Stuart Kluz-Burton v Regional Court in Warsaw [2026] EWHC 1804 (Admin)

[2026] EWHC 1804 (Admin)Case No AC-2025-LON-000666
IN THE HIGH COURT OF JUSTICE
KING’S BENCH DIVISION
ADMINISTRATIVE COURT
DIVISIONAL COURT
Venue Royal Courts of Justice, Strand, London, WC2A 2LLDate 17/07/2026
Before
LORD JUSTICE HOLGATEMR JUSTICE JOHNSON
Between
Stuart Kluz-BurtonAppellantRegional Court in WarsawRespondent
Joel Smith KC and Rebecca Hill (instructed by Shaw Graham Kersh) for AppellantAmanda Bostock (instructed by CPS) for RespondentHearing Hearing date: 1 July 2026
Approved JudgmentThis judgment was handed down remotely at 11.00 am on 17 July 2026 by circulation to the parties or their representatives by e-mail and by release to the National Archives..............................
[1]Mr Kluz-Burton appeals against an order for his extradition to Poland made by District Judge Leake (“the judge”). He submits that there has been an erosion of the rule of law, and judicial independence in Poland, and that this impacts on his case. As a result, he says the judge was wrong to make an order for his extradition because:(1) The arrest warrant was not issued by a “judicial authority” for the purpose of section 2 of the Extradition Act 2003 (“the 2003 Act”).(2) The judge should have ordered his discharge under section 21A(4) of the 2003 Act because extradition would not be compatible with his right to a fair trial under article 6 of the European Convention on Human Rights (“the Convention”).(3) The extradition proceedings were an abuse of the court’s process. Legal framework Judicial authority

Legal framework

[2]Extradition to Poland is governed by Part 1 of the 2003 Act. The process requires receipt of a Part 1 warrant. Section 2 states:
“Part 1 warrant and certificate (1) This section applies if the designated authority receives a Part 1 warrant in respect of a person. (2) A Part 1 warrant is an arrest warrant which is issued by a judicial authority of a category 1 territory… …”
[3]The Part 1 warrant must therefore be issued by a judicial authority. The body issuing a warrant is only a judicial authority if it possesses the necessary qualities of independence and impartiality and is not exposed to a risk of influence by the executive branch of government: Niziol v Poland [2023] EWHC 3252 (Admin) per Farbey J at [52]. There must be functional independence, but not necessarily institutional independence: Assange v Sweden [2012] UKSC 22; [2012] 2 AC 471 per Lord Dyson at [153].The requesting authority must establish to the criminal standard of proof that the warrant was issued by a judicial authority: section 206 of the 2003 Act. In determining whether a judge is “independent and impartial” so as to be a judicial authority the authorities that relate to article 6 apply (see paragraphs 8 – 11 below).

Provisional arrest

[4]Sections 5 and 6 deal with the provisional arrest of a requested person in advance of receipt of a Part 1 warrant. Thus, a constable may arrest a person without warrant if he has reasonable grounds for believing that (among other matters) a Part 1 warrant will be issued: section 5(1)(a). Where a person is arrested under section 5 then they must be brought before a judge within 48 hours, excluding weekends: section 6(2), 6(8)(a).

Right to a fair trial

(a) Right to a fair trial

[5]Article 6 of the Convention guarantees the right to a fair trial:
“In the determination of… any criminal charge against him, everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law.”
[6]The judge was required to order Mr Kluz-Burton’s discharge if extradition was incompatible with article 6: section 21A(4)(a) of the 2003 Act.[7]Extradition is incompatible with article 6 if there are substantial grounds to believe that there is a real risk of a flagrant denial of the right to a fair trial: R (Ullah) v Special Adjudicator [2004] 2 AC 323 per Lord Bingham at 352C. If the tribunal is not independent and impartial, that would amount to a flagrant denial of the right to a fair trial: Brown and others v Rwanda [2009] EWHC 770 (Admin) per Laws LJ at [31] and [121].[8]There is a two-step test when assessing both whether the warrant was issued by a judicial authority and whether extradition to Poland is compatible with article 6: L and P [2021] 2 CMLR 24 (Grand Chamber of the Court of

Justice of the European Union) at [54] – [55]:

“54 In the context of a first step, the executing judicial authority of the European arrest warrant in question must determine whether there is objective, reliable, specific and properly updated material indicating that there is a real risk of breach of the fundamental right to a fair trial guaranteed by the second paragraph of Article 47 of the Charter, on account of systemic or generalised deficiencies so far as concerns the independence of the issuing Member State’s judiciary… 55 In the context of a second step, that authority must determine, specifically and precisely, to what extent those deficiencies are liable to have an impact at the level of the courts of that Member State which have jurisdiction over the proceedings to which the requested person will be subject and whether, having regard to his or her personal situation, to the nature of the offence for which he or she is being prosecuted and the factual context in which that arrest warrant was issued, and in the light of any information provided by that Member State pursuant to Article 15(2) of Framework Decision 2002/584, there are substantial grounds for believing that that person will run such a risk if he or she is surrendered to that Member State…”
[9]The courts have consistently found that the first step is satisfied in respect of Poland. That is because of legislative changes in Poland since the Law and Justice Party came to power in 2015 that have raised concerns about the independence of the Polish judiciary. The legislative changes, and the consequential concerns, are explained by Dame Victoria Sharp PQBD in Wozniak v Poland [2021] EWHC 2557 (Admin) at [22] – [32] and [75] – [92] (and see paragraph 15 below). At [189] the Divisional Court found that:
“There is a very considerable body of objective, reliable, specific and up-to-date material indicating that there is a real risk of breach of the values in Article 2 TEU, on account of systemic or generalised deficiencies relating to the independence of Poland’s judiciary resulting from the reforms since 2015. This was the conclusion of the European Commission in its Reasoned Proposal of December 2017, which remains under consideration, as we have said. It was also the conclusion reached by the Court in 2018 in Lis No 1, [64]. We have concluded that the situation in Poland has only worsened since then.”
[10]The second step requires an assessment of whether, having regard to the personal situation of the requested person, the nature of the alleged offence and the factual context in which the arrest warrant was issued, there are “substantial grounds for believing that that person will run a real risk of a breach of his… right to a fair hearing…”: L and P at [61]; Wozniak at [204].[11]The relevant factual context may include “statements made by public authorities which could have an influence on the specific case in question”: X v Openbaar Ministerie [2022] 1 WLR 3568 (Court of Justice of the European Union) at [97]. It is not therefore necessary to show direct interference with a particular judge; it is sufficient that there is a risk of interference with the court issuing the warrant: OG (Case C-508/18) (27 May 2019) at [73] and [88] – [89].

