Kotlarski v Polish Judicial Authority

In an extradition bail application, the court must consider the matter afresh rather than review an earlier refusal. Bail must be refused where there are substantial grounds for believing that the applicant would fail to surrender, even if stringent conditions are available.

Family ties, employment, residence, financial security and the applicant’s conduct since arriving in the United Kingdom are relevant, but must be assessed through the specific prism of surrender risk. The seriousness of the underlying offending, the sentence liable to be served and a previous failure to return to custody may together establish substantial grounds. Coronavirus conditions may form part of the general context, but prison conditions do not materially reduce surrender risk where the prison authorities remain responsible for detainees’ welfare.

The appellant sought bail under section 22 subsection 1 A of the Criminal Justice Act 1967 in extradition proceedings based on a conviction-related European arrest warrant. Bail had previously been refused by the magistrates’ court, by Mr Justice Jay, and by a district judge who was not satisfied that circumstances had sufficiently changed.

The appellant relied on his family life, employment, home ownership, financial circumstances, proposed bail conditions and the coronavirus lockdown. The respondent relied principally on the appellant’s serious offending, the sentence awaiting him in Poland and his earlier failure to return to custody. The central issue was whether there were substantial grounds for believing that he would fail to surrender.

1. Application refused. The court was exercising the statutory bail jurisdiction under section 22 subsection 1 A of the Criminal Justice Act 1967. The matter had to be considered afresh and de novo, rather than by reviewing the reasoning of the earlier bail decisions. That approach was supported by Tighe, [2013] EWHC 3313 (Admin).
2. The statutory presumption in favour of bail did not apply because the proceedings were essentially conviction-based European arrest warrant proceedings. The question was whether there were substantial grounds for believing that the appellant would fail to surrender.
3. The court considered the proposed residence requirement, electronically monitored curfew, £10,000 payment, surrender of the Polish identity card and daily reporting. Those conditions did not remove the substantial surrender risk.
4. The appellant’s family circumstances, employment and settled life in the United Kingdom were relevant considerations. They had to be assessed specifically in relation to the risk of failing to surrender, rather than through the different framework applicable to any future article 8 ECHR issue.
5. Significant weight attached to the serious and repeated offending, the custodial sentence awaiting service in Poland and the appellant’s previous failure to return to custody after temporary release. His departure from Poland and subsequent conduct indicated that he had previously evaded the Polish criminal process.
6. The coronavirus pandemic and lockdown did not undermine that conclusion. Conditions in Wandsworth prison could not materially assist the application because the prison authorities were responsible for discharging their duty of care, consistent with the persuasive reasoning in Perry v United States. The pandemic could be considered as part of the wider context, including the practical circumstances outside prison, but it did not alter the assessment of surrender risk.

The judgment records earlier bail refusals in the same extradition proceedings, including a refusal by Mr Justice Jay and a later refusal by a district judge. The present court reconsidered bail afresh and refused the application.