“67. The leading case when looking at proportionality is Mirazewski v Poland[2014] EWHC 4261 (Admin) . I have also considered the Lord Chief Justice’s guidance in Criminal Practice Directions Amendment No 2[2014] EWCA 1569 . 68. I have to consider the following specified matters and no others: (a) The seriousness of the conduct alleged to constitute the extradition offence: Mr Mackintosh submitted that whilst the Lord Chief Justice’s Practice Direction does not exclude burglary from the category of ‘Minor Theft’ the Divisional Court in Miraszewski clearly stated that the guideline exists to identify a floor rather than a ceiling for the assessment of seriousness. In this case the value stolen was low and it is not alleged that the RP entered the property and there is no suggestion that the property was broken into. I consider the offence to be serious because the allegation is that the RP asked others to enter the complainant’s property and stole money. This is a domestic burglary. The complainant was the RP’s neighbour with whom he was drinking at the time. I agree the warrant is silent as to whether the property was broken into but given the nature of the offence, it is safe to infer that permission was not given for anyone to enter the home. The amount taken was low but it may not have been so to the complainant. (b) The likely penalty that would be imposed if D was found guilty of the extradition offence: I have not been told by the JA the exact sentence the RP would be looking at but at so I can have regard to domestic sentencing. I agree with Mr Mackintosh’s assessment that on the domestic burglary guidelines this would fall into lower culpability C and category 3 harm which has a starting point of a high level community order with a range of a low community order to 6 months custody. Mr Mackintosh accepted that the RP’s previous convictions may move the case up the range but this was a less serious burglary and in the general nature of a burglary was not particularly serious. In my opinion there are aggravating factors that could result in the offence moving up in the range and those are the RP’s previous conviction for theft for which he received an immediate custodial sentence and that he was subject to a community order when this alleged offence was committed. A further factor that should be taken into account is the fact that the burglary was committed against the RP's neighbour’s home and at the time when the neighbour was drinking with him. These factors could result in a sentence of imprisonment according to domestic guidelines. (c) The possibility of the relevant foreign authorities taking measures that would be less coercive than the extradition of D: The evidential burden is on the RP to show there would be less coercive measures than extradition. I have not been told of any and I am unaware of any request being made pursuant to section 21B of the Act. 69. When considering these specified matters, I have come to the conclusion that it would not be disproportionate to extradite the RP to Latvia.”
“18. The District Judge decided that application of the Sentencing Council’s guideline for Domestic Burglary gives a Category Range from a range of a low community order to 6 months custody and was correct so to do. It is therefore correct that the appellant ‘could’ receive a custodial sentence because a custodial sentence sits at the top of the range, but the District Judge has not addressed is how probable that outcome is. That assessment of probability is required by Miraszewski and its absence is not only a clear error, but also means that the District Judge has failed to complete the assessment process. If there is no assessment of how likely imprisonment is then an appropriate judge cannot decided whether it would be proportionate to order the extradition of a person who is not likely to receive a custodial sentence in the requesting state.”
“The essential point here is that the District Judge did not actually assess the likelihood of a custodial sentence, but limited herself to the truism that custody could result. Had she fully considered the test required by section 21A(3)(b) as described by Pitchford J in Miraszewski she would have to had properly apply Step 3 of the guideline process and therefore not conclude by implication that there should be an upward adjustment in the sentence from the starting point of a High-Level Community Order. Over and beyond this is clearly the sort of offence where for this appellant suspension of any custodial sentence is a very likely outcome. Had the District Judge properly applied the domestic guidelines she would have considered that custody was not likely.”
“32. The Judge considered the seriousness of the offence as ‘In this case the value stolen was low and it is not alleged that the RP entered the property and there is no suggestion that the property was broken into. I consider the offence to be serious because the allegation is that the RP asked others to enter the complainant’s property and stole money. This is a domestic burglary. The complainant was the RP’s neighbour with whom he was drinking at the time’. The Judge has not been absolutist in her conclusion and made and error by stating ‘a domestic burglary is serious’. She has properly assessed the nature and quality of the offending and the Appellant’s role and culpability (per Miraszewski [37]) and concluded that the offence is serious for the reasons she has given.”
