Bakowski v Circuit Court in Plock (Poland)

Mr Justice Bourne: Introduction

1. This is an appeal against an extradition order made on 14 August 2023 by DJ Minhas. Permission to appeal was granted by Julian Knowles J at an oral hearing on 6th November 2024.

2. The judicial authority of Poland seeks the return of the appellant to serve 3 sentences totalling 5 years 6 months and 31 days arising from convictions in 2003, 2004, 2005 and 2006 for offences committed between 2000 and 2005.

3. The appellant’s relevant offences were:

1. physical and mental mistreatment of his sister and her children between January 2001 and 13 June 2003, one year’s imprisonment (file no. 817/03);

2. possession of amphetamine and a firearm in the form of a “gas revolver” on 23 August 2005, one year 6 months’ imprisonment of which 1 year, 1 month and 21-days remains to be served (file no. 1160/05);

3. fraud/forgery of contracts for sale of a vehicle in March 2003 and September 2002 (file no. 105/03), fraud by false representation in respect of a loan of PLN 3000 committed on 4 March 2000 (file no. 956/04), fraud by false representation in respect of a loan of PLN 3000 committed on 23 February 2000 (file no. 209/05), for all of which a 3 year 6 month sentence was imposed on 22 September 2006 (collective file no. 616/06), of which 3 years, 5 months and 10 days remains to be served.

4. These are the second set of proceedings arising from those matters, to which I will refer by their file numbers.

5. The judicial authority originally issued an arrest warrant dated 10 August 2018 which was certified by the NCA on 1 December 2021 (“AW1”).

6. Following an extradition hearing, Mr Bakowski was discharged on that warrant by DJ Godfrey on 23 May 2022, because

1. In respect of 1160/05, the DJ was not satisfied of the type of firearm and therefore that dual criminality was proved.

2. In respect of files 956/04 and 209/05, there was insufficient evidence of compliance with section 20 of the EA 2003 (showing either that the Appellant was present or represented at his trial or that he had the right to a retrial).

3. In respect of the remaining offences, extradition would be a disproportionate interference with his rights under ECHR Article 8, having regard in particular to the long delay since the original offending.

7. On 30 May 2022 the respondent confirmed that it would not be appealing the appellant’s discharge.

8. The appellant is now sought pursuant to an arrest warrant issued by the Circuit Court in Plock on 8 November 2022 and certified on 16 February 2023 (“AW2”).

9. On 12 April 2023 the Appellant was arrested on AW2. He appeared before the Court the following day for Initial Hearing when he was remanded on conditional bail. An extradition hearing before DJ Minhas took place on 12 July 2023. The Appellant and his partner gave evidence. Extradition was challenged on the bases that the renewed proceedings were an abuse of process, the firearms offence is not an extradition offence and extradition would be a disproportionate interference with Article 8 rights. Judgment was reserved. On 14 August 2023 extradition was ordered.

10. The appellant now appeals on two grounds:

1. It was an abuse of process for the requesting state to bring the second extradition proceedings.

2. The Article 8 balance should have been struck in the appellant’s favour.

11. The relevant legal principles were broadly agreed. The real issue in this appeal is their application to the facts of the case. The principles from case law

12. The existence of the abuse of process jurisdiction in extradition proceedings has been recognised since Bermingham and others v Government of the United States of America and another [2006] EWHC 200 (Admin) [2007] QB 727 and R (on the application of the Government of the United States of America) v Bow Street Magistrates Court [2006] EWHC 2256 (Admin) at (§§82-89).

13. Guidance was given in Giese v Government of the United States of America [2018] EWHC 1480 (Admin) where Lord Burnett CJ said at §§32-33: “32. The key, in our judgment, to cases where it is said that the requesting state failed in the first set of proceedings such that the second set are an abuse of process is to make a ‘broad, merits-based judgment which takes account of the public and private interest involved and also takes account of all the facts of the case’: see Johnson v Gore Wood [2002] 2 AC 1 at [31] and Arranz v High Court of Madrid [2016] EWHC 3029 (Admin) at [32] and [33]. Such a broad, merits-based judgment should take account of the fact that there is no doctrine of res judicata or issue estoppel in extradition proceedings.

