Andrysiewicz v Circuit Court in Lodz, Poland

The Supreme Court considered the weight to be given to the possibility of early release on licence under the Polish Penal Code (notably Articles 77, 78, 80 and 82) when deciding whether extradition to Poland pursuant to a conviction warrant would be a proportionate interference with article 8 ECHR rights. The court rejected the extremes of (a) treating the requesting State's early‑release regime as irrelevant and (b) routinely predicting and attributing significant weight to the likelihood of a foreign discretionary early‑release decision. Instead the court endorsed a middle course: recognise and take account of the mere possibility of early release but, save in rare and well‑evidenced cases showing an overwhelming probability (including timing, likely probation period and licence conditions), attach little weight to discretionary early release in the article 8 proportionality balance. The court emphasised international comity, practical limits on a UK judge’s knowledge of foreign sentencing and release standards, and the public interest in enabling the requesting State to exercise its discretions (including imposing probationary periods and licence conditions).

Background and procedural posture:

• The respondent Polish judicial authority sought extradition of the appellant to serve a two year sentence imposed in Poland; an extradition order was made at Westminster Magistrates’ Court on 23 May 2023 and the appellant appealed to the High Court. Swift J dismissed the appeal on 11 June 2024 ([2024] EWHC 1399 (Admin)) and certified two questions about the proper approach to the relevance of Polish early release provisions; this Court (three judges) later granted permission to appeal and heard the matter on an expedited basis.
• By the time of the Supreme Court hearing the appellant had, by virtue of time spent on remand, served the equivalent of her sentence; the Polish authority withdrew the arrest warrant, the Supreme Court ordered discharge and quashed the extradition order as moot. Both parties nevertheless asked the court to determine the certified legal questions because of conflicting authority in the King’s Bench Division.

Nature of the application: The appeal raised a legal question about the approach a UK extradition judge should take, under article 8 ECHR and the Extradition Act 2003, to the possibility that the requesting State might, in the exercise of its discretion, permit early release on licence.

Issues framed:

1. When considering whether extradition pursuant to a conviction warrant would be a disproportionate interference with article 8 rights, what weight can attach to the possibility that the requesting authority might permit release on licence under Articles 77, 78, 80 and 82 of the Polish Penal Code?
2. To what extent (if at all) should the court assess the likely merits of an application under those early‑release provisions?

Court’s reasoning and conclusion:

• The court analysed the relevant statutory framework (Extradition Act 2003 provisions such as sections 10, 21 and 65), Strasbourg and domestic authority on article 8 in extradition (including Norris and H(H)), and the Polish Penal Code provisions. It emphasised the heavy and constant public interest in extradition and the rarity of successful article 8 challenges to extradition absent exceptionally severe consequences for family life.
• Where early release is automatic and can be confidently and precisely calculated, it may be treated as a material factor; by contrast, discretionary foreign early release (as under Article 77 Poland) involves multiple matters of assessment and the exercise of several discretions by the foreign court (whether to release, timing, licence conditions, length of probation), together with country‑specific standards and public policy factors that UK judges are ordinarily not in a position to evaluate accurately.
• The court endorsed Swift J’s option two: the existence of discretionary early‑release provisions should be recognised and may be taken into account, but ordinarily only the bare possibility of early release should be acknowledged and assigned little weight in the article 8 proportionality balance. Only in rare cases, with agreed or uncontested, compelling evidence demonstrating an overwhelming probability of release, its timing, and the probationary regime and conditions that would follow, should a UK court attempt to predict the foreign decision and attribute significant weight to it.
• The court emphasised case management: extradition judges should decide at an early stage whether a case is potentially such a rare case and whether evidence is available to justify predicting the foreign outcome; if not, there should be no speculative enquiry which would cause delay and expense.

Legally significant subsidiary findings: The court observed that the threshold in section 65(3)(c) of the Extradition Act 2003 refers to the total sentence imposed (not the remainder to be served) and reiterated that a UK court cannot impose foreign licence conditions or probationary periods and that preventing extradition can deprive the requesting State of its opportunity to manage release and revoke it if conditions are breached.

The appeal on the substantive extradition order was dismissed on its merits (the Supreme Court agreed with Swift J’s approach), but the extradition warrant had already been withdrawn and the appellant discharged; accordingly the court answered the certified questions by endorsing the middle approach (Swift J’s option two): the existence of discretionary early‑release provisions in the requesting State is a material factor that may be acknowledged, but ordinarily only the bare possibility should be taken into account and given little weight in the article 8 proportionality balance. A UK court should only attempt to predict the outcome of a foreign discretionary early‑release decision in rare cases supported by overwhelming, agreed evidence, and should use case management to determine whether such inquiry is appropriate. The court emphasised international comity and the public interest in enabling the requesting State to exercise its discretions (including imposing licence conditions and probation periods).

District Judge Turnock (Westminster Magistrates' Court) ordered extradition on 23 May 2023; appeal to the High Court (Swift J) dismissed on 11 June 2024 ([2024] EWHC 1399 (Admin)). Swift J certified two questions of law on 19 July 2024. Permission to appeal to the Supreme Court was granted (this Court heard the appeal in March 2025). By the time of the Supreme Court hearing the Polish authority withdrew the arrest warrant and the Supreme Court ordered discharge and quashed the extradition order; the Court nevertheless determined the certified legal questions.