District Court of Bratislava (Slovakia) v Gabriel Soltes

As Pitchford LJ noted in Miraszewski, the predecessor of the current proportionality provisions was s. 11(3) of the Extradition Act 1989, which required the court to discharge if (among other things) “by reason of the trivial nature of the offence… it would, having regard to all the circumstances, be unjust or oppressive to return him”. However, the current provisions owe their origin to an amendment to Framework Decision 2002/584/JHA. This came about because of a particular feature of Polish law, known as the principle of legality, which precluded the exercise of prosecutorial or judicial discretion in the decision whether to seek extradition.

Section 21A(1)(b) requires the court to consider whether extradition would be disproportionate in a statutorily defined sense. In doing so, the court is obliged by s. 21A(2) to take into account three specified matters (so far as it considers it appropriate to do so) and no others.

In Miraszewski, it was said at [31] that s. 21A(1)(b) applies to all accusation cases, not only those from countries which apply the principle of legality. The test is not framed in terms of triviality. Within the boundaries set, the scope for judgment is comparatively broad. The judgment is to be made against a background of mutual respect between the UK court and the issuing authority, but the court is not limited to considering what the issuing authority would have done if it had not been constrained by the principle of legality. The court may, depending on its evaluation of the factors, conclude that extradition would be disproportionate if (i) the conduct is not serious and/or (ii) a custodial penalty is unlikely and/or (iii) less coercive measures to ensure attendance are reasonably available to the requesting state in the circumstances.

Pitchford LJ noted that the Lord Chief Justice’s guidance identified offences which are trivial, but these were not the only ones which would count as trivial and, in any event, triviality was not the touchstone: [32]. The seriousness of the conduct alleged was to be judged in the first instance against domestic standards, although the court would respect the view of the requesting state if offered: [36]. When considering the likely penalty on conviction, the court’s principal focus should be on the question whether it would be proportionate to extradite a person who is not likely to receive a custodial sentence in the requesting state: [37]. The court was not obliged to require evidence about likely penalty from the issuing state in every case. Where such information is absent, the broad terms of s. 21A(3) permit the judge to “draw inferences from the contents of the EAW and to apply domestic sentencing practice as a measure of likelihood”. However, “[i]n a case in which the likelihood of a custodial penalty is impossible to predict the judge would be justified in placing weight on other subsection (3) factors”: [38]. If a non-custodial penalty is likely, this does not preclude the court from concluding that extradition would nonetheless be proportionate; and the case of a fugitive with a history of disobeying court orders may require increased weight to be given to sub-s. 3(c) because “it would be less likely that the requesting state would take alternative measures to secure the requested person’s attendance”: [39].

As to less coercive measures, s. 21B enables either the requesting state or the requested person to apply to the court for the requested person’s temporary return or for communication to take place between the parties and their representatives: [40]. However, it would be a reasonable assumption that in most cases the requesting state has already considered less coercive measures. There is an evidential burden on the requested person to identify less coercive measures that would be appropriate in the circumstances. Where the requested person has left the requesting state with knowledge of his obligations but in breach of them, it is unlikely that the judge will find less coercive measures appropriate: [41].

In Antochi, Fordham J addressed in more detail how to apply domestic sentencing practice when considering the likely penalty. In particular, should the judge consider evidence about the circumstances of the alleged offending? As to that, Fordham J accepted the judicial authority’s submission that questions of duress and intent were for the requesting state’s judicial system, but wider questions about the background to the offence (including the requested person’s personal circumstances at the time) could be taken into account: [6]-[8].

Fordham J held that the judge had adopted the wrong approach in asking if there was a “realistic possibility of a custodial sentence”. The court should, rather, focus on the question of what was the “likely” penalty: [19]. On the facts as set out in the warrant, the application of the Sentencing Council’s Definitive Guideline for Theft Offences produced a range from a low level community order to 36 weeks’ custody; and that the likely sentence was a short custodial sentence, which would be suspended given the requested person’s lack of previous convictions and her role as a primary carer of a child: [20]. A suspended sentence fell on the non-custodial side of the line drawn in Miraszewski: [21].

In Vascenkovs v Latvia [2023] EWHC 2830 (Admin), Swift J said this:

“10.

