Piotr Jozef Kowalski v Polish Judicial Authority

In a conviction extradition case, the High Court’s bail jurisdiction does not depend on proof of a change in circumstances. The court may reconsider bail on its merits, although the absence of changed circumstances may remain relevant. Under the Bail Act 1976, the central question is whether there are substantial grounds for believing that the requested person would fail to surrender if released on conditions. In assessing that risk, the court may consider practical and reasonably foreseeable developments, including possible future extradition proceedings, even where they do not concern a warrant on which the person has been arrested. Relevant factors include the custodial term, the applicant’s perception of the prospects of resisting extradition, prior fugitivity, family mobility, criminal history and the adequacy of proposed conditions.

The applicant sought bail in extradition proceedings concerning a conviction European Arrest Warrant issued by the Polish Judicial Authority. His extradition had been ordered by District Judge Brennan on 4 June 2021. A second warrant had since been withdrawn, reducing the immediately relevant sentence by 12 months, while a Polish sentence-amalgamation decision and a further warrant generated disputes about the continuing legal effect of the first warrant.

The applicant argued that these developments constituted a change of circumstances and made his appeal apparently unassailable. The respondent argued that the court lacked jurisdiction, or should decline to exercise it, without a change of circumstances, and that the applicant remained extraditable. The court addressed the jurisdictional issue and then assessed the risk of failure to surrender.

1. Jurisdiction and change of circumstances. The court rejected the submission that its bail jurisdiction required a change of circumstances. Paragraph 3 of Part IIA of Schedule 1 to the Bail Act 1976 provides that the court need not hear the same arguments previously made; it does not impose a jurisdictional bar. The court therefore approached bail on its merits. In any event, the withdrawal of the second warrant, together with the sentence amalgamation and the new appeal point, constituted a sufficient change of circumstances.
2. Applicable bail question. The issue was whether, on all the material before the court, there were substantial grounds for believing that the applicant would fail to surrender if released on conditions. Because this was a conviction EAW case, there was no presumption in favour of bail.
3. Assessment of risk. The court was entitled to consider practical realities likely to affect the applicant’s perception of his position. That included the possibility of a further warrant or future extradition proceedings arising from the amalgamated sentence, despite the applicant not then being arrested on that warrant. The court also considered the substantial remaining custodial term, the realistic possibility that the appeal would fail, the applicant’s prior fugitivity from Polish justice, the family’s potential mobility, and his wider criminal history involving dishonesty and interference with justice.
4. Conditions and outcome. The proposed security, residence requirement, electronically monitored curfew, passport seizure and travel restrictions did not remove the substantial risk of non-surrender. Bail was refused.

• High Court (Administrative Court): the applicant’s extradition had previously been ordered by District Judge Brennan on 4 June 2021. Bail had been refused by McGowan J on 16 December 2020 and by District Judge Callaway on 3 November 2021. In the present application, Mr Justice Fordham refused bail.