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England and Wales High Court (Administrative Court) Decisions
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Debicka v Regional Court In Gdansk (Poland) [2025] EWHC 1153 (Admin) (15 April 2025)
URL: http://www.bailii.org/ew/cases/EWHC/Admin/2025/1153.html
Cite as:
[2025] EWHC 1153 (Admin)
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WARNING: reporting restrictions may apply to the contents transcribed in this document, particularly if the case concerned a sexual offence or involved a child. Reporting restrictions prohibit the publication of the applicable information to the public or any section of the public, in writing, in a broadcast or by means of the internet, including social media. Anyone who receives a copy of this transcript is responsible in law for making sure that applicable restrictions are not breached. A person who breaches a reporting restriction is liable to a fine and/or imprisonment. For guidance on whether reporting restrictions apply, and to what information, ask at the court office or take legal advice.
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Neutral Citation Number: [2025] EWHC 1153 (Admin) |
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Case No: AC 2022-LON-003427 |
IN THE HIGH COURT OF JUSTICE
KING'S BENCH DIVISION
ADMINISTRATIVE COURT
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Royal Courts of Justice Strand London WC2A 2LL (Heard remotely via CVP)
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15 April 2025 |
B e f o r e :
MRS JUSTICE FARBEY
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MARTYNA DEBICKA |
Applicant |
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- and - |
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REGIONAL COURT IN GDANSK (POLAND) |
Respondent |
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Digital Transcription by Epiq Europe Ltd,
Lower Ground, 46 Chancery Lane, London WC2A 1JE
Web: www.epiqglobal.com/en-gb/ Email: civil@epiqglobal.co.uk
(Official Shorthand Writers to the Court)
____________________
MR J MEREDITH (instructed by GT Stewart Solicitors and Advocates) appeared on behalf of the Applicant.
MR J SWAIN (instructed by Crown Prosecution Service, Extradition Unit) appeared on behalf of the Respondent.
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HTML VERSION OF JUDGMENT
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Crown Copyright ©
MRS JUSTICE FARBEY:
- The applicant is a Polish national. She is wanted in Poland to serve a sentence of imprisonment for two drug offences and two offences of burglary. Her extradition took place before District Judge Clews at Westminster Magistrates' Court on 10 November 2022. In a judgment handed down on 28 November 2022, the district judge ordered her extradition.
- The applicant appealed to this court against the district judge's decision. The sole ground of appeal was that her extradition would breach her right to respect for private and family life under article 8 of the European Convention on Human Rights. I heard the appeal on 29 October 2024. By a judgment handed down on 19 December 2024, the appeal was dismissed (see [2024] EWHC 3303 (Admin)).
- The appeal was determined on the basis that the applicant would serve two years six months' imprisonment if extradited to Poland. In fact, by the time of the appeal hearing, the sentence for the drug offences had been combined with the sentence for the burglary offences. The total sentence to be served was one year and nine months.
- The applicant now applies for permission to reopen the appeal. On her behalf, Mr James Meredith, who did not appear below or at the appeal hearing, advances two grounds:
i. Ground 1: Mr Meredith submits that, in light of the lower sentence, the court should reconsider the district judge's conclusion that extradition would not breach article 8 of the Convention. In particular, the court should reconsider the Celinski balancing exercise (see Polish Judicial Authority v Celinski [2015] EWHC 1274 (Admin), [2016] 1 WLR 551).
ii. Ground 2: Mr Meredith contends that the appeal should be reopened to the extent that it is stayed pending the judgment of the Supreme Court in Andrysiewicz v Circuit Court in Lodz, Poland (UKSC 2024/109), which was heard on 13 March 2025 and in which judgment is awaited. He submits that the judgment in Andrysiewicz will determine the approach to be taken by the domestic courts to early release provisions in Polish law. He submits that the outcome in the present case may be affected,
- On behalf of the respondent, Mr Jonathan Swain, who likewise did not appear below or at the appeal, submits that the issues raised by the applicant do not provide grounds to reopen the appeal. He submits that the demanding test for reopening an appeal is not met.
Factual background
- Before turning to each of the grounds in further detail, it is convenient to deal briefly with the facts and with developments since the appeal hearing.
- The facts as they stood at the date of the appeal hearing are set out in my judgment as follows:
"4. The appellant's extradition is sought pursuant to an arrest warrant ('AW') issued on 9 March 2022 and certified by the National Crime Agency on 20 June 2022. The AW is a 'conviction' warrant based on the appellant's convictions and sentence in relation to four offences dealt with under two case numbers in Poland. In the first case, the appellant was convicted and, on 27 March 2013, sentenced to a total of one year and six months' imprisonment for one offence of possession of 17.9g of amphetamine and one offence of the supply of amphetamine to others. The sentence was suspended for five years. These drug offences took place between July and August 2012, when the appellant was aged 17.
