AC-2024-LON-0003395 - [2025] EWHC 2795 (Admin)

As already noted, the language of section 21A is now reflected in TACA article 597. Both refer to the triple concepts in subsection (3)(a)-(c): the seriousness of the act, the likely penalty that would be imposed and the possibility of a state taking less coercive measures. In my judgment, it is significant that these three concepts are chosen in article 597 “particularly with a view to avoiding unnecessarily long periods of pre-trial detention”.

TACA article 624 is the provision for deduction of time served in detention in the executing state:

“Deduction of the period of detention served in the executing State

1.

The issuing State shall deduct all periods of detention arising from the execution of an arrest warrant from the total period of detention to be served in the issuing State as a result of a custodial sentence or detention order being passed.

2.

All information concerning the duration of the detention of the requested person on the basis of the arrest warrant shall be transmitted by the executing judicial authority or the central authority designated under Article 605 to the issuing judicial authority at the time of the surrender.”

That provision does, I acknowledge, envisage that the court imposing a custodial sentence on an extradited person after surrender will state the period of detention without any deduction; and that the amount notified on surrender will then be deducted, perhaps administratively, from the period of detention decided upon by the sentencing judge. However, that judge could instead sentence the extradited person, after surrender, to a shortened period of detention which already includes the necessary deduction.

The latter course would not be objectionable. It should be a matter for the law of the receiving (issuing) state to determine whether the deduction is made at the point of sentencing or whether it is stated to “count towards” the period of detention (as happens here where time is spent on pre-sentence remand in custody or on tagged curfew). Indeed, the law of the receiving state may leave the matter to the sentencing judge. Any of these methods would satisfy the deduction requirement in article 624.

These observations incline me to a flexible approach to the words “likely penalty”. The guidance of the Divisional Court in Miraszewski does not compel a more rigid approach. The issue of statutory construction I am addressing was not considered in Miraszewski. The judges who have subsequently opted for the flexible approach advocated by Mr Sostaks were, for the most part, made aware of the Divisional Court’s guidance, if they were not already.

The permission decision in Molik is not directly in point. It was a conviction warrant case where the amount of time that remained to be served (six weeks) was known. Again, the issue before me did not arise for decision. If it had, it is likely that Fordham J would also have adopted the flexible interpretation, which is implicit in the order he made granting permission to Mr Sostaks to advance this ground in this appeal. He specifically mentioned the time served.

I acknowledge Ms Bostock’s arguments that the court in Miraszewski emphasised the importance of whether a sentence in the issuing state would be custodial rather than how long any custodial sentence would be; and the importance of mutual trust and international comity. But it is sometimes impossible, on either interpretation of “likely penalty” to avoid paying any attention at all to the likely length of a custodial sentence in the issuing state.

Even on Ms Bostock’s interpretation, some regard may be had, in general terms, to what the period of a custodial sentence would be in this country. It is clear from Miraszewski and other cases that this is so. The question is not just the binary one whether the sentence in the issuing state would be custodial or not. Just as a person may be extradited even if a custodial sentence in the issuing state is not likely, a person may be discharged in an appropriate case even if a custodial sentence in the issuing state is likely.

An examination of sentencing practice in this country, though no more than a rough guide, is legitimate particularly if there is no material from the requesting state to guide the court in this country, apart from the maximum sentence for the offence or offences. It is open to the Crown Prosecution Service or National Crime Agency to ask for an indication of the likely sentence range in an accusation warrant case such as this, while recognising that the issuing state may be reluctant to commit itself before any trial has taken place.

I reject the respondent’s submission that the issues that arise under section 21A must be followed in the order in which they appear, i.e. Convention rights first and proportionality afterwards. I do not accept that Raffile v. USA is authority for that proposition; the context was wholly different. The submission is inconsistent with the course followed by the Divisional Court in Kalinauskas at [10] and by Julian Knowles J in Kozar at [68].

The decision in Kalinauskas directly supports Mr Sostaks’ flexible interpretation of “likely penalty that would be imposed”. So does Holman J’s decision in Lucki and Chamberlain J’s in Buivis. In the latter case, the question I am considering actually arose. Chamberlain J said this at [19]:

“For the Lithuanian authority, Ms Brown submitted that the only question under s. 21A(3)(b) was ‘the likely penalty that would be imposed’. This meant that the question whether that penalty exceeded the time already spent on remand was not, strictly, a matter for consideration under s. 21A at all.”

