Kemp v Court of 1st Instance No.4 of Orihuela, Alicante, Spain

In an accusation-warrant extradition case, proportionality must be assessed only by reference to the matters specified in section 21A(3) of the Extradition Act 2003. Domestic sentencing provisions cannot be applied by analogy to calculate the likely foreign penalty. Extradition may remain proportionate where a suspended or non-custodial sentence is likely, particularly where the alleged offending is serious and prosecution serves an important public interest. Under section 12A, the requested person must first provide sufficient evidence to raise reasonable grounds for the statutory beliefs. Mere assertion or legal argument is insufficient. If that threshold is met, the requesting authority must prove the statutory alternatives to the criminal standard.

The judicial authority appealed against District Judge Purdy’s decision discharging the respondent from extradition to Spain on proportionality grounds. The respondent cross-appealed against the rejection of his argument under section 12A of the Extradition Act 2003, namely that Spain had not decided whether to charge or try him and that his absence was not the sole reason for the lack of such decisions.

The allegation concerned the respondent’s alleged leading role in a conspiracy to transport 800 kilograms of cannabis from Spain to the United Kingdom. The District Judge treated the respondent’s alleged electronically monitored curfew as equivalent to substantial credit against a likely Spanish custodial sentence. He also accepted a statement from a Spanish judge that the proceedings could not progress because the respondent had not appeared before the examining court. The central issues were whether the proportionality assessment was legally and factually sound and whether the evidence satisfied section 12A.

1. Appeal allowed; cross-appeal dismissed. The District Judge’s discharge order was quashed and the matter was remitted under section 29(5)(b) and (c) of the Extradition Act 2003.
2. Section 21A(3) permits consideration only of the seriousness of the alleged conduct, the likely penalty in the requesting state and the possibility of less coercive measures. Section 240A of the Criminal Justice Act 2003 did not apply directly to extradition proceedings. It was impermissible to assume that a Spanish court would give domestic credit for an electronically monitored curfew.
3. The possibility of a suspended sentence did not itself make extradition disproportionate. An allegation that the respondent played a leading role in smuggling 800 kilograms of cannabis was sufficiently serious for the public interest in prosecution to make extradition proportionate.
4. Section 12A involves two stages. At the first, the requested person must provide evidence sufficient to establish reasonable grounds for the statutory beliefs. At the second, the requesting authority must prove to the criminal standard that the relevant decisions have been made or that absence is the sole reason for their absence.
5. The respondent produced no evidence, beyond argument, that Spain could progress the proceedings through mutual legal assistance or another alternative. The unusual facts and evidence in Arranz v Spanish Judicial Authority did not establish a general rule for Spanish accusation warrants. The unequivocal statement from the Spanish examining judge was adequate in this case.

Lord Justice Burnett gave the judgment. Mr Justice Nicol agreed.

1. High Court (Administrative Court) — [2016] EWHC 69 (Admin): appeal allowed, cross-appeal dismissed and the discharge order quashed. The matter was remitted to the District Judge.
2. Westminster Magistrates’ Court — District Judge Purdy discharged the respondent on 11 August 2015 on proportionality grounds but rejected the section 12A challenge.