33. Underlying extradition are important public interests in upholding the treaty obligations of the United Kingdom; of ensuring that those convicted of crimes abroad are returned to serve their sentences; of returning those suspected of crime for trial; and of avoiding the United Kingdom becoming (or being seen as) a safe haven for fugitives from justice. The 2003 Act provides wide protections to requested persons through the multiple bars to extradition Parliament, originally and through amendment, has enacted. There are likely to be few instances where a requested person fails to substantiate a bar but can succeed in an abuse argument.”

14. In Jasvins v Latvia [2020] EWHC 602 (Admin) , it was noted by the Divisional Court (Davis LJ and Swift J) that: “…there is no necessary conclusion that proceedings on a second (or later), warrant will amount to an abuse of process with the consequence that those proceedings will be dismissed.” [17]

15. At [20[-[21] the Divisional Court highlighted the need for an overall merits based assessment of the circumstances of the case: “Mr Jones’s submission in this case is that wherever proceedings on a subsequent EAW amount to collateral attack on decisions taken in proceedings on an earlier materially identical EAW, the second proceedings must amount to an abuse of process and must be dismissed. We do not agree that the matter can be put in such absolute terms. Where there are successive warrants or successive extradition requests, if proceedings on the subsequent warrants can properly be characterised as a collateral attack on a decision in proceedings on the first warrant, the latter proceedings are capable of amounting to an abuse of process. It may be possible to go further and say that ordinarily this will be the case. But the outcome in any given situation must depend on the overall merits-based assessment of public interests and careful evaluation of the facts, referred to at paragraph 32 in judgment of Giese . There is a particularly important public interest that the system of enforcement of EAWs is undermined. That public interest covers a number of objectives. One objective, plainly, is that those who are charged with criminal offences overseas or have been convicted overseas and are wanted for punishment are provided to requesting authorities. But maintaining the integrity of the EAW system includes ensuring that decisions can be made expeditiously and that courts are able to exercise effective case management powers. Put bluntly, if such orders are made, the starting presumption is that they will be complied with. Where, as in this appeal, the claim of abuse of process arises from a failure in earlier proceedings to comply with a court order, the court in the later proceedings must assess the significance of permitting the Requesting Authority to avoid the consequences of the earlier decision, while also taking account of the public interest in that particular extradition. This will also include considering the gravity of the alleged or actual offending, and the prejudice (if any) to the requested person arising from pursuit of the further warrant. In other words, a Giese-style broad, merits-based judgment taking account of the public and private interests as they are manifest on the facts of the particular case.”

16. In Konczos v Hungary [2021] EWHC 3287 (Admin) , granting permission to appeal against an order for extradition based on a second arrest warrant on the basis of abuse of process but dismissing the appeal, Fordham J said at [30]: “This is not a case like Jasvins where there was a live question of historic fact, calling for evidence, as to what had happened. This is a case in which extradition could not be Article 3-compatible, unless and until Hungarian authorities were in a position to make a clear and concrete promise guaranteeing the position as regards the future action of Hungarian authorities. As in Giese , where there was no abuse of process (see §43), this is a case where an "adequate assurance" was needed in relation to future action, so as to "neutralise" a human rights argument, rather than being a situation of seeking to "reargue" points which had been "lost" (see §§34-35). The integrity of the EAW system and ensuring expeditious decision-making justified DJ Grant in making directions giving a deadline for the requisite prison assurance, by way of directions which were to be complied with, and then discharging the Appellant on EAW1 when it was not forthcoming. The Respondent was clearly placing itself at risk, insofar as it defaulted assuming that it could simply start again with a lookalike EAW2. The significance of permitting the Respondent to avoid the earlier consequences lies in two features: (i) the Respondent being able subsequently to give the requisite guarantee as to Hungarian authorities' own future action, allaying the concerns for the future which arise in relation to Article 3 and prison conditions; and (ii) the adverse consequences for the Appellant in having to face a fresh EAW and fresh extradition proceedings. As to these, as in Giese (see §42): the first feature (number (i) above) serves to vindicate the Appellant's ECHR rights and ensure that the strong public interest in upholding extradition arrangements is recognised; whereas the second feature (number (ii) above) is not, in my judgment, such as to give rise to unfairness, still less oppression.”

