Jakub Dobosz v District Court of Lublin, Poland

MR JUSTICE KERR: Introduction

1. This is an appeal brought with permission of Julian Knowles J, on the sole ground that extradition of the appellant would be incompatible with his rights under article 8 of the ECHR. The appeal is against an order for extradition made by DJ Simon Heptonstall for reasons given in his judgment dated 15 November 2022.

2. The appellant is wanted in Poland to serve nearly the whole of a two year prison sentence for what we would call two attempted burglaries, one burglary and one theft from a motor vehicle, all committed in Lublin in October and November 2013 when the appellant had just turned 17.

3. The only issue is article 8. After permission was refused by Dove J (as he then was) in March 2024, in May 2024 Julian Knowles J granted permission at an oral hearing, limited to the article 8 ground. The appeal was then stayed and has been relisted after the decision of the Supreme Court in Andrysiewicz v Circuit Court in Lodz [2025] 1 WLR 2733. The Facts

4. The appellant is a Polish national, born in Lublin, Poland, on 20 October 1996. In the words of the district judge below: “He had been in trouble prior to committing the offences set out in the warrant. He had been sent to institutions because he had not attended school.”

5. According to the conviction warrant, he committed four offences in October and November 2013. The details are as follows: (i) an unsuccessful attempt to break into a street kiosk in Lublin to steal things inside; causing damage to the anti-burglar blind; (ii) successfully breaking into the same street kiosk the next night and stealing cigarettes of various brands; (iii) an unsuccessful attempt to break into the same street kiosk, again damaging the anti-burglar blind before being detained by police officers; and (iv) on a different occasion, breaking into a car in Lublin and stealing a car radio, car charger and perfume.

6. According to the appellant’s counsel, the total value of the property stolen is the equivalent in Polish currency of, as at June 2025, about £379 sterling. The appellant was detained on 7 November 2013 and released the next day. He was told he must notify the authorities of any change of address or any change of location lasting more than seven days, with twice weekly reporting to a local police station.

7. On 10 June 2014, he admitted guilt at his trial, which he attended in person. He was given a two year suspended sentence with probation supervision. This is described in further information as a penalty of two years “with conditional stay of execution for a period of probation of four years”. A fine was also imposed, payable by 19 June 2014. The appellant did not pay it then or, as I understand it, ever. Payment of compensation was due a year later, by 19 June 2015.

8. The appellant said, in his proof of evidence before the judge below, that he came to the UK in February 2015. The district judge accepted that this move was authorised by and known about by his probation officer; he is therefore not a fugitive. His probation officer did not know his address in this country. The appellant has worked here steadily since 2015. He says he has worked in building and ventilation.

9. He has lived with relatives variously in east London, Chatham and Maidstone. His brother and sister are here. It seems that the deadline of 19 June 2015 for payment of compensation came and went without him paying the compensation. However, he later told the district judge that he has since paid it “as required”. The district judge accepted that but it is not clear when it was paid.

10. Generally, the district judge accepted the appellant and his sister, who gave evidence below, as witnesses of truth. The judge accepted most of his evidence and all her evidence. She has two children, the appellant's nieces. She and they are close to the appellant and live quite nearby.

11. The appellant said in his proof of evidence that in 2017 he went to Poland for two months. He told the district judge that was in the summer of that year. Earlier the same year, on 18 April 2017, the court activated the sentence. According to further information as translated: “Court issued the order for execution of penalty of custodial sentence due to the fact that the sentenced during the probation period committed the prohibited act … [in that he] evaded probation officer’s supervision during the probation period and he did not pay the penalty of a fine.”

12. After that hearing, a letter was sent on 9 May 2017 to the appellant, notifying him of the outcome and the possibility of filing an appeal. He did not collect the letter of 9 May 2017 but he or someone on his behalf later filed or appears to have filed an application to reduce the custodial sentence that had been activated.

13. On 13 June 2017, according to the further information, the appellant was summoned to appear to serve his sentence in Poland, but was in this country and did not answer the summons. He did not inform the Polish authorities of his change of address.

14. The application to reduce the sentence was received by the court in Lublin in June 2018. The Polish authorities were unable to locate the appellant and a domestic warrant was issued on 16 December 2020. The authorities in Poland must have discovered that he was in this country, since the conviction warrant was then issued on 17 May 2022.

