High Court certifies point of law for the Supreme Court

On 12 February 2021, Mr Justice Johnson certified that a point of law of public importance arises in relation to the operation of section 21A(1)(b) of the Extradition Act 2003.

Section 21A(1)(b) of the 2003 Act provides that the courts must refuse to accede to an extradition request where extradition would be “disproportionate”. In making that assessment, the courts must consider three specified matters, which are (i) the seriousness of the offence, (ii) the likely penalty, and (iii) the possibility of using less coercive measures.

Latvia seeks Mr Bojarinovs’ extradition for an allegation of street dealing 6 wraps containing 0.0427 grams of heroin from October 2012. In Latvia, this offence attracts a minimum of three years’ imprisonment and a maximum of ten years’ imprisonment. In England and Wales, street dealing class A drugs attracts a starting point of 3 years’ imprisonment.

At first instance, District Judge Blake concluded that this offence would receive a likely penalty of 3 to 10 years’ imprisonment in Latvia. The Judge stated that he could not come to a “definitive conclusion” on the likely penalty Mr Bojarinovs would receive in England & Wales. The Judge concluded that extradition would not be disproportionate.

On appeal, Johnson J. stated that the Judge could come to a conclusion as to the likely penalty and that, on the facts of the case, a hybrid assessment of the sentencing regimes in Latvia and in England & Wales demonstrated that a likely penalty of no more than three years’ imprisonment would be imposed. Johnson J. concluded that extradition would not be disproportionate.

At the time of the appeal hearing, Mr Bojarinovs had been remanded into custody for 19 months. He had therefore served more than half of the likely penalty of three years. It was submitted that, applying the early release scheme operating in England & Wales, Mr Bojarinovs had served the likely penalty and it would no longer be proportionate to extradite him. Johnson J. has certified two questions of law of public importance arising from this submission:

(i) In assessing the “likely penalty” for the purpose of section 21A(3)(b) Extradition Act 2003 is it necessary to have regard not only to the penalty that is likely to be imposed by the Court but also the practical effect of that penalty having regard to any early release provisions?

(ii) If so, and if there is no information about early release provisions, must the Court apply domestic early release provisions when carrying out the assessment?

Graeme Hall is instructed by Giovanna Fiorentino of Lansbury Worthington Solicitors.