Section 21A Proportionality Is Confined to “Accusation” EAWs: Article 8 and Section 25 Thresholds in Sentence-Enforcement Extradition

1) Introduction

This decision concerns an application for leave to appeal under section 26 of the Extradition Act 2003 following an Edinburgh sheriff’s order extraditing a Polish national (the appellant) to Poland to serve the balance of a cumulative custodial sentence imposed by the District Court in Szczecin (4 years total; approximately 3 years 6 months 28 days outstanding).

The appellant relied on three themes: (i) “proportionality” under section 21A because of caring responsibilities for a former partner (“Ms A”); (ii) mental/physical condition under section 25 (unjust or oppressive); and (iii) Article 8 ECHR (private and family life).

2) Summary of the Judgment

The court refused leave to appeal. It held:

• Section 21A was inapplicable because the warrant was for sentence enforcement, not prosecution.
• The section 25 ground failed: evidence of the appellant’s health was “very slim”, and the psychiatric report did not support a serious mental disorder or a risk meeting the high statutory threshold.
• The Article 8 ground failed: (a) the appellant’s relationship with his children would be “largely unaffected” (telephone contact could continue; children not in Scotland), and (b) the appellant and Ms A did not have “family life” as a matter of fact; in any event, any interference would not be exceptionally severe and was proportionate.

3) Analysis

3.1 Issues framed by the court

The Appeal Court effectively addressed three legal questions:

1. Scope question: Does section 21A (statutory proportionality bar) apply to convicted persons sought to serve a sentence?
2. Health bar question: Do the appellant’s mental health/addiction issues meet the “unjust or oppressive” threshold in section 25 (and, by analogy, the high threshold associated with Article 3)?
3. Article 8 question: (i) Is there “family life” with Ms A at all; and (ii) if Article 8 is engaged, is extradition proportionate?

3.2 Precedents cited and how they shaped the outcome

(A) Article 8 proportionality in extradition

• Norris v Government of the United States of America (No 2) [2010] UKSC 9, 2010 2 AC487: The court relied on the “quite exceptionally compelling” requirement: only in rare cases will Article 8 defeat extradition. This set the overarching bar against which the appellant’s circumstances were assessed.
• H(H) v Deputy Prosecutor of the Italian Republic [2012] UKSC 25, [2013] 1 AC 338: Used for the structured balancing approach and the proposition that there is a “constant and weighty” public interest in extradition, while also recognising that weight can vary with seriousness and that delay can affect both public interest and private life impact.
• Polish Judicial Authority v Celinski [2015] EWHC 1274 (admin), [2016] 1 WLR 551 and V v Lord Advocate on behalf of the Government of Romania [2020] HCJAC 33, 2020 SLT 1161: Cited for the practical method: identify factors for and against extradition, then weigh them to reach a proportionality conclusion. The Appeal Court considered the sheriff to have taken the correct approach.
• Babar Ahmad and Others v United Kingdom (2010) 51 EHRR SE97: Reinforced that only exceptional circumstances will justify discharge on private/family life grounds in extradition.

(B) Existence of “family life” under Article 8

• Lebbink v Netherlands 2005 40 EHRR 18: The court used it to emphasise that whether “family life” exists is essentially fact-sensitive and concerns de facto family ties.
• Keegan v Ireland (1994) 18 EHRR 342 and Tsiklauri v Secretary of State for the Home Department [2020] CSIH 31, 2020 SC 495: Cited for the need for relationship constancy and factors such as cohabitation, stability, and shared life features. Applying those factors, the court held the sheriff’s findings did not demonstrate “family life” between the appellant and Ms A.
• Secondary authority: Reed and Murdoch Human Rights Law in Scotland (5th edn, 2025) at 6.12: Used as a synthesis of the relevant indicators of “family life”.

(C) Health, suicide risk, and the “unjust or oppressive” test

• Dewani v Government of the Republic of South Africa [2012] EWHC 842 (Admin): Supported the proposition that serious illness can make extradition unfair or oppressive, but also that ordinary stress and hardship inherent in extradition are insufficient.
• McKinnon v Secretary of State for the Home Department [2009] EWHC 2021 (Admin) and Pretty v United Kingdom (2002) 35 EHRR 1: Cited to connect severe illness and risk of exacerbation to potential Article 3 concerns, while signalling the high severity needed.
• Gavenaite v Lord Advocate [2025] HCJAC 48, 2024 SCCR 418, Jantos v Lord Advocate [2015] HCJAC 32, Howes v HM Advocate [2010] HCJAC 123; 2011 SCL 306, Wlodarczyk v Lord Advocate 2012 SCCR 490: These Scottish authorities were used to stress the high threshold, the need for independent and convincing evidence (particularly on suicide risk), and the general assumption that a category 1 state can provide appropriate prison healthcare.
• Maziarski v Lord Advocate [2012] HCJAC 33, 2012 SLT 553: Identified as a rare example where the test was met, described here as involving “extreme” circumstances—underscoring how far the appellant’s evidence fell short.
• W v Spanish Authority [2020] EWHC 2278 (admin): Relied on (via submissions) for a rebuttable presumption that medical issues will be handled appropriately in the requesting state.