Abuse of process

[12]A judge in extradition proceedings may stay the proceedings if they amount to an abuse of process: Bermingham and others v Government of the United States of America and another [2006] EWHC 200 (Admin); [2007] QB 727 per Laws LJ at [97], R (Government of the United States of America) v Bow Street Magistrates’ Court and Tollman [2006] EWHC 2256 (Admin); [2007] WLR 1157 per Lord Phillips CJ at [82] - [84]. An abuse of process will arise in extradition proceedings where the requesting authority has acted so as to usurp the integrity of the statutory extradition regime: Dewani v Republic of Kenya [2015] EWHC 3535 (Admin) per Sir Richard Aikens at [117]. This can include cases where there was an improper motive for issuing the warrant: Jasvins v Latvia [2017] EWHC 1606 (Admin) per Dingemans J at [31].

Right of appeal

[13]Mr Kluz-Burton has a right of appeal, with the leave of the High Court, against the order for his extradition: section 26 of the 2003 Act.[14]Section 27(2), (3) and (4) provide that the court may only allow the appeal if either:
“(a) the appropriate judge ought to have decided a question before him at the extradition hearing differently; (b) if he had decided the question in the way he ought to have done, he would have been required to order the person’s discharge.”
Or:
“(a) …evidence is available that was not available at the extradition hearing; (b) the… evidence would have resulted in the appropriate judge deciding a question before him at the extradition hearing differently; (c) if he had decided the question in that way, he would have been required to order the person’s discharge.”
Factual background Constitutional changes in Poland

Factual background

[15]In 2015, the Law and Justice Party was elected to government in Poland. It introduced legislative reforms that affected the judiciary and the prosecution service. These included provision for the dismissal and compulsory retirement of Supreme Court judges, and changes to the composition of the National Council of the Judiciary (“NCJ”). The NCJ changes transferred the appointment of judges from the judiciary to Parliament. Judges appointed after these changes are referred to as “Neo-NCJ” judges. Disciplinary proceedings against judges are overseen by the NCJ, including Neo-NCJ judges. The Minister of Justice is also the Prosecutor General and is therefore able to influence prosecutors.

The appellant

[16]Mr Kluz-Burton was born in the United Kingdom. He is a dual British and Polish citizen. He lived for much of his life in the UK. He moved to Poland in 2014, where he worked as a YouTube creator and became well-known. He returned to the UK in December 2021 in order to spend time with his mother who has cancer. He lives with her and supports her. His extradition is sought so that he can be tried in Poland for four alleged offences: two offences of sexual activity with girls aged under 15 and two offences of inducing minors to drink alcohol.

The allegations against Mr Kluz-Burton and the initial court proceedings in Poland

