Fridenberga v Public Prosecutor, Prosecutor General Office for the Republic of Latvia

In an extradition appeal, proportionality under article 8 of the European Convention on Human Rights may require consideration of the alleged offence, the likely domestic custodial penalty, time already spent in custody and the requested person’s personal circumstances. The fact that the requesting state applies a more severe penalty is relevant but does not determine proportionality. Such relief is exceptional and fact-sensitive. A decision that removal is disproportionate should not be treated as authority for similar cases.

The appellant appealed under Extradition Act 2003 section 26 against a District Judge’s decision ordering her return to Latvia to face a charge of possessing 3.12 grams of amphetamine with intent to supply. The alleged offence carried a Latvian sentence of five to 12 years’ imprisonment.

She relied on article 8 rights, her settled life in the United Kingdom, time already spent in custody and evidence concerning her mental fragility and risk of self-harm. The central issue was whether, in all the circumstances, removal to face the charge would be proportionate.

1. The appeal was allowed. The court held that extradition may be refused where, in the exceptional circumstances of the case, removal to face the particular charge would be disproportionate under article 8.

2. In assessing proportionality, the court may consider the nature and seriousness of the alleged offence and whether, if committed in the United Kingdom, it would be likely to result in a custodial sentence. The more severe approach of the requesting state remains relevant, but is not determinative.

3. The period already spent in custody is a material consideration. Here, the appellant had already spent approximately ten months in custody, equivalent on the domestic approach to a sentence substantially exceeding what would be expected for the alleged conduct in the United Kingdom.

4. The court also took account of the appellant’s settled life in the United Kingdom and medical evidence describing her as mentally fragile. Although the court could not investigate an allegation that she had been raped by arresting officers, that allegation formed part of the medical assessment of the risks associated with extradition.

5. The ordinary restriction on relying on fresh evidence on appeal, and the absence of power to remit for investigation, did not prevent a relatively flexible approach where an alleged Convention breach required consideration. The decision depended entirely on its facts and was not to be treated as authority for similar cases.

• District Judge District Judge Zani directed the appellant’s return to Latvia on 13 November 2012.

• High Court (Administrative Court) The appeal under section 26 of the Extradition Act 2003 was allowed. The court held that removal was disproportionate in the exceptional circumstances of the case.