17. Fordham J went on to explain the latter conclusion on the facts of the case. The appellant had been discharged on the first warrant in May 2016 because the respondent failed to comply with directions to provide an assurance as to prison conditions. The second warrant was issued 11 days later and the appellant was promptly told about it. He then opted to request a retrial in Hungary. In 2018 the retrial was terminated because the Hungarian authorities insisted that a prison sentence previously passed on him remained in force pending the retrial, he refused to attend for trial and the Hungarian court refused to proceed in his absence. Challenges by the appellant were dismissed, up to and including June 2019. The second arrest warrant was certified in July 2019, he was arrested in June 2020 and the prison assurance was provided in September 2020. In those unusual circumstances the public interest in extradition outweighed the consequences to the appellant of allowing the respondent to avoid the consequences of its original failure to obtain the prison assurance.

18. In Wawrzyczek v Poland [2021] EWHC 64 (Admin) at [104], Julian Knowles J explained that the Court would consider the public and private interests involved and all the facts, and would “determine whether extradition on the second EAW would result in unjust oppression to the defendant”:

19. In Rymarski v Poland [2023] EWHC 3389 (Admin) , the DJ in a first set of proceedings found that the judicial authority had not proved that the appellant had deliberately absented himself from trial and discharged him pursuant to s20 . The judicial authority did not appeal. A new EAW was issued two and a half months later including further and better information regarding the Appellant’s summons. Finding this to amount to an abuse of process, Johnson J said: “There is a strong public interest in the finality of legal proceedings. At common law, the courts expect parties to “bring forward their whole case” when engaged in litigation. The courts will not, except under special circumstances, permit a party to re-litigate an issue that has been determined …” [28]. “The need for efficiency and economy in legal proceedings which underpins the application of the abuse of process jurisdiction to re-litigation applies as much in the context of extradition proceedings as it does to other areas of litigation…Thus, the public interest and finality that underpins re-litigation abuse applies in the context of extradition proceedings. It is therefore not surprising that it has been applied in this context.” [31] “It is only a judicial authority, not a requested person, that can, in effect, launch a second set of extradition proceedings. The need to ensure that parties are treated fairly and are on the same footing therefore requires a degree of rigour in ensuring that the restrictions that apply to appeals are not side-stepped in a way that is only available to one party. If the judicial authority had known of the further evidence clarifying the minor discrepancy and had considered that it would not be able or might not be able to adduce that evidence on an appeal as fresh evidence and had decided to issue a fresh arrest warrant as a way of avoiding the procedural requirements that are explained in Fenyvesi , then in my judgment the second set of proceedings would be a clear abuse of process for that separate reason.” [42]

20. Johnson J set out some examples of cases in which a second attempt at extradition was unlikely to be held abusive at [35]: “(1) where the new extradition request is based on an entirely new underlying offence, particularly where that offence post-dates the previous proceedings. (2) where there has been a fundamental change in the underlying facts since the previous proceedings. An example may be where the extradition was refused on the grounds that it would be incompatible with the right to respect for his private or family life and where factors that were critical to the Article 8 balance have since ceased to apply. (3) where the requested authority takes steps to address concerns that led to the refusal of an extradition request, for example by giving an assurance as to prison conditions. Giese is such a case as Fordham J explained in Konczos v Hungary [2021] EWHC 3287 Admin at [30]. (4) where new evidence comes to light after the proceedings and after the time for an appeal has expired in circumstances where the judicial authority could not have obtained such evidence at any earlier stage.