[17]The following account is largely taken from the judge’s factual findings.[18]The allegations of sexual activity with girls under 15 relate to an alleged incident in August/September 2015 concerning KJ, and an alleged incident on 7 August 2018 concerning PS. The allegations of inducing minors to drink alcohol concern the period 6–7 August 2018 and relate to PS and NB. The warrant states that the maximum penalty that could be imposed is 12 years’ imprisonment. The corresponding offences under domestic law are sexual activity with a child, contrary to section 9 of the Sexual Offences Act 2003, and buying alcohol on behalf of an individual aged under 18, contrary to section 149 of the Licensing Act 2003.[19]Parliamentary elections in Poland were called on 8 August 2023, with Sunday 15 October 2023 set as polling day. The Prime Minister, the Prosecutor General and Justice Minister, and the Deputy Justice Minister, were all campaigning for re-election.[20]In September 2023, allegations concerning Mr Kluz-Burton began circulating on social media. They were part of a wider scandal known as “Pandora Gate.” On 28 September 2023, Mr Titus Jablonski (who is Mr Kluz-Burton’s lawyer in Poland) published a written statement which confirmed that Mr Kluz-Burton was living in the UK and would cooperate with any investigation.[21]On 4 October 2023, the allegations against Mr Kluz-Burton were brought to the attention of the Polish prosecutor. On the same day, the Polish Prime Minister published a video statement on social media about the scandal. He said:
“We heard the story of a man who used his fame achieved on the internet to harm minors… These are behaviours of deviants and we will do our best to eradicate it as efficiently as possible….I ordered appropriate services to deal with it and I am expecting quick actions in this subject.”
But most of the statement involved a general discussion about the vulnerability of children to being abused by adults on the internet and the need to take steps to prevent such abuse.[22]On 5 October 2023, the Polish Justice Minister (who was also the Prosecutor General) together with two Deputy Ministers held a press conference. Mr Kluz-Burton was referred to and the allegations were summarised, adding that they had yet to be proved. One of the speakers said, “I contacted by phone the Regional Prosecutor in Warsaw and I ordered to start the procedures… And it happened so, yesterday the procedures started, I had information, directly from the Prosecutor.”[23]In a text posted on social media on the same day the Deputy Minister of Justice said that it could not be right that a celebrity earning a lot of money from the internet could use his popularity to conduct sexual activities towards minors and that “decided precautions” needed to be taken.[24]On 6 October 2023, the Deputy Minister posted a video on social media of himself outside a prison cell. The post itself said “It doesn't matter if someone is a celebrity or not, the law must be equal for everybody! [Emoji showing scales]”. In the video he said, “A celebrity, famous youtuber, a person who has millions of followers, it doesn’t matter, if someone committed a crime and especially such a brutal crime as paedophilia, he should be held responsible, to face the justice system, if he really committed the crime he will be put in a prison cell like the one behind, it doesn’t matter if someone is a well-known personality, the law must be equal for everybody.”[25]On 11 October, a well-known social media personality posted on social media that Mr Kluz-Burton was a suspect and that the police were actively looking for him at a residence in Poland.[26]On the same day, Mr Jablonski wrote to the Polish authorities confirming that Mr Kluz-Burton was living in the UK and looking after his mother who had cancer, that he was not seeking to evade justice, that he would cooperate with the investigation, and that he would travel to Poland to speak with the authorities if that would assist their investigation.[27]At 4pm on that day, the District Prosecutor’s Office in Warsaw submitted an application to the court for the temporary arrest of Mr Kluz-Burton. Mr Jablonski was informed by the court of the application the following day; he had not received any contact from the police or the prosecutor. The application was listed to be heard at noon on 13 October 2023.[28]In the morning of 13 October the Deputy Minister of Justice posted a text and video on social media saying that Pandora Gate, in which “internet celebrities were to abuse sexually their followers” had shocked the whole of Poland and that he wished to make changes to the Polish legal system that would better protect children on the internet so that Pandora Gate would not happen again. At 12.43pm he texted that none of the guilty in Pandora Gate would avoid responsibility and that a motion for the provisional arrest of “Stuu” (taken to refer to the appellant) would be dealt with by the court that day.[29]At 1.46pm the Deputy Minister of

Justice posted a text and video which stated:

“The Regional Prosecutor’s Office issued a motion for a provisional arrest as a preventive mean, and as far as I know at 12 o’clock the sitting of the Mokotów Court started which should issue the resolution concerning the provisional arrest or rejection of it, but on the basis of gathered information which we have at the moment, from the information on the internet and the media which we all know, we can expect that such a resolution shall be taken by the Mokotów Court. And if it is taken the international arrest warrant will be issued. …”
He also referred to “allegations” against “one of the antiheroes of Pandora Gate” and said that “the suspects are not going to get away with the responsibility.”[30]Mr Kluz-Burton did not attend the hearing on 13 October 2023. The respondent has provided further information to the effect that, at the time, Mr Kluz-Burton was permitted to enter Poland and to contact the administration authorities, but that because he failed to do so that constituted grounds to find that he was hiding from justice. Mr Jablonski did attend the hearing on Mr Kluz-Burton’s behalf. He was not provided with the case file. He explained to the court that Mr Kluz-Burton was not hiding and had offered to return voluntarily.[31]An order for Mr Kluz-Burton’s temporary detention was made at about 2.30pm. This resulted in the issue of an Interpol Red Notice requesting the provisional arrest of Mr Kluz-Burton. Mr Jablonski was then permitted access to the case file, but only for 5 minutes. On the same day, the prosecutor applied to the court for an arrest warrant.[32]On 14 October 2023, the day before the parliamentary elections in Poland, Mr Kluz-Burton was arrested at his home address on the Interpol Red Notice and pursuant to section 5 of the 2003 Act. On the afternoon of the same day, the Polish Prime Minister posted a comment on social media:
“Good job. Just as I said [three emojis: a police officer, a smiling face in sunglasses, and a police officer]”
. The Minister of Justice and the Deputy Minister of Justice also posted on social media to similar effect. The former referred to “Stuart K.-B.” as “the main suspect” and said “For actions of sexual character against the minors he is facing up to 15 years in prison.” The prosecutor’s office was complimented for its quick action.[33]On Sunday 15 October 2023, the day of parliamentary elections in Poland, Judge Dariusz Lubowski, a duty judge at the Regional Court in Warsaw issued a warrant for Mr Kluz-Burton’s arrest. Judge Lubowski was appointed in 2009 (so before the reforms to the NCJ). In 2020 he refused a Dutch extradition request. It is said that this was a response to a Dutch court’s refusal to order an extradition to Poland, and that Judge Lubowski’s decision in that case was welcomed by politicians.[34]The warrant was certified by the National Crime Agency on 17 October 2023.

