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

Mr Sostaks’ additional ground is that his extradition would be disproportionate under section 21A(1)(b) of the 2003 Act. In summary, he says first that he has already served about 21 months on remand in custody at HMP Wandsworth; second, that having regard to the seriousness of the crimes of theft of which he stands accused and the likely penalty if he were convicted, a custodial sentence would be highly unlikely if he were extradited; and third, if he were convicted and sentenced to custody, the 21 months served here would be deductible and it is unreal to suppose any custodial sentence in Latvia would exceed 21 months.

By section 21A of the 2003 Act the court is required to:

“(1)

… decide …

(a)

whether the extradition would be compatible with the Convention rights within the meaning of the Human Rights Act 1998;

(b)

whether the extradition would be disproportionate.

(2)

In deciding whether the extradition would be disproportionate, the judge must take into account the specified matters relating to proportionality (so far as the judge thinks it appropriate to do so); but the judge must not take any other matters into account.

(3)

These are the specified matters relating to proportionality—

(a)

the seriousness of the conduct alleged to constitute the extradition offence;

(b)

the likely penalty that would be imposed if D was found guilty of the extradition offence;

(c)

the possibility of the relevant foreign authorities taking measures that would be less coercive than the extradition of D [the requested person].”

In written argument, Mr Meredith submitted that the authorities on section 21A pointed to extradition being disproportionate here. He referred me to (inter alia) the guidance of this court (Pitchford LJ and Collins J) in Miraszewski v. District Court in Torun, Poland [2015] 1 WLR 3929; the Lord Chief Justice’s Guidance on assessment of serious of conduct alleged in extradition cases, now at paragraphs 12.2.2-12.2.4 of the Criminal Practice Directions 2023; Kozar v District Court in Liberec, Czech Republic [2024] EWHC 2226 (Admin) (Julian Knowles J); and TACA article 597.

The latter refers to cooperation through the arrest warrant being “necessary and proportionate” and mirrors the language of section 21A of the 2003 Act, referring to “the seriousness of the act, the likely penalty that would be imposed and the possibility of a State taking measures less coercive than the surrender of the requested person particularly with a view to avoiding unnecessarily long periods of pre-trial detention”. Mr Meredith reminded me that in Vascenkovs Swift J had rejected the suggestion that the advent of the TACA regime after Brexit had altered the approach to section 21A ordained in Miraszewski.

While accepting that Mr Sostaks had previous convictions in Latvia and there were five offences, Mr Meredith submitted that they were theft offences and relatively trivial; they involved shoplifting and theft of bicycles. They fell squarely within the Lord Chief Justice’s guideline and represented the kind of offending the proportionality bar was intended to weed out. The district judge below had failed to appreciate this and had placed too much weight on Mr Sostaks’ previous convictions.

The maximum penalties of one and two years’ imprisonment were not of much assistance, Mr Meredith submitted. Latvia had provided no information about the likely sentence in the event of convictions. The judge had been wrong to decide that the offending could well attract a custodial sentence in this country. The most likely penalty here for the theft of the two bicycles would be a low level community order within category 3B of the Sentencing Council’s guideline on theft. For the other thefts, the penalty would probably be a fine or even a discharge, in category C3 of the guideline on theft from a shop or a stall.

Mr Meredith submitted further that any prison sentence in Latvia might well be suspended and, finally and decisively, even if it were not, any term of immediate imprisonment could not exceed the time already served here on remand in custody, now 21 months. At the time of the judge’s decision below, it had been about 8 months. Latvia would be obliged by TACA article 624 to deduct that time from any immediate sentence of imprisonment. It is inconceivable, said Mr Meredith, that Mr Sostaks would be sentenced to upwards of 21 months’ immediate imprisonment, if he were extradited, convicted and sentenced.

In her written skeleton, Ms Bostock for the respondent took what amounts to a preliminary point of law, though not described as such. She was responding to a contention in the perfected grounds of appeal that the judge below having “noted the period … served on remand in custody awaiting the final hearing”, erred in finding that “the allegations made could attract a prison sentence if the Applicant was convicted in this jurisdiction”.