15. On 9 July 2022, by chance the appellant was found by police in the Greenwich area with cannabis on him. A community resolution was intended. While checks were being made to ascertain the person's identity, the arresting officer learned that he was wanted in Poland on the warrant. He was kept in custody. The National Crime Agency then certified the warrant two days later, on 11 July 2022.

16. The appellant appeared at Westminster Magistrates’ Court the next day where he was bailed, on conditions. I am told he has spent much if not all of the last three years or so on an electronically monitored curfew (EMC), ie what is often called a tagged curfew. I was told at this hearing before me today that the curfew hours were four hours a day, when he was required to be at his residence, but that those hours have been varied at least once, while still remaining at four hours in a 24 hour day.

17. In 2022, he said in his proof of evidence, he met a partner and they had been then together for about six months. He has settled status and no convictions in this country. The district judge described him as having led an “industrious and open life” and that he had been recognised as a good worker and was paying taxes.

18. The substantive hearing took place in Westminster Magistrates’ Court on 13 September 2022. Both sides were represented. In a reserved judgment dated 15 November 2022, the district judge gave reasons for ordering the appellant’s extradition.

19. I need only mention the parts of the decision relating to article 8. On that issue, the judge said this: “(i) Factors militating against extradition: (a) He has worked here, having a responsible job for which a UK qualification was required. (b) The offences are old, from 2013, though there was a trial process and the sentence was imposed relatively swiftly. (c) He was a child when those offences were committed. (d) There has been a degree of delay in the issue of the warrant. That reflects on the seriousness attached to this sentence by the Polish authorities. Mr Dobosz is not responsible for any of that delay. (e) The passage of time has meant that he has established a life in the UK since 2015, virtually all of his adult life, in various respects and should operate to diminish the public interest in extradition. He has effectively rebuilt his life and grown up. That has not been built on sand, knowing that he had to face the sentence. (f) He has a partner of 6 months. (g) He has previously provided financial support to his sister and her family. (h) He has provided practical and emotional support to his sister and her family. He is a well-liked uncle and his nieces would miss him. (i) He has committed no other offences in Poland or the UK since the warrant offences, though he has accepted a community resolution for cannabis. (j) He had been remanded on conditional bail for over 4 months to judgment, with a curfew imposing a significant restriction of liberty. (ii) Factors in favour of extradition: (a) There is a weighty public interest in upholding all extradition requests and treaty obligations, thereby ensuring that there are no ‘safe havens’ to which individuals can flee in the hope they will not be sent back. This public interest is not easily displaced. (b) The offending was persistent dishonesty, including repeated targeting of one premises, and was not his first episode of offending. (c) The fact that I do not possess the detailed knowledge of the proceedings or background of Mr Dobosz which the sentencing judge had before him. (d) Respect for the sentencing regime of the requesting state. The court will assume that the sentence reflects the gravity of the offending in all the circumstances as seen by the court with all necessary knowledge. (e) The principle of mutual confidence and respect shown by the English courts for the decisions of the Polish judicial authority. (f) While the offences are old, there was no significant delay in their prosecution towards their initial sentences. (g) There will be an impact on his sister’s family including his nieces, though the youngest is beyond the age of strongest bonding, having known him all her life, and the elder is of an age to travel to school alone; his care has been valuable but relatively infrequent. There will be some upset within the family but not it will not break any bonds or have a profound impact. (h) As to the loss of financial support, the state is expected to provide for those in difficult circumstances and Ms Dobosz already has such support. (i) The roots that he has here are relatively shallow, with a 6 month relationship from which there are no children or any financial dependency. (j) I do not find that the consequences of extradition would be exceptionally severe. (k) The length of sentence remaining; Mr Dobosz has a significant sentence still to serve, just under 2 years, not something close to the threshold.

58. The balancing of those factors is not a simple matter of arithmetic, but an evaluation of the weight to be attached to each. The interest in honouring treaty obligations is very high; significant weight must be attached to the seriousness of the offences.

59. Set against that, I attach no weight to the cannabis and give significant weight to his maturation and the change in his life to one of industry and responsibility, rather than youthful crime, but it cannot extinguish the public interest in extradition. His new relationship is of limited weight. The family life of the children affected would be significant if they were his own, but I afford only moderate weight as although a loved and helpful uncle, his nieces will not be losing their primary carer or face a change of residence.

