Furman v Polish Judicial Authority

At the permission stage in an extradition appeal, a potentially decisive question about the effect of conditional early release and time already served may justify a stay pending imminent Supreme Court guidance. The court should not reject an appeal as unarguable where a High Court approach remains arguable and the Supreme Court is shortly to decide whether that approach is permissible. The merits of an Article 8 proportionality challenge may depend materially on the stage reached in the foreign sentence and the likelihood of early release. Other factors, including fugitive status, criminal history and the public interest in extradition, may be insufficient to overcome that issue at the permission stage.

The claimant challenged an order made by a District Judge at Westminster Magistrates’ Court on 29 January 2024 ordering his extradition to Poland to serve the balance of a sentence for supplying cannabis. Permission to appeal was refused on the papers by Sir Duncan Ouseley on 21 March 2024.

The claimant relied on Article 8 of the ECHR and the possibility of discretionary conditional early release under Article 77 of the Polish Criminal Code. By the renewed application hearing, he had served nearly two thirds of his sentence. The central issue was whether the appeal should be stayed pending the Supreme Court’s decision in Andrysiewicz, which was expected to address the proper treatment of early release and time served.

1. Stay granted. The renewed appeal was stayed, but permission to appeal was not granted at that stage.
2. The approach in Dobrowolski remained reasonably arguable because it was a High Court decision, even though at least two later cases had rejected it. On that approach, the claimant’s having served nearly two thirds of his sentence, together with the District Judge’s finding that he had good prospects of early release under Article 77 of the Polish Criminal Code, might be decisive.
3. The District Judge had not found that an early-release application would fail. She had found good prospects of early release and indicated that the proportionality assessment might have differed had the halfway point been reached before her hearing.
4. It would be inappropriate at the permission stage to hold that the appeal was not reasonably arguable without the Supreme Court’s imminent guidance on whether the Dobrowolski approach was permissible and whether the likelihood of early release was a relevant factor.
5. The judge did not determine the correct temporal point for assessing Article 8 proportionality. Although Grigaliunaite supported assessment at the time of appeal and Molik referred to the date of determination of permission, nothing turned on that issue at this stage.
6. Absent the early-release or time-served issue, permission would have been refused with little hesitation. Applying Molik and assuming no early release, the remaining sentence, fugitive status, criminal record and the other Article 8 factors did not begin to outweigh the public interest in extradition. The judgment was ordered to be transcribed and submitted for approval so that the basis of the stay would be clear to any future court.

• Westminster Magistrates’ Court: District Judge Law ordered extradition on 29 January 2024.
• High Court (Administrative Court): Permission to appeal was refused on the papers on 21 March 2024. On renewal, the appeal was stayed without permission being granted, pending the Supreme Court’s decision on the early-release issue.