Ms Bostock countered that in her skeleton, saying any period spent on remand in this country awaiting extradition “is not one of the specified matters relating to proportionality which a judge is entitled to take into account under this heading”. That was because, she explained in oral argument, the list of permissible relevant considerations in section 21A(3) was exhaustive: by subsection (2) “the judge must not take any other matters into account”.

The respondent, therefore, is saying that the “likely penalty that would be imposed” by the requesting state’s courts must be calculated by a judge applying section 21A(3)(b) without reference to any deduction by the requesting state of any time spent on remand in custody in this country, awaiting extradition.

I asked Ms Bostock whether she accepted that at least two judges of this court, Dove J (as he then was) and Julian Knowles J respectively had adopted the contrary interpretation of “likely penalty” when ordering the discharge of the appellant in each of Kozak v Buda District Court, Hungary [2023] EWHC 149 (Admin), (see at [10]ff), and Kozar v District Court in Liberec, Czech Republic [2024] EWHC 2226 (Admin), (see at [61]-[63]).

In each case, time spent on remand was an important element of the “likely penalty” assessment. Ms Bostock’s response was that, respectfully, both judges were wrong to take that factor into account; it was off limits because of the words at the end of subsection (2). I asked why they were wrong and it became clear that the novel point of statutory construction needed to be properly aired in further written submissions, which I directed. Counsel and I were concerned that there could be other relevant authorities not before the court.

In further written argument, Ms Bostock submitted that Dove J’s attention appeared not to have been drawn to the guidance of the Divisional Court in Miraszewski at [37] and [39], where Pitchford LJ states that the “likely penalty” consideration is focused “upon the likelihood of a custodial penalty” as opposed to the length thereof; while recognising that non-custodial penalties can also justify extradition because the court should “recognise and give effect to the public interest in prosecution”.

She also cited Fordham J’s permission decision in a conviction warrant case, Molik v Judicial Authority of Poland [2020] EWHC 2836 (Admin)), saying it showed the correct route for a “time served” argument is the first limb of s.21A(1)(a) (whether extradition would be compatible with Convention rights) not the second (whether extradition would be proportionate). At [17], Fordham J made clear that where time served on remand exceeds time to serve, extradition is necessarily inappropriate, whether as an abuse of process or via article 8 rights.

In Molik, the applicant had six weeks of a 10 month activated custodial sentence to serve when permission was refused at the oral permission hearing, Ms Bostock pointed out. Fordham J had cited Aikens LJ’s judgment in Kloska v. Circuit Court of Katowice, Poland [2011] EWHC 1647, at [27] for the proposition that “except in most unusual circumstances, it cannot be for the courts in England to form a view on whether the person to be extradited has or has not served enough of his sentence that was imposed by the requesting judicial authority”.

Fordham J maintained the decision to extradite even though it was clear that by the time of any substantive hearing the line would have been crossed and the applicant would have served more time on remand than his outstanding sentence in Poland and would be entitled to discharge. Ms Bostock submitted that where a person had yet to be sentenced, the public interest in extradition was even stronger: it was for the requesting state’s courts to determine sentence and the English court should not circumvent that principle by recourse to an interpretation of “likely penalty” that included time spent on remand here.

Ms Bostock further submitted, as she had orally, that the rationale for the section 21A(3) factors was, as expounded in Miraszewski, that they focussed on low level offending that would not be met with any custodial sentence at all. If the focus was to be on the likely length of the custodial sentence, that should be argued as a matter of Convention rights. The seriousness of the conduct or alleged conduct of the requested person is an objective constant. It does not change according to how much time has been served here on remand.

She submitted that any Convention rights issue must be determined first because “the statute must be followed in order”. For that proposition she cited Raffile v USA [2004] EWHC 2913 (Admin) (Rose LJ and Pitchford J as he then was). The relevant passage appears to be at [33], where Pitchford J said in a different context that the procedure before the judge below “was a staged progress through the relevant sections, each of which was dependent on a decision previously made”; and that the judge:

“could not be expected to reopen those decisions at such a late stage of the hearing. In fact, passage of time under section 79(1)(c) was three steps back in the procedure. Two of those steps involved decisions made under section 84 and 85 which were uncontested; while, on the other hand, section 79, to which the district judge's attention was being redirected, created statutory bars to extradition.”

