PAWEL CIS v REGIONAL COURT IN KIELCE (POLAND)

On a renewed application for permission to appeal in an extradition case, the court treated an Article 8 challenge as arguable where the overall evaluative outcome might have been wrong because crucial factors may have been weighed significantly differently.

Relevant factors included substantial and potentially culpable delay, the applicant’s transformative rehabilitation, the effect of extradition on a child with whom he had daily contact, and uncertainty about future return to the United Kingdom. Fugitivity does not operate as an automatic switch which prevents the passage of time from weakening the public interest in extradition under Article 8. A separate section 2 challenge was refused where the Divisional Court had deliberately declined to certify the proposed point of law.

The appellant sought renewed permission to appeal in extradition proceedings concerning his surrender to Poland to serve the balance of a custodial sentence. Eady J had stayed the section 2 ground on the papers pending submissions in light of Wozniak [2021] EWHC 2557 (Admin). That ground was abandoned after the Divisional Court refused to certify a point of law of general public importance.

The remaining ground concerned whether the first-instance judge’s Article 8 ECHR proportionality assessment had been materially flawed, particularly in evaluating delay, rehabilitation, family life and the welfare of the appellant’s daughter.

1. Section 2 ground. Permission to appeal was refused on the ground relating to Wozniak [2021] EWHC 2557 (Admin). The Divisional Court had been aware of the arguments reserved for a possible Supreme Court appeal when it declined to certify a point of law of general public importance. That decision represented informed and deliberate finality.
2. Article 8 ground. Permission to appeal was granted. The appropriate question at this stage was whether the overall evaluation might have been wrong because crucial factors should have been weighed significantly differently, applying the formulation in Love v USA [2018] EWHC 172 (Admin) at paragraph 26.
3. The first-instance judge had conducted a thorough balancing exercise and had identified powerful public-interest factors favouring extradition. Nevertheless, the passage of time was reasonably arguable as materially weakening those factors. The twelve-year period comprised six years between issue and certification of the European Arrest Warrant and a further six years before arrest. Under Article 8, fugitivity was not an automatic answer to the significance of delay. The issue was whether the respondent’s blamelessness, the appellant’s original fugitivity and the NCA’s basic checks sufficiently established culpability in the delay.
4. The appellant’s rehabilitation, the birth and welfare of his nine-year-old daughter, their accepted daily contact, the effect on other family relationships and uncertainty about his ability to return to the United Kingdom were capable, particularly in combination, of making the evaluative outcome reasonably arguable.
5. The Article 8 appeal was therefore permitted to proceed to a substantive hearing at which the respondent could attend and the compatibility of extradition could receive full consideration.

• High Court (Administrative Court): Eady J stayed the section 2 ground on the papers on 21 July 2021, with directions for submissions in light of Wozniak [2021] EWHC 2557 (Admin). Mr Justice Fordham thereafter refused permission on that ground but granted permission on the Article 8 ground.