by
Kate O'Raghallaigh
Many extradition practitioners will have become somewhat familiar with sentencing practice across Part 1 states. Perhaps one of the most striking features of European sentencing practice is the mandatory minimum sentence for simple possession of controlled drugs (we know that such sentences are passed in Slovakia and Latvia, for example). Practitioners will also have come across cases where European criminal courts have, in their discretion, imposed lengthy sentences for offences of simple possession where there are no apparent aggravating features.
This short piece looks at some recent cases where extradition has been sought in relation to offences of simple possession of controlled drugs and where the length of the sentence imposed/the sentence that would flow from conviction has, one way or the other, been at the forefront of the High Court’s assessment of proportionality. At the heart of each of these cases is a requested person who, within the confines of UK sentencing law and practice, would never receive anything close to the sentence that has been imposed/will be imposed in the issuing state. In essence, these cases have raised the following question: when does a disproportionate sentence by UK standards make extradition disproportionate under Article 8?
Katrencik, Miglans, Matuszewski and Nowak
In Slovakia, pursuant to paragraph 172 of the Criminal Code, an offence of possession of narcotics attracts a minimum sentence of 4 years’ imprisonment. Where that offence is committed by someone who has already been sentenced for the same offence, the minimum sentence is 10 years’ imprisonment, with a maximum of fifteen years. This was the provision by which the requested person in District Court Bratislava III v Richard Katrencik [2014] EWHC 2062 (Admin) received a sentence of fifteen years’ imprisonment in maximum security conditions for simple possession of 3g of methamphetamine. He received the higher minimum term because he had one previous conviction for simple possession. It was asserted in the EAW that the 3g equated to 72 doses of the drug. In Katrencik, the requested person (a recovered drug user who had served 2.5 years of the sentence) was discharged under Article 8 on the basis that the sentence imposed would cause him to be separated from his seriously ill partner for a ‘disproportionate’ period of time. At first instance, the sentence was described by the DJ as being “wholly disproportionate” to UK sentencing practice. In allowing the CPS’ appeal, Mr Justice Collins found that because of the number of doses involved, the case would have been charged as PWITS in the UK. He held that the DJ had placed too much weight on the length of the sentence. However, the Divisional Court stood by the principle that a sentence which would be “entirely disproportionate” in the UK could be “taken into account” under Article 8. It would seem, therefore, that Mr Justice Collins did not envisage that a disproportionate sentence would be decisive of proportionality.
However, in Miglans v Latvia [2014] EWHC 2659 (Admin), which post-dated Katrencik, the requested person (again, a rehabilitated drug user) faced an accusation in Latvia of possession of 0.2g of cannabis and 0.017g heroin, for which the mandatory minimum sentence on conviction was 5 years’ imprisonment. Mr Justice Ouseley allowed the requested person’s appeal under Article 8 and described the mandatory sentence as “beyond startling”:
“I find it impossible to say that a minimum five-year sentence, without any more in relation to suspension of that sentence, is proportionate. It is simply so disproportionate that extradition to face trial for that offence, risking conviction as the prosecutor must intend, and the certainty of conviction of such a sentence, would be disproportionate...I express the hope that, if Latvia continues to seek extradition for those who have or are alleged to have committed these very minor drugs offences, they will flesh out the reasons why it is proportionate to extradite an individual either by reference to personal or offending circumstances or explain what the circumstances are which make a five year minimum mandatory sentence a proportionate response to what they perceive as a drug problem in their country.”
Cases which have not involved a mandatory minimum term but which touch upon the divergent sentencing practices between the UK and the issuing state, include Matuszewski v Poland [2014] EWHC 357 (Admin) and Nowak v Poland [2014] EWHC 3466 (Admin). The former case involved a requested person aged 27 whose extradition was sought in relation to a sentence of sixteen months’ imprisonment for possession of 56g cannabis. The offence was committed when the requested person was 19 years old. In finding that extradition would be disproportionate, Mr Justice Blake observed: “There has been no EU consensus on what offences are serious...in the case of possession of Class B drugs, a custodial penalty will not result save in the case of significant aggravating factors.”
In Nowak, the requested person’s extradition was sought in relation to two convictions. He was a married father of two. One conviction was for simple possession of 7g cannabis and 2g amphetamine, the second was for possession with intent to supply. A sentence of 8 months was imposed in relation to the offence of simple possession. In finding that extradition would be disproportionate in relation to the first offence, Sir Stephen Silber found that it was “quite clear that [the offence] would not have led to a custodial sentence”. So, it would seem that the UK’s approach to sentencing was considered highly relevant to, if not decisive of proportionality.
Discussion
Each of these cases involved a rehabilitated drug user. All bar one involved conviction warrants. All bar one (Nowak) involved a requested person with no child dependents. In all cases save for Katrencik, extradition was considered disproportionate and in the case of Miglans, the comments of Mr Justice Ouseley regarding the (dis)proportionality of mandatory minimum terms for simple possession could not have been expressed more robustly. What seems to have set Katrencik apart from the rest is the finding that the offence would have been treated as an offence of PWITS in the UK.
When one sets these sentences against UK sentencing guidelines, which recommend a starting point of a Band C fine for an offence of simple possession of Class A drugs (irrespective of previous convictions), it is not difficult to see how many of these cases resulted in findings that the interference with Article 8 was disproportionate. Such findings do not undermine the principle of mutual trust, but reflect the fact that the effects of a lengthy prison sentence on a rehabilitated and reformed drug user in circumstances where no mitigation can be taken into account, is a disproportionate interference with their private life.
Kate O'Raghallaigh
