Celczynski v Polish Judical Authority (No. 1)

An extradition warrant satisfies the statutory requirement concerning service of a custodial sentence when, read as a whole, it clearly states that the requested person must return to serve the sentence. Consent to extradition is legally effective only if the requested person is legally represented, or falls within the statutory exception, at the time consent is given. An error concerning consent may fall outside the limited statutory appeal jurisdiction where correcting it would not necessarily require discharge. In that event, the High Court may convert the proceedings into an application for judicial review, quash the extradition order and remit the matter for rehearing.

The appellant appealed under section 26 of the Extradition Act 2003 against an order requiring his extradition to Poland to serve a ten-month sentence for domestic violence and harassment. He challenged the warrant’s description of the sentence and alleged that the District Judge had proceeded improperly after his duty solicitor left court. The appellant said that his consent had been obtained without legal advice. The central issues were whether the warrant complied with section 2(5)(b), whether valid consent had been given, and what remedy was available if the consent was invalid.

1. The challenge under section 2(5)(b) of the Extradition Act 2003 failed. The warrant, read as a whole, clearly required the appellant to return to Poland to serve ten months’ imprisonment.

2. The appellant’s consent was invalid. Sections 45(5) and 45(8) required him to be legally represented, or assisted by counsel or a solicitor, when consent was given. He was unrepresented when he was brought back before the District Judge after his solicitor had left. The District Judge therefore could not lawfully treat the matter as a consent or “no issues” hearing.

3. The error did not fall within the statutory appeal jurisdiction. Under sections 26 and 27, allowing the appeal required a different decision which would have required the appellant’s discharge. A lawful finding that consent was invalid would most likely have led to an adjournment, followed either by properly represented consent or a full hearing, rather than mandatory discharge.

4. The High Court could nevertheless convert the proceedings into a rolled-up application for judicial review. It granted permission, allowed the judicial review in substance, and quashed the extradition order because it was based on the legal error concerning consent. The matter was remitted to the Magistrates’ Court for rehearing before a different District Judge.

5. Relief was not withheld on the basis that the same result was highly likely. The appellant had not received a proper opportunity to give evidence and make submissions. The additional arguments based on legitimate expectation, apparent bias and abuse of process were rejected. The anticipated return to the case on the following day was not an unequivocal promise creating a binding legitimate expectation, and the District Judge’s conduct did not establish apparent bias or abuse of process.

The matter was an appeal under section 26 of the Extradition Act 2003 from an extradition order made by Deputy Senior District Judge Ikram on 26 December 2018. The statutory appeal ground concerning the warrant was dismissed. The proceedings were treated as an application for judicial review, which succeeded, and the extradition order was quashed.