Polomski v Westminster Magistrates' Court

In extradition proceedings, a magistrates’ court is not irrational in refusing an adjournment merely because an indeterminate domestic sentence might later be brought to an effective end under the tariff expired removal scheme. The scheme must provide a sufficiently definite prospect of removal. Where eligibility depends on unresolved Home Office criteria and possible barriers to removal, the court may treat the prospect as uncertain. That uncertainty must be weighed against the public interest in fulfilling extradition obligations, particularly where the requested person is wanted for trial for murder.

The claimant was serving an imprisonment for public protection sentence in England. Poland sought his temporary surrender under a European Arrest Warrant so that he could face trial for murder and other offences. He argued before Westminster Magistrates’ Court that surrender should be adjourned until his tariff expired, because he might then qualify for removal under the tariff expired removal scheme and avoid returning to England to continue his sentence.

The Senior District Judge refused the adjournment and ordered extradition and temporary surrender. The claimant brought a statutory extradition appeal and judicial review proceedings, challenging the refusal as irrational and alleging interference with his rights under article 5(1) of the ECHR.

1. Outcome. The extradition appeal was dismissed. Permission to apply for judicial review was granted because of the importance of the issue, but the judicial review claim was dismissed.
2. The tariff expired removal scheme did not make a different decision inevitable. Although section 119 of the Legal Aid, Sentencing and Punishment of Offenders Act 2012 introduced sections 32A and 32B into the Crime (Sentences) Act 1997, the scheme applied only to prisoners liable to removal. That expression was defined by section 259 of the Criminal Justice Act 2003, and an extradition order alone did not automatically place a foreign national prisoner within the relevant categories.
3. The evidence did not establish that the claimant would be removable on the tariff expiry date. His eligibility remained subject to confirmation by Immigration Enforcement, and the possible barriers, applicable criteria and duration of the process were unclear. The prospect of removal was therefore insufficiently definite to require an adjournment.
4. The court also gave substantial weight to the public interest in fulfilling extradition obligations. The claimant was wanted for trial for murder, and there was an overwhelming public interest in ensuring that the Polish trial took place sooner rather than later. Applying the approach in Handa v Bow Street Magistrates’ Court [2004] EWHC 3116 (Admin), the refusal to adjourn and the order for extradition were not irrational.
5. The article 5(1) and health arguments did not justify different relief. The domestic court had been entitled to conclude that extradition was proportionate, and there was no evidence that the claimant’s elbow operation could not be performed in Poland or after his return.

• Westminster Magistrates’ Court: refused an adjournment, ordered extradition and directed temporary surrender on the undertakings given by the Polish judicial authority.
• High Court (Administrative Court): dismissed the extradition appeal; granted permission for judicial review but dismissed the claim.