Key Facts
- •Ľubomír Macko was discharged from extradition proceedings by DJ Heptonstall due to disproportionality under section 21A(1)(b) of the Extradition Act 2003.
- •The Slovak Republic appealed this decision.
- •Macko is accused of theft of €24,655 in 2011.
- •Macko's defense is that he was not in Slovakia at the time.
- •The maximum sentence for the offence is three years' imprisonment.
- •The District Judge considered the likely penalty would be a suspended sentence.
- •The appeal focused on whether the District Judge erred in classifying a suspended sentence as 'non-custodial' and whether extradition was disproportionate based on the possibility of a suspended sentence.
Legal Principles
Section 29 of the Extradition Act 2003 governs appeals, requiring the court to determine if the lower court should have decided differently and if the correct decision would have led to a different outcome.
Section 29, Extradition Act 2003
In proportionality assessments, the court must give appropriate respect to the lower court's factual and evaluative assessments.
Antochi v Germany [2020] EWHC 3092 (Admin)
Section 21A(1)(b) of the Extradition Act 2003 addresses whether extradition is disproportionate, considering the seriousness of the conduct, the likely penalty, and the possibility of less coercive measures.
Section 21A(1)(b), Extradition Act 2003
Miraszewski v Poland [2014] EWHC 4261 (Admin) provides guidance on interpreting section 21A(1)(b), including the relevance of the Sentencing Council guidelines and the concept of a 'floor' rather than a 'ceiling' for seriousness assessments.
Miraszewski v Poland [2014] EWHC 4261 (Admin)
Vascenkovs v Latvia [2023] EWHC 2830 (Admin) confirms Miraszewski remains good law regarding the proportionality test under section 21A(1)(b).
Vascenkovs v Latvia [2023] EWHC 2830 (Admin)
Appellate review of proportionality decisions considers whether the lower court's decision was within the range of reasonable responses, not whether it was definitively right or wrong.
Re B (A child) (Care proceedings: threshold criteria) [2013] UKSC 33
A suspended sentence, while treated as a custodial sentence under the Sentencing Act 2020 for other purposes, is distinct from an immediate custodial sentence for proportionality analysis.
Antochi v Germany and H(H) v Deputy Prosecutor of the Italian Republic
Outcomes
The appeal was dismissed.
The District Judge's decision was within the range of reasonable responses given the evidence and information presented. The Judge appropriately considered the three factors under section 21A(3), and his determination that a suspended sentence was likely, despite Macko's criminal history, was not demonstrably wrong.