Krol v Regional Court Poznan (Poland)

In extradition proceedings under section 21A of the Extradition Act 2003, proportionality requires an overall evaluative judgment based on the statutory factors. The likely penalty is the penalty in the requesting state where reliable evidence of it is available, rather than only a hypothetical domestic sentence. A non-custodial or suspended sentence does not necessarily make extradition disproportionate. Offending which maliciously initiates a criminal prosecution against an innocent person remains serious, even where the underlying allegation concerns relatively minor conduct. The possibility of a less coercive measure must be assessed realistically, having regard to the procedural circumstances and the person’s previous failure to respond to a summons.

The appellant challenged an order made by District Judge Tempia on 8 May 2015 ordering his extradition to Poland under an accusation European arrest warrant issued by the Regional Court in Poznan. He was wanted for trial for conduct which, in England and Wales, would amount to attempting to pervert the course of justice.

Permission to appeal was granted only on whether extradition would be disproportionate under section 21A(1)(b) of the Extradition Act 2003. The appellant argued that the offence had been overstated, that the evidence indicated a possible suspended sentence in Poland, and that Poland could use a summons instead of extradition. The central issue was whether extradition was disproportionate when the statutory factors were assessed together.

1. Appeal dismissed. The extradition was proportionate.
2. Section 21A(3) of the Extradition Act 2003 identifies three specified matters: the seriousness of the alleged conduct, the likely penalty if convicted, and the possibility of less coercive measures. These are not criteria which the requesting state must separately establish. They are factors in an overall evaluative judgment on proportionality.
3. The judge below had focused on the likely sentence in England and Wales. That was an error because, unusually, the materials supplied by the Polish authorities contained evidence relevant to the penalty likely to be imposed in Poland. The evidence supported the possibility of a suspended sentence, although it did not establish that extradition would therefore be disproportionate.
4. Maliciously seeking to initiate a criminal prosecution against an innocent person is serious offending against the administration of justice. The fact that the underlying allegation concerned a relatively low-value theft did not justify treating the conduct as relatively trivial. A custodial sentence would be the starting point in England and Wales, although immediate custody would not be inevitable in every case because mitigation and the circumstances of the offending may affect sentence.
5. The suggested alternative of issuing a fresh summons was unrealistic. The appellant had already failed to respond to a summons and had been properly found to be a fugitive. There was also no evidence explaining how the proposed procedure would operate in practice. The possibility of a less coercive measure therefore did not outweigh the seriousness of the conduct and the likely custodial penalty, whether suspended or not.

• High Court (Administrative Court): District Judge Tempia ordered extradition on 8 May 2015. The Divisional Court reconsidered proportionality under section 21A of the Extradition Act 2003 and dismissed the appeal.