Lukasz Adrian Dobrowolski v District Court in Bydgoszcz, Poland
| Jurisdiction | England & Wales |
| Judge | Mr Justice Fordham |
| Judgment Date | 31 March 2023 |
| Neutral Citation | [2023] EWHC 763 (Admin) |
| Docket Number | Case No: CO/1079/2022 |
| Court | Queen's Bench Division (Administrative Court) |
[2023] EWHC 763 (Admin)
Mr Justice Fordham
Case No: CO/1079/2022
IN THE HIGH COURT OF JUSTICE
KING'S BENCH DIVISION
ADMINISTRATIVE COURT
Ben Joyes (instructed by Taylor Rose TW) for the Appellant
Hannah Burton (instructed by CPS) for the Respondent
Hearing date: 8.3.23
Written submissions: 13.3.23 & 14.3.23
Approved Judgment
I direct that no official shorthand note shall be taken of this Judgment and that copies of this version as handed down may be treated as authentic.
THE HON. Mr Justice Fordham
Introduction
This is an extradition appeal on Article 8 ECHR (the right to respect for private and family life) where the issues raised include questions about time left to serve, the prospect of discretionary early release, and reliance on evidence about foreign law as discussed in earlier case-law. The Appellant is aged 33 and is wanted for extradition to Poland. That is in conjunction with a conviction Extradition Arrest Warrant (“the ExAW”) issued on 15 June 2020 and certified on 27 July 2020, on which he was arrested on 21 September 2020. The index offending comprises four domestic burglaries in December 2012, an assault on police officers in February 2013 and an attempted burglary that same month. They were all committed aged 23. The Appellant was arrested in Poland and interviewed in relation to the offences. He was convicted and sentenced in March 2014 and was due to attend prison to commence serving his sentence in mid-December 2014. The sentence was two years 10 months (34 months). He came to the UK in November 2014 as a fugitive. After an oral hearing on 16 March 2022, District Judge Callaway (“the Judge”) ordered extradition on 22 March 2022, for reasons explained in a 37-paragraph judgment (“the Judgment”).
The Picture in March 2022
The Judge was considering the picture as at March 2022. He described the “case as a whole” as being “of huge concern”. At its heart were concerns about the Appellant's mental health and the risk of suicide. The Appellant had worked in the UK in the construction industry after coming here in November 2014. In September 2019 he sustained a serious head injury at work. After his arrest in September 2020 he was remanded in custody in these extradition proceedings. He was placed on the ACCT (Assessment Care in Custody and Teamwork) programme for the first few weeks, and was initially prescribed anti-psychotic medication. From November 2020 he remained on anti-depressant medication. The Judge had a February 2021 psychiatric report from Dr Penny Brown and a April 2021 neuropsychiatric report from Dr Con Cullen. The Judge unassailably found that the high threshold for section 25 “oppression” on grounds of health or mental health was not crossed and permission to appeal to this Court was refused on that issue. But the Judge recognised the deleterious impact that extradition would have in the light of the Appellant's mental health and depressive illness. The Judge conducted the requisite ‘balance-sheet’ exercise for the purposes of Article 8 ECHR (interference with private and family life). At the time of the Judgment the Appellant had served 18 months of qualifying remand, leaving 16 months of the 34 month sentence still to serve in Poland. The Judge included the Appellant's serious mental health condition, together with the 18 months qualifying remand, within the balance sheet. He decided that the public interest considerations weighing in support of extradition outweighed the combined effect of those capable of weighing against it.
The Picture in July 2022
In granting permission to appeal on the Article 8 issue, on 15 July 2022, May J found it arguable that the balance had now shifted so that Article 8 was an arguable basis for resisting extradition. She envisaged the question of Article 8 justification and proportionality being re-evaluated on an up to date basis at a substantive appeal. Two things loomed large and featured in May J's reasoning. The first was that the ongoing period of qualifying remand was by now 20 months served, with 14 months still to serve. The second were the remaining concerns regarding the Appellant's health and mental health, as to which she gave directions for an updated psychiatric report from Dr Brown, so that it could be taken into account as appropriate by this Court.
The Picture in March 2023
I am giving judgment at the end of March 2023, after a substantive hearing on 8 March 2023. I have Dr Brown's updated psychiatric report, as directed by May J. It is dated 29 November 2022. It is the nature of this appeal that this Court is looking, as permitted by section 27(4)(a) of the Extradition Act 2003, at all the evidence now available – including as to qualifying remand and mental health – to decide whether the case should now be “decided differently” and the Appellant “discharged”. It is common ground that it is appropriate for this Court to receive and consider Dr Brown's new report, and should consider the current picture on qualifying remand, to see whether the fresh evidence is capable, alongside other features of the case, of being decisive. Four key features have clearly emerged in the present case as being of primary significance, alongside the circumstances of the case as a whole, in examining whether extradition is Article 8 compatible. But first, some elementary warnings.
