Sebastian Klos v Regional Court in Warsaw (Poland)

Permission to appeal in extradition proceedings should be granted where a developing family situation gives rise to a reasonably arguable challenge under Article 8. The threshold is modest. The court must consider the Convention rights and best interests of all materially affected family members, including children born after the extradition hearing. There is no general exceptionality test. The relevant question is whether extradition would have exceptionally severe consequences. Fresh evidence concerning those issues should ordinarily be considered at the substantive appeal, with its admissibility and decisive effect addressed then.

The appellant had been ordered to be extradited to Poland on a conviction warrant relating to fraud and false-instrument offences. District Judge Callaway ordered extradition on 7 December 2022 and addressed Article 8. By the time permission was sought, the appellant and his wife had a third child, born after the extradition hearing. The appellant also relied on fresh evidence concerning the family’s circumstances and the finding that he was a fugitive.

The Administrative Court considered whether the proposed Article 8 appeal was reasonably arguable, how the fresh evidence should be dealt with, and whether the challenge to the fugitivity finding should be permitted to proceed.

1. Permission granted. The proposed appeal on Article 8 was reasonably arguable. The birth of a third, very young child was a classic new development which the District Judge could not have considered and for which the law retained flexibility.
2. The Convention rights and best interests of all affected family members required consideration at the substantive hearing. The court was entitled to check whether extradition would be compatible with those rights in the light of the updated circumstances.
3. The District Judge had correctly recorded, by reference to HH v Italy [2012] UKSC 25 at §8, that there was no exceptionality test. The relevant issue was whether the case involved exceptionally severe consequences. The District Judge’s later reference to an exceptionality test was therefore potentially erroneous, although it might have been intended as a reference to exceptionally severe consequences.
4. The applications to adduce fresh evidence were deferred to the judge hearing the substantive appeal. The materials should be considered at that hearing. Their admissibility and whether they could be decisive were matters for determination then.
5. The challenge to the finding of fugitivity was not unarguable. Fresh evidence, including a letter from the Polish court apparently showing that the appellant had notified the authorities of his whereabouts, warranted substantive consideration, notwithstanding possible consistency with other information.
6. The fresh-evidence applications were deferred, and usual directions were made for the substantive hearing.

• High Court (Administrative Court) — permission to appeal granted on the Article 8 and fugitivity issues; fresh-evidence applications deferred to the substantive hearing.
• District Judge Callaway — extradition ordered on 7 December 2022.