Bakowski v Circuit Court in Plock (Poland)

In extradition proceedings, a second warrant may amount to an abuse of process where it gives the requesting state an unfair second opportunity to prove issues lost in earlier proceedings or to obtain by re-issue what should have been pursued by appeal. The court must make a broad, merits-based assessment of the public and private interests, including the gravity of the offending, the cause and character of the earlier proceedings, the relationship between the warrants, prejudice, oppression and the need for finality.

Article 8 proportionality requires balancing the public interest in extradition against interference with private and family life. Delay may reduce the public interest and increase the impact on family life, but the high public interest in extradition means that an Article 8 defence will succeed only exceptionally.

The appellant appealed against an extradition order made by District Judge Minhas on 14 August 2023. Poland sought his return to serve sentences totalling five years, six months and 31 days for convictions arising from offences committed between 2000 and 2005.

In earlier proceedings, District Judge Godfrey discharged the appellant on the first arrest warrant because dual criminality had not been established for the firearms offence, the requirements of section 20 of the Extradition Act 2003 had not been proved for two fraud convictions, and extradition would disproportionately interfere with his Article 8 rights. Poland did not appeal and issued a second warrant.

The appeal concerned whether the renewed proceedings were an abuse of process and whether extradition was disproportionate under Article 8.

1. The appeal was allowed on the abuse of process ground. The second warrant was a collateral attack on the earlier proceedings and had an oppressive effect.

2. The correct approach was a broad, merits-based assessment of all the circumstances. Relevant considerations included the public interest in honouring extradition obligations, the gravity of the offending, the cause and character of the earlier proceedings, the relationship between the warrants, the need for finality, prejudice to the requested person and whether the renewed proceedings gave the requesting state an improper litigation advantage.

3. The judicial authority had been given an opportunity, including a deadline, to prepare its case on section 20 of the Extradition Act 2003. The necessary questions were capable of being asked and answered before the first hearing. The failure was therefore not a complete absence of opportunity, but a failure to get the evidential case in order.

4. Instead of challenging the refusal of an adjournment, the judicial authority issued a new warrant. This enabled it to re-litigate the Article 8 balance, dual criminality and other fundamental issues on which it had failed. Such a second opportunity would not have been available to the requested person and therefore required careful scrutiny.

5. The case was materially different from Konczos v Hungary because the re-litigated issues concerned historic facts rather than a future assurance. It also fell within the type of case identified in Rymarski v Poland and Marinescu v Romania as involving an improper route to a different result from that available on appeal.

6. The Article 8 ground was dismissed. Delay was important and may have been treated too summarily below, but the appellant’s fugitivity, the length of sentence and the fact that the impact on him and his family did not reach the exceptionally severe threshold meant that the District Judge had not reached an impermissible conclusion.

7. The extradition order was quashed and an order for the appellant’s discharge was substituted.

• High Court (Administrative Court): appeal against the extradition order allowed on the abuse of process ground and dismissed on the Article 8 ground. The extradition order was quashed and the appellant was discharged.
• District Judge Minhas: ordered extradition on 14 August 2023.
• Earlier proceedings before District Judge Godfrey: the appellant was discharged on the first warrant on 23 May 2022. The respondent did not appeal.