“(7A) 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. In deciding that question, the designated authority must apply any general guidance issued for the purposes of this subsection. (7B) Any guidance under subsection (7A) may be revised, withdrawn or replaced. (7C) The function of issuing guidance under subsection (7A), or of revising, withdrawing or replacing any such guidance, is exercisable by the Lord Chief Justice of England and Wales …”
"28. I accept the submission made by Mr Fitzgerald QC on behalf of the appellants that it is appropriate for judges to approach the Lord Chief Justice's guidance as identifying a floor rather than a ceiling for the assessment of seriousness. The test for the designated authority is whether "it is clear ... that a judge proceeding under section 21A would be required to order the person's discharge on the basis that extradition would be disproportionate"
'… the disproportionate use of the EAW for trivial offences … New clause 23 means that UK courts will be able to deal with the long-standing issue of proportionality, which is a fundamental principle of EU law. It will require the judge at the extradition hearing to consider whether extradition would be disproportionate. In making that decision the judge will have to take into account the seriousness of the conduct, the likely penalty, and the possibility of the issuing state taking less coercive measures than extradition; for example issuing a court summons. Putting that proportionality bar in the legislation will ensure that extradition, which, of course, entails a person being sent to another country and being arrested and likely to be detained, happens only when the offence is serious enough to justify it.' 31. The starting point is that, provided the EAW complies with the formal requirements ofsection 2 of the Extradition Act 2003 , the UK has an obligation under the Framework Decision, subject to the statutory bars, to enforce the warrant by extradition. Section 21A(2) does not otherwise place a specific burden either on the requesting state or on the requested person. The proportionality of extradition is for assessment by the judge. Mr Summers QC, for the respondent, submitted that the proportionality test should be treated as "a simple test to weed out obviously and clearly trivial and/or unnecessary EAWs that the Issuing Judicial Authority would obviously never have voluntarily issued but for the principle of legality". Mr Fitzgerald QC responded that the task of "weeding" out obviously trivial EAWs would, under the scheme, be performed by the designated authority under section 2(7A). It is, in my view, important to note that section 21A(1)(b) applies to all accusation EAWs and not only to those issued by member states that apply the principle of legality. The ambit of judicial judgment is constrained only by the factors identified in section 21A(2) and (3). There are in subsection (3) three factors capable of affecting proportionality of which "seriousness" is just one. I agree with the appellants' argument. The test is identified in straightforward terms but the exercise of the judge's task is not further constrained by any particular standards of 'triviality' – the Lord Chief Justice's guidance recognises this in paragraph 17A.2. Within the boundaries set, the scope for judgement is comparatively broad. The judgement will be made against a background of mutual respect between the UK court and the issuing authority but I cannot accept that the judge will be engaged in an attempt to locate what would have been the action of the issuing authority had the principle of legality not been engaged. The court may, depending on its evaluation of 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. [I interpolate here that [17A.2] referred to is now [12.2.1] of the Criminal Practice Directions 2023, set out below] 32. Mr Summers QC argued that paragraphs (a) – (c) create a hierarchy of importance. He reasoned that only seriousness was capable of measurement against a standard. Since the Lord Chief Justice had issued guidance that defined triviality, the fact that an offence came within its ambit would be enough to meet the test of disproportionality. I agree that the guidance identifies offences that are trivial but I do not agree that the guidance defines triviality or that the statutory test is triviality. As I have said, the guidance sets the threshold at which the NCA can assume the judge would be required to discharge the requested person, whatever the paragraph (b) and (c) factors may be. An offence outside the categories listed in the guidance may also be identified as non-serious (or trivial) but that finding will not necessarily be conclusive. The bracketed words in subsection (2) make clear that it is the task of the judge to place weight where he assesses it is due. Since I do not accept that only those offences identified in the Lord Chief Justice's guidance could be treated by the judge as non-serious, other subsection (3) factors (such as a likely custodial sentence or the availability of other means of coercion) might become determinative. I do not accept that the draftsman created a predetermined rank of importance although I do accept that in most cases the seriousness of the offence will be determinative of the likely sentence and, for that reason, of proportionality. 33. Mr Fitzgerald QC did not in opening the appeal address the court upon the significance of the bracketed words in subsection (2) whose full context I repeat for convenience: '(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); ...'
“1.1.3 The Criminal Procedure Rules and the Criminal Practice Directions are the law. 1.1.4 They provide a code of current practice that is binding on the courts to which they are directed.”
