By Viviane Bablin (Taylor Rose MW) and Douglas Wotherspoon (9BR Chambers)
On 31 March 2023, Mr Justice Fordham allowed the appeal in Dobrowolski v Poland  EWHC 763 (Admin). The decision contains useful commentary on the relevance of time spent on remand and Polish early release provisions when viewed within the context of Article 8 of the European Convention of Human Rights (“Art. 8”). Dobrowolski also clarifies the position as to the admissibility of evidence contained in previous case law on matters of foreign law.
Poland sought Mr Dobrowolski’s surrender to serve a 34-month sentence for offences committed in 2012-13. The sentence was to commence in December 2014. In November 2014, the Appellant arrived in the UK. Regrettably, in September 2019, the Appellant fell down a flight of stairs and sustained extensive brain injuries.
Following his arrest in 2020, the Court refused to grant the Appellant bail. He remained in custody for the entirety of proceedings. At the first instance hearing in 2022, The Appellant relied on expert evidence from two psychiatrists to challenge his extradition under Art. 8 and s. 25 of the Extradition Act 2003. The first, Dr Brown, stated that, if surrendered, the Appellant’s suicide risk would be high. The second psychiatrist, Dr Cullen, diagnosed the Appellant with a depressive disorder and opined that his risk of suicide was significant. In March 2022, District Judge Calloway ordered the Appellant’s extradition.
In July 2022, Mrs Justice May, noting that the Appellant had by that point served 22 months of his sentence on remand in the UK, granted permission to appeal in relation to Art. 8 only.
The judgment addresses four key factors related to the Art. 8 balancing exercise: the Appellant’s mental health and suicide risk; the relevance of the time spent on remand; the prospect of early release in Poland; and the overall passage of time.
Mental health and suicide risk
By the time of the appeal hearing on 8 March 2023, the evidential picture had changed. The Appellant served an updated psychiatric report from Dr Brown. The report concluded that the Appellant’s mental condition had much improved: he had made a near full recovery from his head injury, his depressive symptoms were now mild, and his suicide risk was deemed to be low to moderate, but higher if extradited. The Judge found that the Appellant’s mental health and suicide risk were still a factor to be given weight in the balancing exercise.
Another change to the evidential picture was that, by the time of the Judgment, the Appellant had served 30 months of his 34-month sentence. The Court considered several previous decisions in which the time remaining to be served was equal to, or greater than, the term left to serve in the Appellant’s case (Gruszecki v Poland  EWHC 1920 (Admin); Chmura v Poland  EWHC 3896 (Admin); Kruk v Poland  EWHC 620 (Admin)).
It was argued that, in addition to looking at the time left to serve, the Court should also consider the proportion of the overall sentence already served, as, in the Appellant’s case, he had served 90% of his sentence (Chechev v Bulgaria  WHC 427 (Admin)).
Counsel for the Respondent, however, submitted that the English courts should respect the sentence imposed by the Issuing Judicial Authority (“IJA”), and that extradition may be proportionate even where only a short sentence remains to be served (Molik v Poland  EWHC 2836 (Admin)).
The Judge found that the 4-month remaining term and the proportion of the overall sentence served were both factors that mitigated against extradition in the balancing exercise. In doing so, the Court emphasised that the 34-month sentence imposed by the IJA had to be respected. Further, the time served point would not, on its own, have been enough to render extradition disproportionate; however, it was an important factor in the overall Art. 8 picture.
Reliance on evidence of foreign law
The Appellant sought to rely on further information adduced in Janaszeck v Poland  EWHC 1880 (Admin), which stated that, under Article 77(1) of the Polish Criminal Code (“Art. 77”), a requested person has the right to apply for early release in Poland after serving half of their sentence:
“Only when [the prisoner’s] attitude, personal characteristics and situation, his way of life prior to the commission of the offence, the circumstances thereof, as well as his conduct after the commission of the offence, and whilst serving the penalty, justify the assumption that the perpetrator will after release respect the legal order, and in particular that he will not re-offend.”
Relying on Jankowski v Poland  EWHC 3792 (Admin), counsel for the IJA submitted that, in the instant appeal, the Appellant ought to adduce his own evidence as to the early release provisions in Poland, as this would ensure that the Court had an accurate picture of the law in the requesting state.
However, the Judge ruled that Jankowski was limited to its context. The Court found there to be “no exclusionary bar” that prohibits an appellant from pointing to an instrument of the requesting state’s law, discussed in a judgment in an earlier extradition case, “especially in the context of a human rights argument.” Any concerns as to the reliability of the information go to weight rather than admissibility.
Discretionary early release provisions in Poland
Considering Art. 77, the Judge felt entitled to form a view that the Appellant had good prospects of being granted early release in Poland. The Court observed that the Appellant had already served significantly more than half of his sentence. Even though the Appellant had previous offences in Poland and was a fugitive, the Judge was nevertheless entitled to take into account the Appellant’s crime-free life the UK. Considered together, these elements enabled the Judge to conclude that the Appellant would likely be granted discretionary release in Poland, which was another factor to be considered in the Art. 8 balancing exercise.
Passage of time
Further information from the IJA stated that, on 13 March 2015, a search for the Appellant was ordered, and during that search it was established that he was residing in the UK. However, the extradition arrest warrant was not issued until 5 years later. The delay was unexplained. During that time, the Appellant had built a life in the UK and sustained a serious head injury. The unexplained delay was found to weigh against extradition.
In allowing the appeal, the Judge emphasised that every Art. 8 case is fact specific. Nevertheless, Dobrowolski will be of relevance to extradition cases concerning countries other than Poland. Notably, the Judge confirmed that English courts are entitled to take a view as to the prospect of discretionary early release in the requesting state, and that this factor plays a role in the Art. 8 balancing exercise. Further, the Judge’s comments on Jankowski confirm that strict admissibility criteria do not apply to evidence of foreign law adduced in earlier domestic cases. Finally, the decision also clarifies that both the amount of time remaining to be served, and the percentage proportion of the remaining sentence, are factors relevant to the balancing exercise.
Mr Dobrowolski was represented by Ben Joyes (9BR Chambers), who was instructed by Viviane Bablin and William Bergstrom of Taylor Rose MW.
Hannah Burton (Furnival Chambers) acted for the Respondent, and was instructed by the Crown Prosecution Service, Extradition Unit.