Rubak v Circuit Court In Warsaw, Poland

On an application for permission to appeal in an extradition case, a distinct ground should be refused where it has no realistic prospect of success. Other grounds may properly be reserved for a rolled-up hearing where fresh evidence, developing legal issues and overlapping statutory and Convention questions require assessment together.

A finding that an individual was trafficked may coexist with fugitivity where trafficking leaves intact a voluntary decision to leave the requesting state. Whether the two findings can coexist is fact-sensitive. Fresh evidence capable of undermining the factual basis for fugitivity may justify permission and reconsideration of related passage-of-time, Article 4 and Article 8 issues.

The appellant challenged an order for extradition made by Judge Goozee on 13 February 2020. Spencer J refused permission to appeal on the papers on 13 July 2020.

The proposed appeal concerned section 20 of the Extradition Act 2003, fugitivity and passage of time under section 14, Articles 4 and 8 ECHR, and a newly raised issue concerning effective judicial protection and the rule of law in Poland. Fresh evidence included a conclusive grounds determination recognising that the appellant had been trafficked in the United Kingdom for forced labour. The central procedural questions were whether permission should be granted, whether the new ground should be added out of time, and whether the remaining issues should be considered together after related proceedings.

1. Section 20 ground. Permission to appeal was refused on the challenge to the finding that the appellant had been deliberately absent from a Polish hearing. The issue was distinct from the trafficking, fugitivity and judicial-protection issues. The underlying documents showed that the appellant had himself applied for the Polish court to determine the case without a trial and had proposed the penalty. The District Judge’s conclusion was supported by the evidence and had no realistic prospect of being shown to be wrong.
2. Remaining grounds. The court directed a rolled-up hearing on the section 14, Article 4 and Article 8 grounds. The later conclusive grounds determination was capable of affecting the finding of fugitivity, which required proof to the criminal standard. The court was not satisfied that the District Judge’s analysis was sustainable without considering the fresh evidence.
3. Trafficking and fugitivity. The findings may coexist where trafficking concerns only exploitation after arrival or leaves untouched a voluntary decision to leave the requesting state. The issue is fact-sensitive. On the material then available, however, the new evidence raised a substantial question whether the appellant’s departure from Poland was coerced and whether the fugitivity finding could stand.
4. Effective judicial protection. Permission was granted to amend the grounds and extend time so that the new ground could be raised at the rolled-up hearing, subject to the outcome of Wozniak. The court considered that it would be unjust to remove the appellant while the relevant point of principle remained unresolved. The related issues could overlap with the Article 4, Article 8 and section 14 arguments.
5. The application was therefore granted in part. Permission was refused on the section 20 ground, while the amendment and extension were allowed and the remaining issues were directed to a rolled-up hearing after the relevant Divisional Court judgments.

• High Court (Administrative Court): [2020] EWHC 2333 (Admin) refused permission on the section 20 ground, granted permission to amend and extend time in relation to the new ground, and directed a rolled-up hearing on the remaining issues.
• District Judge: ordered extradition on 13 February 2020.
• High Court: Spencer J refused permission to appeal on the papers on 13 July 2020.