I consider the position in light of the judgment in Miraszewski to be this. Section 21A(1)(b) and (3) establish a bespoke notion of proportionality which is a condition for extradition pursuant to an accusation warrant. The Practice Direction contains guidance on seriousness but is not exhaustive and does not remove the court’s responsibility to apply its own assessment of this notion of proportionality. The proportionality assessment required is an overall appreciation of a situation rather than an exercise of precise calibration. While information offered by a requesting judicial authority may be considered, the court is under no obligation to request information and such requests will be relatively rare. In most instances a court will apply this proportionality requirement using domestic practice as a measure. Resort to domestic practice is inevitable since even if an English court were to be equipped with information from the requesting judicial authority it would, from the perspective of the principle of mutual recognition, ill-behove it to subject that information to anything approaching penetrating analysis. Moreover, the same principle of mutual recognition requires, so far as this proportionality analysis rests on consideration of domestic practice, the court should allow a significant margin before concluding extradition would be disproportionate, since reaching such a conclusion too readily could call into question the requesting authority’s decision to issue the warrant (as a disproportionate use of that court’s power). A conclusion that extradition would be disproportionate would not necessarily be at odds with the notion of mutual recognition. For example, it might rest on information not available to the requesting authority when it made its decision to issue the warrant. However, the principle of mutual recognition means that a conclusion that extradition is disproportionate in this sense will be an occurrence more rare than common, likely to arise only in unusual circumstances.

11.

Putting the matter another way, the judgment Miraszewski does not suggest that the bar on extradition contained within section 21A(1)(b) exists to pursue a purpose that goes any further than explained by the Home Secretary in her statement in parliament in July 2013 and the statement by the Home Office Minister made when the amendment was introduced (see, the judgment in Miraszewski at paragraph 30): i.e., to provide a further brake on extradition for ‘very minor offences’. A further brake because the definition of extradition offence in section 64 of the 2003 Act already excludes the possibility of extradition for some types of minor offending.”

At [24], Swift J said this:

“Any resort to the Sentencing Council Guidelines to consider the type of sentence that might be imposed for similar offending in England is undertaken only to obtain a general idea of the seriousness of the allegation and the likely consequence of conviction. It is a hypothetical exercise. A district judge is not in a position to undertake the sort of precise sentencing exercise that would be performed following a trial. There has been no trial and the precise circumstances of the offending and of the accused when the offending took place are not known. Given the absence of this information the conclusion reached by the District Judge at paragraph 42 was an appropriate conclusion. The task for this court, on appeal, is not to mark the judge’s approach to a sentencing exercise as if she had passed sentence following trial and this appeal court was acting as the Court of Appeal Criminal Division. There is no need to determine matters of fine detail when resort is had to the Sentencing Council Guidelines for this purpose. On appeal, the only issue is whether the approach taken to the hypothetical application of the Guidelines was one that, in broad terms, was appropriate and fitted with a correct assessment of proportionality for the purposes of section 21A of the 2003 Act. I am satisfied that the District Judge used the Guidelines correctly. I do not consider that the conclusions she reached both as to the likely outcome had the same matters happened in England or as to the likely outcome for Mr Vascenkovs in the event of conviction, should be reversed.”

In considering the seriousness of the conduct alleged to constitute the extradition offence for the purposes of s. 21A(3)(a) and the “likely penalty” for the purposes of s. 21A(3)(b), the UK court must address that question itself. It may do so by drawing such inferences as it considers are safe about the facts of the offence and applying “domestic sentencing practice” to those facts: Miraszewski, [38]. But the principle of mutual respect entails that the principal source for such inferences must be the warrant itself and any further information supplied by the requesting state. Judges in this jurisdiction should bear in mind that they are not trying the offences themselves and often have only a small portion of the evidence that would be considered by the courts of the requesting state if extradition were ordered. In many cases, it may be impossible to say much about the facts beyond what is stated in the warrant itself. The courts of this jurisdiction should resist the temptation to make findings of fact about the circumstances of the offence based on the evidence of the requested person, save where that evidence is accepted in terms by the judicial authority of the requesting state or is plainly uncontentious. This was the point made by Fordham J in Antochi at [6]-[8].

Relatedly, in many cases, the information supplied by the requesting state will be insufficient to form any view about some of the factors relevant to sentence. In such cases, it may be impossible to predict the “likely penalty” with any degree of confidence. I do not read [19] of Fordham J’s judgment in Antochi as saying that the judge must always alight on a particular penalty as “likely” for the purposes of s. 21A(3)(b), irrespective of the quality of the information available. In this respect I would respectfully endorse what Swift J said at [24] of his judgment in Vascenkovs: the application of domestic sentencing practice is a “hypothetical exercise”, which is undertaken “only to obtain a general idea of the seriousness of the allegation and the likely consequence of conviction”. A requirement in all cases to perform a precisely calibrated sentencing exercise, of the kind that would be undertaken by a sentencing judge in the Magistrates’ or Crown Court or the Court of Appeal (Criminal Division), would be inconsistent with the obligation to accord proper respect to the judicial authority of the requesting state and would be an artificial exercise. In some cases, it may be impossible to say more than that the offence might or might not attract a custodial penalty, depending on the view taken by the trial court as to particular factors. In such a case, s. 21A(3)(b) does not require the judge to go further in considering the “likely penalty”.

