AC-2023-LON-000173 - [2025] EWHC 1897 (Admin)

Having conducted the necessary broad, merits-based assessment, I have come to the conclusion that the issue of the second warrant was an abuse of process. I now summarise the factors which I found of most significance.

The public interest in the UK honouring its extradition obligations is always a weighty factor. In this case its weight was diminished to a significant degree by the lapse of so many years since the offending. That effect is qualified by the fact that the appellant left Poland as a fugitive but, against that, he has since led a reformed and hard working life.

The gravity of the offences, in my judgment, does not lean very far in either direction. In this case a number of sentences were aggregated and so the appellant faced a fairly long sentence, and that counts against him. On the other hand each offence attracted a comparatively short sentence. It is to his particular discredit that one offence involved domestic violence, but the fact of a reconciliation since then mitigates that factor to a degree.

It is of some significance that in the first extradition hearing the Article 8 balance, exceptionally, came down in the appellant’s favour. There was no appeal against that finding. Although the DJ took a different view in these proceedings, it shows that this case was unusually finely balanced. In saying that, I bear in mind that the DJ in the second proceedings was considering all of the offences whereas in the first proceedings, other factors barred extradition for several of the offences, but I doubt that that would have made a decisive difference.

More importantly, however, it seems to me that the proceedings on the second warrant can properly be characterised as a collateral attack on the decisions in the first proceedings.

In relation to section 20, DJ Godfrey refused an adjournment. Rather than challenging the refusal the judicial authority ultimately resorted to a new warrant. I see some force in Ms Hill’s point that an application for an adjournment in advance of, instead of at, the extradition hearing might well have been successful. The judicial authority could have explained that the section 20 issue had been drawn to its attention at a late stage and that although further information had been sought and received, unfortunately some of the necessary questions had not been asked and therefore there would be a delay. Instead, it found itself unable to prove its case at the hearing. Resorting to a new warrant was, it seems to me, a way of side-stepping DJ Godfrey’s refusal of the adjournment.

I also consider that some of Ms Hill’s comments on the DJ’s analysis have merit. Although the process of putting section 20 in issue (though bearing in mind that a judicial authority must always prove its case on section 20) and seeking and obtaining further information was compressed into a short time, the chronology demonstrates that the CPS could ask the necessary questions of the judicial authority and obtain answers. There was therefore no lack of “opportunity” to do so. The problem was simply that some necessary questions were omitted. And, whilst this is not the clearest case of a breach of a court order, it is a case where the judicial authority was given a deadline to get its case ready and it failed to do so.

In addition, the new proceedings also gave the judicial authority a second bite of the cherry on fundamental issues which it had fought and lost. DJ Godfrey had made his ruling on the Article 8 balance as I have said, and the new warrant allowed that issue simply to be fought over again. The same is true of the issue of dual criminality in respect of the firearms offence, though it is not suggested that DJ Minhas reached the wrong conclusion about that.

In that regard, see the extract from Rymarski at [22] above. I am not suggesting that the judicial authority was “shopping around” for a more sympathetic forum on Article 8, but the practical effect of re-issue was, in substance, to obtain that outcome.

The second bite of the cherry on those issues would never be available to a requested person. That is one reason why this Court will carefully scrutinise its availability to a judicial authority.

In this case the impact on the requested person was severe, in both a legal and a personal sense. Legally he was made to re-litigate issues on which he had succeeded, and he was defeated on them. Personally he was subjected to the stress of the renewed proceedings and the strictures of bail, months after he thought, not unreasonably, that he had won the case. In my judgment that was oppressive.

I also bear in mind that the re-litigated issues were issues of historic fact, making this case very different from Konczos.

The case also does not fall into any of the non-abuse categories identified in Rymarski and quoted at [20] above. Rather it is the type of case mentioned in the extract at [21] above where extradition is sought on the same facts and, subject to the section 20 point, the same evidence. The effect was to give “an improper and unfair litigation advantage to the requesting state” (Marinescu), achieving by re-issue what was not or could not have been achieved by an appeal.

This is not a case where any single criticism of the judicial authority leads to a “mechanistic” finding of abuse of process. Rather, when all the facts are analysed together, the oppressive effect on the appellant and the need for finality are decisive. I will therefore allow the appeal on ground 1.

I would not have allowed the appeal on ground 2, although I think it is finely balanced. As I have said, the fine balance is demonstrated by the decision of DJ Godfrey on Article 8. The importance of delay, as identified in HH, cannot simply be ignored. It may have been dismissed in an over-summary way by DJ Minhas. Nevertheless, having regard to the fact that the appellant left Poland as a fugitive, and to the length of the sentence which he faced, and having regard to the fact that the impact of extradition on him and his family, though severe, could not surmount the high threshold reiterated in Andrysiewicz, I am unable to conclude that DJ Minhas reached the wrong conclusion on the Article 8 issue.