60. Cumulatively those factors for Mr Dobosz are of significant weight which brings this case close to the balance, however that balance falls in favour of extradition. Therefore, extradition is compatible with Mr Dobosz’ Convention rights under Article 8.” Reasoning and conclusion

20. I have carefully considered the documents and the rival contentions of the parties. They are agreed that the factors that fell to be considered were (a) the appellant's age at the time of the offending; (b) the seriousness of the offending; (c) the appellant's ties to the United Kingdom; (d) the time spent on conditional bail with EMC; (e) the absence of delay between prosecution and sentence; and (f) the possibility of early release.

21. There is no dispute that those were the factors that were relevant; that the district judge considered and weighed all of them except the possibility of early release (since the subject of the Supreme Court's decision in Andrysiewicz ); that he did so using the correct “balance sheet” approach; and that the weight to be attached to each factor individually is a matter for him to consider and consequently the overall balance is initially, initially at least, for him to determine.

22. However, the appellant says that his analysis is nonetheless flawed because even in a case where the judge undertakes the article 8 balancing exercise properly, there can still be cases where the outcome is wrong because, as said by the Divisional Court in Love v USA [2018] EWHC 172 (Admin), in the judgment of the court (Lord Burnett LCJ and Ouseley J), at [26], this court on appeal should: “stand back and say that a question ought to have been decided differently because the overall evaluation was wrong: crucial factors should have been weighed so significantly differently as to make the decision wrong.”

23. The appellant therefore relies on the cumulative impact of what he says is the district judge attaching too little weight to factors against extradition and too much to factors favouring extradition. The respondent says this is just expressing disagreement with the outcome of a properly conducted balancing exercise.

24. On the subject of the appellant's age at the time of the offending, Mr Squibbs for the appellant points out that age is highly significant. This appellant was not just young, but a child aged 17 when the offences were committed. He cites examples of cases where single judges in this court have attached significance to the age of the requested person at the time of the offending.

25. I do not repeat that exercise here because Mr Squibbs accepts that, ultimately, each case turns on its facts. No one disputes that age at the time of offending is important. Mr Squibbs says the district judge significantly under-weighted this factor in the balancing exercise. It is not adequate to say this court should defer to the sentencing regime of the requesting state.

26. The district judge, says Mr Squibbs, was too deferential to the Polish court. The same points are made to support the submission that the judge below under-weighted the lack of seriousness of the offending: the value of the goods taken was about £379 in UK currency. The conduct constituting the offending was unsophisticated. A custodial sentence would be inconceivable here, applying the England and Wales sentencing guideline for non-domestic burglary.

27. For the respondent Mr Swain submits that the judge said at paragraph 54 of his judgment that the offending was “as a youth and not the most serious but repeated”. He attached “significant weight” to the appellant’s “maturation and the change in his life to one of industry and responsibility rather than youthful crime” (see paragraph 59 quoted above). The judge’s weighting of that factor cannot be faulted, said Mr Swain.

28. As to the seriousness of the offending and the requesting state’s sentencing regime, he submitted that the appellant’s argument went against what was said in various authorities including, no less, the judgment of the Divisional Court (Lord Burnett LCJ and Ouseley J) in Celinski v Secretary of State for the Home Department [2016] 1 WLR 551, at [13(ii)]. UK judges should not second guess a requesting state’s sentencing regimes and policies, provided they accord with Convention standards.

29. Mr Squibbs then criticises the judge for saying the appellant’s roots here were “relatively shallow”. According to his skeleton argument, the judge significantly underplayed the strength of his ties here. While the relationship between the appellant and his partner was of six months’ standing at the time and there were no children or financial dependants, that was not the point. His roots here were deep, through his work and relations with close relatives; and because he has settled status here and no criminal convictions.

30. The respondent pointed to the distinction noted by the Supreme Court in Andrysiewicz between private life and family life. Disproportionality of extradition based on the former, the Supreme Court said, was “most unlikely”. As for family life, the threshold was still that of “exceptionally severe interference”; see Andrysiewicz at [43]. Mr Swain said the judge was right to characterise the appellant’s roots here as relatively shallow, for the reasons he gave. He cannot rely on any deepening of those ties since his appeal. He is aware he faces extradition and that his appeal may fail.

31. As for the issue of “time on tag”, the respondent accepted that the case law shows this can affect the article 8 balance. The appellant cited cases where the relevance of EMC had been recognised. Its significance would vary according to the impact on the individual and the duration of EMC while awaiting extradition.

