Mariusz Krolokowski v District Court in Legnica (Poland)

In an extradition appeal, qualifying remand may be assessed by projecting forward where the appellant has durable, freestanding grounds for remaining in the United Kingdom. Once the foreseeable period of qualifying remand reaches approximately 12 months, an Article 8 ECHR challenge may be reasonably arguable, even if other extradition grounds ultimately fail. The court may grant permission and list the substantive appeal for a date allowing related test-case issues to be resolved. Where a recognised Article 3 prison-conditions issue is pending in linked cases, fairness and the public interest may justify staying an application to amend the appeal notice so that the appellant can benefit from the outcome.

The appellant was wanted for extradition to Poland under a conviction European Arrest Warrant concerning a 2005 fraud offence. District Judge Ezzatt ordered extradition on 23 October 2020. Eady J stayed the section 2 ground pending linked litigation concerning the Wozniak/Chlabicz issue and refused permission on Article 8 ECHR.

On renewal, the appellant sought permission on Article 8 and permission to add an Article 3 prison-conditions ground. The court also considered the effect of existing stays, the projected duration of qualifying remand, and the appropriate procedural timetable.

1. Article 3 amendment. The court permitted the appellant to seek amendment of the appeal notice to add the Article 3 prison-conditions ground arising in the linked cases of Litwinczuk, Lukaszek and Tadaszak. The application was stayed pending final determination of those cases. The appellant was required to notify the court within 14 days thereafter whether he wished to pursue the ground and, if so, file written submissions. Otherwise, that application would be dismissed. The order included liberty to apply.
2. Article 8 permission. The appellant had two durable, freestanding bases for remaining in the United Kingdom: the existing Wozniak stay and the Article 3 stay. It was therefore appropriate to project forward the period of qualifying remand: Molik [2020] EWHC 2836 (Admin), para 30. The foreseeable timetable supported an assumption that qualifying remand would continue until July 2021: Sinani [2021] EWHC 897 (Admin), para 8.
3. By 1 July 2021, assuming continued remand, the appellant would have entered his twelfth month of qualifying remand. That made Article 8 a reasonably arguable ground for discharge rather than extradition, even if the Wozniak and Article 3 grounds failed. The court noted the possible use of deferred discharge, as illustrated by Molik and Beczer [2019] EWHC 1016 (Admin).
4. The Article 8 balance also included the age of the index offence, its relatively limited seriousness, and the appellant’s lack of further convictions. Permission to appeal on Article 8 was granted, and the substantive appeal was directed to be listed after 14 July 2021. The section 2 ground remained stayed.

• District Judge Ezzatt: ordered the appellant’s extradition on 23 October 2020.
• High Court, Eady J: stayed the section 2 ground pending the linked Wozniak/Chlabicz litigation and refused permission to appeal on Article 8.
• High Court (Administrative Court), Fordham J: granted permission to appeal on Article 8, stayed the proposed Article 3 amendment pending linked cases, and gave consequential directions.