The Court of Appeal dismissed an appeal by Jaroslaw Owczarz after finding that his constitutional complaint did not raise a ground capable of making his detention unlawful. The court did not decide the merits of his separate challenge to the constitutionality of the appeal restriction in the European Arrest Warrant Act.
The appeal concerned a High Court refusal in August 2015 to direct an inquiry under Article 40.4 of the Constitution into the legality of Owczarz’s detention. His detention followed a High Court order of 28 July 2015 directing his surrender to Poland under the European Arrest Warrant Act 2003. He was committed to Cloverhill Prison under the statutory scheme and was later admitted to bail pending the appeal.
The Act provides that a person who makes an Article 40.4 complaint must not be surrendered while proceedings on that complaint are pending. The Court of Appeal said this protection assumes that the complaint genuinely challenges the lawfulness of the person’s current custody.
Owczarz had also begun separate plenary proceedings challenging the constitutionality of section 16(11) of the 2003 Act, which restricts an appeal from a surrender decision unless the High Court certifies that a point of exceptional public importance is involved and that an appeal is desirable in the public interest. The High Court refused his application for such a certificate. His constitutional case argued that the provision allowed a judge to decide whether there should be an appeal from her own judgment and disproportionately restricted access to the courts. A general claim under the EU Charter was also mentioned but had not been particularised.
The Court of Appeal expressly declined to express a view on those constitutional arguments. It reasoned that even if the challenge succeeded, it would only enable an appeal against the surrender decision; it would not, by itself, make Owczarz’s existing detention unlawful. He would have to succeed in that further appeal to obtain discharge from custody.
The judgment said a plaintiff claiming significant harm from an allegedly unconstitutional provision could seek an interlocutory injunction in the plenary proceedings, subject to the applicable legal tests. It concluded that the Article 40.4 application was misconceived because no ground advanced in it bore directly on the legality of the custody. The appeal was therefore dismissed.