Henryk Piotr Siewarga v Regional Court in Zielona Gora, Poland

MRS JUSTICE BRUNNER : Introduction

1. The appellant appeals against an order for his extradition to Poland on an accusation European arrest warrant in respect of two offences alleged to have been committed in 2014. The appellant was remanded in custody on 12 February 2024 and has remained in custody since. Extradition was ordered by District Judge Minhas in a judgment handed down on 27 June 2024. The appellant has now spent seven months in custody on remand in relation to this extradition. At the time of the extradition hearing that figure was four and a half months.

2. The appellant says that if the District Judge had been dealing with the updated remand figure she would have determined that extradition was disproportionate under section 21 A(1)(b) of the Extradition Act 2003 (‘ the Act ’). Permission to appeal was granted on this ground alone by Saini J on 4 February 2025. When permission was given, Saini J was under the misapprehension that the relevant remand time was just shy of 12 months, having accepted that figure from the appellant’s representative. It is now agreed that the relevant remand time is seven months, as the appellant was remanded in custody in relation to a domestic matter after seven months on extradition remand. The appellant’s most recent skeleton argument confirms that the appellant is now serving a sentence of 45 months here, having been convicted of drug and money laundering offences in April 2025. He was previously of good character.

3. The accusation warrant relates to two offences, described as follows: i) On September 25, 2014, in Zary, Lubush Province, acting in order to gain financial benefits, having first exploited the mistake of Stefan Kfosek as to his identity and the intention to fulfil the obligation to organize him and Dorota Tofil jobs in Berlin with packaging of confectionery products, he led him to an unfavourable disposal of his own money in the mount of PLN1820, transferred to him by the aggrieved party as a deposit to cover the travel and accommodation costs ii) On September 29, 2014 in Sienica, West Pomeranian Province, acting in order to gain financial benefits, having first misled Radoslaw Wydrzyriski as to his identity and the intention to fulfil the obligation to organize him and Sandra Wadas jobs in Berlin with packaging of confectionery products, he led him to an unfavourable disposal of his own money in the mount of PLN1720, transferred to him by the aggrieved party as a deposit to cover the travel and accommodation costs.

4. A domestic warrant was issued in 2020, and the accusation warrant was issued in 2022 and certified in 2023. The total amount in the charges is the equivalent of about £710 according to the grounds of appeal. The penalty if convicted is stated to be ‘deprivation of liberty from six months up to eight years’. Legal Framework

5. This appeal is brought under s.26 of the Act . The High Court may only allow the appeal if one of the conditions in s.27 are met. The condition relied on by the appellant is set out in s.27(4) of the Act : (a) an issue is raised that was not raised at the extradition hearing or evidence is available that was not available at the extradition hearing; (b) the issue or evidence would have resulted in the appropriate judge deciding a question before him/her at the extradition hearing differently; (c) if (s)he had decided the question in that way, (s)he would have been required to order the person’s discharge.

6. The new material is said to be the increased remand time. The question which it is said the District Judge would have decided differently was whether the extradition was proportionate under s.21 A(1)(b) of the Act .

7. S.21 A(2) sets out the factors to be considered in this way: (2)In deciding whether the extradition would be disproportionate, the judge must take into account the specified matters relating to proportionality (so far as the judge thinks it appropriate to do so); but the judge must not take any other matters into account. (3)These are the specified matters relating to proportionality— (a)the seriousness of the conduct alleged to constitute the extradition offence; (b)the likely penalty that would be imposed if D was found guilty of the extradition offence; (c)the possibility of the relevant foreign authorities taking measures that would be less coercive than the extradition of D.