21. In the same paragraph he indicated that, conversely, “it is more likely to be an abuse if extradition is sought for the same offence and on the same evidence as in previous proceedings which resulted in the requested person’s discharge. Such proceedings, in substance if not in form, are almost inevitably a collateral attack on the previous decision”.

22. And at [36] Johnson J said: “It may also be an abuse if a new arrest warrant is issued as a device for avoiding a litigation disadvantage that might otherwise apply on appeal. To take one example, the appellate court does not usually make its own decision as to where the Article 8 balance lies. Rather, it reviews the decision of the district judge in order to determine whether that decision was wrong. It follows that there will be marginal cases where the factors are finely balanced and where different district judges might reach different conclusions. In such cases, an appellate court may dismiss an appeal even if the court would, itself, have reached a different decision as to where the Article 8 balance lies. It would be quite wrong and abusive if, in such a case, a judicial authority simply kept issuing new arrest warrants until it found a first instance judge who reached a conclusion in its favour on the Article 8 balance.”

23. In Marinescu v Romania [2025] EWHC 600 (Admin) , Collins Rice J said: “The relevant factors will include the gravity of the offending, the nature and cause of the events leading to the outcome of the antecedent litigation, the character of the subsequent litigation and its relationship to the antecedent litigation, the effect of all that on the extent of the public interest in extradition, and the effect on the requested person including through change of circumstance or the passage of time.” [32] “Whether a reissued arrest warrant is an impermissible collateral attack on previous proceedings or otherwise an abuse of process by relitigation may also involve an evaluation of whether, viewed in the round, it amounts to an improper and unfair litigation advantage to the requesting state. That may be so, for example, where it seeks to avoid, undo or set aside previous decisions in a manner only properly available through an appeal route.” [33] “In these circumstances, although the District Judge himself used the expression ' collateral attack ', it was not really any such thing. That term should properly be reserved for reissued warrants which are avoidance devices – backdoor routes to different results from those a court has decided otherwise, and for which consequential litigation steps have already been provided.” [84]

24. As to the other issue, of Article 8 and proportionality, the principles are too well known to need more than the briefest summary here.

25. The court when deciding whether extradition would be a disproportionate interference with the requested person’s Article 8 rights must balance the factors for and against extradition: Celinski v Poland [2016] 1 WLR 551 .

26. A lengthy delay between the commission of the relevant offences and subsequent criminal proceedings and extradition proceedings may both diminish the weight to be attached to the public interest and increase the impact of extradition upon private and family life. See HH v Deputy Prosecutor of the Italian Republic, Genoa per Lady Hale at [8], applying Norris v Government of the USA (No 2) [2010] 2 AC 487 .

27. However, the “constant and weighty” public interest in extradition will only rarely be outweighed by other factors. This basic principle was very recently reiterated by the Supreme Court (per Lord Lloyd-Jones and Lord Stephens) in Andrysiewicz v Circuit Court in Lodz, Poland [2025] UKSC 23 , [2025] 1 WLR 2733 at [43]: “Cases in which a submission founded on article 8 ECHR may defeat the public interest in extradition will be rare. It is most unlikely that extradition will be held to be disproportionate on the ground of interference with private life. Even in cases where interference with family life is relied upon, it will only be in cases of exceptionally severe impact on family life that an article 8 ECHR ‘defence’ will have any prospect of success.” The District Judge’s decision

28. Making a comparison between this case and Jasvins , DJ Minhas summarised the litigation history: “29. I considered the circumstances of this case. Ms Hill represented the RP in the previous proceedings. She was not involved at the initial hearing after arrest, but confirmed that to her knowledge, the s20 issue was raised when the SoI (presumably alongside the proof of evidence which stated the RP could not recall being present at trial) was provided on 5 April 2022, with the hearing listed on 25 April 2022. The judgment of DJ Godfrey did not allude to an application to adjourn nor his reasoning for refusing the application. Ms Hill submitted the JA did not seek further information nor make an application to adjourn prior to the day of hearing. Ms Burton had access to Counsel’s notes from the hearing in April 2022, she did not challenge the account provided by Ms Hill.