The point of the exercise required by s. 21A(3) is to identify the “likely penalty” that would be imposed by the courts of the requesting state: see Miraszewski, [37]. The application of domestic sentencing practice is a useful heuristic in cases where the information supplied by the requesting state does not specify the likely sentence. It is no more than that. Judges do not have to shut their eyes to the fact that some aspects of sentencing practice are likely to vary between states. In this jurisdiction, one key factor in sentencing for theft, fraud and kindred offences is the value of the property involved. What counts as “low value” in one jurisdiction may not be categorised in that way in another jurisdiction where the cost of living is lower. This point was made by Sir Stephen Silber, sitting as a Judge of the High Court, in Kreski v Poland [2015] EWHC 1423 (Admin), at [25]-[26]. In my judgment, this is a factor that may properly be borne in mind when considering the “likely penalty” (or the range of likely penalties) under s. 21A(3)(b).

Consideration of the possibility of the requesting state taking less coercive measures. 21A(3)(c)) can weigh against the proportionality of extradition, but it can also weigh in favour of it. As the Divisional Court made clear in Miraszewski at [39], where the requested person is a fugitive, that may well suggest that less coercive measures are unlikely to be appropriate. If so, that may be a factor tending to suggest that extradition would not be disproportionate.

With those principles in mind, in my judgment, the District Judge fell into error in three critical respects.

First, in the passage I have quoted from [64] of the judgment (see [14] above), the District Judge went beyond the facts set out in the warrant and further information and made findings of his own, based on what he had been told by the respondent and on his own assessment of the likelihood that the respondent would have committed offences of this kind unprompted. Although the District Judge rejected much of what the respondent had said, he was “prepared to accept that [the respondent] may have been given encouragement of some kind to commit the offences”. This together with the fact that the maximum sentence was 2 years’ imprisonment, appears to have supplied the basis for the conclusion that the offences were “of no great gravity”.

In my judgment, the judge should have confined himself to the information in the warrant and the further information from the judicial authority, namely, that the appellant was alleged to have engaged in a fraud on two individuals, which involved his posing as another individual and fraudulently inducing them to pay him £1500 in total. The extent (if any) to which he had been encouraged by others to do so was a matter for trial. The judge was in no position to make findings about that. Nor was the two-year maximum sentence a reliable indicator that the offences were of “no great gravity”.

Second, having found these facts, the District Judge conducted a notional sentencing exercise of the kind that would be expected of a sentencing court in this jurisdiction. The exercise involved: applying the Definitive Guideline to the facts found to determine the harm and culpability categories (harm category 5, culpability B, giving a range of “Band B fine-26 weeks’ custody”); applying a discount for plea; and taking into account the respondent’s previous good character, age and health problems. This exercise enabled the District Judge to fix a precise “likely” sentence within the category range (a high-level community order). The judge also took into account the “possibility” of a suspended sentence, which would also count as non-custodial.

To my mind, this exercise was artificial and problematic. The harm categories set out in the Definitive Guideline depend critically on the value of the property involved, but it is quite possible that offences with a total value of £1500 might be assessed differently in terms of their harm in Slovakia (noting that the offences are alleged to have been committed in 2014). That injects a level of uncertainty into the notional sentencing exercise. Furthermore, it is not at all clear that a discount for plea (itself a matter on which the approach is likely to differ between jurisdictions) would be appropriate on the present facts. Although the respondent is said to have admitted the facts of the offences, he has applied to re-open the provisional convictions and is sought for trial (rather than sentence). He is also a fugitive from justice. That may have a bearing on whether and to what extent his good character would count in his favour. In my judgment, the only safe conclusion in this case was that, applying domestic sentencing practice in the way I have described, the offences charged could give rise to a range of penalties, which would include custody. Whether custody is imposed will depend on the view taken by the Slovakian court as to the intention with which the offence was committed, the degree (if any) of encouragement by others, the harm caused to the two victims and the weight given to the respondent’s personal mitigation, given that he is a fugitive from justice.

Third, although the District Judge correctly noted at [72] of his judgment that extradition might be proportionate even if a non-custodial penalty were likely, the passage at [81] (set out at [20] above) does indicate that the finding that a non-custodial penalty was likely is what drove him to the conclusion that extradition would be disproportionate. The finding was that “there is no likelihood of a custodial sentence” and that “extradition would thus be disproportionate” (emphasis added). This left out of account the fact that the respondent was a fugitive in the sense described in the further information. As noted in Miraszewski at [39], this was a factor which made it less likely that it would be appropriate to take less coercive measures. It is therefore not surprising that the respondent’s request for less coercive measures was not taken up by the requesting state. All this counted against the respondent in the proportionality analysis.

