Toleikis v Klaipeda District Court, Lithuania

In extradition cases, proportionality under article 8 requires a fact-sensitive balance between interference with family life, including the primary interests of dependent children, and the public interest in extradition. There is no freestanding exceptionality test. The likely sentence in the United Kingdom is relevant, particularly where the requesting state’s likely sentence is unknown. Time spent on a qualifying curfew may be relevant, but its weight depends on the circumstances and must not be assessed mechanically. Where the alleged offending is relatively minor and would probably attract no immediate custodial sentence in the United Kingdom, family-life interests may exceptionally outweigh the public interest in extradition.

The appellant appealed against District Judge Zani’s order dated 12 November 2014 requiring his extradition to Lithuania to face four cannabis-related charges. The alleged conduct involved two small attempted or completed supplies, sharing cannabis bought for personal use, and simple possession. The appellant lived in the United Kingdom with his partner and their young child.

The appeal challenged extradition on article 8 grounds and under section 21A of the Extradition Act 2003. The central issues were the seriousness of the alleged offending, the likely sentence in the United Kingdom, the effect of the appellant’s qualifying curfew, and the proportionality of extradition having regard to the child’s interests.

1. Appeal allowed. The order for extradition was set aside and the appellant was discharged.
2. The appellate approach to an extradition proportionality value judgment is one of review. Intervention is generally justified only for legal misdirection, an unreasonable material finding, failure to consider a relevant factor, consideration of an irrelevant factor, or an irrational or perverse conclusion.
3. The District Judge was entitled to assess seriousness by reference to the likely sentence in the United Kingdom, but had clearly erred in treating the offending as likely to attract a lengthy custodial sentence. The two supply offences involved very small quantities, isolated conduct, little or no profit and a lesser role. The other allegations involved sharing cannabis bought for personal use and simple possession. The likely sentence fell within a range from a low-level community order to 26 weeks’ custody, making immediate custody most unlikely.
4. Under HH, article 8 requires proportionality in the particular circumstances. The interests of a dependent child are a primary consideration, but the public interest in extradition remains weighty and there is no exceptionality test. The likely domestic sentence is relevant, although the absence of an immediate custodial sentence does not by itself require extradition to be refused.
5. A qualifying curfew may be relevant to proportionality, but its weight depends on all the circumstances. It must not be treated as equivalent automatically to credit under section 240A of the Criminal Justice Act 2003. A curfew imposed because the requested person absconded will generally be a weak factor against extradition.
6. Balancing all the circumstances, the lower seriousness of the alleged offences, the likely non-custodial sentence in the United Kingdom, the child’s interests and the family circumstances outweighed the public interest in extradition. Extradition would therefore be disproportionate under article 8.
7. It was unnecessary to determine section 21A separately. That provision requires consideration of the seriousness of the alleged conduct, the likely penalty and whether the requesting authorities could take less coercive measures. The fact that offending includes supply does not make extradition incapable of being disproportionate under section 21A.

• High Court (Administrative Court): Allowed the appeal against the order of District Judge Zani dated 12 November 2014 and ordered the appellant’s discharge.