Kozlowski v Polish Judicial Authority

On an application for bail in conviction-based extradition proceedings, the court must consider the matter afresh. The question is whether there are substantial grounds for believing that the applicant would fail to surrender. The court must assess all relevant circumstances, including the seriousness and history of the offending, the sentence faced, the applicant’s previous conduct, family and community ties, and proposed bail conditions. Personal circumstances relevant to an Article 8 ECHR argument must be assessed through the separate prism of surrender risk. Coronavirus restrictions may form part of the general context, but prison conditions do not materially reduce surrender risk where the prison authorities remain responsible for detainees’ care.

The appellant sought bail under section 22(1A) of the Criminal Justice Act 1967 while challenging extradition to Poland under a conviction-based European arrest warrant. Bail had previously been refused by the magistrates’ court, by Mr Justice Jay, and on a later application before a district judge.

The appellant relied on his long residence, family life, employment, property ownership, proposed conditions, and the coronavirus lockdown. The respondent relied principally on his previous failure to return to custody in Poland and his subsequent fugitive status. The central issue was whether there were substantial grounds for believing that he would fail to surrender if released.

1. The application was refused. The jurisdiction under section 22(1A) of the Criminal Justice Act 1967 required the judge to consider bail afresh. It was not a review of the earlier decisions refusing bail. The approach recorded in Tighe [2013] EWHC 3313 (Admin) was applied.
2. There was no applicable presumption in favour of bail because the extradition proceedings were conviction-based. The operative question was whether there were substantial grounds for believing that the appellant would fail to surrender.
3. The court attached substantial weight to the repeated and serious offending, the custodial sentence awaiting the appellant in Poland, and the circumstances in which he had previously failed to return to custody after temporary release. His departure from Poland and subsequent conduct had resulted in his being treated as a fugitive. Those matters, viewed together, outweighed the proposed conditions, including residence, electronic monitoring, payment of £10,000, surrender of his Polish identity card, and daily reporting.
4. The appellant’s family life and established life in the United Kingdom were relevant to any substantive Article 8 ECHR argument, but had to be assessed through a different prism for the bail question. They did not eliminate the substantial surrender risk.
5. The coronavirus pandemic and lockdown could be considered as part of the wider circumstances, including the practical realities outside prison. However, prison conditions did not materially assist the appellant on the central risk assessment. The reasoning in Perry v United States, described as powerfully persuasive, was accepted in that respect.

• High Court (Administrative Court): Earlier bail applications had been refused by the magistrates’ court and by Mr Justice Jay. A district judge later declined to entertain a further application because no sufficient change of circumstances had been shown. The present court considered the bail question afresh and refused the application.