The extradition proceedings

[35]Following his arrest, Mr Kluz-Burton appeared at Westminster Magistrates’ Court on 17 October 2023 and was granted conditional bail.[36]Mr Kluz-Burton opposed his extradition on the grounds that an order for extradition would be incompatible with the Convention (articles 3, 6 and 8), and extradition would be unjust or oppressive because of a mental health condition (section 25 of the 2003 Act), the arrest warrant was not issued by a “judicial authority” for the purpose of section 2 of the 2003 Act, and extradition would be an abuse of the court’s process.[37]The hearing took place in April 2024 before District Judge Leake. Mr Kluz-Burton relied on evidence from Mr Jablonski, and also expert reports from Katarzyna Dabrowska (a Polish advocate specialising in criminal law) and Patryk Wachowiec (a legal analyst in a Polish think tank promoting the rule of law). Mr Jablonski highlighted aspects of the case which he considered to be irregular, including the limitations on access to the court file. Ms Dabrowska provided an opinion on the matters raised by Mr Jablonski. Mr Wachowiec gave evidence on the political context of, amongst other things, the allegations against Mr Kluz-Burton.[38]In respect of the section 2 issue, it was submitted on behalf of Mr Kluz-Burton that the court could not be sure that the judge who had issued the warrant was capable of exercising his responsibilities independently and objectively, without being exposed to external directions or instructions. Mr Kluz-Burton relied on the public statements made by the Prime Minister, the Minister of Justice and the Deputy Minister of Justice, the speed with which the application was made to the court for preventive measures despite Mr Kluz-Burton confirming that he would cooperate, the refusal to allow Mr Kluz-Burton’s lawyer to access the case papers, the timing of the application for the warrant (on a Sunday, and the very day of the elections), and a submission that the judge had a “known and hostile history in respect of the rule of law challenges against Poland.” It was submitted that if the warrant was improperly issued for a political purpose then the resulting proceedings amounted to an abuse of the court’s process.[39]In respect of the article 6 issue, it was submitted on behalf of Mr Kluz-Burton that because of the public and political interest in the case, and the motivation to appear “tough on crime” there is a real risk that Ministers might seek to interfere in any trial. That was said to present a real risk of a flagrant denial of his right to a fair trial because he would be tried by a judge under the direct control of the executive, which could exercise that control through disciplinary action, transfer and suspension.[40]On 19 February 2025, Mr Kluz-Burton lodged further evidence concerning an assault on him on 17 February 2025. The assault was said to have been by two Polish males, one of whom struck Mr Kluz-Burton while the other filmed. The recording was later disseminated on social media and shown during a live stream. The judge’s decision[41]On 27 February 2025, the judge handed down judgment. He rejected the appellant’s submissions that extradition was barred pursuant to Art 3, Art 8 or s.25 of the 2003 Act. He also concluded pursuant to s. 21A that extradition would not be disproportionate. In reaching that view, at [189] the judge took into account and evaluated whether there were less coercive measures than the extradition of the appellant to Poland, including the appellant’s offer to be interviewed in London. These matters are not the subject of the appeal before this court.[42]In relation to the s.2(2) and Art.6 issues the judge followed Wozniak and decided that the first stage of the two-step test identified in L and P was satisfied. He said “I am satisfied that there is in Poland a real risk of a breach of the essence of the fundamental right to a fair trial on account of systemic or generalised deficiencies concerning the judiciary such as to compromise the independence of the state’s courts.” He went on to say that it was therefore necessary to undertake “a specific and precise assessment of the requested person’s situation to determine whether… there are substantial grounds for believing that there exists a real risk of… a flagrant breach of Article 6.”[43]As to that issue, the judge said that the alleged offences were ordinary criminal matters without political overtones, providing no basis to infer bias or lack of independence in their prosecution.[44]The challenge to the independence of the issuing judge was unsupported by the evidence. The fact that the judge had expressed concern about the Netherlands refusing to extradite to Poland in a decision relating to an EAW issued by the Netherlands had no bearing on the requested person’s case. The issue of the warrant on a Sunday was explained by procedural necessity, particularly the statutory time limits following arrest, and was not a matter capable of giving rise to any inference of executive interference. The speed of the proceedings did not give rise to any inference of impropriety, given the publicity of the case, Mr Kluz-Burton’s awareness of the allegations and police action, the fact that he was in a foreign jurisdiction and that he could be regarded as a flight risk. Although the executive had directed the police and prosecutors to act quickly (which Ms Dabrowska accepted was not improper), it did not follow that there was a corresponding direction to, or any pressure or interference with, the court.[45]The judge analysed the various statements from senior politicians. He said “[t]he public statements made by members of the executive about the… case during the election campaign are… a real matter of concern.” He said that this was a “striking feature” of the case which distinguished it from Wozniak. He considered that there was a very strong inference that the statements were made “for the purposes of advancing the protagonists’ prospects during the election”. However, the judge said that it was important to scrutinise what had actually been said. He noted for example, that statements accepted that a crime may not have been committed, that guilt would have to be proved, and if it was, then that person would be liable to punishment in the same way as anyone else. Other statements referred to legislative changes to protect children in relation to the abuse of the internet ([140], [142], and [143]).[46]The judge explained that some statements contained directions to prosecutors but did not involve “any form of pressure on the court [142]. The judge said:
“141. …those statements clearly amount to executive directions as to the investigation and prosecution of the requested person. However, there is no basis for concluding that they are other than directions to prosecutors to bring a case the requested person. I am sure that they are not directions to the court deciding on the pre-trial detention motion and the issue of the TCA warrant. It is to be recalled in this respect that the Minister of Justice is also the Prosecutor General, and so his involvement in a high profile case is unsurprising…. … 146. Having considered each of these statements, I am satisfied that there is no inference to be drawn from them that there had been interference with the court on the basis of things said that could only be known by the court. Furthermore I am also satisfied that the statements themselves do not amount to interference with the court and would not amount to any form of pressure on the court to act in a particular way. 147. I am sure, in all the circumstances, that Judge Dariusz Lubowski is properly to be regarded as a “judicial authority” at the time he issued the warrant. In view of my other conclusions in relation to the warrant (see above) it follows that I am sure that the TCA warrant is a valid Part 1 warrant. In my judgment, there is nothing in the material before me, nor any particular feature of the requested person’s case, which gives rise to a proper basis to refuse to execute the TCA warrant. 148. Furthermore, in my judgement the evidence in this case has not met the high threshold to make a finding that there is a real risk of breach of a fundamental right to a fair trial, or to put it another way, the facts have not met the threshold to show a real risk of a flagrant breach of Article 6. 149. In view of my conclusions in relation to the content of the statements made by the executive, I am also satisfied that there is no arguable abuse of process in this case.”
[47]The judge concluded that the issuing judge was a “judicial authority” and that the warrant was valid (paragraph 147), that there was no real risk of a flagrant breach of the right to a fair trial (paragraph 148), and that there was no arguable abuse of process (paragraph 149).[48]He therefore made an order for Mr Kluz-Burton’s extradition.