32. While the appellant accepted that the judge recognised EMC as a relevant factor, the appellant has now had nearly three years of it rather than the four months at the time the decision below. Mr Squibbs submitted that the appellant, and I quote his skeleton argument, “has effectively had to put his life on hold for the past three years”. Mr Swain for the respondent argued that this does not tip the balance in his favour. The exceptionally severe threshold is still nowhere near reached.

33. As for the short time between offending and initial sentence, the appellant says the judge should have disregarded that factor as irrelevant, while the respondent called that argument “nit picking”. The sentencing exercise should be seen in its proper context and the judge was entitled to take this factor into account. He recognised properly that while the offences were old, the gap between offending and bringing the offender to justice was short.

34. Finally, as to the early release regime in Poland considered by the Supreme Court in Andrysiewicz , this, said Mr Squibbs, is a factor that should be given some weight and the judge was wrong to give it none, though understandably, as the law then stood. The respondent submitted that a “bare possibility” of early release adds nothing of substance and cannot bring this case into the exceptionally severe category.

35. In support of the appeal, the appellant proposed the facts of and Mr Justice Lane’s decision in Deaconescu v Romania [2023] EWHC 870 (Admin) as a “working example” of a case where discharge must be ordered. He contended that a factual comparison of that kind was a legitimate exercise, citing in support Mr Justice Fordham’s observations on the use of “working illustration” cases, in Nemeth v Hungary [2023] EWHC 692 (Admin).

36. Mr Squibbs accepted, of course, that such cases are not binding precedence and recognised that each case ultimately turns on its own facts. There is perhaps a spectrum of judicial opinion on the usefulness of this kind of advocacy in appeals such as this; compare my observations in Deb v Greek Judicial Authority [2024] EWHC 1131 (Admin) at [142] to [146]. I do not, for my part, find the comparison with the facts of Deaconescu particularly useful. There are significant differences and the decision predates Andrysiewicz .

37. Standing back, Mr Squibbs submitted, the balance must now come down against extradition. The judge should have focused on delay in issuing the warrant, for which the appellant was not, as the judge recognised, responsible. He was not a fugitive. He had changed, become a good worker and developed deep ties to this country. He had spent a long time on EMC. The decision was “close to the balance” then, as the judge put it; and was now wrong, said Mr Squibbs.

38. Having set out the arguments fairly fully, I can state my reasoning and conclusion quite briefly. First, I accept that there can be a case, in principle, where the judge below carries out the Celinski article 8 balancing exercise in the correct manner, attributing such and such weight to such and such factor, going through each in turn, assessing their potency either for or against extradition and coming to a conclusion; and that conclusion being nonetheless wrong because, standing back, the appellate court is persuaded that “the overall evaluation is wrong” ( Love , judgment of the court at [26]).

39. That conclusion is open to the appellate court, i.e. this court, both in cases where the judge’s overall evaluation was “wrong” at the time or where it has become “wrong” because of qualifying fresh evidence (in the Fenyvesi sense of being both unavailable below and decisive) or the passage of time, or both. However, to reach that conclusion, the appellate court must be persuaded that the decision was wrong and not just that the appellate judge would or might have struck the balance differently.

40. Next, such cases in the article 8 context will be rare and, after Andrysiewicz , rarer still, especially where reliance is placed significantly on private life rather than longstanding family life with dependent children. This is not such a case. I do not accept that the appellant’s private and family life is now sufficiently developed that it would justify oversetting the judge's assessment at the time.

41. I also do not find much force in the appellant’s argument that the judge overlooked or under-weighted his young age at the time of the offending. The judge was alive to the issue and addressed it. He also knew these were not the young appellant’s first offences though he did not have (and nor do I) details of the earlier offending. He was aware of the timescale and of the delay and that it was not of the appellant’s making.

42. The appellant’s further difficulty is that his arguments about age rely more heavily than I think legitimate on an examination of sentencing practice in this country. I accept that some reference to sentencing regimes in this country, including whether a custodial sentence would have been imposed here, can be legitimate -- particularly in section 21A cases -- but the exercise must be undertaken with caution. The appellant has not served any time on remand in this case. I have seen cases here where serial burglars, even young ones, have been given detention and training orders of relatively short duration, or a period of reflection in a young offender institution.

