Conkova v District Court Of Banska Bystica (Slovakia)

On a substantive appeal under Extradition Act 2003, the court may consider material custody accrued after the extradition hearing. The appeal succeeds where that new evidence would have altered the extradition balance and required the appropriate judge to order discharge.

Where the court cannot reliably predict the sentence likely to be imposed abroad, it must assess proportionality on the evidence available. Continued custody may make extradition disproportionate, even where the appellant has a serious criminal record, if the time already served is at or close to the proportionate ceiling for the alleged offence.

The appellant appealed under section 26 of the Extradition Act 2003 against an extradition order made by District Judge Tempia at Westminster Magistrates’ Court on 17 May 2019. The warrant alleged that she had stolen a handbag and its contents in Slovakia.

At the extradition hearing she had spent about four months in custody. By the time of the appeal, she had spent approximately nine and a half months in custody in relation to the accusation warrant. The central issue was whether that subsequent custody constituted new evidence satisfying section 27(4), and whether extradition had become disproportionate.

1. The appeal was allowed. The extradition order was quashed and the appellant was ordered to be discharged in relation to the Slovak warrant.
2. Section 27(4) of the Extradition Act 2003 was satisfied. The appellant’s further period in custody was evidence unavailable at the extradition hearing. Had that evidence then been available, the district judge would have had to assess the proportionality balance differently and would have been required to order discharge.
3. The court made clear that it was not criticising the district judge’s original decision or the conduct of the hearing. The relevant circumstance had materially changed since that decision.
4. Applying the proportionality balance referred to by the district judge under the authority of Celinski, the court could not speculate about the sentence that might be imposed in Slovakia. It therefore had to form its own view of proportionality. Despite the appellant’s substantial criminal record, there had to be a ceiling to the proportionate punishment for an individual allegation of handbag theft. Nine and a half months’ actual custody, equivalent to about 19 months in England, had reached or come close to that ceiling.
5. The appellant would remain detained on an unrelated Czech European Arrest Warrant. That did not affect the order quashing extradition under the Slovak warrant.

• Westminster Magistrates’ Court: District Judge Tempia made an extradition order on 17 May 2019.
• High Court (Administrative Court): The appeal under section 26 of the Extradition Act 2003 was allowed. The extradition order was quashed and the appellant was discharged in relation to the Slovak warrant.