Authority [2022] EWHC 1305 (Admin), immigration consequences must be supported by comprehensive submissions and, where necessary, evidence. The court must assess likely re-entry after extradition and the counterfactual effect of the foreign conviction without extradition. The Judge had considered the possibility that the Appellant could not return and had given it weight against extradition.
5. Fresh evidence under section 27(4) had to be unavailable at the extradition hearing with reasonable diligence and decisive. Although evidence concerning the Appellant’s father’s death was unavailable earlier, the evidence about his mother’s condition and dependence did not establish that the Article 8 balance would have been different. The application to adduce it was therefore refused.
6. A non-qualifying two-hour curfew and police reporting requirement may be relevant to Article 8. The assessment concerns the deprivation of liberty or restriction on movement and autonomy, including any effect on work, study or family life. Here the curfew operated in the early morning, there was no evidence of substantial practical restriction from reporting, no evidence of how Poland would credit the restrictions, and the case was not otherwise marginal. The conditions therefore did not tip the balance.

• High Court (Administrative Court): District Judge Minhas ordered extradition on 28 March 2024. Permission to appeal was granted by Mr Justice Murray on 18 October 2024.
• High Court (Administrative Court): appeal dismissed; application to adduce fresh evidence refused.