5. In the second case, the appellant was convicted and, on 9 December 2015, sentenced to a total of one year's imprisonment for two offences of burglary. All but one day of this sentence remains to be served (a deduction being made for one day spent on remand in custody). The burglaries took place on 1 and 2 September 2014 respectively, when the appellant was aged 19.
6. The burglaries are described in the AW. As regards the first burglary, the appellant acted jointly with three men. The group broke into a grocery store. As it happens, nothing was taken from the store because the group was disturbed. As regards the second burglary, the appellant acted together with the same three men. The group broke into a different grocery store and stole six plastic beer crates.
7. As the burglaries took place during the currency of the suspended sentence, the appellant is now wanted in order to serve the entirety of the sentence for the drug offences, so that the total custodial sentence that she faces in Poland is 2 years and 6 months less one day.
8. The appellant attended the proceedings in relation to the drug offences. In relation to the burglaries, she attended only one of the four court hearings and did not attend her trial.
9. On 4 October 2015, the appellant arrived in the United Kingdom. She was 20 years old. She found employment and began a relationship with Daniel Nagorski. In April 2018, she gave birth to a son whom (in light of his young age) I shall call XN. At the time of the hearing before the DJ, the appellant and Mr Nagorski had separated and did not live together".
- As regards the extradition hearing, the district judge considered evidence from the applicant, Mr Nagorski and Dr Lu Daynes, who is a psychologist. Having summarised the evidence before him and made factual findings, the district judge set out the principles to be derived from the case law on the approach to be taken to article 8 in extradition cases. He applied the Celinski balance sheet approach, listing the factors for and against extradition. I described his approach in my judgment as follows:
"16. Among the factors in favour of extradition were that there was a constant and weighty public interest in the United Kingdom honouring its treaty obligations; the later offences had been committed in breach of a suspended sentence order; there was a significant period of imprisonment to be served; the appellant was a fugitive; and Mr Nagorski was able to care for XN.
17. Among the factors against extradition were that the offences dated back to when the appellant was 17 and 19 years old; she had been living in the United Kingdom for over 7 years; she was living with her son who was by then 4 years old; her relationship with her son would be disrupted if she were to be extradited; and the effect on her son 'may be harmful.'
18. The DJ went on to weigh the various competing factors. He took into consideration the appellant's age at the date of the offences and the impact on XN. He concluded, nevertheless, that the factors in favour of extradition outweighed the factors against it. He held that the appellant's extradition would not be disproportionate and that it would be compatible with her Convention rights. Accordingly, he ordered the appellant's extradition".
- At the appeal hearing, the applicant relied on fresh evidence in the form of two further witness statements from her, updated written evidence from Dr Daynes and reports from two local authority social workers. On behalf of the applicant, previous counsel submitted before me that: (i) the fresh evidence demonstrated that separating the applicant and her young son would amount to a disproportionate interference with the applicant's and her son's family life; and (ii) on the evidence before him, the district judge had erred by giving inappropriate weight to a number of factors in the Celinski balancing exercise. In advancing these submissions, previous counsel emphasised the applicant's young age at the time of the offences and the position of her child, XN.
- On the basis of the evidence before me, I was not satisfied that the district judge ought to have decided a question raised at the extradition hearing differently (section 27(3) of the Extradition Act 2003) or that the fresh evidence would have resulted in the district judge deciding a question differently (section 27(4) of the Act). Accordingly, the appeal was dismissed.
- Since then, the applicant's solicitor has obtained a copy of a judgment of the District Court in Tczew. The judgment – which is dated 15 October 2024 – has the effect that the separate sentences for the drug and burglary offences are combined into a single sentence of one year and nine months' imprisonment. In a legal opinion dated 27 December 2024, the applicant's Polish lawyer, Piotr Pazdyka, states that the judgment was given "as a result of actions" taken by him.
- By letter dated 8 January 2025, the applicant's solicitor informed the Crown Prosecution Service that the arrest warrant was to be withdrawn in light of a change to the applicant's sentence. In fact, as explained in further information from the respondent, the respondent has not withdrawn the arrest warrant and regards it as valid. The further information confirms the combined sentence.
- By a notice dated 29 January 2025, the National Crime Agency ordered the applicant to surrender at Euston station on 6 February 2025 for extradition to take place.
- By application notice dated 4 February 2025, the applicant applied for her appeal to be reopened. On the same day, the respondent provided further information confirming that the applicant's sentence has been reduced. By order dated 5 February 2025, Lang J ordered a stay on the applicant's extradition until the determination of the present application.
Legal framework
- By virtue of Cr PR 50.27(3)(b), the court has jurisdiction to reopen the determination of an appeal where:
"(i) it is necessary for the court to reopen that decision in order to avoid real injustice,
(ii) the circumstances are exceptional and make it appropriate to reopen the decision, and
(iii) there is no alternative effective remedy".
