A proportionate amendment?

For those practicing within the world of extradition we all have our standout case where our client was sought on a European arrest warrant for an alleged offence that was considered to be ‘trivial’. Yet (until recently) there was no stand alone basis upon which to argue that extradition should not be ordered due to the ‘triviality’ of the offence. Of course it could be raised within a challenge under Article 8 ECHR (the ‘kitchen sink’ of arguments under the Extradition Act) but you would have to rely upon other factors being present  if you were to succeed.

For me, that case was Jacek Jaskolski whose extradition was sought by Poland for exceeding his overdraft. Despite the overdraft being paid off, prosecutors in Poland still saw fit to pursue Mr Jaskolski through the issuing of a European arrest warrant that was executed in July 2010.

Following this case (that was taken up by Fair Trials International) and several others there were calls for the court to be given power to discharge extradition requests for offences that were considered to be ‘trivial’ without having to ‘fit’ the argument into something else. The UK receives thousands of EAWs each year, with many coming from Poland for offences of antiquity that would not be considered serious in this jurisdiction.

In July 2014, a new proportionality bar was introduced to the Extradition Act 2003 through Section 157 of the Anti-Social behaviour Crime & Policing Act 2014. Since then, there have been a number of decisions at first instance where the court has ruled it would be disproportionate to order the person’s discharge, but it was not until December 2014 that the High Court had cause to consider the newly enacted bar to extradition in the case of Miraszewski & Ors v District Court in Torun & Anor [2014] EWHC 4261 (Admin)

The new proportionality bar (Section 21A of the Extradition Act 2003) reads:

(1) If the judge is required to proceed under this section (by virtue of section 11) he must decide both of the following questions in respect of the person (‘D)

(a) Whether the extradition would be compatible with the Convention rights within the meaning of the Human Rights 1998;

(b) Whether the extradition would be disproportionate

(2) In deciding whether the extradition would be disproportionate, the judge must take into account the specified matters relating to proportionality (so far as the judge thinks it appropriate to do so); but the judge must not take any other matters into account.

(2) These are the specified matters relating to proportionality—

(a) the seriousness of the conduct alleged to constitute the extradition offence;

(b) the likely penalty that would be imposed if D was found guilty of the extradition offence;

(c) the possibility of the relevant foreign authorities taking measures that would be less coercive than the extradition of D.

(3) The judge must order D’s discharge if the judge makes one or both of these decisions—

(a) that the extradition would not be compatible with the Convention rights;

(b) that the extradition would be disproportionate.

(4) The judge must order D to be extradited to the category 1 territory in which the warrant was issued if the judge makes both of these decisions—

(a) that the extradition would be compatible with the Convention rights;

(b) that the extradition would not be disproportionate.

The bar is entitled ‘Person not convicted: human rights and proportionality’.The proportionality bar does not apply to those who have been convicted. Nor does it have an equivalent in Part 2 of the Extradition Act dealing with extradition requests from outside of the EU.

In determining whether extradition is disproportionate the judge must have regard to the specified matters in (3) and only those matters.

Importantly, as part of the amendments inserted by the Anti-social behaviour Crime and Policing Act,  new powers have been given to the National Crime Agency (NCA) to refuse to certify an EAW if it is clear to them that a Judge would order the person’s discharge under s21(A)(3). This is by virtue of  Section 2(7A) which states:

But in the case of a Part 1 warrant containing the statement referred to in subsection (3), the designated authority must not issue a certificate under this section if it is clear to the designated authority that a judge proceeding under section 21A would be required to order the person’s discharge on the basis that extradition would be disproportionate.

According to evidence given to the House of Lords Extradition Select Committee, the NCA have refused to certify 14 EAWs (as of October 2014). However, there are still EAWs that slip though the net or were certified and put into circulation before the amendment came into force.

Lord Chief Justice’s Guidance

In the Criminal Practice Directions (Amendment No2), The Lord Chief Justice provided guidance as to the type of offences for which a Judge (absent exceptional circumstances) should generally determine that extradition would be disproportionate (17A.2). This guidance was provided to assist the NCA in determining under the newly enacted section 2(7A) Extradition Act 2003, whether to certify an EAW but is now being used to determine which offences are those that can be considered as less serious.

The table of offences can be found at 17A.5 of the Criminal Practice Direction Amendment No.2 and includes the following conduct:

1. Minor theft (not robbery/burglary or theft from the person
2. Minor financial offences (forgery, fraud and tax offences)
3. Minor road traffic, driving and related offences
4. Minor public order offences
5. Minor criminal damage (other than by fire)
6. Possession of controlled substance (other than one with a high capacity for harm such as heroin, cocaine, LSD or crystal meth).

The exceptional circumstances referred to in rule 17A.3 are listed at rule 17A.4 and include:

1. Vulnerable victim
2. Crime committed against someone because of their disability, gender-identity, race, religion or belief, or sexual orientation
3. Significant premeditation
4. Multiple counts
5. Extradition also sought for another offence
6. Previous offending history

Guidance from the High Court

The case of Miraszewski  is the first High Court authority on the newly enacted proportionality bar and therefore careful consideration of it in detail is important to assist practitioner’s (and judges) in addressing the questions raised in s21A(3). In summary the following can be taken from the judgment:

1.  The LCJ guidance provides a measure of assistance to the assessment of seriousness [27]
2. The LCJs guidance is appropriate for identifying a ‘floor’ rather than a ceiling for the assessment of seriousness [28]
3. The LCJ’s guidance is aimed at offences at the very bottom end of the scale of seriousness about which it is unlikely there could be any dispute [28]
4. The guidance states that in the identified cases the triviality of the conduct alleged would alone require the judge to discharge the requested person [28]
5. However, a judge making the proportionality decision is not limited by the categories identified. He may conclude that an offence is not serious even though it does not fall within the categories listed in the guidance. [28]
6. Other offences may be assessed by the judge as being non-serious or trivial offences [28]
7. The judge may decline to give consideration to the subsection (3) factors at all but, since section 21A(1)(b) requires the proportionality decision to be made, it is a decision that must be made judicially. [33]
8. The Judge should give reasons both when he examines the subsection (3) factors and when he finds it inappropriate to do so [33]
9. The Court did not exclude the possibility that in some circumstances prolonged delay might be relevant to the requesting state’s view of seriousness, but in their opinion, in the absence of direct evidence, the inference would be weak [34]
10. The seriousness of conduct alleged to constitute the offences is to be judged, in the first instance, against domestic standards although, as in all cases of extradition, the could will respect the views of the requesting state if they are offered [36]
11. The Court would not expect a judge to adjourn to seek the requesting state’s views on the subject [36]
12. The broad terms of subsection (3)(b) permit the judge to make the assessment on the information provided and, when specific information from the requesting state is absent, he is entitled to draw inferences from the contents of the EAW and to apply domestic sentencing practice as a measure of likelihood [38]
13. It does not follow that the likelihood of a non-custodial penalty precludes the judge from deciding that extradition would be proportionate [39]
14. The evidential burden on the requested person to identify less coercive measures that would be appropriate in the circumstances [41]

Had the proportionality bar been in existence when the court was considering the case of Jacek Jaskolski, it is likely his extradition would have been found to be disproportionate due to the nature of the offence alone and protracted proceedings would not have been necessary.

The proportionality bar to extradition is a welcome amendment to the Extradition Act 2003 and should mean that only those accused of the more serious offences will face extradition.