“131. … the starting point in the sentencing decision involves an evaluation of the seriousness of the crime or crimes and the criminality of the offender who committed them or participated in their commission and a balanced assessment of the countless variety of aggravating and mitigating features which almost invariably arise in each case. In this context the interests of the children of the offender have for many years commanded principled attention, not for the sake of the offender, but for their own sakes, and the broader interests of society in their welfare, within the context of the overall objectives served by the domestic criminal justice system. Sadly the application of this principle cannot eradicate distressing cases where the interests even of very young children cannot prevail. 132. The extradition process involves the proper fulfilment of our international obligations rather than domestic sentencing principles. So far as the interests of dependent children are concerned, perhaps the crucial difference between extradition and imprisonment in our own sentencing structures is that extradition involves the removal of a parent or parents out of the jurisdiction and the service of any sentence abroad, whereas, to the extent that with prison overcrowding the prison authorities can manage it, the family links of the defendants are firmly in mind when decisions are made about the establishment where the sentence should be served. Nevertheless for the reasons explained in Norris the fulfilment of our international obligations remains an imperative. ZH (Tanzania) did not diminish that imperative. When resistance to extradition is advanced, as in effect it is in each of these appeals, on the basis of the article 8 entitlements of dependent children and the interests of society in their welfare, it should only be in very rare cases that extradition may properly be avoided if, given the same broadly similar facts, and after making proportionate allowance as we do for the interests of dependent children, the sentencing courts here would nevertheless be likely to impose an immediate custodial sentence: any other approach would be inconsistent with the principles of international comity. At the same time, we must exercise caution not to impose our views about the seriousness of the offence or offences under consideration or the level of sentences or the arrangements for prisoner release which we are informed are likely to operate in the country seeking extradition. It certainly does not follow that extradition should be refused just because the sentencing court in this country would not order an immediate custodial sentence: however it would become relevant to the decision if the interests of a child or children might tip the sentencing scale here so as to reduce what would otherwise be an immediate custodial sentence in favour of a non-custodial sentence (including a suspended sentence).”
“Subsection (3)(a) – seriousness of the conduct alleged 36. I have already considered the general approach to seriousness in paragraphs 30 – 33 above. Section 21A(3)(a) requires consideration of 'the seriousness of the conduct alleged to constitute the extradition. I agree that, as Mr Fitzgerald QC argued, paragraphs (a), (b) and (c) of subsection (3) all assume an approximate parity between criminal justice regimes in member states that embrace the principles of Articles 3, 5 and 6 of the ECHR and Article 49(3) of the Charter of Fundamental Rights of the European Union. In my view, the seriousness of conduct alleged to constitute the offence is to be judged, in the first instance, against domestic standards although, as in all cases of extradition, the court will respect the views of the requesting state if they are offered. I accept Mr Summers QC's submission that the maximum penalty for the offence is a relevant consideration but it is of limited assistance because it is the seriousness of the requested person's conduct that must be assessed. Mr Fitzgerald QC's identification of 7 years imprisonment as the maximum sentence for theft in England and Wales makes the point. Some offences of theft are trivial (see the Lord Chief Justice's Guidance); others are not. In my view, the main components of the seriousness of conduct are the nature and quality of the acts alleged, the requested person's culpability for those acts and the harm caused to the victim. I would not expect a judge to adjourn to seek the requesting state's views on the subject. Section 21A(3)(b) – the likely penalty on conviction 37. Section 21A(3)(b) requires consideration of 'the likely penalty that would be imposed if D was found guilty of the extradition offence'. Since what is being measured is the proportionality of a decision to extradite the requested person under compulsion of arrest, I consider that the principal focus of subsection (3)(b) is on the question whether it would be proportionate to order the extradition of a person who is not likely to receive a custodial sentence in the requesting state. The foundation stone for the Framework Decision is mutual respect and trust between member states. The courts of England and Wales do not treat as objectionable the possibility that sentence in the requesting state may be more severe than it would be in the UK. Raised in the course of argument was the case of a member state that imposed minimum terms of imprisonment for certain offences by reason of the particular exigencies of the crime in the territory of that state. Appropriate respect for the sentencing regime of a member state is required under subsection (3)(b); the UK has itself imposed minimum terms of custody as a matter of policy. However, in the extremely rare case when a particular penalty would be offensive to a domestic court in the circumstances of particular criminal conduct, it is in my view within the power of the judge to adjust the weight to be given to 'the likely penalty' as a factor in the judgement of proportionality. 