(D) Passage of time and “fugitive” status

• Kakis v Government of the Republic of Cyprus [1978] 1 WLR 779 and Lagunionek v Lord Advocate 2015 JC 300; [2015] HCJAC 53: Applied for the proposition that where the requested person is a fugitive, delay arguments only succeed on exceptional circumstances. The court noted no distinct argument was advanced on section 14 and no challenge to the fugitive finding.

3.3 Legal reasoning (why the court decided as it did)

(A) Section 21A: confined to accusation (prosecution) cases

The court treated the scope point as straightforward statutory interpretation: section 21A, introduced by section 157(2) of the Anti-Social Behaviour, Crime and Policing Act 2014, “deal[s] with cases where the requested person was wanted for prosecution”. Since the appellant was sought to serve an outstanding sentence, section 21A did not apply.

Crucially, the court did not treat this as ending the human-rights enquiry: it proceeded to consider Article 8 under section 21. The practical message is that statutory proportionality screening under section 21A is not a substitute for (and does not displace) Article 8 proportionality in conviction cases.

(B) Section 25: “unjust or oppressive” requires compelling, independent evidence

The court reiterated that the threshold is “high” and fact-specific. It accepted the general framework that serious illness can in principle bar extradition, including where extradition would create an Article 3 risk. But it emphasised that stress and hardship are ordinary incidents of extradition and do not meet the test.

On the facts, the psychiatric report described mild anxiety and occasional suicidal thoughts, with no evidence of severe depression, psychosis, or mania. The court regarded the evidential basis as “very slim” and concluded that the appellant’s difficulties (including addiction) were likely to be manageable by the Polish authorities. There was no independent material demonstrating a very high suicide risk or that treatment would be unavailable or inadequate.

(C) Article 8: (i) existence of family life; (ii) proportionality

The court applied the modern extradition Article 8 approach: extradition is lawful and pursues a legitimate aim; the real contest is proportionality, with discharge reserved for exceptionally compelling cases.

• Children: the court held the “status quo” would be largely unaffected: the children were not in Scotland and telephone contact could continue. On that basis, the public interest decisively outweighed the interference.
• Ms A: based on the sheriff’s findings (relationship ended; regular visits; “sometimes” help around the house; other supports available), the court held there was no “family life” within Article 8. The relationship was characterised as akin to a friend providing intermittent assistance, lacking cohabitation and de facto family functioning. Even if Article 8 “family life” were present, the interference was not “exceptionally severe” and therefore not disproportionate.
• Private life: while acknowledging interference with private life (including length of UK residence), the court noted the paucity of evidence of deeper ties beyond Ms A, and found nothing showing disproportionality.

3.4 Impact and significance

• Clear Scottish confirmation of section 21A’s limited reach: practitioners should treat section 21A as unavailable in sentence-enforcement warrants; proportionality arguments must instead be advanced through section 21/Article 8 (and, where appropriate, section 25/Article 3).
• Evidence discipline in health-based resistance: the judgment illustrates the court’s insistence on independent, convincing evidence, especially where suicide risk is suggested. Unparticularised claims (including asserted recent attempts) without robust clinical support are unlikely to engage section 25.
• Boundary between “family life” and supportive friendship: the decision underscores that caring involvement with an ex-partner or friend, without cohabitation or demonstrable de facto family ties, may not constitute “family life”—reducing the weight available on the requested person’s side of the balance.
• Public interest remains dominant in conviction cases: even where offences are historic, the court will look for a concrete basis (beyond elapsed time) showing disproportionate interference; “fugitive” findings substantially weaken delay arguments under section 14 and within Article 8 balancing.

4) Complex Concepts Simplified

• “Accusation” vs “conviction” extradition: An EAW may seek a person to be prosecuted (accusation case) or to serve a sentence already imposed (conviction case). This matters because section 21A proportionality is confined to the former.
• Section 25 (“unjust or oppressive”): A safety valve where extradition would be fundamentally unfair because of serious physical/mental condition. The bar is high: ordinary distress, anxiety, or the usual hardships of extradition are not enough.
• Article 8 “family life”: Not every close relationship qualifies. Courts look for real-world family characteristics—stability, constancy, shared life (often including cohabitation), and functioning as a family unit.
• Proportionality (Article 8(2)): A balancing exercise: the stronger the public interest (notably in enforcing criminal sentences and international obligations), the more exceptional the private/family circumstances must be to outweigh it.

5) Conclusion

[2026] HCJAC 15 reinforces three practical propositions in Scottish extradition law: (1) section 21A proportionality is not a route to discharge in sentence-enforcement cases; (2) section 25 requires robust, independent evidence of a genuinely extreme health-related injustice or oppression; and (3) Article 8 challenges will fail absent exceptionally compelling circumstances, especially where asserted “family life” is, on the facts found, no more than supportive friendship following a relationship’s end.