PROPORTIONALITY AND THE EUROPEAN ARREST WARRANT

For many years one of the most frequent criticisms of the European Arrest Warrant (EAW) scheme, which governs extradition between EU member states, has been the increasing volume of extradition requests made to the UK for ‘trivial’ offences. In recent years individuals have faced lengthy extradition proceedings for crimes including ‘cycling whilst drunk’, ‘theft of a chicken’ and ‘missing payments on a hire purchase agreement’.

Until last year there was no formal scope, under the Extradition Act 2003, to argue against extradition on the grounds of proportionality. Individuals would instead mount challenges under Article 8 of the ECHR – their right to private and family life. Over time this route to challenging extradition has developed but it is far from a perfect solution.

In response to widespread criticism of the position and longstanding pressure from groups such as Fair Trials International the government introduced a ‘proportionality test’ to the Extradition Act, which came into force in 2014.

It has taken some time for the new provisions to be tested by the courts but in December 2014 the High Court considered a series of linked appeals all involving the new ‘proportionality test’.

The amendments provide for a check for proportionality at two stages. Firstly, section 2 of the Extradition Act was amended to require the National Crime Agency (NCA) to refuse to certify an incoming EAW if it is clear that the judge will discharge on grounds of proportionality. This is designed to prevent the most obviously disproportionate requests from making it to court. The Lord Chief Justice (LCJ) has issued guidance on the types of offences that would likely fall into this category. In the extradition hearing itself, s.21A requires the court to consider proportionality, alongside human rights considerations, once the court has considered the existing formal statutory bars to extradition.

It is important to note that the ‘proportionality test’ is very restrictive in its scope. In summary:

• The proportionality test only applies in EAW cases.
• The proportionality test is restricted to ‘accusation’ warrants only.
• In assessing proportionality, the judge can only consider the following factors:
  • the seriousness of the conduct alleged to constitute the extradition offence;
  • the likely penalty that would be imposed if D was found guilty of the extradition offence;
  • the possibility of the relevant foreign authorities taking measures that would be less coercive than the extradition of D.

In the case of Miraszewski & Others v Poland [2014] EWHC 4261 (Admin) the High Court considered the new proportionality test for the first time. All three appeals were unsuccessful and extradition was held to be proportionate. Nevertheless, a number of principles can be gleaned from the judgment:

• The LCJ’s guidance on proportionality covers offences at the very bottom of the scale about which it is extremely unlikely there could be any dispute.
• There may be an overlap between Article 8 and the new proportionality test but there must be a separate consideration of proportionality on the limited grounds prescribed in the section.
• The judge should give reasons when examining the three specified matters under the proportionality test and also where they decline to do so.
• In relation to the ‘seriousness of the conduct alleged’ a judge will assess the offence against domestic standards. Whilst the court will respect the views of the requesting state if they are offered the Divisional Court did not expect a judge to adjourn to seek their views.
• In relation to ‘the likely penalty on conviction’ the test is focussed on whether it would be proportionate to extradite an individual who is unlikely to receive a custodial sentence. Nevertheless it does not preclude a judge from deciding extradition would be proportionate if there is a likelihood of a non-custodial penalty. A judge is entitled to apply domestic sentencing practice if there is a lack of specific information from the requesting state but in particular and unusual circumstances a judge may require further assistance before making a decision.
• In relation to the availability of ‘less coercive measures’ there is an evidential burden on the requested person to identify appropriate less coercive measures.

Whilst many practitioners were somewhat disappointed by the restrictive nature of the proportionality test it nevertheless offers an important and welcome new avenue of challenge.

The case law will doubtless develop further in 2015 but the case of Miraszewski is a useful guide to the application of the proportionality test under s.21A.

Gherson