The fresh evidence and grant of leave to appeal

[49]On 4 November 2025, Mr Kluz-Burton applied to adduce fresh evidence. This included a statement from Mr Jablonski which covers matters that arose after the extradition hearing, a second report from Ms Dabrowska in which she provides an update on the position in Poland and addresses the further matters raised by Mr Jablonski, and a statement of Jerzy Sierzant who was another Polish lawyer who represented Mr Kluz-Burton.[50]Butcher J granted leave to appeal and granted permission to rely on the further evidence of Mr Jablonski and Ms Dabrowska (but not that of Mr Sierzant). He said:
“The evidence to be adduced is updating evidence. While it may well not be capable of being decisive in itself, it is preferable that it should be before the Court on any appeal. In the case of the statement of Jerzy Sierzant, however, this adds nothing of importance and should not be admitted.”
[51]In his new statement, Mr Jablonski says that he did not initially receive a response to his request to the prosecutor for information about the time and place of examination of witnesses during the preparatory stages. It was only when he copied the request to the District Public Prosecutor that he received a response. He says that the prosecutor put inappropriate pressure on a witness when she was questioned, that his request to exclude the prosecutor from questioning the witness was refused, and that the prosecutor then excluded him from the examination of the witness and other witnesses. Mr Jablonski also says that he is concerned that the prosecutor has not conducted an objective investigation and that the psychologist who assessed the witnesses in the case was not properly qualified.[52]In her new report dated 24 October 2025, Ms Dabrowska says that in December 2024 the Ministry of Justice announced the adoption of a draft law that would separate the role of Prosecutor General and Minister of Justice but that this has still not taken effect. On 9 October 2025 the Ministry of Justice announced a draft “Rule of law act” which would restore “the right to an independent and impartial court” and would limit the role of “neo-NCJ” judges (that is, judges appointed by the NCJ after the constitutional reforms). Whether this would become law in the immediate future was uncertain (as at October 2025). The statistics show that as at 19 September 2025 about one quarter of Poland’s 9,218 judges were neo-NCJ judges of whom about 344 had been appointed since April 2024.[53]Ms Dabrowska also says that Mr Jablonski’s account raises doubts about the prosecutor’s conduct, but that it was technically lawful in the sense that he was acting within his powers. Likewise, the prosecutor has power to refuse the lawyer for an accused access to case files but is required to give reasons for such refusal. Here, the prosecutor did not give reasons. Lastly, there was no evidence that the psychologist lacked appropriate qualifications. Indeed, one of those experts was on the court’s list of expert psychologists.

