MAREK POLAKOWSKI v POLISH JUDICIAL AUTHORITY

In deciding bail in a conviction European Arrest Warrant case, the court must consider afresh whether substantial grounds exist for believing that the defendant would fail to surrender. No presumption arises in favour of bail. The assessment is fact-sensitive and may include the period of custody remaining, the defendant’s perception of the prospects of resisting extradition, the strength of personal ties in the United Kingdom, previous conduct and any history of evading responsibility. Bail conditions do not justify release where, having regard to all the circumstances, they do not sufficiently address the risk of non-surrender.

The applicant sought bail pending extradition to Poland under a conviction European Arrest Warrant. Bail had previously been refused by the magistrates’ court on three occasions. Extradition had been ordered, and an application for permission to appeal remained outstanding. The applicant relied on ill-health, family ties in the United Kingdom, proposed bail conditions and his asserted intention to comply. The respondent relied on the remaining custodial term, the perceived weakness of the Article 8 appeal, the applicant’s criminal history and his having left Poland while required to return to custody. The central issue was whether there were substantial grounds for believing that the applicant would fail to surrender if released.

1. Application refused. The court was not prepared to grant bail.
2. The merits of bail had to be considered afresh. Because this was a conviction European Arrest Warrant case, no presumption arose in favour of bail.
3. The governing question was whether there were substantial grounds for believing that the applicant would fail to surrender. The assessment required consideration of the whole factual context, including the proposed conditions.
4. Relevant considerations included the approximately 18 months of custody still to be served, which created a significant incentive not to comply; the fact that extradition had already been ordered; the applicant’s possible perception that his extant appeal was fragile; and the limited anchoring effect of his United Kingdom family connections.
5. The court also attached weight to the applicant’s extensive criminal history and to the finding that he had left Poland as a fugitive after temporary release from prison had been extended. He had therefore previously avoided surrendering to serve the balance of his sentence by relocating and crossing borders.
6. Considering those matters together, the court found substantial grounds for believing that the applicant would fail to surrender notwithstanding the proposed conditions and any additional conditions available to the court. Bail was refused.

• Magistrates’ court: bail refused on 11 July 2020, 17 October 2020 and 15 November 2021.
• High Court (Administrative Court): the application for bail was considered afresh and refused.