Wozniak v District Court In Gniezno, Poland (Rev 1)

In an extradition appeal, permission should be granted where a new issue concerning the independence and impartiality of the issuing or continuing judicial authority is reasonably arguable and has a real prospect of affecting the lawfulness of the European arrest warrant process.

A determination by the Council under Article 7 TEU is not necessarily a legal prerequisite to examining whether a court has been compromised so as to cease being a judicial authority. That issue is distinct from the two-stage Article 6 fair-trial inquiry applicable to accusation warrants. Permission may nevertheless be refused where the proposed Article 8 challenge has no realistic prospect of success.

The appellant faced extradition to Poland under a European arrest warrant issued following conviction and sentence for criminal damage. He sought permission to appeal on two issues.

The first concerned whether legislative changes in Poland in December 2019 and January 2020 undermined the independence and impartiality of Polish courts, with consequences for the continuing status of the respondent as a judicial authority under section 2 of the Extradition Act 2003. The second concerned whether extradition would be incompatible with Article 8 ECHR.

The application was a renewed application for permission to appeal from the district judge’s decision dated 30 October 2019.

1. Judicial Authority issue. Permission to appeal was granted, with permission to amend the grounds and adduce further evidence. The proposed challenge was reasonably arguable because the latest Polish legislative developments raised serious concerns about disciplinary consequences for judges’ judicial acts, the nullifying effect of restrictions on judicial review of judicial independence, and their cumulative effect.

2. The question whether a Council determination under Article 7 TEU is required before a court may conclude that the necessary judicial authority is absent was not answered conclusively. The judge held that it was at least reasonably arguable that no such determination was required. The principles identified in Kovalkovas (Case C-477/16 PPU) [2017] 4 WLR 10 and OG (Case C-508/18), concerning independence from executive influence, could arguably apply where the issuing body was a court said to have been compromised.

3. The Article 6 fair-trial analysis and the judicial-authority issue were distinct. The familiar two-stage approach in LM (Case C-216/18), applied in Lis (No.1) [2018] EWHC 2848 (Admin) and Lis (No.2) [2019] EWHC 674 (Admin), did not establish that every systemic concern sufficient to cross the Article 6 threshold also removed the status of a judicial authority. However, it did not foreclose a more fundamental continuity issue.

4. The substantive appeal was to be linked with Chlabicz v Regional Court in Bialystok Poland and heard by the same court. The judge declined to order a reference to the CJEU.

5. Article 8 issue. Permission was refused. There was no error of approach by the district judge, and no realistic prospect that extradition would be found incompatible with Article 8. The court was required to respect the sentencing policy of the requesting state. The assessment was to be made by standing back and considering the overall evaluative outcome, applying Love [2018] EWHC 172 (Admin).

• District Judge: Decision dated 30 October 2019 concerning extradition under a conviction warrant.
• High Court (Administrative Court): Renewed application for permission to appeal. Permission was granted on the Judicial Authority issue and refused on the Article 8 issue.