Submissions

[54]Mr Joel Smith KC, on behalf of Mr Kluz-Burton, made the following points about the structure of the appellant’s case:• The issue of judicial independence in Poland for the purposes of s.2(2) of the 2003 Act looks backwards to the issuing of the international arrest warrant by Judge Lubowski. In this context it is only that judge’s independence which is in issue. He must not have been subject to the risk of being influenced by the executive in his decision to issue the warrant.• The bar under Article 6 is forward-looking up to and including any trial in Poland.• The abuse of process point is dependent upon the s.2(2) point. It simply raises the issue whether there has been an abuse of process which has undermined the integrity of the extradition regime, because the proceedings in Poland, including the request for extradition, were undertaken for the purpose of winning votes in a general election by taking speedy action to obtain an arrest warrant. Mr Smith also submits that step 2 of the test in L and P should take into account the reasons why step 1 was satisfied in the case of Poland. For the purposes of this appeal he relies in particular upon the executive’s influence on the judiciary in relation to disciplinary action, suspension and transfer.[55]Mr Smith goes on to submit that this case cannot be treated as an ordinary request arising from ordinary criminal allegations because the circumstances in which the warrant was issued show there was real political significance. The prosecution was initiated and accelerated in the days immediately preceding a national election, senior executive figures made repeated public statements about the allegations and demanded quick action on bringing a prosecution. The Minister of Justice was also the Prosecutor General, and the Polish judiciary was already affected by systemic deficiencies. Mr Smith relies on the application for pre-trial detention despite Mr Kluz-Burton’s stated willingness to cooperate, the reliance on the suggestion that he was a flight-risk notwithstanding that he had notified his UK residence, the denial of timely file access, the exceptionally rapid process, and the election-day warrant. He says these factors should be considered cumulatively, and not just separately. In his reply Mr Smith said that the appellant’s procedural concerns might have been seen as marginal, but for two matters: the statements made by politicians leading up to the election and the general consideration that the executive can influence judges, in particular through disciplinary action, suspension and transfer.[56]Rather than address the issues of judicial independence under s.2(2), article 6 and abuse of process separately, Mr Smith said that he would identify eight errors in the judge’s approach which covered those grounds of appeal. We are content to deal with those eight matters in that way, but we always bear in mind(1) that not all of those matters relate to more than one ground of appeal and(2) the prosecution bears the burden of proof to the criminal standard on the s.2(2) issue whereas the appellant bears the burden of proof to the civil standard on the art.6 and abuse of process issues.[57]The eight errors alleged are:(i) a failure to consider Mr Wachowiec’s evidence that the executive had the means to exercise power over judges;(ii) a failure to have regard to the evidence about the highly unusual conduct of the case;(iii) a confused and wrong approach to criticisms of the judge who had issued the warrant;(iv) an erroneous finding that Mr Kluz-Burton was an “implicit flight risk”;(v) an erroneous finding that there was a reasonable explanation for the warrant being issued on 15 October;(vi) a failure to consider the evidence in the round;(vii) a failure to consider the future risk;(viii) a failure to consider the abuse argument in respect of the prosecution of Mr Kluz-Burton.[58]Ms Amanda Bostock, on behalf of the respondent judicial authority, submits that the judge correctly and separately addressed both the systemic concerns about the rule of law and the independence of the judiciary in Poland, and the impact of those concerns in this particular case. The statements made by senior politicians may have been inappropriate, but they were directed to investigation and prosecution of serious allegations, not to the court. The speed of the process was explicable by Mr Kluz-Burton’s presence abroad, the high level of publicity, and the risk that he would disappear. There was no evidence of interference with the court process. The judge was therefore right to reject the section 2 challenge.[59]As to article 6, Ms Bostock submits that, according to established case law, systemic deficiencies in Poland do not, without more, establish a real risk of a flagrant denial of justice in Mr Kluz-Burton’s case. The alleged offences are ordinary, but serious, criminal allegations, the detention decision was upheld on appeal in Poland, and the later procedural complaints are matters for the Polish courts rather than evidence of a future flagrant denial of the right to a fair trial.[60]In respect of the alleged abuse of process, Ms Bostock submits that there is no evidence that the prosecution was brought for a collateral purpose, or pursued when the authorities knew it could not succeed. Since the warrant was issued by a judge and there is no cogent evidence of corruption, improper judicial interference, or usurpation of the extradition scheme, she contends that Judge Leake was entitled to find that the proceedings were not abusive.

Was the judge wrong to find that the warrant was issued by a judicial authority?