30. The judgment of DJ Godfrey recorded in paragraph 39, the consensus between Counsel that there was insufficient material before him to conclude s20 of the Act had been complied with. He discharged the RP for the two offences to which the s20 argument related. On the information before me, unlike Jasvins or Giese , there was no failure to respond to an order of the Court. There was no suggestion that the information was sought from the JA and they failed to respond in time. It was not requested at all. This is not a case where orders were made, and the presumption that they will be complied with was not adhered to. I acknowledge the information should have been contained within the AW upon issue. There is a clear line of authorities that the AW can be considered alongside further information, if provided. The JA were not afforded the opportunity to obtain further information on this specific point. There is no doctrine of res judicata or issue estoppel. There is no barrier to a second AW being issued. I draw a clear distinction between the circumstances of Jasvins and this case because there was no failure to comply with a direction or order of the Court. In my view, the remedy available to the JA was to re-issue the AW with the missing information, which they have done in a timely manner.”

29. The DJ concluded: “31. I am not satisfied, on the evidence before me, that the JA have issued this AW to usurp the statutory regime nor that the integrity of the regime relating to AWs had been impugned. For reasons unknown, the original AW was incomplete. The JA did not have a realistic opportunity to supplement the AW on the s20 issue after it was raised. The proceedings were concluded on the information available. The statutory regime permitted a second request. There is no evidence of any bad faith by the JA. The only explanation for DJ Godfrey’s reasoning is Counsel’s note from the hearing, as set out within the SoI at paragraph 10. DJ Godfrey had regard to the fact that the JA were taken directly to the issue on 5 April 2022, that it was overlooked by them, the special objective in extradition proceedings, the provisions within TaCA whereby the expectation is that hearings are conducted within 60 days of arrest and the impact on the RP who had privately instructed representation.

32. I do not find the JA may be manipulating or using the procedure of the court to oppress or unfairly prejudice the RP. Further information on the s20 point was not requested from the JA in the first proceedings. In my view, there is no prejudice to the RP in the proceedings in the UK. He can respond in full to the information contained within the re-issued AW. I further find there is no prejudice to the RP upon return. The RP’s position was that he could not remember whether he was present, and whether re-trial rights were applicable. It transpired; the RP was not present at trial but was present at the sentence hearing, so the issue of re-trial rights was not applicable to him. …

34. I agree with the submission of Ms Hill that there will be a stage at which the RP is entitled to finality in proceedings, rather than having the same issues re-litigated with the associated expense and stress caused by repeat proceedings. In my view, this RP in the context of these proceedings, is not at that stage given the Court did not have the full detail before it in the first proceedings. If the JA had had the opportunity to address the s20 evidential lacuna, and failed to do so, then I would agree with the submissions of Ms Hill, that the JA were seeking to circumvent the decision of DJ Godfrey. In this instance, given the issue was raised not long before the first hearing and there were no orders of the court in place that the JA had failed to comply with, I am of the view that the RP has not established the re-issue of the AW is an abuse of process nor that these proceedings have resulted in unjust oppression of the RP to amount to an abuse of process.”

30. The DJ also ruled that extradition would not be a disproportionate interference with the appellant’s Article 8 rights, evaluating the factual matters to be balanced in 12 sub-paragraphs. I will make specific reference only to those that appear particularly important.

31. At 51(ii) she said: “The totality of the RP’s offending is serious notwithstanding the passage of time since offending and conviction.”

