Jablonski v District And Provincial Courts In Lublin (Poland) (Rev 1)

Where an appellant has been removed from the jurisdiction despite an extant application for permission to appeal, and the removal materially impairs communication and legal representation, the court should protect the appellant’s effective access to the appeal before deciding its merits. A substantive determination may properly be adjourned to allow reasonable steps to secure instructions and representation. The length of the adjournment should reflect the practical difficulties created by the removal and the need to safeguard the appellant’s interests. In unusual circumstances, transfer of a publicly funded representation order may be an appropriate counterbalancing measure. The court should not determine the underlying ground of appeal where representatives cannot responsibly advance submissions and the appellant has not had a fair opportunity to participate.

The appellant had been ordered by a district judge to be extradited to Poland. An appeal notice raising an article 8 ground was filed, but permission to appeal was refused on the papers. The appellant was nevertheless extradited while the application for permission to appeal remained extant. On renewal, Mrs Justice Steyn adjourned the matter and directed the National Crime Agency to explain the removal and provide the appellant’s address so that his representatives could contact him.

The appellant confirmed from prison that he wished the appeal to continue. His existing representatives were unable to advance positive submissions on the article 8 ground and intended to withdraw, but sought time to protect his interests and explore alternative representation. The central issue was whether the renewed application should be determined immediately or adjourned further.

1. Adjournment granted. The renewed application for permission to appeal was adjourned for a minimum period of eight weeks.
2. The court was satisfied that the remote telephone hearing constituted a hearing in open court. The open justice principle had been secured, no party had been prejudiced by the mode of hearing, and any restriction on a right or interest was necessary and proportionate in the circumstances.
3. The court declined to determine the reasonable arguability of the article 8 ground. The appellant’s removal had severely hampered communication with his representatives and had materially altered his position regarding representation and participation in the appeal. His oral renewal hearing was a legal entitlement under the relevant scheme of access to justice.
4. The court took account of the absence of opposition from the respondent and of the lack of any asserted prejudice to the Polish authorities. It considered that every reasonable step should be taken to protect the appellant’s interests before a dispositive determination was made.
5. The court made no finding of fact about the circumstances of the removal and expressed no view on the merits or viability of the article 8 argument.
6. The judge stated that, if the matter were within his power, he would regard transfer of the legal aid representation order to new solicitors as an appropriate use of discretionary power. In the unusual circumstances, such a transfer could operate as a counterbalancing measure for the disadvantage caused by the removal. The judge did not purport to make that decision himself.
7. At the resumed hearing, the court would consider whether alternative publicly funded representatives had been secured. If not, and no other representation was available, the renewed oral hearing might proceed without representation.

• District judge: Ordered the appellant’s extradition to Poland on 30 October 2019.
• High Court, Administrative Court: Permission to appeal was refused on the papers by Sir Wyn Williams on 24 January 2020.
• High Court, Administrative Court: Mrs Justice Steyn adjourned the renewed application on 26 February 2020 and directed further information concerning the removal and the appellant’s whereabouts.
• High Court, Administrative Court: The present court granted a further adjournment for at least eight weeks and declined to determine the article 8 issue.