[61]The issue for the judge was whether the respondent had established, to the criminal standard of proof, that Judge Lubowski was a judicial authority when he issued the warrant. That was the test that the judge applied. In applying that test the judge addressed the two steps in L and P. He found that the first step was satisfied but the second step was not. He was sure that Judge Lubowski was a judicial authority when he issued the warrant.[62]It has not been shown on appeal that the judge reached the wrong conclusion on the basis of one or more of the eight suggested errors. We address those in turn.[63]Error 1 - Executive had means to exercise power over judges: The judge set out in extensive detail the evidence which shows that judges can be subject to disciplinary action at the instigation of the executive. This included a detailed analysis of the evidence of Mr Wachowiec. He found that “the executive (and in particular the Minister of Justice) has the means by which to exercise power over judges of the criminal court.” That is part of the reason why step 1 of the L and P test was satisfied. The potential for the executive to exercise disciplinary action is not, however, sufficient to show that Judge Lubowski (or any other individual judge) is not independent and impartial. Otherwise, step 2 of the L and P test would not be necessary. In addressing step 2, the judge was well aware of the context, including the systemic deficiencies that he had identified at step 1. It is not something that he left out of account at step 2 when examining whether Judge Lubowski acted as an independent judicial authority when he issued the arrest warrant against the appellant. There is no error in his approach.[64]Error 2 - Highly unusual conduct of the case: The judge set out the evidence about the conduct of the case, including the restrictions on Mr Jablonski’s access to the case file and the speed at which it progressed. The expert witness, Ms Dabrowska, said in terms that the prosecutor’s conduct in restricting Mr Jablonski’s access to the court file was not relevant to the independence of Judge Lubowski (see [98]). The judge did not therefore make any error in not considering that particular matter further. The judge was entitled to reach his own view as to the inferences that might be drawn from the speed of the proceedings. He was not required to accept Ms Dabrowska’s opinion on that issue. He was entitled to conclude that the profile of the case, Mr Kluz-Burton’s knowledge of the investigation, the tight 48-hour window within which a warrant must be issued following a provisional arrest, and the availability of Judge Lubowski as a duty judge on the Sunday all explained why the Polish authorities were acting quickly and why the warrant was issued on the Sunday. As it happened, the 48 hours did not expire until the Tuesday because weekends do not count for the purpose of section 6(2) of the 2003 Act. It is unclear whether the Polish authorities appreciated that, but it is unsurprising that the warrant was issued on the Sunday given the tight timeframe, the profile of the case and the availability of a judge. The judge was also entitled to accept that the Polish authorities did not take at face value Mr Jablonski’s promise that Mr Kluz-Burton would assist with the Polish enquiries. He had not attended the earlier hearing, or returned to Poland. He remained outside the jurisdiction where the Polish authorities had no control over him. The way to secure such control was by issuing the warrant.[65]Error 3 - Judge Dariusz Lubowski: The specific complaint about the independence of Judge Lubowski (who was appointed before the constitutional reforms) is based on a single previous decision in which he expressed concern that a court in the Netherlands had refused to extradite a requested person to Poland. We have not been provided with a copy of that decision, only with some quotes from the judgment. The furthest that Mr Wachowic was prepared to go was to suggest that the decision was controversial, not that it indicated any lack of independence (see [87]). The judge was entitled to conclude that this decision had no bearing on Mr Kluz-Burton’s case. We also note this passage from his judgment at [96] recording part of the cross-examination of Ms Dabrowska:
“She also accepted that she was unable to identify any information to found a conclusion that Judge Lubowski has behaved inappropriately [with regard to the issuing of the warrant], and the decision had been reviewed on appeal and she was unable to identify to suggest that the appellate court had been interfered with. ”
[66]Error 4 - Implicit flight risk: The judge found that Mr Kluz-Burton was an implicit flight-risk because he was “acutely aware of the allegations against [him] and the police action”, and he was in a foreign jurisdiction. This was not an unreasonable conclusion. The judge was entitled to have regard to the serious nature of the allegations and of the punishment that might be imposed if there should be a conviction. Mr Smith relies on the fact that the Polish authorities had Mr Kluz-Burton’s address in the UK. He is right that on 11 October 2023 Mr Jablonski supplied to the prosecution medical certificates for the appellant’s mother which gave her address in Luton and he stated that the appellant provided care for her, but without any more specific information. There is also evidence that at the hearing on 13 October 2023 Mr Jablonski notified Mr Kluz-Burton’s UK address to the court. However, there was no evidence available to the prosecution or the court of the appellant having an address in Poland. In addition, Mr Kluz-Burton did not attend the hearing. In all the circumstances, the fact that the UK address was notified at the hearing did not overcome the potential flight risk.[67]Error 5 - Warrant issued on 15 October: This overlaps with error 2. The judge expressly addressed the fact that the warrant had been issued on a date which was both a Sunday and the date of the Parliamentary elections. He did not consider that was indicative of a lack of independence for two reasons. First, the evidence showed that there was a judge on duty. Second, Mr Kluz-Burton had been provisionally arrested on 14 October, and there was a 48-hour time limit for the warrant to be issued and certified. Whether or not the Polish authorities were aware that the 48-hour time limit did not include weekends, this was a sufficient basis for the judge to conclude that the timing of the issue of the warrant did not indicate a lack of judicial independence (see [137]).[68]Error 6 - Failure to consider the evidence in the round:The judge’s principal focus was on the public statements that had been made by senior politicians. That is understandable because they were the principal focus of the submissions advanced by Mr Kluz-Burton, and they were the matter that gave rise to the greatest concern. However, the judge did not ignore any of the other matters – he addressed all of them and he did so in the round (see e.g. [147]). After doing so, he concluded that step 2 of the L and P test was not satisfied. The nature of the features relied on by Mr Kluz-Burton is such that they do not give rise to any additional concern when they are considered holistically. The fact is that this is a routine criminal investigation as opposed to an investigation that is inherently political. It has achieved a high profile because of the nature of the allegations, their appearance on social media, and Mr Kluz-Burton’s fame. For those reasons it entered social media discourse. That high profile, and the publicity that was given to the allegations and the investigation, meant that there was a need for the court to act quickly. The allegations emerged shortly before political elections. Politicians sought to make political capital out of them, but by making statements that were directed at the public, the police and prosecutors, not the court. Viewed cumulatively, it has not been shown on appeal that the judge’s conclusion was wrong, and that he ought to have found that Judge Lubowski may not have been independent and impartial.[69]Error 7 - Failure to consider the future risk: This relates to the article 6 complaint rather than the section 2 issue. The judge found that the evidence did not establish a real risk of a flagrant breach of article 6. That was an assessment of future risk in respect of a future criminal trial. The assessment was essentially based on the evidence as to what had happened up to 15 October 2023 when the warrant was issued, but that was because there was little evidence of a future risk beyond the evidence of what had happened up to that date. For example, there has been no real evidence of ongoing political statements from which a risk of the executive influencing the judicial process could be inferred. Mr Kluz-Burton now relies on fresh evidence. That is addressed below.