Niedzwiedz v The Regional Court In Poznan, Poland

On an application for permission to appeal in an extradition case, the court must identify a reasonably arguable error of law or approach in the District Judge’s decision. A permission application is not an invitation to reargue evaluative conclusions where the decision was open on the evidence.

In assessing statutory proportionality under section 21A of the Extradition Act 2003, the court must consider the specified matters, including the seriousness of the alleged conduct, the likely penalty and the possibility of less coercive measures. Guidance describing an indicative category does not operate rigidly. Previous offending may be relevant to seriousness. A prosecutor’s sentencing request is evidence, but does not determine the likely penalty.

The appellant faced extradition to Poland under an accusation European Arrest Warrant concerning alleged possession of controlled drugs and cannabis cultivation. A District Judge ordered extradition on 22 January 2020. Goose J refused permission to appeal on 25 June 2020.

The appellant sought permission to appeal on statutory proportionality and Article 8 grounds. He also applied to add section 2 judicial-authority and Article 6 fair-trial grounds arising in the pending appeals of Wozniak and Chlabicz. The central issues were whether the District Judge had arguably erred in assessing proportionality, likely sentence, less coercive alternatives and Article 8 rights, and how the new points should be managed pending the Divisional Court’s judgment.

1. Permission and procedural management. Permission to appeal on the existing section 21A proportionality and Article 8 grounds was refused. Permission was granted to amend the grounds to include the section 2 and Article 6 issues raised in the pending appeals of Wozniak and Chlabicz. Consideration of permission on those new grounds was stayed pending judgment in those appeals. The appellant was not to be extradited pending that consideration.

2. Statutory proportionality. There was no reasonably arguable error in the District Judge’s application of section 21A of the Extradition Act 2003. The Criminal Practice Direction provided relevant guidance on seriousness, but was not treated as rigidly determinative. The District Judge considered the alleged conduct itself and was entitled to regard the quantities of drugs as substantial and the offending as more than trivial.

3. Previous offending history could properly be considered as relevant to culpability and seriousness. The descriptions of the quantities and conduct in the European Arrest Warrant and further information were relevant evidence, including where the description also reflected Polish legal terminology.

4. The prosecutor’s indication that a 12-month immediate custodial sentence would be sought did not determine the likely sentence. The District Judge distinguished the request from the ultimate assessment and was entitled to conclude that custody was likely. He was also entitled to find that the case was not one of the extremely rare cases in which the penalty sought would be offensive to a domestic court.

5. As to less coercive measures, the District Judge considered the evidence and had no evidential basis for an alternative finding. He did not treat that specified matter as devoid of content merely because extradition was being pursued.

6. Article 8. The alleged errors in the proportionality assessment did not arise. The District Judge made coherent findings on employment, financial support and the appellant’s knowledge of the drugs. The fresh evidence would not arguably have altered the balancing exercise. There was no reasonably arguable basis for concluding that extradition was incompatible with the relevant Article 8 rights.

7. The extension of time for the respondent’s notice was granted and costs were reserved.

• Westminster Magistrates’ Court: extradition ordered on 22 January 2020.
• High Court (Administrative Court): Goose J refused permission to appeal on 25 June 2020.
• High Court (Administrative Court): permission on the existing grounds refused; amendment permitted for the section 2 and Article 6 grounds, with consideration stayed pending the Divisional Court’s judgment in Wozniak and Chlabicz.