Warnings
Alongside invoking case-law which authoritatively identifies legal principles, there can be scope in extradition cases for a Court to find assistance in ‘working illustration’ cases. But I remind myself that these can be no more than examples of the application of principles on the facts of a case. It is essential always to remember that cases always turn on their own particular facts and circumstances. As does this one. There is never a direct read-across. In the context of Article 8 in particular, it is the weighing of the different features – for and against extradition – which provide the answer. That is what the famous Article 8 extradition ‘balance sheet’ is about. The fact that one case has a feature which strikes a chord for the instant case does not begin to mean that the outcome will be the same. To fixate on cosmetic resemblance, and to forget these basic lessons, is what can make the use of ‘working illustration’ case-law misleading and dangerous. When looking for assistance, and in comparing and contrasting, we must therefore proceed with great caution. There are further basic warnings. It is not for this Court to ask or answer the question whether someone should have early release. Nor to ask or answer the question whether they have served sufficient of their term of imprisonment or whether they have sufficiently been punished. These are all questions for the Polish authorities, not for the United Kingdom authorities, and not for this Court. The statutory human rights question that Parliament has identified through the Extradition Act 2003 section 21(1) is a very particular one. It focuses on the interference with family life or private life which extradition constitutes, and asks whether that interference for the purposes of extradition is justified as proportionate.
Mental Health and Suicide Risk
I turn to the first key feature. It is the position in relation to health and mental health, and the impact of extradition. It is common ground that these are matters which fall within the ambit of Article 8 (respect for private and family life). The position is as follows. The updated evidence of Dr Brown records that the Appellant has made a “near full recovery” from the serious head injury. There is now no evidenced cognitive impairment. The Appellant still has depressive symptoms, but these are currently “mild”. As to the risk of suicide, this is assessed as “low” to “moderate”. If the Appellant is extradited, assesses Dr Brown, the “symptoms of his mental disorder will get worse”, and the suicide risk will increase to “moderate”. I accept this evidence. It means that the situation in relation to this feature is appreciably better than it was in March 2022. By way of comparison with a working illustration case, there is not in this case the evidence of a present “moderate depression” with a risk of suicide assessed as becoming “high” on extradition, as was the evidence in Kruk v Poland [2020] EWHC 620 (Admin) (Steyn J 26.2.20) at §§17, 27. Having said that, mental health and suicide risk remain a significant concern needing to be given proper weight in the proportionality balancing exercise.
Qualifying Remand
The second key feature is the position so far as concerns qualifying remand. Having heard this appeal (8.3.23) a requested period for written submissions (13.3.23 and 14.3.23) and time for circulating the confidential draft judgment, my Order and judgment mean there is now qualifying remand of just over 30 months served, leaving just under 4 months of the 34 month sentence to be served. This is very different from the picture in March 2022, and July 2022. It is also relevant to have in mind that surrender would not be immediate: it would involve at least a week or two. Mr Joyes makes three points about qualifying remand, by reference to other working illustration cases:
i) First, there are around 4 months left to serve. That is comparable to the 5 months (out of 16 months) which was left to serve in Gruszecki v Poland [2013] EWHC 1920 (Admin) at §§1, 10 (Ouseley J 12.6.13); the 5 months (out of 16 months) which was left to serve in Chmura v Poland [2013] EWHC 3896 (Admin) at §§1, 13 (Ouseley J 20.11.13); and the 4 months (out of 14 months) which was left to serve in Chechev v Bulgaria [2021] EWHC 427 (Admin) (Singh LJ & Jay J 26.2.21). It is much less than the 9 months (out of 24 months)...
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Janos Vidák v Regional Court of Budapest (Hungary)
...period of a sentence remains to be served, surrender would not be disproportionate for that reason alone”. (d) Dobrowski v Poland [2023] EWHC 763 (Admin), in which Fordham J at [7] helpfully collected the cases in which Article 8 appeals had previously been allowed when there was a short p......
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Marek Pawlowski v Regional Court in Tarnow, Poland
...judgment was 5 months qualifying remand is now 16 months, out of the 24 months to be served (as to which cf. Dobrowolski v Poland [2023] EWHC 763 (Admin) at §§7–8). Ms Grudzinska describes 7 1/2 months as left to serve. Thirdly, it is emphasised that, during his time in custody at HMP Wand......