32. In the same paragraph, as to delay, she continued: “I acknowledge the age of the original offending and acknowledge that it is a factor mitigating against extradition but I place little weight on it, in view of the nature of the original offences.”

33. She also said at 51(iv) that there was “no notable delay in the judicial process in Poland” and that the appellant as a fugitive contributed to delay by leaving Poland.

34. At 51(vi)-(viii) she focused on the impact of extradition on the appellant’s family and found that the consequences would not be exceptionally severe. She found at 51(xii) that overall, “the hardship and impact which will result from extradition does not go beyond that which is often present when extradition is ordered”. The parties’ submissions

35. For the Appellant, Rebecca Hill of counsel makes a number of criticisms of the DJ’s reasoning.

36. Ms Hill contends that the DJ was wrong to say that “there was no failure to respond to an order of the Court. There was no suggestion that the information was sought from the JA and they failed to respond in time. It was not requested at all.” She points to a CPS note from the initial hearing of the first extradition proceedings on 9 December 2021 which recorded a deadline of 17 February being set for “filing of further info including on if any of these sentences are aggregate sentences, fugitivity, the sentence outstanding, if that sentence is concurrent or consecutive and anything else the IJA deems necessary”.

37. Ms Hill points out that it was clear from the face of the Arrest Warrant that this case involved an aggregate sentence for a number of offences which was imposed subsequently to the trials for the offences in question. That, she submits, put the requesting state on notice that the Court would need information to be satisfied of the requirements of section 20 of the Extradition Act 2003 regarding the requested person’s presence or absence at the hearing and any right to re-trial, those being matters as to which a requesting state must always satisfy the court at an extradition hearing.

38. Moreover, on 5 April 2022 the Appellant’s representatives served a statement of issues which raised the issue of compliance with section 20 . On 13 April 2022 the CPS requested further information from the judicial authority. The request noted that the warrant was silent on the Appellant’s presence “in respect of the underlying convictions founding the aggregate sentence”, and asked whether there was an unqualified right to a retrial on surrender and as to his rights of participation. There was a prompt answer, on 19 April, saying “there is no such unconditional right”.

39. The extradition hearing took place on 25 April 2022. Counsel for the Respondent applied for an adjournment to address the section 20 challenge but this was refused, the DJ saying (per counsel’s note): “‘It is for the CPS and the JA to have their case in order on the day the case is listed for final hearing. Proceedings are expected to proceed on the first hearing. It was on the 5th April that the CPS were taken directly to the issue and it nevertheless appears to have been overlooked by them. I have regard to the special objective and also the provision in the TCA at Art 615 where the expectation is that the final decision is taken within 60 days of the arrest. I also have regard to the point made that Mr Bakowski is privately instructing and there would be additional costs of a further hearing in due course, although I accept it could be that the CPS would pay those costs, but even then still the prejudice of further delay and further stress. Not satisfied good reason for the adjournment.’”

40. By the end of the hearing on 25 April 2022, both counsel agreed that section 20 could not be satisfied in respect of file nos. 956/04 and 209/05, as I have said.

41. By reference to those facts, Ms Hill contends that:

1. for the DJ to say “there was no failure to respond to an order of the Court” overlooked the setting of a deadline for further information;

2. it was generous to say that “there was no suggestion that the information was sought from the JA and they failed to respond in time”, where information was sought but the CPS failed to ask the right questions;

3. to say “the JA were not afforded the opportunity to obtain further information on this specific point” was simply incorrect where the section 20 issue was raised on 5 April, the CPS made a request on 13 April and received an unsatisfactory response on 19 April and the hearing was not until 25 April;

4. since “the JA had had the opportunity to address the s20 evidential lacuna, and failed to do so”, then the DJ should indeed have accepted “that the JA were seeking to circumvent the decision of DJ Godfrey”; and

5. overall, this is a case where the judicial authority “abjectly failed to get its evidential house in order” in respect of a “live question of historic fact” and not just on issues relating to the future (such as the prison assurance issue in Konczos ).

