ANDRZEJ DYKO v POLISH JUDICIAL AUTHORITY

On a renewed application for permission to appeal in extradition proceedings, the High Court may remit a matter with a binding direction where it has authoritatively determined the relevant human-rights issue and the proper outcome. The lower court should not reopen an evaluative balancing exercise unless a supervening event, fresh evidence or a new material consideration warrants reconsideration.

In assessing the impact of extradition under Article 8 ECHR, the court must apply a realistic, real-world approach. An impact which will arise in any event because extradition is proceeding under another warrant should not be treated as a separate or decisive countervailing factor.

The appellant sought permission to appeal against a district judge’s order for extradition to Poland on two European arrest warrants. A previous district judge had discharged him on one warrant on Article 8 grounds but had not discharged him on the other.

On an earlier appeal, Holman J held that extradition under the second warrant was proportionate and that, in the circumstances, extradition under the first warrant could not also be disproportionate. The matter was remitted under section 29(5)(b) of the Extradition Act 2003 with a direction to proceed as required by that conclusion. The renewed application challenged that direction and the subsequent refusal to conduct a fresh evidential and proportionality assessment.

1. Permission refused. There was no realistic prospect that the proposed appeal would succeed at a substantive hearing.
2. The earlier judgment had clearly determined both the Article 8 proportionality issues and the appropriate order on remission. The district judge was required to follow that direction and had taken the only course open in light of the High Court’s ruling.
3. It was inappropriate for the district judge to embark afresh on an evaluative balancing exercise. A different course might be justified by a supervening event, fresh evidence or a new consideration, but none was suggested. There was consequently no requirement to hear further evidence or make fresh findings.
4. The approach in Zakrewski v Poland [2015] EWHC 3393 (Admin) [2016] 4 WLR 23 was applicable. Its observation concerning an Article 8 impact rendered academic by extradition under another warrant addressed the need for a realistic assessment of impact. It did not mean that all warrants necessarily stood or fell together for every purpose.
5. The relevant family and financial impacts were necessarily going to arise from extradition under the second warrant. Treating them as independently decisive against extradition under the first warrant would be artificial. The renewed application was therefore refused.

• High Court (Administrative Court): On 21 April 2022 Hill J refused permission to appeal. The appellant renewed the application, which was refused by Fordham J on 7 July 2022.
• High Court (Administrative Court): In Dyko (No.1) [2021] EWHC 2910 (Admin), Holman J allowed the relevant appeal, found extradition proportionate under the second warrant and directed remission under section 29(5)(b) of the Extradition Act 2003.
• Westminster Magistrates’ Court: Following remission, the district judge ordered extradition on 23 November 2021.