Ostrowski v Polish Judicial Authority

In an extradition case involving Article 8 of the European Convention on Human Rights, delay may weaken the public interest in extradition and increase its impact on family and private life. It need not, however, be treated as a separate self-standing factor where its effects have been taken into account through the factual assessment. The appellate question is whether the extradition decision is arguably or realistically wrong. Permission should be refused where no realistic prospect exists that a fresh or fuller balancing exercise would alter the outcome. A genuinely arguable new point concerning the validity of the requesting judicial authority may justify amendment, an extension of time and a stay pending authoritative resolution.

The appellant was wanted for extradition to Poland under three conviction European Arrest Warrants. District Judge Brennan ordered extradition on 24 February 2020. Saini J refused permission to appeal on the papers on 15 June 2020. The appellant renewed his application, relying on Article 8 family and private life rights and seeking permission to add a separate challenge concerning whether the Polish courts remained judicial authorities for the purposes of section 2 of the Extradition Act 2003.

The court considered whether the Article 8 challenge was reasonably arguable and whether the proposed judicial-authority ground should be permitted and stayed pending the Divisional Court’s decision in Wozniak and [2020] EWHC 1459 (Admin).

1. Article 8 ground. Permission to appeal was refused. The appellant’s delay, family life, the children’s interests and the consequences of extradition did not give the proposed appeal a realistic prospect of success.
2. The court accepted the principles identified in HH [2012] UKSC 25: lapse of time may weaken the public interest in extradition and increase the impact on family and private life. The seriousness of the offending and the severity of the consequences also required consideration. Those matters had to be assessed in the circumstances of the individual case.
3. A district judge was entitled not to list lapse of time as a separate factor where the elapsed period was reflected in the assessment of the established family relationships, the appellant’s role in caring for the children and his employment. Even if delay, seriousness and the family impact were separately identified and given additional weight, they could not reasonably alter the proportionality balance on these facts.
4. The appellate court was not required to grant permission merely because it could revisit the balance sheet afresh. The relevant question was whether there was a realistic prospect that the Article 8 outcome was wrong. There was none.
5. Judicial-authority ground. The court granted permission to amend the grounds, with an extension of time, to rely on the point previously held reasonably arguable in Wozniak. The application for permission on that ground was stayed pending the Divisional Court’s judgment in Wozniak and Chlabicz. The appellant was not to be extradited pending consideration of that application. There was no order as to costs.

• District Judge Brennan: ordered the appellant’s extradition on 24 February 2020.
• High Court, Saini J: refused permission to appeal on the papers on 15 June 2020.
• High Court (Administrative Court), Fordham J: refused permission on the Article 8 ground, permitted amendment to add the judicial-authority ground, stayed that application and directed that extradition should not take place pending its consideration.