- In Government of United States of America v Bowen [2015] EWHC 1873 (Admin), the Divisional Court (Burnett LJ and Thirlwall J as they then were) set out the principles to be applied to applications to reopen. The rules governing such applications are "not designed to enable an unsuccessful party in extradition proceedings immediately to regroup after losing the appeal" by repeating arguments made at the appeal (Bowen, paragraph 4). A party requesting that the court exercise its jurisdiction should provide a "reasonable explanation why the issue was not anticipated at the appeal" (Bowen, paragraph 7, citing McIntyre v Government of United States of America [2014] EWHC 1886 (Admin), paragraph 11(vii)). There is an expectation that the court will not exercise its jurisdiction unless something has developed after the determination of the appeal (Bowen, paragraph 9). The jurisdiction "is not designed to allow a disappointed party… to reconsider his arguments, material and evidence and come back to the court to have another go" (Bowen, paragraph 9).
Ground 1
- Mr Meredith submits that the applicant's situation has developed since the appeal because it is now known that she would serve a sentence of less than two years. He submits that the lesser sentence now imposed by the Polish court shows that the gravity of the extradition offences should be regarded as less serious than at the time of the extradition appeal. He contends that, if sentenced in England for the same offences, a custodial term of less than two years means that the applicant would receive a suspended sentence order. The imposition of a suspended sentence order is a mark of less serious offending so that the public interest in extradition is reduced. He submits that, had the court known the true picture at the appeal hearing, the Celinski balance would have fallen in favour of the applicant's and XN's rights. The applicant would have been discharged.
- As I have mentioned, the appeal before me took place on 29 October 2024 and I handed down judgment on 19 December 2024. The decision of the District Court in Tczew was made on 15 October 2024. There is no explanation as to why the applicant was unable, during the course of the appeal proceedings in this court, to give instructions to her solicitors about what actions her Polish lawyer was taking and about the judgment of the Polish court. There is no explanation as to why the applicant could not have informed her solicitors about her combined sentence during the course of the appeal proceedings. There is no explanation as to why she was able to obtain a full legal opinion from the Polish lawyer within eight days of the dismissal of the appeal when she had before then, apparently, been unable to inform this court about the steps the lawyer had taken on her behalf.
- The applicant's silence on the combined sentence, followed by her rapid decision to inform her solicitors of the reduced sentence within days of losing her appeal, has the hallmarks of an attempt "to have another go" (Bowen, paragraph 9). It is not appropriate to reopen the appeal for that purpose.
- In any event, even taking the evidence at its highest, I am not persuaded that the reduction in sentence can make any realistic difference to the outcome of the appeal. In paragraph 63 of my judgment, I held as follows:
"The appellant is a fugitive who came to the United Kingdom to avoid the consequences of criminality. The delay between the offending and the issue of the [arrest warrant] was properly accorded little weight by the [district judge] in light of the appellant's fugitive status… [T]he delay between lodging the appeal and the appeal hearing in this court also carries little weight. The appellant chose to appeal and must face the consequences of doing so. Neither the appellant's age at the time of the extradition offences nor XN's welfare nor the nature of the appellant's offending outweigh the public interest in extradition for the purpose of serving her sentence".
- Nothing I have read or heard casts doubt on those findings. The reduction of the applicant's sentence by nine months cannot change them. Nor is there any indication that the Polish authorities have concluded that the extradition offences are less serious. As Mr Swain submits, there is no evidence in Mr Pazdyka's legal opinion or in the further information to suggest that the respondent has reassessed the seriousness of the offences. The amalgamation procedures undertaken in the Polish court do not imply any such reassessment; nor is it the function of this court to impose its own view of whether or not a suspended sentence should be imposed. The reduction of the overall sentence cannot possibly cause this court to consider that the Celinski balance should now fall the other way. There is no real injustice to be corrected. Ground 1 is dismissed.
Ground 2
- Mr Meredith submits that the applicant would be a good candidate for early release at the halfway point of her sentence under the provisions of Polish law that have been considered in cases such as Andrysiewicz. If granted early release, the applicant would serve just under ten and a half months in prison. Mr Meredith submits that, balanced against the exceptional hardship to her and to XN, the applicant's extradition to serve such a short period in prison would be a disproportionate interference with her article 8 rights.
- The prospect of early release was not raised before the district judge or on appeal. There is no explanation as to why the issue was not raised until after the appeal was dismissed. The request to rely on a fresh point at this late stage is an attempt to have a second bite at the cherry. In any event, even taking the applicant's case at its highest, she would still have a significant period of imprisonment to serve before release at the halfway point. It is not disproportionate to extradite her to serve her sentence when there is no real injustice in her doing so. Ground 2 fails.
Conclusion
- Attractively as Mr Meredith has made his points, this application is an attempt to persuade the court that the district judge's judgment was wrong. The time for this court to consider whether the district judge's decision was wrong was at the appeal. The test in Cr PR 50.27 is not the same as the test on appeal.
- It is not necessary for the court to reopen the appeal in order to avoid real injustice. This application is refused.