Jackowski, R (on the application of) v Regional Court In Ostroleka

A second extradition is not necessarily an abuse of process merely because the requesting state could have dealt with outstanding matters during an earlier extradition. Deliberate failure to pursue known matters may amount to bad faith and abuse. Incompetence can also produce abuse, but only in a strong case. Oppression based on lapse of time requires a high threshold and will not readily be established where the delay is limited and the requested person had no reasonable basis for believing that the matters had been abandoned.

The claimant appealed under Extradition Act 2003, section 26, against two district judge decisions ordering his return to Poland. One warrant concerned enforcement of sentences for earlier offences; the other concerned prosecution for a separate serious assault. He had previously been extradited to Poland under an earlier warrant and argued that the Polish authorities should have dealt with the outstanding matters while he was there.

The district judges rejected the arguments that the later warrants were an abuse of process or that extradition would be unjust or oppressive. The central issue was whether the failure to pursue the outstanding matters during the earlier extradition justified refusing the subsequent extradition requests.

1. Both appeals were dismissed. The district judges had not erred in concluding that the subsequent extradition requests were neither an abuse of process nor oppressive.

2. There was no evidence of bad faith. If the requesting state knowingly had a person within its jurisdiction, deliberately chose not to pursue outstanding matters, and later sought extradition after the person had left, that conduct could, and probably would, amount to bad faith and abuse of process.

3. Incompetence could also result in abuse of process, but only in a strong case. The failure of the Polish authorities to identify and pursue the outstanding matters was unfortunate and should not have occurred, but it did not approach that threshold.

4. The court followed the approach in Seliga v District Court in Kalisz, Poland [2011] EWHC 3122 Admin. Similar administrative failure, without bad faith, did not amount to abuse. The present case was weaker because the lapse of time was shorter and the appellant had no positive indication that the outstanding sentences and prosecution had been abandoned.

5. Oppression arising from delay is subject to a high hurdle. The lapse of time was not substantial, and it remained just that the appellant should face the consequences of serious criminal offending in Poland. The court also accepted that, under the law as it stood, an Article 8 argument could not establish disproportionality.

An assessment order was made in relation to legal aid.

• High Court (Administrative Court): Appeals under section 26 of the Extradition Act 2003 against separate district judge decisions ordering return to Poland were dismissed.