Kicak v District Court In Koszalin, Poland

At a renewed permission hearing in an extradition appeal, permission may properly be granted where a ground is reasonably arguable, even though the court considers that it may ultimately fail. An unresolved point of principle applicable to the appellant may justify a stay on removal. Article 8 requires a fact-sensitive balancing exercise, including vulnerability, mental health, rehabilitation, the seriousness of the offending and the public interest in extradition. A finding that a person is a fugitive for the purposes of section 14 does not prevent those circumstances being assessed more broadly under Article 8. Where an issue depends on updated expert evidence, it may be dealt with on a rolled-up basis at the substantive hearing.

The appellant challenged an extradition order made by District Judge Griffiths on 11 March 2020 in relation to sentences imposed in Poland. Permission to appeal was refused on the papers by Saini J on 10 June 2020. At the renewed hearing, the appellant sought permission on issues under section 2 of the Extradition Act 2003 and Article 6, section 25, section 14 and Article 8 of the European Convention on Human Rights, together with permission to rely on further evidence.

The central questions were whether the proposed grounds were reasonably arguable, whether updated psychiatric evidence was necessary, and how the unresolved Polish extradition issue and the appellant’s alleged fugitivity affected the proposed appeal.

The court directed a substantive one-day appeal hearing for the first available date after 1 January 2021.

1. Section 2 and Article 6. The appellant was permitted to amend her grounds out of time to raise the issue considered in Wozniak [2020] EWHC 1459 (Admin). It would be unjust to extradite her while a point of principle equally applicable to her case remained unresolved. The application on that ground was stayed pending the Divisional Court’s judgment in Wozniak and Chlabicz. Permission to adduce fresh evidence on that issue was refused.
2. Updated psychiatric evidence. An addendum report was necessary, appropriate and proportionate. The evidence could be material to the section 25 and Article 8 grounds, particularly in light of the contrast between the appellant’s earlier and current descriptions of her mental state.
3. Article 8. Permission was granted because the compatibility of extradition was reasonably arguable. Relevant matters included the differing treatment of closely related Polish sentences, the absence of an apparent explanation for that difference, the appellant’s history of alcoholism and subsequent sustained remission, her vulnerability, suicide risk, ability to re-establish herself and the seriousness of the offending.
4. Section 14. Permission was granted despite the court’s doubts about the prospects of success. The finding that the appellant knew she faced imprisonment and deliberately placed herself beyond the authorities’ reach might be fatal to the challenge. Nevertheless, her subsequent United Kingdom address, alleged cooperation and possible misunderstanding were matters capable of informing the assessment of fugitivity. Those matters might also bear on the more nuanced Article 8 assessment, even if the section 14 test was binary.
5. Section 25 and further evidence. The section 25 application was adjourned for consideration on a rolled-up basis at the substantive hearing. Further evidence and the addendum report could be adduced, subject to the substantive court’s final decision on admissibility and whether the evidence was capable of being decisive. There was no order as to costs, save for detailed assessment of publicly funded costs.

• District Judge. Extradition was ordered by District Judge Griffiths on 11 March 2020 after an oral hearing.
• High Court, Administrative Court. Saini J refused permission to appeal on the papers on 10 June 2020.
• High Court, Administrative Court. On 8 October 2020, Fordham J granted permission on the Article 8 and section 14 grounds, adjourned the section 25 issue on a rolled-up basis, stayed the section 2/Article 6 issue pending related proceedings, and directed a substantive appeal hearing.