8. The Divisional Court determined the proper interpretation of s.21 A(1)(b) of the 2003 Act in Miraszewski v Polish Judicial Authority [2014] EWHC 4261 (Admin) (‘Miraszewski’). Pitchford LJ set out the following principles: i) Guidance issued by the Lord Chief Justice, which described categories of offences that are presumed not serious, absent exceptional circumstances, set a floor not a ceiling. (That guidance is now found in Criminal Practice Direction 50A.5). ii) The court may, depending on its evaluation of the factors, consider that extradition would be disproportionate if (a) the conduct is not serious and/or (b) a custodial penalty is unlikely and/or (c) less coercive measures to ensure attendance are reasonably available to the requesting state. iii) In relation to delay Pitchford LJ held at [34] that delay could only be relevant to the extent that it informed the paragraph (a) to (c) factors: ‘I do not exclude the possibility that in some circumstances prolonged delay might be relevant to the requesting state’s view of seriousness, but in my opinion, in the absence of direct evidence, the inference would be weak. I accept that the passage of time might affect the judgment as to the likely penalty on conviction’. iv) The seriousness of the conduct alleged was to be judged in the first instance against domestic standards, although the court would respect the view of the requesting state if offered (at [36]). The main components of the seriousness of conduct are the nature and quality of the acts alleged, the requested person’s culpability for those acts and the harm caused to the victim. v) When considering the likely penalty on conviction, the court’s principal focus should be on the question of whether it would be proportionate to extradite a person who is not likely to receive a custodial sentence in the requesting state (at [37]). The court was not obliged to require evidence about likely penalty from the issuing state in every case. Where such information is absent, the broad terms of s.21 A(3) permit the judge to ‘make the assessment on the information provided and, when specific information from the requesting state is absent, he is entitled to draw inferences from the contents of the EAW and to apply domestic sentencing practice as a measure of likelihood’ (at [38]). In a case in which the likelihood of a custodial penalty is impossible to predict the judge would be justified in placing weight on other subsection (3) factors. The court found in relation to one of the particular cases that on the information available it was not possible to determine whether, on conviction, an immediate sentence of imprisonment in Poland was likely, but the offences were neither trivial nor of particular seriousness, and deportation was proportionate in any event (at [43]). vi) The court pointed out that there may be importance in the very fact of prosecution and conviction and that ‘it does not follow that the likelihood of a non-custodial penalty precludes the judge from deciding that extradition would be proportionate. If an offence is serious the court will recognise and give effect to the public interest in prosecution (at [39]).

9. There are a number of cases where time spent on remand has been deemed relevant to s.21 A. In Kalinauskas v Prosecutor General’s Office, Lithuania [2020] EWHC 191 (Admin) the Divisional Court quashed an order for extradition on the basis that it would not be proportionate under s.21 A(1)(b) of the Act . The court held: ‘I am left in no doubt that if the appellant was to be sentenced now for the offending, he would be immediately released. I consider in all the circumstances of this case, having regard to our assessment of the seriousness of the appellant’s conduct and the fact that he has now served in excess of any sentence that could have been imposed for his conduct, his extradition would be disproportionate’.

10. In District Court of Bratislave (Slovakia) v Soltes [2024] EWHC 2754 (Admin) Chamberlain J made some general observations about the proper approach to s.21 A at [37]-[40]. Of relevance to this case, Chamberlain J held: i) In assessing the seriousness of the conduct and the likely penalty, the court may draw such inferences as it considers are safe about the facts of the offence but the principal source for such inferences must be the warrant itself and any further information supplied by the requesting state. ii) In many cases the information supplied will be insufficient to form any view about some of the factors relevant to sentence. In some cases it may be impossible to say more than that the offence might or might not attract a custodial penalty, depending on the view taken by the trial court as to particular factors, and in such cases the judge is not required to go further in considering the likely penalty. District Judge’s Findings

11. The District Judge’s decision included the following relevant section: ‘34. In this jurisdiction, he [counsel for the appellant] submitted, the domestic sentencing guidelines suggest a community penalty would be appropriate, which I concede. Given the passage of time and the RP's law-abiding lifestyle since the date of the allegations, Mr Meredith submitted the RP was unlikely to receive a custodial sentence in Poland, especially when the offending is considered against domestic sentencing guidelines in the UK. I do not accept this submission and find that a custodial sentence is a very realistic outcome if the RP is convicted. I acknowledge the offending is not high value, but I do consider it to be a serious offence given the dishonest/fraudulent nature of the offending over a short period against multiple complainants. I note the AW specified the sentence upon conviction is from six months up to eight years. The starting point, on my reading of the AW, was that a custodial sentence of at least six months is the lowest sentence that could be imposed upon conviction. If convicted, I have no doubt the JA would consider the RP's good character, family circumstances and the passage of time when deciding an appropriate length of imprisonment and/ or whether to suspend the sentence…..

45. S.21 A(l)(b) of the Act required consideration of whether extradition would be disproportionate, having regard only to the specified factors set out in s.21 A(3).

46. The first is the seriousness of the conduct alleged to constitute the extradition offence. I conceded the offending is not high value, but I find it to be serious given the fraudulent nature of the offending and the number of complainants.

47. In respect of the likely penalty that would be imposed if the RP was found guilty of the extradition offences. I find the AW specified the minimum sentence is that of six months up to eight years imprisonment. I am of the view that a custodial sentence is a realistic possibility if convicted despite the RP's lack of previous or other offending.’ Submissions

12. The appellant says that the factors in s.21 A(1)(b) point towards disproportionality as the offences are not serious, are old, and custody is not the likely penalty because (i) the offences would not attract a custodial sentence here and (ii) in any event any sentence of custody would not be greater than the period of seven months which the appellant has spent on remand.

13. It is submitted by counsel for the appellant that the case is analogous to the fraud offences in the table of offences within Criminal Practice Direction 50A.5 which are presumed not serious absent exceptional circumstances.

