Bartlomiej Roman Szybowicz v The Regional Court in Krakow

Where a pending Supreme Court decision may materially affect an extradition appeal, the court may stay a renewed permission application to await that decision. The fact that the relevant point was raised very late is important, but is not necessarily decisive where the respondent does not oppose the stay and identifies no prejudice.

A possible early release after surrender may be relevant to the proportionality of extradition under Article 8. If that matter was not considered below, it may provide an arguable basis for appeal. A party seeking to rely on the point at a later hearing must first apply to amend the grounds.

The appellant renewed an application for permission to appeal against a decision that his extradition to Poland was proportionate and necessary. He had been convicted of ten domestic burglaries committed when he was aged 17.

The original grounds concerned Article 8 proportionality and limitation. The limitation point fell away after further information was provided. The remaining ground alleged that delay and the appellant’s age had not been properly weighed.

On the eve of the renewal hearing, the appellant sought a stay under Criminal Procedure Rule 50.18(1), pending the Supreme Court’s decision in Andrysiewicz. The central question was whether the possible application of early release provisions after surrender could materially affect the Article 8 assessment.

1. The stay application was granted. The renewal application was to be re-listed if the Supreme Court decided not to hear Andrysiewicz.
2. The Supreme Court case concerned the relevance, in an Article 8 extradition proportionality assessment, of possible release on licence under Polish early release provisions. The issue was potentially material because, if surrendered, the appellant might serve only eight or nine months, or possibly less.
3. Following Marcisz v Poland [2024] EWHC 2441, the present case was effectively impossible to distinguish on the early-release issue. The District Judge had not taken that matter into account. It was therefore at least arguable that the Article 8 assessment might have been affected.
4. The point had not previously been raised, despite several earlier formulations of the grounds and earlier permission hearings. Ordinarily, reliance on a new point at such a late stage might not be permissible. However, the respondent did not oppose the stay and had identified no prejudice from the late reliance.
5. The appellant could decide what application to make to amend the grounds. Unless an amendment was made before the next renewal hearing, argument based on early release would not be open to him.

• Deputy Chief Magistrate: on 4 April 2024, determined that the appellant’s extradition was proportionate and necessary.
• High Court: Sheldon J refused permission to appeal on 7 June 2024.
• High Court: the renewed application was considered procedurally before Sir Peter Lane in October 2024. The present court granted a stay of the renewed application.