England and Wales High Court (Administrative Court) Decisions

IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
THE ADMINISTRATIVE COURT

		Royal Courts of Justice Strand London WC2A 2LL
		4 October 2012

1. MR JUSTICE COLLINS: This is an appeal pursuant to section 26 of the Extradition Act 2003 against the decision of District Judge Evans given on 14 June 2011, whereby he indicated that the claimant should be extradited to the Netherlands in order to stand trial for a serious offence of assault.
2. The details, so far as necessary, were that on 9 August 2010 he was in the Netherlands and the assault in question was carried out on his then girlfriend. He grabbed her by the neck and she fell downstairs. Before she could get up, she was dragged down a further staircase and her left arm was broken in two places. She took six months to recover.
3. That clearly, if his guilt is established, is a very serious assault. If it had been committed in this country it is clear that the likely outcome would have been a sentence of imprisonment.
4. The Article 8 claim which lies behind this appeal is based upon the effect that his extradition would have upon his father, for whom he was acting as a carer, and also upon the children of the lady with whom he is now living.
5. His father is now 60 years old. He suffers from serious depression which results from an earlier family tragedy, and the appellant effectively looks after him and carries out day-to-day care.
6. The father gave evidence before the District Judge and a statement was produced, indicating the effect upon him were his son, the appellant, to be extradited to Netherlands. He said that the effect would be so devastating that he really felt that he would be unlikely to want to go on living.
7. There was also a statement in evidence from the lady with whom he is living, his partner, and the devastating effect too, in her view, upon the children in particular, who are bonding with the appellant. All that would be lost, certainly for any time that he was not available whether because in prison, if convicted, or by virtue of the extradition itself.
8. I should add that, as Mr Khan accepts, on the face of it it looks as if he really has little, if any, defence to the charges brought in the Netherlands, and it may well be that he has already made admissions in relation to them.
9. On 20 June the Supreme Court gave a judgment which considered the approach that the District Judges, and of course this court on appeal, should take to Article 8 claims which were made to seek to challenge extradition. That was because the issue was raised whether the approach which had been set out in the earlier case of Norris, which effectively indicated that it was only to be in exceptional circumstances that Article 8 would be regarded as disproportionate to extradite those who were alleged to have committed or had committed criminal offences abroad was correct. The question was whether that should be modified.
10. We have now had a judgment, which was given by the court consisting of seven members, each of whom gave a judgment at greater or lesser length. I pick up what Lord Judge said in paragraph 132, because it seems to me that that is an approach which is not dissented from in any way by the other members of the court. So far as material, he said this:

"Nevertheless for the reasons explained in Norris the fulfilment of our international obligations remains an imperative. ZH (Tanzania) did not diminish that imperative. When resistance to extradition is advanced, as in effect it is in each of these appeals, on the basis of the article 8 entitlements of dependent children and the interests of society in their welfare, it should only be in very rare cases that extradition may properly be avoided if, given the same broadly similar facts, and after making proportionate allowance as we do for the interests of dependent children, the sentencing courts here would nevertheless be likely to impose an immediate custodial sentence: any other approach would be inconsistent with the principles of international comity."

11. I recognise and do not doubt the genuineness of the father's feelings, but no independent evidence in the form one might expect of medical evidence was produced, and where allegations such as were made by the father as to the effect upon him were the appellant to be extradited are raised, one would expect there to be some support from such an independent source. That is not in any way to belittle the genuineness of the father's feelings, but of course one must never forget that he has a strong motive to try to avoid his son's extradition. Equally, I do not doubt the genuineness of his partner's concern as to the effect on the children. But having regard to the seriousness of the offence allegedly committed, there is no question but that were it to have been committed in this country a custodial sentence would be likely to follow. It is difficult to see that the same would not be likely to be the case in the Netherlands.
12. So far as mitigation is concerned, I have no reason to doubt that the matters which would affect the length of sentence in this country could be put before the Dutch court and would be likely to be taken into account by that court were the appellant to be convicted. Equally, it is possible that arrangements might be made to ensure that the appellant serves any sentence which is imposed upon him by the Dutch court in this country, which at least would mean that, so far as partner and children are concerned, there would be the possibility of keeping in closer touch by means of visits. That is not a matter which, of course, I can assume would be likely to be agreed. Nonetheless, I simply mention it as something which perhaps could be considered.
13. As it is, I do not doubt the damaging effect upon father and the children, but in the circumstances it seems to me that the seriousness of the offence is such that it is within the approach indicated to be the correct approach in HH and so proportionate that the appellant should be extradited to face the charges in Netherlands. In those circumstances, I must dismiss this appeal.
14. Are you legally aided, Mr Khan?
15. MR KHAN: Yes, my Lord.
16. MR JUSTICE COLLINS: So you will want the usual detailed assessment order?
17. MR KHAN: Yes, please.