38. It would be contrary to the objectives of the Framework Decision to bring mutual respect and reasonable expedition to the extradition process if in every case the judge had to require evidence of the likely penalty from the issuing state. Furthermore, the more borderline the case for a custodial sentence the less likely it is that the answer would be of any assistance to the domestic court. Article 49(3) of the Charter of Fundamental Rights of the European Union requires that the severity of penalties must not be disproportionate to the criminal offence. The EAW procedure has since 2009, when the Charter came into effect, been the common standard for members of the Union. In my judgment, 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. In 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. However, I do not exclude the possibility that in particular and unusual circumstances the judge may require further assistance before making the proportionality decision. 39. While the focus of subsection (3)(b) is upon the likelihood of a custodial penalty it does not follow that the likelihood of a non-custodial penalty precludes the judge from deciding that extradition would be proportionate. If an offence is serious the court will recognise and give effect to the public interest in prosecution. While, for example, an offence against the environment might be unlikely to attract a sentence of immediate custody the public interest in prosecution and the imposition of a fine may b e a weighty consideration. The case of a fugitive with a history of disobeying court orders may require increased weight to be afforded to subsection (3)(c): it would be less likely that the requesting state would take alternative measures to secure the requested person's attendance. Section 21A(3)(c) – less coercive measures 40.Section 21B of the Extradition Act 2003 , inserted bysection 159 of the Anti-Social Behaviour, Crime and Policing Act 2014 , enables either the requesting state or the requested person to apply to the court for the requested person's return to the requesting state temporarily or for communication to take place between the parties and their representatives. Section 21A(3)(c) is concerned with an examination whether less coercive measures of securing the requested person's attendance in the court of the requesting state may be available and appropriate. His attendance may be needed in pre-trial proceedings that could be conducted through a video link, the telephone or mutual legal assistance. The requested person may undertake to attend on issue of a summons or on bail under the Euro Bail scheme (if and when the scheme is in force) or the judge may be satisfied that the requested person will attend voluntarily and that extradition is not required. 41. It would be a reasonable assumption in most cases that the requesting state has, pursuant to its obligation under Article 5 (3) ECHR, already considered the taking of less coercive measures. I accept the submission made by Mr Summers QC that 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 to the requesting state's authorities but in breach of them, it seems to me unlikely that the judge will find less coercive methods appropriate. On the other hand, as the Scott Baker report recognised at paragraph 5.153 there may be occasions when the less coercive procedure is appropriate. If the requested person fails to respond to those alternative measures the issue of a further warrant and extradition could hardly be resisted.”
“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.”
“38. In my view it is a mistake to treat the judgments of Lord Judge in HH and Lord Justice Pitchford in Miraszewski as laying down an immutable procedure whereby a District Judge considering section 21A(3) will fall into error and be liable to being overturned on appeal if they choose not to embark on a detailed analysis of domestic sentencing guidelines. I do not think Lord Justice Pitchford's reference to an initial assessment of seriousness need amount to any more than a Judge making clear [possibly based, explicitly or implicitly, on no more than their everyday experience of the criminal courts] that allegations such as drug dealing over a prolonged period of time are clearly serious’. The use of the word ‘entitled makes clear that in assessing ‘likely penalty’ a judge can look at domestic sentencing policy only if he or she thinks fit to do so. Neither judgment suggests any more prescriptive approach.”
“22. The submission for Mr Vascenkovs is in two parts: first, that the District Judge wrongly applied the Sentencing Council's Guideline for the section 111A offence; and second, that she ought not to have decided the proportionality issue without information from the Latvian judicial authority on whether it was likely that a custodial penalty would be imposed on Mr Vascenkovs in the event of conviction. 23. The Sentencing Council Guideline provides a sentencing range by reference to culpability and harm. No point arises so far as concerns harm which is measured by the reference to the value obtained or intended to be obtained. The submission on culpability is that the District Judge was wrong to conclude the allegation against Mr Vascenkovs was in the "high culpability" bracket because the conduct described in the warrant did not entail anything comprising "significant planning" which is the relevant rubric contained in the Sentencing Council Guideline. If the offending was not high culpability it would not, given the amount involved, attract a custodial sentence as the starting point. 23. I do not consider this submission assists. 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. 25. The second submission for Mr Vascenkovs is that in ‘borderline cases’ (i.e. cases where the sentence of an English court for like offending could be either custodial or non-custodial) a court must, before deciding the section 21A(1)(b) proportionality question, ask the requesting judicial authority whether it would impose a custodial sentence. This, it was submitted, is a ‘hard-edged’ requirement. 26. I do not agree. A hard-edged requirement would be arbitrary, and would be wrong in principle. It would arbitrary because, as I have already said, the Sentencing Council Guidelines are applied in this context without the full facts that would ordinarily be available to a sentencing court.”