AC-2023-LON-001921 - [2025] EWHC 1416 (Admin)

I do not think that allowing this line of argument promotes the interests of justice. I think it would be contrary to the interests of justice. Mr Swain says I can rewrite my judgment, where it is in the interests of justice to do so. He cited as relevant authority the case of Re L [2013] UKSC 8 [2013] 1 WLR 634 at §27, where it is said that in such a situation “the overriding objective must be to deal with the case justly”. He invited me to pose that question and I have done so. I do not think acceding to the new invitation would be dealing with the case justly. It would be different if there were a new appellate decision which established a new proposition and effectively answered the issues in the case. That is not what has happened.

In this case, the justice of the case starts from the following position. The judgment of Swift J in Andrysiewicz speaks for itself. It was available to the Respondent. The Respondent even cited Swift J’s judgment. It relied on the judgment in support of a general point. It was the same point made in the Troka line of cases. That general point had been addressed in A and it was addressed again by me (see §38 above). That was the point made by reference to Swift J’s judgment. At no stage did the Respondent seek to argue that there was an analogy between Polish Early Release in Andrysiewicz and French Qualifying Curfew in A and Doga and the present case. Mr Swain could have advanced the argument that there is such an analogy. That is what he wants to do now. He could have argued that Swift J’s judgment on Polish Early Release should be followed for French Qualifying Curfew. He did not do so. What has really happened is that the Supreme Court has now endorsed Swift J’s judgment. That gives full authoritative support for the analysis in that judgment. It is no longer open to this Court to follow the Chmura line of cases. But I have not done so. And, as Mr Swain accepts, the Supreme Court has not said anything about Qualifying Curfew. Nor has it said anything about whether there is, or is not, any analogy between early release and qualifying curfew. Yet that is what Mr Swain now wants to argue. It was always open to him to make that argument. Where a judgment could have been relied on in making an available argument, but it was not, I cannot see how an appellate endorsement of that previously available judgment should then become a good reason to reopen a case; still less a case which has been fully argued; and after the Court’s judgment has been written and distributed. I think that would be an unfair, opportunistic, second bite at the cherry. It would be an injustice. Applying Mr Swain’s authority of Re L, I would decline his request without more. If a French extraditing authority wants to run a new argument, they will have to do so in a future case.