Supreme Court to hear appeal on Article 8 ECHR & early release: Andrysiewicz v Circuit Court in Lodz, Poland UKSC 2024/0109
The recurring issue of how to treat the relevance of likely early release following extradition as part of the Article 8 ECHR ‘balance’ is due to be heard by the Supreme Court in Andrysiewicz, listed on 13 March 2025. This will be the first time the Court has considered Article 8 ECHR since the leading decision in HH & Others [2013] 1 AC 338.
The Court granted permission to appeal on 17 October 2024, by a decision of Lord Lloyd-Jones, Lord Sales and Lord Stephens.
The decision subject to appeal was made by Swift J on 11 June 2024 and is reported as Andrysiewicz v Circuit Court in Lodz, Poland [2024] EWHC 1399 (Admin).
By a decision on 19 July 2024, Swift J certified the following question of public importance:
“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 judicial authority might, in exercise of the power under articles 77, 78, 80 and 82 of the Polish Penal Code, permit the requested person’s release on licence (“the early release provisions”) and
To what extent (if at all) should the court assess the likely merits of an application under the early release provisions, either that the requested person has made, or that he may make.”
The CPS on behalf of the Respondent opposed the grant of permission to appeal, whereas the Appellant countered that the issues reach far beyond Polish extradition cases raising Article 8 ECHR and the proper treatment of foreign law within extradition proceedings.
The Supreme Court expedited the appeal hearing, with the deferred Divisional Court test case of Tujek and the growing number of stayed cases awaiting clarification of the issues identified.
However, not all Administrative Court appeal cases involving Polish early release provisions have been stayed. For example, Sir Duncan Ouseley in an ex tempore decision on 30 October 2024 reported as Talaga v Poland [2024] EWHC 3015 (Admin), allowed an appeal relying in part on the relevance of Polish early release provisions to the Article 8 ECHR ground.
On 10 February 2025 the Supreme Court discharged the appellant and quashed the extradition order pursuant to s43 (3) of the EA 2003. By the same order and following consideration of submissions from the parties, the court decided to proceed to hear the appeal in any event.
So, the forensic scrutiny of the Supreme Court will be applied once again to the proper application of the tests within the Extradition Act 2003, following on from the relatively recent decisions of Popoviciu,Bertino and Merticariu and El-Khouri v USA. This case, however, will be the first where the Court considers Part 1 EA 2003 proceedings under the Trade and Cooperation Agreement 2020, as opposed to the EAW Framework Decision 2002. It will also provide the Supreme Court with the first opportunity to comment on the lead Divisional Court ‘conviction’ Article 8 ECHR case of Celinski & Others [2016] 1 WLR 551.
The Appellant is represented by Ben Cooper KC, Ania Grudzinska and Mary Westcott, instructed by James Chaplin from Hollingsworth Edwards.
