JUSTYNA NIEWITALA v DISTRICT COURT IN KRAKOW (POLAND)

Where an appellant accepts that no viable ground of appeal remains, permission to appeal should be refused rather than the hearing being vacated or adjourned pending possible future developments. A proposed delay must be supported by evidence and justified by a properly arguable legal issue. A narrow argument that extradition is disproportionate merely because the requested person may shortly attend proceedings abroad is not arguable where each identified outcome requires presence in that country. The court may also refuse permission on extradition grounds already authoritatively determined against the requested person and discharge an existing stay.

This was a renewed application for permission to appeal in extradition proceedings. The appellant accepted that her Article 8 ECHR ground could not be maintained, subject to a proposed adjournment pending Polish proceedings concerning possible substitution of an 18-month custodial sentence with electronic supervision.

Further grounds concerning section 2 of the Extradition Act 2003 and prison conditions under Article 3 ECHR had previously been stayed by Lane J, who had refused permission on the Article 8 ground. The issues were whether the hearing should be vacated or stayed and whether permission should be granted on the remaining grounds.

1. The application to vacate or adjourn the hearing was refused. Once the appellant accepted that there was no viable freestanding ground of appeal, the appropriate course was to refuse permission. The possible outcomes of the Polish hearing would each involve the appellant being in Poland, so a narrow Article 8 argument based solely on extradition occurring before that hearing was not arguable. The proposed adjournment was also unsupported by satisfactory evidence, despite the issue having been raised months earlier.

2. The application to stay the refusal of permission, or alternatively to stay surrender until after 10 January 2022, was refused. No justification for such an order had been established.

3. The court formally refused permission to amend and permission to appeal on the section 2 and Article 3 grounds. Those issues had been definitively addressed adversely to the relevant requested persons in lead cases. The stay granted by Lane J on 22 July 2021 was discharged.

4. Permission to appeal on the Article 8 ground was refused. The strong public interest in extradition decisively outweighed the factors capable of weighing against it, and Lane J’s refusal of permission on that issue was correct.

• High Court (Administrative Court): Lane J refused permission to appeal on the Article 8 ground and granted a stay on the section 2 and Article 3 grounds on 22 July 2021. On renewal, Fordham J refused permission to appeal and permission to amend, refused the applications to adjourn or stay surrender, and discharged the stay.