DG v District Court in Lublin, Poland

When fresh evidence is adduced on an appeal, the court should first decide whether the decision under appeal was erroneous on the evidence then available. Only if it was correct should the court consider whether the fresh evidence means that the decision can no longer stand.

In an Article 8 extradition case involving a child, the court must assess the child’s position at the time when the decision is made. Where procedural delay may materially alter the likely impact of extradition, the court should not finally determine the Article 8 issue prematurely.

The applicant faced extradition to Poland under two warrants. The district judge made an extradition order on 31 May 2017, having rejected the applicant’s Article 8 case based on the effect of extradition on his young son.

Permission to appeal was initially refused by Supperstone J. Further evidence, including an expert report, was later obtained. Following the judgment in Celmer, the applicant sought to add an Article 6 ground while related test cases, Lis and others v Poland, awaited hearing before the Divisional Court. The central issue was whether the Article 8 grounds should be finally resolved before those proceedings concluded.

1. Permission and adjournment. Permission was granted to amend the grounds of appeal, without reservice, to add an Article 6 ground. Consideration of permission on that ground was postponed until judgments were available in Lis and others v Poland. The Article 8 grounds were also adjourned and were not finally determined.
2. Fresh evidence. The court must first decide whether the challenged decision was erroneous on the evidence before the original decision-maker. If an error is established, the appeal may be allowed without considering fresh evidence. If the original decision was correct, the court must then consider whether the fresh evidence means that the decision should not, or cannot, now stand.
3. Article 8 assessment. The child’s position must be considered at the time of decision-making. The expert report suggested that the likely impact of extradition depended materially on its timing. Because delay might make extradition more harmful, the court could not responsibly dismiss the Article 8 grounds finally while the related proceedings remained unresolved.
4. The judge expressed a provisional view that the district judge had not erred and that the fresh report did not presently outweigh the factors favouring extradition. If the Article 6 issue prevented extradition, the Article 8 ground would fall away. Otherwise, the Article 8 issue would require reconsideration with any updating evidence.

• District judge: An extradition order was made on 31 May 2017.
• High Court (Administrative Court): Supperstone J refused permission to appeal on 11 October 2017. Mr Justice Holman later permitted amendment to add an Article 6 ground and adjourned consideration of permission and the Article 8 grounds pending the outcome of Lis and others v Poland.