Andrysiewicz v Circuit Court in Lodz, Poland

In conviction-warrant extradition proceedings, the bare possibility of discretionary early release in the requesting state ordinarily carries little weight in the article 8 proportionality assessment. The domestic court should not predict the foreign court’s decision, because that would be speculative and inconsistent with international comity.

Prediction is permissible only in a rare case supported by agreed or uncontested evidence demonstrating an overwhelming probability of release, its timing and conditions, and the absence of adverse consequences from the domestic court’s inability to impose those conditions. Automatic early release may be considered where its operation can be calculated confidently. The constant and weighty public interest in extradition will ordinarily prevail unless the consequences for family life are exceptionally severe.

Ewa Andrysiewicz v Circuit Court in Lodz, Poland concerned a conviction warrant seeking the appellant’s extradition to Poland to serve a two-year sentence for fraud offences. Westminster Magistrates’ Court ordered extradition. Swift J dismissed her appeal in [2024] EWHC 1399 (Admin), [2024] 4 WLR 74, but certified questions concerning the relevance of discretionary early release under the Polish Penal Code to article 8 proportionality.

During the proceedings the appellant completed the equivalent of her sentence through time spent on remand. The Polish authority withdrew the warrant, and the Supreme Court discharged the appellant and quashed the extradition order. At both parties’ request, the court nevertheless heard the case to resolve conflicting authority in the King’s Bench Division.

The central issues were what weight could attach to possible discretionary early release and whether a United Kingdom court should assess the likely merits of a present or future application to the Polish court.

1. Disposition. The court unanimously answered the certified questions by endorsing Swift J’s second option. The bare possibility of discretionary early release should ordinarily be recognised but given little weight. The warrant had already been withdrawn, and the appellant had been discharged and the extradition order quashed.

2. The public interest in extradition is constant and weighty. Applying Norris v Government of the United States of America (No 2) [2010] UKSC 9, H(H) v Deputy Prosecutor of the Italian Republic, Genoa [2012] UKSC 25, and Polish Judicial Authority v Celinski [2015] EWHC 1274 (Admin), an article 8 defence will rarely succeed. Disproportionality based on private life is particularly unlikely. Where family life is invoked, the impact must ordinarily be exceptionally severe.

3. Where foreign law provides automatic early release and its operation is agreed or proved, the domestic court may calculate the likely release date and conduct the article 8 assessment on that basis. In an extreme case, a very short remaining period combined with exceptionally compelling features might outweigh the public interest. The court must still account for the requesting state’s interest in imposing and enforcing licence conditions.

4. Discretionary release under article 77 of the Polish Penal Code is different. A Polish court must assess wide-ranging matters by Polish standards and exercise discretions concerning release, timing, licence conditions and probation. A United Kingdom extradition court will seldom possess the information or institutional competence needed to predict that decision accurately. Attributing significant weight to such speculation could also usurp the Polish court’s function and offend international comity.

5. The court therefore disapproved the predictive approach taken in Dobrowolski v District Court in Bydgoszcz [2023] EWHC 763 (Admin) and rejected the third option. It also rejected the first option, under which discretionary early release would receive no weight. Ordinarily the possibility must be acknowledged, but it adds little weight and its likely outcome should not be investigated.

6. A rare exception requires agreed or uncontested evidence sufficient to demonstrate an overwhelming probability of release, its timing, the probation period and conditions, and that the domestic court’s inability to provide equivalent supervision would not harm the offender’s or public’s interests. Courts should decide at the case-management stage whether that threshold could be met and whether the additional weight could possibly affect the overall balance. If it could not, further evidence would merely cause delay and expense.

1. United Kingdom Supreme Court: After the Polish authority withdrew the warrant, the court discharged the appellant and quashed the extradition order. It nevertheless heard the case and, in [2025] UKSC 23, unanimously endorsed the second option identified by Swift J.

2. High Court, Administrative Court: Swift J dismissed the appeal in [2024] EWHC 1399 (Admin), [2024] 4 WLR 74. He certified two points of law of general public importance but refused permission to appeal.

3. Westminster Magistrates’ Court: District Judge Turnock ordered the appellant’s extradition to Poland on 23 May 2023.