Miraszewski & Ors v District Court In Torun & Anor

In accusation extradition cases, human rights compatibility and statutory proportionality are separate bars. Under section 21A of the Extradition Act 2003, statutory proportionality is confined to the seriousness of the alleged conduct, the likely penalty and appropriate less coercive measures. These factors have no fixed ranking. Certification guidance does not exhaust the circumstances in which judges may find extradition disproportionate. Seriousness is initially assessed against domestic standards. The likely-penalty inquiry principally concerns custody in the requesting state; routine enquiries about foreign sentencing are unnecessary. A likely non-custodial sentence does not automatically prevent extradition. The requested person bears an evidential burden to identify appropriate less coercive measures. Delay is relevant only through the statutory factors, although it may separately affect the Article 8 assessment.

Janusz Miraszewski, Lukasz Kanigowski and Marcin Fluśniak appealed under section 26 of the Extradition Act 2003 against orders of Westminster Magistrates’ Court for their extradition to Poland. The District Court in Torun sought Miraszewski for burglaries of allotment sheds. It sought Kanigowski under an accusation warrant for burglary and attempted burglary, and under a conviction warrant concerning theft and criminal damage. The Circuit Court in Rzeszow sought Fluśniak for alleged participation in an organised criminal group and circulation of counterfeit currency.

The appellants relied on delay, the seriousness of the alleged conduct, the likely penalties and interference with their private or family lives. Miraszewski and Kanigowski were found to have evaded their obligations to the Polish authorities. Fluśniak was found not to be a fugitive. His passage-of-time objection had failed below and was not pursued on appeal.

The appeals raised the first common questions before this court about the new accusation-case proportionality bar in section 21A(1)(b), which applied to extradition decisions made on or after 21 July 2014. Fluśniak’s extradition order was made that day without a separate assessment under the new provision. The central issues concerned the relationship between the statutory and Article 8 assessments, the scope of certification guidance, and the evaluation of the three statutory factors.

Held, dismissing all three appeals unanimously, Pitchford LJ giving the judgment, with which Collins J agreed:

1. Section 21A of the Extradition Act 2003 created separate human rights and proportionality bars in accusation cases. The statutory proportionality assessment was confined to the three specified factors: seriousness, likely penalty and less coercive measures. They had no predetermined ranking. There was no general allocation of the burden of establishing proportionality; the assessment belonged to the judge (paras [29]–[33]).
2. The guidance issued through Criminal Practice Directions Amendment No. 2, [2014] EWCA Crim 1569, identified offences at the bottom of the seriousness scale. It provided a floor rather than a ceiling. Judges could find other offences non-serious, and an exceptional circumstance permitting certification did not prevent a judicial finding of disproportionality (paras [26]–[28]).
3. Seriousness was initially assessed against domestic standards, with respect for any views offered by the requesting state. Its main components were the nature and quality of the acts, culpability and harm. Maximum penalties were relevant but of limited assistance. The likely-penalty inquiry principally concerned custody in the requesting state. Judges could infer likelihood from the warrant and domestic sentencing practice without routinely seeking foreign evidence. Uncertainty permitted greater weight on other factors. A likely non-custodial sentence did not automatically make extradition disproportionate. Exceptionally, an offensive foreign penalty could justify adjusting its weight (paras [36]–[39]).
4. The requested person bore an evidential burden to identify appropriate less coercive measures. Departure in knowing breach of obligations made their suitability unlikely. Judges should give reasons for their assessment and for declining to consider a specified factor. Contested cases would ordinarily require express consideration of all three factors (paras [33]; [40]–[41]).
5. Delay was relevant to statutory proportionality only insofar as it informed those factors. It remained separately relevant to Article 8 and the passage-of-time bar. H (H) v Deputy Prosecutor of the Italian Republic, [2012] UKSC 25, did not make English sentencing practice the primary measure of seriousness or penalty in the Article 8 assessment (paras [34]–[35]).
6. Miraszewski’s and Kanigowski’s alleged burglaries were neither trivial nor particularly serious. Their offending circumstances and evasion supported extradition. Uncertainty about Miraszewski’s likely sentence did not defeat proportionality; custody was likely for Kanigowski. Fluśniak faced serious organised-crime allegations, likely custody and no demonstrated appropriate alternative to compulsory return. The court itself made the statutory assessment omitted below. In each case, interference with private or family life was justified. The extradition orders stood (paras [43]–[47]).

• High Court (Administrative Court), Divisional Court: In [2014] EWHC 4261 (Admin) , dismissed all three statutory appeals on 17 December 2014. The extradition orders stood. The court independently assessed statutory proportionality in Fluśniak’s case.
• Westminster Magistrates’ Court — Miraszewski: District Judge Michael Snow ordered extradition on 20 August 2014, finding it compatible with Convention rights and proportionate under section 21A of the Extradition Act 2003.
• Westminster Magistrates’ Court — Kanigowski: Chief Magistrate, District Judge Howard Riddle, ordered extradition under accusation and conviction warrants. He rejected the Article 8 objection and found extradition under the accusation warrant proportionate.
• Westminster Magistrates’ Court — Fluśniak: District Judge McPhee ordered extradition on 21 July 2014, rejecting passage-of-time and Article 8 objections. He made no separate assessment under section 21A(1)(b), which commenced that day.