14. The respondent’s position is that the District Judge’s conclusion was right, and would be the same regardless of the few further months of remand time which we are now considering. The offences were serious, and custody is a likely penalty.

15. There is no suggestion that the factor in 3(c) has any relevance in this case. Discussion

16. It is, in my view, doubtful whether permission would have been given if the application had been made to the single judge with accurate information about the increased remand time. In any event, I am content to proceed on the basis that the increased remand time engages s.27(4) of the Act . I am therefore required to consider whether the District Judge, if considering the appeal now, would have decided a relevant question differently such that she would now be required to order the appellant’s discharge. That involves making a fresh assessment on the basis of the updated information.

17. In relation to likely penalty, the District Judge found that custody was unlikely if this was a sentence here, but likely if it was a sentence in Poland. I do not agree with that; in my judgment, this is a case where there is insufficient information to form a conclusion about likely penalty.

18. Consideration of domestic sentencing guidelines reveals how many gaps there are in the information before the court. It was submitted to me by both parties that under the Fraud Sentencing Guidelines (‘the guidelines’), this is a culpability B and harm category 5 case, which gives a starting point of a medium level community order and a range of a fine to 26 weeks custody. That may be right. However, it may be wrong; the offences may well be treated much more seriously than that in our criminal courts, for the following reasons: i) Culpability in the guidelines is deemed high if there is significant planning, sophisticated offending or targeting of vulnerable victims. There is insufficient information to know whether or not any of those factors apply here. For example, we are not told how the appellant is said to have misled the complainants about his identity. ii) Financial harm in the guidelines includes intended financial loss as well as actual financial loss. The warrant tells us that a deposit was paid. It does not tell us whether any greater financial loss was intended. A deposit is, of course, usually a sum of money paid as part of a larger transaction, in order to secure rights. It is entirely possible that it was intended that more money would be taken from the complainants under the pretence of helping them to move abroad. iii) Harm is also assessed by assessing the impact on the victim, with upwards adjustment where there is medium or high victim impact. These offences, involving as they did a promise of a new life abroad, may have deeply affected the victims, particularly if they took any steps towards moving. The warrant tells us nothing about that.

19. If these were frauds with higher culpability, significant intended financial loss, and medium or high victim impact then a substantial custodial sentence would be indicated under the guidelines. If all of those features were absent then a non-custodial sentence would be indicated under the guidelines.

20. I cannot draw safe inferences about any of the points above from the wording of the warrant or any other information. Counsel for the appellant submitted that in the absence of information about, for example, harm to the victims, I should assume that there was low harm. I do not accept that: there is no presumption that the court should resolve uncertainties in the facts in favour of the requested person. Nor is there a requirement in s.21 A(2) to make a finding in relation to each of the factors; the requirement is to ' take into account the specified matters relating to proportionality (so far as the judge thinks it appropriate to do so)’. It would not be appropriate to take into account a matter which I could only resolve with guesswork.

21. This falls within the category of cases described in District Court of Bratislave (Slovakia) v Soltes [2024] EWHC 2754 where all a judge can say is the offence might or might not attract a custodial penalty, depending on the view taken by the trial court as to particular factors. The delay in charging the appellant does not change that position; a custodial penalty may still be the outcome despite the significant passage of time between offence and warrant if the factors I have identified were resolved against the appellant. The correct approach, in these circumstances, as set out in Miraszewski v Polish Judicial Authority [2014] EWHC 4261, is to put weight on the other factors in the s.21 A(2) list. I treat the matter of likely penalty as a neutral factor.

22. Consideration of remand time does not assist the court in determining proportionality in this case. The potential significance of remand time is in assisting the court to reach a conclusion about likely penalty. As I cannot determine the likely type or length of sentence, and as a significant custodial sentence is a possibility, it follows that it cannot be said that the remand time would extinguish or nearly extinguish time to be served. That position remains the same whether the remand time is taken as four and a half months or seven months.

23. Turning to the other s.21 A(2) factor in issue: seriousness. These were serious offences as the District Judge found. The appellant is accused of taking money from two people, affecting four people, tricking them as to his identity, and making a false representation that funds would help to secure a new life abroad. The behaviour was repeated. I do not accept the appellant’s submission that these offences are analogous to the trivial fraud offences in CPD50, which are largely crimes against institutions or the state. The seriousness of the offences is not reduced to any significant degree by the delay in this case; the delay could have occurred for any number of reasons and, with Miraszewski in mind, I do not draw the inference that it reveals the requesting state’s view of seriousness. The seriousness of these offences leads to the conclusion that extradition is proportionate.

24. In my view, the new issue and evidence would not have resulted in the District Judge deciding a question before her at the extradition hearing differently. The District Judge would still have concluded, as I conclude on analysis of all of the material, that the proportionality test is met.

25. The appeal is dismissed.