43. Here, the judge took into account that the offending was “persistent dishonesty including repeated targeting of one premises and was not his first episode of offending”, and that he, the judge, did not “possess the detailed knowledge of the proceedings or background of Mr Dobosz which the sentencing judge had before him”, and that the judge said he had “[r]espect for the sentencing regime in the requesting state”.

44. The court would, he said, “assume that the sentence reflects the gravity of the offending in all the circumstances as seen by the court with all necessary knowledge”. Given the strength of the presumption of compliance with the ECHR by Council of Europe states, cases where that approach is wrong must be rare indeed. In my judgment, this case is not one of them and the judge’s approach to the severity of the sentence and the seriousness of the offending was correct.

45. The appellant said it was wrong in this particular case because he was only 17 at the time and a custodial sentence, even a suspended one, would be inconceivable here for the same offending. But I take on board Mr Swain’s reminder of what Lord Thomas LCJ said on behalf of the three judge Divisional Court in Celinski at [13(ii)], that it is not for a UK judge to second guess Convention compliant sentencing policy in a requesting state.

46. It is worth going back to the words of the Divisional Court, since they have not always been applied with full rigour in some single judge appeals in this court: “(ii) … The prevalence and significance of certain types of offending are matters for the requesting state and judiciary to decide; currency conversions may tell little of the real monetary value of items stolen or of sums defrauded. For example, if a state has a sentencing regime under which suspended sentences are passed on conditions such as regular reporting and such a regime results in such sentences being passed much more readily than the UK, then a court in the UK should respect the importance to courts in that state of seeking to enforce non-compliance with the terms of a suspended sentence. iii) It will therefore rarely be appropriate for the court in the UK to consider whether the sentence was very significantly different from what a UK court would have imposed, let alone to approach extradition issues by substituting its own view of what the appropriate sentence should have been.”

47. To that, I would add that here we do not know what level of offending by this appellant preceded these four offences, but we know there was some. The sentencing judge probably did know. Indeed, to call the sentence custodial at all even though the defendant does not go into detention is a very British thing and might come as a surprise to some judges in other requesting states. We have conditions of suspension here that are different from those in this Polish case. The conditions in this case were not unpaid work or going on courses, but paying a fine or compensation. The period of suspension was four years, which could not happen here.

48. There are huge differences in sentencing policies in Council of Europe states. To give one striking example from a completely different context, in Italy a defendant sentenced to prison is often not incarcerated until any appeal against conviction has been disposed of, sometimes years later. An Italian judge might be amazed to note that, here, we imprison those who later turn out to have been wrongly convicted, unless they get bail pending appeal against conviction.

49. I do not find myself persuaded that the time spent subject to EMC must now tip the balance the other way. There is, as Mr Swain pointed out, no fresh evidence about the impact on the appellant of the additional time spent on tag since the decision below. No direct evidence supports the submission that he has had to “put his life on hold”. It is, as the judge recognised, a significant restriction on liberty but it is not comparable to time spent on remand in custody and it was the appellant’s choice to appeal, with the delay that may entail.

50. I do not attach much weight to the possibility of early release in Poland. This point cuts both ways because if early release is achievable, the appellant has a good chance of being allowed back to this country and his early release would attenuate the degree of interference with his private and family life. He will be able to argue before the Polish court that he spent time subject to EMC in this country. That may help with his case for early release, but it is a matter for the Polish court.

51. I refer to the useful guidance given to appellate courts by Lord Neuberger in In re B (a Child) [2013] UKSC 33 at [93]-[94] (and cited by Lord Thomas CJ giving the judgment of the court in Celinski at [20]-[21]). In my judgment, as the position stood at the time of the judgment below, the judge’s view fell into category (iii), or at any rate one of categories (ii)-(iv), which is sufficient to uphold the judgment below. “(ii) a view which she [ the appellate judge ] considers was right, or (iii) a view on which she has doubts, but on balance considers was right, or (iv) a view which she cannot say was right or wrong.”

52. I am grateful for Mr Mr Squibbs’ powerful submissions. They came quite close to persuading me. It is truly a crying shame that returning the appellant to Poland may well disrupt and put an end to a very good and positive phase in his life. However, I have not seen evidence or heard argument that persuades me that the decision must, at the time or now, be characterised as wrong. I must therefore dismiss the appeal. Epiq Europe Ltd hereby certify that the above is an accurate and complete record of the proceedings or part thereof. Lower Ground, 46 Chancery Lane, London WC2A 1JE Email: [email protected]