ADRIAN LUCKI v REGIONAL COURT IN BYDGOSCZ (POLAND)

On a renewed application for permission to appeal in an extradition case, the court should assess reasonable arguability by reference to the circumstances existing when permission is considered. It should not project forward on the assumption that qualifying remand will continue where the appellant has no freestanding durable basis for remaining in the United Kingdom.

Changes after the district judge’s decision may materially affect proportionality under section 21A of the Extradition Act 2003, including whether exceptional circumstances exist and the likely length of any domestic sentence used as a proxy. Article 8 considerations may overlap with, and extend beyond, the statutory proportionality assessment.

The appellant was wanted for extradition to Poland under a mixed accusation and conviction European Arrest Warrant. District Judge Griffiths ordered extradition on 6 April 2021. Permission to appeal was refused on the papers by Eady J, although grounds concerning Article 3 ECHR and section 2 of the Extradition Act 2003 were stayed and later abandoned.

The renewed application concerned section 21A(1)(b) proportionality and Article 8 ECHR. By the hearing before the High Court, the conviction aspect had fallen away through qualifying remand, leaving only the accusation aspect. The central issue was whether the changed circumstances made the proposed appeal reasonably arguable.

1. Permission granted. Permission to appeal was granted on the section 21A(1)(b) proportionality and Article 8 grounds. Permission was formally refused on the abandoned stayed grounds concerning Article 3 ECHR and section 2 of the Extradition Act 2003.
2. The court assessed the position as it stood on 14 December 2021. It was inappropriate to project forward on the assumption that qualifying remand would continue, because the appellant had no freestanding durable basis for remaining in the United Kingdom. The approach in Molik v Poland [2020] EWHC 2836 (Admin) was applied.
3. The conviction aspect of the warrant had fallen away. That change arguably removed one of the features relied on by the district judge when considering exceptional circumstances under the Criminal Procedure Rules Practice Directions, Part 50. The question could therefore properly be revisited in light of the appellant’s single previous theft conviction.
4. The Sentencing Guideline (Fraud) was a domestic proxy where the requesting state’s position lacked clarity. It was arguable that, having regard to the starting point for the relevant categories and the qualifying remand already served, the appellant faced immediate release if extradited. The reasoning in Kalinauskas v Lithuania [2020] EWHC 191 (Admin) materially supported that conclusion as a question of reasonable arguability.
5. Article 8 considerations substantially overlapped with the statutory proportionality assessment, but could include additional features. It was reasonably arguable that the changed circumstances made extradition incompatible with Article 8. Directions for the substantive appeal were to be settled by the parties and approved by the court.

• High Court (Administrative Court): District Judge Griffiths ordered extradition on 6 April 2021.
• High Court: Eady J refused permission on the papers on 9 September 2021, while staying other grounds pending lead cases.
• High Court (Administrative Court): Permission to appeal was granted on section 21A(1)(b) proportionality and Article 8 ECHR grounds. The stayed grounds were formally refused after being abandoned.