[70]Error 8 - Abuse argument: This relates to the separate issue as to whether there is an abuse of process. We address that, separately, below.[71]In summary, therefore, Judge Lubowski is not a politically appointed judge. He was appointed before the constitutional reforms. The single previous decision which is sought to be impugned (which has not been provided to us) does not provide a basis for suggesting any lack of independence in this case. The judge considered each of the features relied upon by Mr Kluz-Burton: the nature of the alleged offences, the timing and speed of the investigation and the issue of the warrant, Mr Kluz-Burton’s offer of cooperation and the risk of flight, the conduct of the prosecutor, and the statements made by senior members of the executive during the election campaign.[72]The judge engaged with each of the arguments in support of the proposition that there was the potential for political interference. He recognised that the statements made by senior politicians were “a real matter of concern” and a “striking feature” and that they were made in the context of a highly contested election. He recognised that this distinguished this case from Wozniak. He nevertheless concluded, for reasons set out in the passages quoted above, that, taken at their highest, they were directed to the investigation and prosecution of the allegations rather than to the court, and that they “did not amount to any form of pressure on the court to act in a particular way”, thus embracing the risk of influence test. Mr Smith says that conclusion is irrational. We disagree. The judge was entitled to reach that conclusion for the reasons he gave. Nothing in the statements was explicitly or implicitly directed to any judge or court. None of them contained any implicit threat to take disciplinary action against any judge or risk of such action. Some of the statements explicitly recognised that Mr Kluz-Burton’s guilt or innocence was yet to be determined and none of them sought to pre-judge that issue (even if some might be read as tending towards insinuation).[73]Mr Smith also says that the judge applied the wrong test, because it is not necessary to demonstrate actual interference, only that the judge was liable to be influenced. We disagree that the judge applied the wrong test. He identified the correct test at [119] and applied it. For example, his finding that the statements did not amount to any form of pressure on the court to act in a particular way means that they were not liable to influence the court.[74]The judge also accepted the explanations given for the timing and sequence of the steps taken in the proceedings, including the need to act promptly where the appellant was outside the jurisdiction and where there was a real possibility that he might not submit voluntarily to the process and where there was a tight time period within which it was necessary to issue and certify the warrant. These were all factual assessments that the judge was entitled to make on the evidence.[75]That all being the case, the judge was entitled to conclude, to the requisite standard, that Judge Lubowski acted independently and impartially when issuing the warrant, and that he was, therefore, a “judicial authority”. Was the judge wrong to find that extradition is compatible with the right to a fair trial?[76]The test was whether there were substantial grounds for believing that there was a real risk of a flagrant denial of a right to a fair trial. That was the test that the judge applied. It fell to be determined by application of the two-step test explained in L and P ([8] above). The judge directed himself in accordance with that approach.[77]In respect of the first step, the judge followed the decision in Wozniak and found, in Mr Kluz-Burton’s favour, that there are systemic or generalised deficiencies concerning the independence of the judiciary in Poland ([38] above).[78]The issue, therefore, is whether those deficiencies are liable to have an impact on the proceedings against Mr Kluz-Burton. Again, that was the question that the judge addressed. He concluded that they were not. The issue on this appeal is whether, taking account of the fresh evidence, the judge ought to have decided that question differently. In addressing that question, it is necessary to bear in mind that it is not necessary to show that the executive will, in fact, interfere with the court’s decision-making. It is sufficient if there is a real risk that the proceedings may be affected, including as a result of public statements by politicians which are liable to influence a judge’s decision-making in an individual case. The assessment is fact-sensitive. It requires the court to identify and analyse the particular features of the individual case to determine whether the test is met. That exercise must be conducted in the light of the systemic deficiencies that have been identified at step 1 of the L and P test.[79]For the reasons given above, the judge did not make any of the first seven of the eight asserted errors (the eighth asserted error relates to abuse of process and is addressed below). Having permissibly concluded that Judge Lubowski was independent and impartial and (subject to the fresh evidence) Mr Kluz-Burton has not identified any additional feature which could have sustained a conclusion that extradition was incompatible with the right to a fair trial.[80]There is a significant change since the decision of Judge Lubowski: there has been a change of government in Poland. The senior politicians that made the statements on which Mr Kluz-Burton relies are no longer in power. That means that much of the case that is relied on to support the section 2 argument (which is concerned with events up to 15 October 2023) falls away when considering the article 6 argument (which concerns future risk). Mr Smith disagrees and says that the case has achieved such a political profile that it is now impossible to disentangle the political interests that are in play and that the Law and Justice Party retain an interest in the outcome of the case. There is, however, no evidence of any statements or conduct by the current government that might influence a trial judge in this case.[81]The fresh evidence is not capable of making a difference. Mr Jablonski’s evidence concerns the procedure adopted by the prosecutor but does not raise any issue about the independence or impartiality of the court, and Ms Dabrowska acknowledges that the prosecutor’s conduct was lawful. Ms Dabrowska’s evidence about the numbers of neo-NCJ judges is not capable of making a difference. The prospect that a neo-NCJ judge might be assigned to the case is part of the reason why step 1 of the L and P test was satisfied, but it is not sufficient to satisfy step 2 of that test, as Mr Smith accepted. Was the judge wrong to find that the extradition proceedings are not an abuse of the court’s process?[82]The appellant submits that the proceedings amount to an abuse of process because the case was exploited for political purposes, in particular in the context of the election campaign, and that the decision to initiate and accelerate the process was influenced by considerations extraneous to the proper administration of justice. The question is whether Mr Kluz-Burton has shown that the extradition process has been invoked or used for an improper or collateral purpose so as to undermine the integrity of the statutory scheme.[83]The judge addressed that question by reference to the material before him. He accepted that political figures sought to associate themselves publicly with the investigation and prosecution of the allegations, and that this formed part of a wider political discourse. However, he found that the warrant was issued by a judge exercising judicial functions, that there was no evidence of direction or pressure from the executive upon that judge, and that the prosecution itself was brought in respect of serious criminal allegations supported, at least at that stage, by evidence which formed part of the case. Those findings were open to him on the evidence. In the absence of material demonstrating that the proceedings were instigated or pursued for an improper purpose, or that the judicial process was subverted, the fact that political actors may have sought to derive advantage from the case does not, without more, establish an abuse of process.[84]Accordingly, and considering the abuse argument in addition to the article 6 analysis, we are satisfied that the judge was entitled to conclude that the proceedings do not amount to an abuse of the court’s process.

Conclusion

[85]For the above reasons the appeal is dismissed.