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

There is a second and freestanding problem. It arises, independently of whether there is or is not a sound analogy between Polish Early Release and French Qualifying Remand. I will assume I am wrong about injustice. And I will suppose that Mr Swain were right about his new analogy. Where would the suggested analogy lead, if it is right? I have explained (§49 above) that it stands as an authoritatively recognised general contradiction (see SC §§24, 72) for an EJA both (a) to recognise that a decision belongs to the requesting state authorities under their domestic law and yet (b) to arrive at a judicial perception of the requested person’s prospects. Pausing there, it is not always a contradiction; or not a universally fatal contradiction. A statutory example, where Parliament requires an EJA to arrive at its judicial perception on a question clearly belonging to the requesting state authorities, is found in s.21A(3)(c) of the Extradition Act 2003 (less coercive measures). More relevantly, the example endorsed by the Supreme Court itself is Swift J’s “rare case” involving early release (SC at §§79-80).

In relation to French Qualifying Curfew, the Divisional Court in A was already looking – as its “necessary proviso” – at whether the evidential picture was “very clear cut” (§38 above). I have contrasted the case of Vidak. That is about Hungarian Qualifying Curfew, where the evidence was disputed and not clear cut (see §39 above). Mr Swain says, on the basis of his suggested analogy between Polish Early Release provisions in Andrysiewicz and French Qualifying Curfew provisions in the present case, that this would be the relevant equivalent of a “rare case” (based on SC §§79-80):

I have answered the “rare case” question. Ms Grudzinska submits, and Mr Swain accepts, that my finding that the Appellant’s prospects are “so irresistibly strong on the evidence” (§47 above) meets the threshold of “evidence sufficient to demonstrate an overwhelming probability” (SC §80). Mr Swain also accepts that all of the evidence which I have identified at §41(i) to §41(x) above stands as “uncontested evidence”. That is because the facts of the individual examples are not contested, and the evidence of the lawyers (M Pejoine, M Kempf and M Arnaud) was evaluated and accepted by the Courts in the previous cases of A and Doga. That body of evidence has not been “contested” in this case. And that body of evidence is the underpinning of my finding. What I have found is that the prospects for the Appellant with his 5-hour EMC are “so irresistibly strong”, in just the same way as the 5½ hour EMC in A was “very clear cut”, and as was the 5 hour EMC in Doga. I have explained the significance of the French Supreme Court (§45). I have described the “series of previous examples”, which are “all one way”. I have described the series of French lawyers (§45). I have described the position, adding “(and now supported by Mme D’Harcourt)” (§46). Those brackets – which Mr Swain very fairly acknowledged – were deliberate.

The only “contested” evidence was an aspect of what Mme D’Harcourt said about time served under the Code “regardless of the details and modalities of the curfew” and “regardless of the number of hours of his curfew” (see §41(xi)(4) and (5) above). I was careful to record that the Respondent had contested that “any EMC of any duration would necessarily constitute EMHA” (see §44 above). I have not found that it would. I have found that the Appellant’s 5-hour EMC makes his prospects “so irresistibly strong” when put alongside A and Doga and the evidence discussed, and the countless concrete examples of comparable EMCs. That is the evidence which, as is accepted by the Respondent, was not “contested” evidence in this case before me.

For these reasons, I agree with Ms Grudzinska that nothing turns on the correctness of what I had said about early release cases being different because early release involves discretion and it involves release on licence (see §37 above). Whether that was correct – Ms Grudzinska says it is and Mr Swain had not disputed the point previously – can await a case in which it matters, and where it has fairly been raised. In this case, I can for the time being assume in the Respondent’s favour that it were wrong. I can assume that it is sufficient that there is an evaluative “judgment” applying a domestic French Code criterion (cf. SC at §46). I can assume in the Respondent’s favour that there is a sound analogy between Polish Early Release and French Qualifying Curfew. I can assume that the feature of release on licence or probation in an Early Release case is not a key ingredient of Andrysiewicz. Making all those assumptions for now, I am still left with the body of evidence which involves the “very clear cut case” (A at §39), where there is the “overwhelming probability” of release based on Qualifying Curfew, based on the “uncontested evidence” (SC at §80). I add this footnote. These observations provide another route for explaining how the two decisions of Farbey J to which I referred (§37 above) fit together: one in 2024 (Dablewski), following Swift J in Andrysiewicz as to Polish Early Release; and the other in 2023 (Doga), following the Divisional Court in A as to French Qualifying Curfew. The present case, as I have explained, is a “very clear cut” case. There is uncontested evidence sufficient to demonstrate overwhelming probability (SC at §80). The Appellant is entitled to discharge in light of his 5 hour EMC, in exactly the same way was the requested person with his 5½ hour EMC in A and the requested person with his 5 hour EMC in Doga.