In the light of these flaws in the District Judge’s approach, I have to decide for myself whether extradition would be disproportionate by considering the matters in s. 21A(3).

Turning first to the seriousness of the offence, the respondent was charged with a fraud offence against two individuals who (from context) I can properly infer were farmers. The respondent is alleged to have impersonated another individual and induced the two victims to part with money with an approximate sterling value of £1500. In terms of the Lord Chief Justice’s guidance, this was not a “very small” sum of money, nor do I consider that an analogy can properly be drawn with procuring a bank loan using a false instrument. This was not, in my view, a “minor financial offence” as that term is used in the guidance. I would draw no further inferences as to the circumstances in which the offence was committed. In particular, I would leave out of account the respondent’s explanation that he had been encouraged to commit the offences by another, since matters of that mind are for the trial court. I would not describe the offence as trivial, nor would I say that it was “of no great gravity”.

As to “likely penalty”, in this context some caution is required in the applying domestic sentencing practice because what may be seen as low value in one jurisdiction may not be so regarded in another and because the sentence is likely to depend on the resolution of factual issues at trial. Given that the respondent applied to re-open the apparently provisional conviction, and on the District Judge’s findings is a fugitive from justice, I would not assume that any discount will be applied for a guilty plea. Nor would I assume that any custodial sentence would be suspended. Performing the notional sentencing exercise in the way I have described, and consistently with the approach of Swift J in Vascenkovs, I would conclude that it is not possible to say more than that there is a range of possible sentences, which includes a custodial sentence. I do not consider it possible to say, on the limited information I have, that a custodial sentence is unlikely or that a non-custodial sentence is likely.

As to the possibility of the relevant authorities taking less coercive measures, I note what was said in Miraszewski at [40]-[41]. Applying the approach set out there, and in light of the contents of the requesting state’s further information, I infer that requesting state has considered whether less coercive measures are appropriate and has concluded that they are not. Given the District Judge’s factual findings as to fugitivity, I consider that conclusion a reasonable one.

The question whether extradition would be disproportionate for the purposes of s. 21A(1)(b) requires me to take a holistic view in light of my conclusions on the three matters set out in s. 21A(3). Approaching the matter in that way, I conclude that extradition would not be disproportionate.

I can deal with the District Judge’s conclusions on Article 8 relatively briefly. As can be seen from the passage at [64] of the judgment, quoted at [14] above, the District Judge’s view about the gravity of the offences was the starting point for the Article 8 balancing exercise. The conclusion that a non-custodial sentence also appears to have played a part in the conclusion on Article 8 (albeit wider factors were also considered). For the reasons I have given, the conclusion as to the gravity of the offence, and as to the likely sentence, were flawed. It follows that the Article 8 balancing exercise was also flawed and I must therefore perform the balancing exercise afresh.

Even where extradition would not be disproportionate, the court may still conclude that it would be contrary to Article 8 ECHR. In deciding whether it would, the court may have regard to a wider range of factors than is permitted by s. 21A(3).

In this case, it may be inferred that the authorities have considered whether to seek extradition and have decided to do so (even though there was a request for less coercive measures). There is accordingly a public interest in extradition. The seriousness of the offence is not such as to justify the submission that this public interest is particularly weighty. Nonetheless, the fact that the respondent is a fugitive means that it is also far from negligible.

Against that must be weighed the facts that the respondent has now been living in the UK for some eight years, has built a life for himself here and has been in employment. These matters would have greater weight if it were not for the finding of fugitivity. Nonetheless, they have some weight. The main matters relied upon by Mr Keliris-Thomas, however, were the respondent’s and his wife’s health problems. The difficulty with placing much weight on these, however, is that the District Judge found both the respondent and his wife to be unreliable witnesses: see [36] of the judgment (set out at [8] above). In those circumstances, it is difficult to justify giving any substantial weight to what they said about their own health conditions. In any event, their conditions are far from unusual in people of their age: the extent of the District Judge’s factual finding about the respondent’s wife was that she has “some mobility issues”. It can be assumed that NHS treatment would be available if required. Insofar as reliance was placed on the respondent’s own health the conditions, there is nothing to indicate that his conditions would not be treatable in the prison system of the requesting state.

Overall, the public interest in extradition outweighs the Article 8 interests of the respondent and his family. Accordingly, extradition would be compatible with the ECHR rights of the respondent and his family for the purposes of s. 21A(1)(a) of the 2003 Act.

For these reasons, applying s. 29 of the 2003 Act, I conclude that the District Judge ought to have decided both the proportionality and the Article 8 questions differently; and that, if he had decided those questions as he ought to have done, he would not have been required to order the respondent’s discharge.

Accordingly, the appeal will be allowed, the order discharging the respondent quashed and the case remitted to the District Judge with a direction to proceed in accordance with this judgment.