When is it proportionate to extradite a person for what appear to be minor offences where they are entitled to a retrial?
The section 21A proportionality bar is not available as the Requested Person has already been convicted, even though they would face a retrial on their return. Such “retrial-conviction cases” are potentially complex as they are not explicitly recognised in the Extradition Act 2003. In Saptelei v Romania  EWHC 506 (Admin), 5SAH’s David Josse QC and Mark Smith sought to shine a light on this extradition blind spot.
In 2014, Parliament gave a helping hand to extradition defence lawyers by introducing a new proportionality bar under section 21A of the Extradition Act 2003. Unlike Article 8, the court is only permitted to take account of three factors in the proportionality exercise: (i) the seriousness of the offences, (ii) the likely sentence, and (iii) any less coercive measures that could have been taken. However, it is only available in accusation cases.
Konecny v Poland
In Konecny v Poland, the Supreme Court considered whether EAWs in retrial-conviction cases should be treated as accusation warrants. The Supreme Court rejected that argument, but did identify an unfairness in the Extradition Act where the Requested Person is disadvantaged by having been tried in absence. The court decided that the disadvantage under section 14 should be compensated under Article 8. The judgment also opened the door to using Article 8 to compensate for other disadvantages implicit in the Extradition Act for retrial-conviction cases.
Saptelei v Romania
The arguments considered in Saptelei v Romania attempted to pry that doorway open still further. Mr Saptelei had been convicted in absence of two offences of driving without a licence but was entitled to a retrial. The maximum UK sentence would be a fine, but in Romania he had received 1 year 5 months’ imprisonment.
The argument was that the unilateral decision to try him in absence unfairly prevented him from relying on the section 21A proportionality bar under which he would have been discharged, but this disadvantage should be compensated as in Konecny, resulting in his discharge under Article 8 instead.
Ultimately, the Division Court rejected this argument on the basis it was not clear how the proportionality bar could sensibly be applied when a sentence had already been passed. The court found that the length of the sentence was relevant to the factors under section 21A and could not be disregarded to allow the proportionality bar to be applied in a vacuum. Rather, the proportionality of extradition had already been taken into account under section 65 as it was a sentence of at least 4 months. The doorway opened by Konecny has therefore been wedged (almost) shut.
But it is still open just a crack. Firstly, in relation to other provisions of the Extradition Act where Requested Persons may be disadvantaged due to a conviction in absence. Secondly, in relation to the proportionality bar itself, with the court accepting that the approach may be different in cases where the Requested Person has been convicted in absence but not sentenced for that offending.
The issue will also need reviewing post-Brexit in the context of the EU-UK Trade and Cooperation Agreement, which did not apply in Saptelei. It remains to be seen whether the principle of proportionality in that Agreement will extend to conviction warrants and help to ease the door a little further ajar.
David Josse Q.C. has been Head of Chambers since 2015. He is a barrister specialising in extradition, human rights, international war crimes and serious crime, both nationally and internationally. David is ranked in The Legal 500 and Chambers and Partners in the field of extradition at the London Bar.