Czach & Anor v Poland

A stay of extradition appeal proceedings pending an appeal in different litigation should be granted only where the pending appeal is clearly likely to be decisive or determinative. The power must be exercised rigorously and consistently with the need for expeditious determination.

Cases raising issues about the meaning of unlawfully at large and the status of a fugitive require individual judicial assessment. They are unsuitable for a blanket administrative stay because no bright-line criterion determines the outcome. The stay question should ordinarily be considered with the application for permission to appeal.

These were applications for permission to appeal decisions ordering the extradition of two requested persons to Poland. The cases raised issues concerning the meaning of unlawfully at large, the passage-of-time bar and the effect of fugitive status under the Extradition Act 2003.

A pending Supreme Court permission application concerned the Divisional Court’s decision in Wisniewski v Poland [2016] EWHC 386 (Admin). The applicants sought directions on whether their cases, together with similar appeals, should remain administratively stayed pending that outcome. The central issue was whether the possible Supreme Court decision was likely to be decisive or determinative in these individual cases.

1. Stay jurisdiction. The High Court and the parties have broad case-management powers in extradition appeals under Part 50 of the Criminal Procedure Rules. Those powers must be exercised judicially. A judicial direction may be implemented administratively for a clearly identifiable category of cases where the pending appeal will be decisive or determinative.
2. Applicable threshold. Every case must be dealt with as expeditiously as possible. A stay pending an appeal in other litigation should be ordered only where it is clear that the pending appeal is likely to be decisive or determinative in the case before the court. The approach in AB (Sudan) v Secretary of State for the Home Department [2013] EWCA Civ 921 provided useful guidance and was applicable to extradition appeals. The power to stay must nevertheless be exercised cautiously.
3. Individual assessment. These appeals did not possess the bright-line features of the cohort stayed pending Goluchowski v District Court in Elblag, Poland [2016] UKSC 36. A blanket administrative stay was therefore inappropriate. The Administrative Court Office could identify cases in which a stay might arise, but the question had to be referred to a judge for determination, ordinarily alongside permission to appeal.
4. Application. The relevant question was whether the possible Supreme Court decision in Wisniewski v Poland was likely to alter the meaning of unlawfully at large or the point at which a person became a fugitive, and whether that alteration would be decisive in the particular case. If so, a stay might be justified in the interests of justice; otherwise the appeal should proceed.
5. It was generally preferable either to proceed or to stay, rather than determine other grounds first and leave a later stay application. If a stay was proposed without prior submissions, the parties should be given an opportunity to make representations. Whether a requested person had been unrepresented at first instance was a relevant consideration.

The judgment concerned directions and case management in two pending extradition appeals. The appeals had been administratively stayed pending a possible Supreme Court appeal in Wisniewski v Poland [2016] EWHC 386 (Admin). This court directed that the question of a stay required judicial assessment in each case.