Molik v Judical Authority of Poland

At the permission stage in an extradition appeal, Article 8 compatibility must be assessed by reference to the remand time served when permission is determined, by positing a substantive appeal on that date. Permission cannot be granted solely because its grant will keep the requested person in the United Kingdom long enough for later remand time to create a successful proportionality argument.

The position differs where the person will remain in the United Kingdom on an independent and durable basis. In that event, the judge may take account of the confidently projected remand position at the substantive hearing. A short balance of sentence may be relevant, but the court should ordinarily respect the requesting state's sentence and should not decide that enough of it has already been served.

Molik v Judical Authority of Poland concerned a renewed application for permission to appeal against an extradition order. The appellant was sought under a conviction European arrest warrant to serve the balance of a ten-month Czech custodial sentence for criminal damage and attempted taking of a vehicle without consent.

District Judge Blake ordered extradition on 3 March 2020. Jay J refused permission on the papers on 24 September 2020. By the renewed hearing, the appellant had spent over eight months on remand and had six weeks of the sentence left to serve.

The issues were whether extradition was arguably disproportionate under Article 8 ECHR and whether a permission judge should assess accumulating remand time as at the permission hearing or project the likely position at a later substantive appeal.

1. Permission to appeal was refused. On the facts as they stood at the renewed hearing, there was no realistic prospect of establishing that extradition would be incompatible with Article 8 ECHR. The appellant's long residence and work record in the United Kingdom, his non-fugitive status, and the relatively minor nature of the index offences did not outweigh the public interest in extradition and service of the Czech sentence.

2. The six weeks remaining was not a very short period of time. The court should ordinarily respect the requesting state's entitlement to have its sentence served there. It is not for an English extradition court, save in most unusual circumstances, to decide that the requested person has already served enough of that sentence. Unlike Jesionowski, there was no evidence that an early-release regime would require immediate release on return.

3. The permission-stage judge must assess Article 8 compatibility by reference to remand time served at the date permission is considered, positing a substantive appeal on that date. The judge must not grant permission solely because projected further remand, caused by the grant of permission itself, would later make extradition disproportionate. That would give permission a self-generating function and undermine the statutory extradition process.

4. An exception may arise where the appellant will remain in the United Kingdom on an independent and durable basis, such as a stay arising from a separate test case, an inability to remove the person, or permission granted on another ground. In those circumstances, a flexible assessment may take account of the confidently projected remand position at the substantive hearing.

5. If remand time actually exceeds the balance left to serve, extradition is necessarily inappropriate, whether analysed as an abuse of process or as disproportionate under Article 8. A discharge may, where appropriate, be deferred until that threshold is crossed. A later intervening change of circumstances may also engage the reopening mechanism in the Criminal Procedure Rules.

• High Court (Administrative Court): Fordham J refused the renewed application for permission to appeal.
• Permission stage: Jay J refused permission to appeal on the papers on 24 September 2020.
• District Judge: District Judge Blake ordered the appellant's extradition on 3 March 2020.