Makowska v Regional Court, Torun, Poland (No. 2)

Certification of a point of law requires more than showing that the issue arises in an important statutory context. The point must have general public importance, distinct from the separate question whether it ought to be considered by the Supreme Court. Certification may properly be refused where the proposed legal analysis has a clear answer or depends on a fact-specific assessment. In extradition proceedings, breach of an obligation under a suspended sentence does not, by itself, make a person a fugitive. Fugitivity concerns whether the person knowingly placed themselves beyond the reach of legal process and must be assessed case by case. That principle is distinct from being unlawfully at large, which is an objective state of being at large in breach of a lawful sentence.

The appellant had succeeded in an extradition appeal in [2020] EWHC 2371 (Admin). The respondent applied for certification under section 32(4)(a) of the Extradition Act 2003 and for permission to appeal to the Supreme Court under section 32(4)(b).

The proposed question concerned whether a requested person was necessarily a fugitive after breaching a requirement to pay compensation or a financial penalty imposed as a term of a suspended sentence, despite remaining open about their whereabouts to the issuing judicial authority. The application was determined on the papers. The central issue was whether the proposed point had general public importance, given the court’s view that the governing analysis was clear and fact-specific.

1. Certification refused. The court held that a point may be a question of law without being a point of law of general public importance. The statutory certification requirement must remain distinct from the separate permission test under section 32(4)(b) of the Extradition Act 2003. Certification may be declined where the proposed analysis has a clear answer or is in truth a fact-specific decision.
2. The respondent’s thesis was that recent decisions had wrongly narrowed or watered down Wisniewski. The court rejected that contention as clearly wrong. The relevant principle is that a person is a fugitive where they have knowingly placed themselves beyond the reach of legal process, so that they cannot rely on the passage of time resulting from their absence.
3. The court distinguished fugitivity from being unlawfully at large. The latter is an objective state of being at large in contravention of a lawful sentence. Fugitivity instead concerns the person’s relationship with legal process and whether their conduct prevents the authorities from dealing with them.
4. In the context of a suspended sentence, failure to pay redress is not by itself a trigger of fugitivity. The analysis remains fact-sensitive. The examples discussed in Wisniewski, including voluntarily leaving the jurisdiction so as to prevent performance of sentence obligations or breaching contact conditions so that the authority cannot deal with the person, confirmed that emphasis.
5. Pillar-Neumann, De Zorzi and the judgment under challenge were consistent applications of that principle. The court considered that the proposed appeal point therefore did not engage a point of law of general public importance. The certification application was refused, and the application for permission to appeal fell away.

1. High Court (Administrative Court): The appellant’s extradition appeal was allowed in [2020] EWHC 2371 (Admin).
2. High Court (Administrative Court): The respondent’s application for certification and permission to appeal to the Supreme Court was refused in the present judgment. The permission application consequently fell away.