Ewa Andrysiewicz v Circuit Court in Lodz, Poland

In an extradition Article 8 proportionality assessment, the court must weigh all relevant factors in the round. Passage of time may strengthen protected private and home life interests or support an inference that the public interest in extradition has diminished. Time before those interests arose cannot increase their weight. Culpable delay cannot be inferred merely from the time needed to investigate and prosecute complex offending. Where foreign law provides a discretionary early-release power, the English court may recognise its existence, but the bare possibility of release adds little weight. It should not ordinarily predict how the foreign court will exercise its discretion. Only a rare case supported by appropriate evidence may justify that course.

The appellant challenged an extradition order made on 23 May 2023 under a Polish conviction warrant. She argued that extradition would disproportionately interfere with her Article 8 rights because of delays between the offending, conviction, activation of the suspended sentence and issue of the warrant. She also relied on a pending application for release on licence under articles 77 and 78 of the Polish Penal Code, which might reduce or eliminate the remaining custodial term. The central issues were how those matters affected the Article 8 balance and whether the English court should anticipate the Polish court’s discretionary decision.

The application to rely on fresh evidence was refused and the appeal against the extradition order was dismissed.

1. The Article 8 issue required the established balance-sheet approach in Polish Judicial Authority v Celinski [2016] 1 WLR 551. The court had to consider all relevant Article 8 factors in the round.
2. Passage of time could strengthen the appellant’s protected interests or reduce the public interest in extradition, but neither consequence followed automatically. Time before the appellant developed her United Kingdom private and home life could not increase the weight of those interests. Nor could culpable delay be inferred merely from the time needed to investigate and prosecute a complex, extended fraud conspiracy. Adamek v Judicial Authority, Poland [2018] EWHC 578 (Admin) was materially different and did not require a different conclusion.
3. For a conviction warrant, the likely custodial period on surrender, including credit for time spent on remand, was material to the balance. The court should have up-to-date information on matters affecting the sentence.
4. The English court could recognise the existence of the discretionary release-on-licence power under articles 77 and 78 of the Polish Penal Code. However, the bare possibility of release added little weight. The approach in Sobczyk v Circuit Court in Katowica, Poland [2017] EWHC 3353 (Admin) was the proper general approach: the English court should not anticipate how the Polish court would exercise its discretion.
5. The court disapproved the contrary step taken in Dobrowolski v District Court in Bydgoszcz, Poland [2023] EWHC 763 (Admin), where the court assessed the likely merits of an article 77 application and gave that assessment material weight. It accepted, however, the warning in that judgment against second-guessing the Polish court and its pragmatic conclusion that formal proof of the existence of article 77 was unnecessary.
6. Only in a rare case, and on appropriate evidence, should an English court assess the likely merits of a foreign early-release application. The appellant’s application was weak, and the District Judge’s overall conclusion was correct when assessed in the round, applying the approach in Re B (a minor) [2013] 1 WLR 1911.

• High Court (Administrative Court) — The appeal against the extradition order was dismissed and the application to rely on fresh evidence was refused: [2024] EWHC 1399 (Admin) .
• District Judge — An extradition order was made on 23 May 2023.