42. In these circumstances, Ms Hill submits that the second warrant must be seen as an attempt to avoid or undo, or as a collateral attack on, the decisions of DJ Godfrey and that the renewed proceedings are oppressive and an abuse of process.

43. In respect of Article 8 Ms Hill submits that the DJ was wrong to place only “little weight” on the age of the offending, occurring between 2000 and 2005, and to the appellant’s rehabilitation since then. She submitted that there was a lengthy and culpable delay in particular between 2011 and 2018, up to the point when an arrest warrant was issued.

44. In the meantime the appellant’s sister has been reconciled with him and does not want him to be extradited for the offences against her. He has since built a business, home and community ties in the UK and has a son born in November 2009. Ms Hill also submits that insufficient weight was given to the effect of extradition on the son, who will be separated from his father at a particularly sensitive age and will simultaneously endure financial hardship and potentially the loss of the family home. Statements by his parents show that he is now experiencing emotional and behavioural issues. Thanks to the repeated proceedings, the anxiety of the case has hung over the family for more than 3 ½ years.

45. Ms Hill invites me to consider the parents’ updated evidence which, by definition could not have been obtained with reasonable diligence at that hearing, following the approach in Josza v Hungary [2023] EWHC 2404 (Admin) .

46. Overall Ms Hill submits that if the DJ were considering the case today, she would be compelled to find that extradition would be disproportionate.

47. For the respondent, Adam Squibbs of counsel emphasizes the fact-specific nature of the court’s assessment of the abuse of process issue. He submits that the DJ made no error on the merits of the case. There was no breach of an order in the first proceedings because the judicial authority was not directed to provide information about section 20 . Section 20 was first raised only 20 days before the extradition hearing.

48. Mr Squibbs further submits that the DJ was right to treat the absence of bad faith as a relevant factor in the assessment. He contends that in this case, unlike Rymarski , the second proceedings included important new evidence in the form of the missing information on the section 20 issue.

49. Meanwhile, he submits, the public interest in extradition is high, having regard to the seriousness of the offending and the appellant’s fugitivity. Those factors outweighed the need for finality.

50. Mr Squibbs also resisted the suggestion by Ms Hill that the CPS could and should have made an earlier application to adjourn the first proceedings, given the closeness of the hearing at the time when further information on section 20 was originally sought and provided.

51. Mr Squibbs also resisted the appellant’s case as to the impact on him of the issue of a new warrant. Whereas in Jasvins the new warrant came 18 months after discharge of the old one, in this case the period was 6 months and there is no compelling evidence of any change of circumstances in that period.

52. As to Article 8, Mr Squibbs agrees that the Court should consider the fresh evidence de bene esse but submits that this ground of appeal should nevertheless be dismissed and therefore that the application to adduce fresh evidence should ultimately be refused because it would not have had a decisive effect.

53. Mr Squibbs points out that the DJ carefully conducted the necessary balancing exercise. He emphasises the seriousness of the offending, including the domestic abuse offence which was committed against children as well as against the appellant’s sister. The appellant left Poland as a fugitive, heightening the weighty public interest in extradition. His fugitivity also contributed to the delay, on which Mr Squibbs submits that the DJ took a balanced view. The appellant’s life in the UK has been built in the knowledge that he was a fugitive from justice. Although he has medical issues he will receive appropriate care in Poland. The DJ correctly assessed the impact on the family, which is not materially changed by the fresh evidence.

54. Overall Mr Squibbs submits that the DJ struck the Article 8 balance correctly. Discussion

55. 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.

56. 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.

57. 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.

58. 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.

59. 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.

60. 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.

61. 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.

62. 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.

63. 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.

64. 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.

65. 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.

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

67. 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.

68. 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.

69. 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. Conclusion

70. The appeal succeeds on the first ground and the Court will quash the extradition order and substitute an order for the appellant’s discharge.