Artur Jósef Marcisz v The Regional Court in Bielsko-Biala Republic of Poland

A stay of an extradition appeal pending a lead case is exceptional and requires a rigorous, case-sensitive assessment. The court should ask whether the pending appeal is likely to be decisive or determinative in the individual case, while ensuring that extradition proceedings are dealt with expeditiously.

A stay may be justified where it is reasonably arguable that the lower court failed fully to assess the practical effect of Polish early-release provisions in the Article 8 proportionality balance, and that the lead appeal could therefore change the permission decision.

The appellant sought permission to appeal against an extradition order made under the Extradition Act 2003. His sole ground concerned whether surrender would disproportionately interfere with his rights under Article 8 of the European Convention on Human Rights, including the significance of possible early release under article 77 of the Polish Penal Code.

Permission had previously been refused. The appellant renewed the application and sought a stay pending the appeal in Tujek v Regional Court in Szczecin, Poland, which concerned the approach to Polish early-release provisions. The issue was whether the outcome of that lead appeal was likely to be decisive or determinative of the renewed permission application.

1. The stay test. The power to stay derived from Crim PR 50.18(1), read with Crim PR 3.5(2)(f) and (g). Applying Czach v Poland and the analogous approach in AB (Sudan) v Secretary of State for the Home Department, every case must be dealt with expeditiously. A stay should be granted only where the pending appeal is likely to be decisive or determinative in the individual case. The assessment is rigorous and must be conducted case by case because the relevance of early release is fact-sensitive.
2. Method of assessment. The court should assume that the approach most favourable to the appellant will prevail, assume the most favourable factual scenario, and then ask whether the lead appeal is likely to determine the permission application.
3. Application. The factual differences arising from the appellant’s conditional bail and the time remaining to serve did not make reliance on the favourable approach necessarily untenable. It was reasonably arguable that the extradition judge had referred to early release but had not identified the most generous possible time to be served or specifically weighed that period against the seriousness of the offences and the proportionality of extradition.
4. It was also possible that the court in the lead appeal would adopt the more extensive approach identified in Andrysiewicz v Circuit Court in Lodz, Poland, requiring an assessment of the likely merits of an application under article 77. If either that approach or the approach in Dobrowolski v District Court in Bydgoszcz, Poland prevailed, the result could be decisive or determinative because early release was the key factor relied upon in the permission application.
5. Order. The renewed application was stayed behind Tujek v Regional Court in Szczecin, Poland.

High Court (Administrative Court): Bourne J refused permission to appeal on 13 May 2024. On renewal, Hill J stayed the application pending the lead appeal in Tujek v Regional Court in Szczecin, Poland.