Lythgoe v Malaga Provisional Criminal High Court Spain

In extradition proceedings, the passage of time, an appellant’s rehabilitation and the effect of extradition on dependent family members may be relevant to proportionality under Article 8. They rarely justify refusing extradition where the alleged offending is more than trivial and a custodial sentence is realistically possible. The threshold for establishing that extradition would be disproportionate for Article 8 reasons is very high because of the obligation to honour international obligations. Humanitarian circumstances may instead be conveyed to the requesting state for consideration in sentencing.

The appellant appealed under section 26 of the Extradition Act 2003 against District Judge Purdy’s decision of 7 August 2014 ordering his extradition to Spain. The accusation concerned street-level dealing in small quantities of heroin and cocaine in 2004. The appellant relied on the age of the allegation, his recovery from drug addiction and his role in caring for his elderly and infirm parents. The central issue was whether extradition would be disproportionate having regard to Article 8 rights.

1. Appeal dismissed. The District Judge was entitled to order extradition.
2. The quantity of drugs sold on the particular occasion could not be considered in isolation. The accusation was of street-level drug dealing, and the alleged proceeds found on the appellant meant that the offence was not necessarily minor or trivial. On the face of the accusation, the offending would be likely to attract a custodial sentence in this jurisdiction.
3. The passage of approximately ten years, the appellant’s recovery from drug addiction and the serious effect of his absence on his elderly parents were relevant considerations. Social-services assistance meant that the parents would not be left without support, although the family circumstances carried substantial human weight.
4. Following HH v Deputy Prosecutor of the Italian Republic, Genoa [2012] UKSC 25, the hurdle for showing that extradition would be disproportionate for Article 8 reasons was very high. The obligation to honour international obligations weighed heavily against refusing extradition.
5. The Spanish court should nevertheless take into account the age of the offence, any established rehabilitation, the appellant’s care of his parents and the eight weeks already spent in custody. Those matters might justify considerable sentencing leniency, but they did not make extradition disproportionate.

• High Court (Administrative Court): District Judge Purdy’s decision of 7 August 2014 ordering extradition was upheld. The appeal under section 26 of the Extradition Act 2003 was dismissed.