Kalinauskas v Prosecutor General's Office, Lithuania

In assessing whether extradition is disproportionate, the court must evaluate the conduct alleged rather than rely mechanically on offence categories or the maximum available penalty. The assessment includes the nature and quality of the acts, the requested person’s culpability and the harm caused. Guidance identifying non-serious categories is a floor rather than a ceiling. The court must also consider the likely sentence and whether the requested person has already served more than any sentence that could realistically be imposed. Where immediate release would follow sentencing, extradition may be disproportionate under Extradition Act 2003, s 21A(1)(b).

The appellant faced extradition to Lithuania under a European arrest warrant concerning the supply of 30g of cannabis in two transactions. A district judge at Westminster Magistrates’ Court ordered extradition on 16 August 2017.

Permission to appeal was granted on proportionality under s 21A of the Extradition Act 2003, and later on an Article 3 ECHR ground. The Divisional Court allowed the appeal on proportionality, making it unnecessary to decide the Article 8 or Article 3 grounds.

1. Appeal allowed. The extradition order was quashed and the appellant was discharged under s 27(5) of the Extradition Act 2003.
2. Section 21A(1)(b) requires extradition to be barred where surrender would be disproportionate. The specified matters in s 21A(3) are the seriousness of the alleged conduct, the likely penalty and the possibility of less coercive measures. They must be considered as appropriate under s 21A(2).
3. The district judge had treated the absence of drug supply from the relevant Practice Direction category as significant. That approach was too narrow. As explained in Miraszewski v District Court in Torun, Poland [2015] 1 WLR 3929, the Practice Direction is a floor rather than a ceiling. Seriousness requires attention to the nature and quality of the acts, culpability and harm.
4. The alleged offending involved 30g of cannabis and relatively small-scale street dealing. The maximum penalty and guideline ranges were of limited assistance because the conduct itself had to be assessed. The court concluded that, if sentenced at that time, the appellant would be immediately released. He had therefore served more than any sentence that could have been imposed.
5. Having regard to the assessed seriousness and the period already spent in custody, extradition would be disproportionate. The Article 8 and Article 3 grounds did not require determination.

• Westminster Magistrates’ Court: District Judge Qureshi ordered extradition on 16 August 2017.
• High Court (Administrative Court): Permission to appeal was granted on proportionality and later on an Article 3 ECHR ground. The appeal was allowed on proportionality; the extradition order was quashed and the appellant discharged.