District Court Košice II, Slovak Republic v Ľubomίr Macko

In an extradition appeal, proportionality under section 21A of the Extradition Act 2003 requires assessment of the statutory factors only so far as the judge considers appropriate. A suspended sentence is a sentence of imprisonment because the custody threshold has been crossed, but it remains materially less serious than immediate custody for proportionality purposes. The judge may therefore assess whether a likely custodial sentence would be suspended, using domestic sentencing practice as an indicative guide where the requesting authority provides insufficient information. The assessment is evaluative and need not amount to a definitive sentencing exercise. An appellate court must respect the first-instance judge’s factual and evaluative assessments and may intervene only where the decision was wrong.

The District Court Košice II sought Mr Macko’s extradition to Slovakia to face trial for allegedly stealing €24,655 from a gaming establishment in 2011. Westminster Magistrates’ Court accepted his evidence that he was not a fugitive. The district judge rejected objections based on delay and Article 8, but discharged him under section 21A(4)(b) of the Extradition Act 2003, finding extradition disproportionate because the likely Slovak penalty would be a suspended sentence.

The judicial authority appealed under section 28, arguing that a suspended sentence was custodial and that the judge had impermissibly treated the possibility of suspension as determinative. The central issue was whether the district judge had applied the statutory proportionality test correctly.

1. Appeal dismissed. Under section 29 of the Extradition Act 2003, the appellate court had to decide whether the district judge ought to have answered the proportionality question differently, while respecting factual and evaluative assessments.
2. Section 21A permits consideration only of the seriousness of the alleged conduct, the likely penalty, and the possibility of less coercive measures, and only so far as the judge considers appropriate. The seriousness finding was moderately serious and the less-coercive-measures factor neutral. Neither was challenged.
3. The district judge was entitled to treat the likely penalty as a suspended sentence for the proportionality assessment. Section 289 of the Sentencing Act 2020, which treats a suspended sentence as imprisonment for statutory purposes, did not alter the section 21A analysis. A suspended sentence can be imposed only after the custody threshold is crossed, but it is nevertheless less serious than immediate custody. Antochi v Germany [2020] EWHC 3092 (Admin) and H(H) v Deputy Prosecutor of the Italian Republic [2012] UKSC 25, [2013] 1 AC 338 supported that distinction.
4. The judge could consider whether suspension was likely by reference to domestic sentencing practice. This was an indicative assessment of high-level factors, not the definitive sentencing exercise cautioned against in Vascenkovs v Latvia [2023] EWHC 2830 (Admin). Speculative matters depending on a future Slovak trial did not require particular weight.
5. The approach in Miraszewski v Poland [2014] EWHC 4261 (Admin), [2015] 1 WLR 3929 (DC) confirmed that the statutory guidance was a floor rather than a ceiling for seriousness. The district judge had considered all three factors and made an evaluative judgment open to him. Applying Re B (A child) [2013] UKSC 33, [2013] 1 WLR 1911 (SC), the decision fell within the category where the appellate court could not say it was right or wrong.
6. The judge could not take into account either that Mr Macko might otherwise escape trial or that the issuing authority had itself considered extradition proportionate, because section 21A(2) excluded those matters.

• High Court (Administrative Court): the judicial authority’s appeal under section 28 of the Extradition Act 2003 was dismissed.
• Westminster Magistrates’ Court: on 2 December 2022, the district judge rejected the delay and Article 8 objections but ordered Mr Macko’s discharge under section 21A(4)(b) because extradition would be disproportionate.
• High Court: on 6 July 2023, MacGowan J granted permission to appeal and dismissed Mr Macko’s purported cross-appeal for want of jurisdiction.