Polish man with suspended sentence for teenage robbery loses High Court appeal against extradition order

About this case:

• Citation:
  [2022] HCJAC 37
• Judgment:
  External link
• Court:
  Appeal Court of the High Court of Justiciary
• Judge:
  Lord Tyre

Adam Osipczuk sought to argue that he was not a fugitive within the legal meaning of that term, and extradition ought to be refused due to passage of time, with an additional argument of breach of his Article 8 rights under the ECHR.

The appeal was heard by Lord Matthews, Lord Tyre, and Lady Wise. S Loosemore, advocate, appeared for the appellant and P Harvey, advocate, for the Lord Advocate on behalf of the Republic of Poland.

Unfinished business

In 2010, the appellant was convicted in a Polish court for three robberies of mobile phones and one attempted robbery, all of which took place in December 2009 when he was aged 17. He was given a suspended sentence of two years’ imprisonment, which became liable to be activated in 2015 after he received a further suspended sentence for a drugs offence.

The appellant first came to Scotland in July 2015 for a month, having told his probation officer he was coming. However, he returned in October 2015 to live permanently in Scotland. On 17 March 2016, his mother attended court in Poland on his behalf and later informed him that he was required to report to prison. Since then, the appellant made two visits to Poland but on neither occasion reported to prison.

At the initial extradition hearing the sheriff was satisfied that the appellant was a fugitive and therefore could not claim that extradition was barred by passage of time. In any event, it was held that it would not be oppressive to return him to Poland. Although it was to the appellant’s credit that he had apparently turned his life around, he could evade the unfinished business from his youth.

On behalf of the appellant it was submitted that the sheriff had erred in finding that he was a fugitive. He had not fled from Poland to Scotland with a view to placing himself beyond the reach of a legal process, and he had made two lengthy visits back to Poland using his own passport, which was inconsistent with him being a fugitive. Further, given the significant passage of time since he became unlawfully at large, he was justified in having a sense of security that he would not be extradited.

Beyond reach of process

Lord Tyre, delivering the opinion of the court, said of the appellant’s fugitive status: “On the facts of that case it was the appellant’s departure from the jurisdiction that caused his suspended sentence to be activated but the general principle is broader. There is no requirement in the general principle of a causal link between leaving the jurisdiction and activation of the sentence. At the time when the appellant in the present case left Poland, he had been convicted of a new offence and was aware that because of this his sentence for the 2010 offence was liable to be activated.”

He explained further: “By leaving Poland in such circumstances he knowingly placed himself beyond the reach of any process in Poland by which activation of the sentence could be implemented. We agree with the observation of Lloyd-Jones LJ in Wisniewski v Poland (2016) at paragraph 62 that ‘it is not necessary, in order that a requested person be treated as a fugitive, that he knows that his sentence has been activated. It is enough that he knows that it is liable to be activated because of his breach of the terms of its suspension’.”

Noting a factual difference in the circumstances of the present case, he added: “In Wisniewski the action that rendered the sentence liable to activation was departure from the jurisdiction, but the principle is equally applicable where the action that rendered it so liable was the commission of an offence during the probationary period. We conclude that in the circumstances of this case the appellant falls within the concept of fugitive and cannot rely, in terms of sections 11(1)(c) and 14 of the Extradition Act 2003, on the passage of time.”

Addressing whether it would be oppressive to extradite the appellant, Lord Tyre said: “As counsel for the appellant accepted, the bar is a high one. The fact that the appellant has a settled life in Scotland is not sufficient in itself to justify the conclusion that it would be oppressive to extradite him. The period of just over 3 years between the date when the appellant became unlawfully at large and the date when the Polish authorities sought and obtained a European Arrest Warrant was not an especially long one, and it is not suggested on behalf of the appellant that the authorities ever said anything to lead him to believe that he would not be required to serve the activated sentence.”

He concluded: “The other factors founded upon by the appellant were the presence of two family members in Scotland and his successful integration into the business where he works. Having regard to all of these factors together, we agree with the sheriff that they do not tilt the balance in favour of refusal of extradition. The public interest in complying with an extradition request is a strong one and the Polish judicial system utilising suspended sentences must be accorded appropriate respect. We conclude that extradition is compatible with the appellant’s article 8 rights.”

The appeal against the sheriff’s decision was therefore refused.