Aside from her point of statutory interpretation, Ms Bostock submitted that even if her interpretation was wrong and that of Dove J and Julian Knowles J was right, Ms Sostaks’ appeal should be dismissed and he should be extradited to Latvia to face trial for the five thefts. In support of that submission, she made the following further points.

It was not a bar to extradition per se that the requested person would be likely to receive a non-custodial sentence: Miraszewski, at [39]). The purpose of the proportionality bar went no further than that of providing a further brake on extradition for very minor offences, over and above the requirement that the conduct alleged must be punishable by at least 12 months’ detention (section 64(3)(c) and (4)(c) of the 2003 Act); per Swift J in Vascenkovs at [11].

A comparison with sentencing practice in this country only gives a general idea of the likely sentence as no trial has taken place and the full facts are unknown (ibid. at [24]). Considerable latitude must be accorded to the issuing state. The appellant, illegitimately, seeks to use the proportionality bar in section 21A(1)(b) to argue that he has in effect already served his sentence. That overlooks the public interest in extradition and undermines mutual trust.

If Mr Sostaks is not extradited, Ms Bostock said, he will not face trial at all for the five offences and they will not appear in his record of convictions in Latvia. That tends to undermine the international comity emphasised in Andrysiewicz v. Circuit Court in Lodz, Poland [2025] 1 WLR 2733, per Lord Lloyd-Jones and Lord Stephens JJSC at [62]. The requesting state is prevented from managing the offender’s punishment for the crimes for which he is never tried.

Finally, the respondent asserts that on the facts the offending is far from trivial. There are five distinct offences of theft; four carry a maximum sentence of one year’s detention, the fifth, of two years’ detention. The appellant has a bad record in Latvia and in this country. Multiple offences and previous convictions are matters singled out as possible exceptions in the Lord Chief Justice’s guidelines on low level offending, which may make discharge inappropriate.

Mr Meredith, for Mr Sostaks, also responded in writing to my invitation to address the respondent’s interpretation of section 21A(3)(b) and the meaning of the words “likely penalty that would be imposed” in that paragraph. He submitted, straightforwardly, that Dove J in Kozak and Julian Knowles J in Kozar were both correct to include time served on remand in their respective proportionality assessments.

He also disputed the respondent’s proposition that the issue of time served on remand must be addressed through the lens of Convention rights and not proportionality simpliciter. He pointed out during the hearing that the same factual points may be deployed in respect of different legal issues, where the factual material overlaps. Thus, it is very common for a requested person to rely on the same facts to support a passage of time argument (under section 14 of the 2003 Act) and an article 8 argument (under section 21 or section 21A).

It is a matter for the court in what order it addresses the issues, Mr Meredith submitted. Thus, in Kalinauskas v. Prosecutor General’s Office, Lithuania [2020] EWHC 191 (Admin), the Divisional Court (Irwin LJ and Supperstone J) considered it unnecessary to determine the appellant’s articles 3 and 8 grounds of appeal, having allowed the appeal under section 21A(1)(b) of the 2003 Act per Supperstone J at [9]-[10]; at [20] being in “no doubt that if the Appellant was to be sentenced now for the offending, he would be immediately released”; and noting at [21] that “he has now served in excess of any sentence that could have been imposed for his conduct… .”

Mr Meredith added that a similar approach was adopted by Chamberlain J in Buivis v. Deputy Prosecutor General, Lithuania [2021] EWHC 2042 (Admin), in which he followed the reasoning in Kalinauskas to the effect that deductible time served on remand is relevant to the “likely penalty” issue; and by Holman J in Lucki v Poland [2022] EWHC 818 (Admin), adopting the same approach. In both cases, the court was referred to and aware of the Divisional Court’s guidance in Miraszewski.

As for the permission decision in Molik, Mr Meredith submitted that Fordham J recognised that extradition should not occur where time served here exceeds time to be served in the requesting state. While he framed that proposition in terms of abuse of process or article 8 rights, he did not exclude the same proposition viewed as a section 21A(1)(b) issue. Moreover, the same judge granted Mr Sostaks permission to advance the proportionality ground of appeal in this case, reasoning that they had arguable merit alongside article 8 as “a possible wider alternative”.