At [21], he added:

“(c)

The principal focus of s. 21A(3)(b) (‘the likely penalty that would be imposed’) is on the proportionality of extraditing someone who is not likely to receive a custodial sentence in the requesting state: Miraszewski, [37].

(d)

Looking purely at the language of s. 21A(3)(b), particularly taken with s. 21A(2), there is some force in the respondent’s submission that the court should focus narrowly on the penalty actually imposed, rather than on whether there will be time left to serve after that spent on remand in the executing state is deducted. However, there is an argument to the contrary based on a purposive reading of s. 21A(3)(b): there is a diminished public interest in extraditing someone who is not likely to serve any time in custody in the requesting state. The Divisional Court’s decision in Kalinauskas is only consistent with the view that time spent on remand is relevant. This is not clearly wrong. I must therefore follow it.”

I respectfully agree and I consider the latter interpretation to be the correct one. It is supported by the weight of existing authority. The better view is that “likely penalty” can include time served in the executing state. It is not contradicted by any authority directly on the point. It accords with the policy of discouraging long periods of pre-trial detention, mentioned in TACA article 597. It avoids arbitrary consequences which may depend on how an issuing state’s sentencing laws are framed or on the discretion of an individual sentencing judge.

The rigid interpretation of “likely penalty” contended for by the respondent could, in an extreme case, work serious injustice if, say, a requested person were to spend three or four years on remand here and then be sent to an issuing state to be tried for an offence worth, at the outside, say one year’s imprisonment. The more merciful flexible interpretation is, fortunately, not linguistically untenable and much to be preferred. It need not do violence to mutual trust or international comity: our courts can best achieve extradition in short sentence accusation cases by accelerating the process or granting bail, or both.

It remains to consider the application of section 21A(1)(b) to the facts here, taking account of the 21 months served. Four of the five alleged offences of theft are relatively minor. The first is theft in March 2021 of six packs of batteries valued at about €60. The second is theft of eau de toilette worth €63, six days later. The maximum sentence is one year in each case.

The third offence is more serious: in June 2021, stealing two bicycles together valued at €710, from “the staircase” of “a multi-apartment building”. That carries a maximum sentence of two years. The fourth and fifth are minor like the first and second: theft in March 2021 of four bottles of vodka, together worth about €136; and earlier, in February 2021, of four bottles of whisky and two of rum, together valued at €181. The total value of the goods allegedly stolen is therefore €1,014. There is multiple offending.

And Mr Sostaks has previous convictions for similar offences, here and in Latvia. Here, he has at least two convictions for thefts committed in 2023, said to be drug related. In Latvia, he appears to have six convictions in the period from February 2021 to April 2022. All are for theft or kindred offences. The sentences for the minor thefts were community service or 40 days’ imprisonment. The two worst we would call burglaries. For those offences, the sentences were five months’ and one year’s imprisonment respectively.

After anxious deliberation, while the case is close to the borderline I have come to the clear conclusion that extradition of Mr Sostaks would not be disproportionate. I accept that most of the offences are minor and that he has already served 21 months on remand here. But he is a recidivist thief and burglar for whom community sentences in Latvia have not worked.

The sentencing regime in this country is far less relevant than the sentences he has already received from the courts of Latvia. In this country he might well be sentenced as a “third strike” burglar if convicted of the theft of the bicycles from the stairs of an apartment block, if the stairs were inside the building. But that is by the by. His longest sentence so far in Latvia is one year and the pattern is, as you would expect, one of increasingly severe sentences.

It is not my prediction that Mr Sostaks will necessarily receive, if convicted, a custodial sentence, once the 21 months served here has been deducted. But that is not conclusive against the proportionality of extradition. Where a case is close to the borderline, the executing state’s court should be slow to find extradition disproportionate; it is better to defer to the issuing state’s justice system. It is their case, not ours. I also accept Ms Bostock’s submission that there is a public interest in prosecution of Mr Sostaks in Latvia, whatever the sentence. If he is guilty, the convictions should be added to his criminal record.