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
		11 November 2013

1. MR JUSTICE BEAN: The appellant appeals against the decision of District Judge Devas on 30 July 2013 ordering his extradition to Ireland to stand trial for a single offence of fraud involving a bank loan of 10,000 Euros. The warrant is an accusation warrant and the alleged offence occurred on 5 July 2005.
2. The grounds of appeal argue firstly that the District Judge failed to afford sufficient weight to the "plainly dilatory" prosecution of the appellant by the respondent when deciding the question of oppression and passage of time. I am not impressed by the passage of time argument but, given the view I take of the other points, which go together, it is unnecessary to decide it.
3. The other grounds of appeal are that the District Judge did not properly consider the uncontested expert evidence and the evidence of the appellant as to his unique role in caring for his disabled son, M; applied too high a threshold for the Article 8 submissions; decided the question of proportionality wrongly; and failed to consider the position of the appellant's other family members, namely his wife and three daughters and the impact on them of the appellant's extradition.
4. This is an unusual case. The appellant's son M was born on 20 August 1996 and so is now 17. He has been interviewed by a Dr Linda Buchan of Axia ASD Limited, a Consultant Clinical Psychologist. There is also an impressive witness statement from his mother. An illustration of the disability of M which causes great difficulty in coping with him is contained in a recent incident described in Mrs Ode's witness statement of 9 April 2013. After saying that M suffers from Attention Deficit Hyperactivity Disorder and severe autism and that his behavioural problems have become much more difficult to manage as he had grown older, she continues:

"Marc and I noticed [M]'s behaviour had been different for a few weeks, [M] hadn't been himself. One Saturday night [M] refused to take his medication and became very angry. Marc managed to calm him down and we said we would talk about things more in the morning. Unfortunately the next morning [M] was still very angry and he became violent. He was lashing out at everything and breaking things in the house, he struck out at me and Marc and [R] [his sister]. Although [M] is only 16 he is now 6 feet tall and 14 stone so I was left with some substantial injuries. Marc decided the only thing we could do was call the police. We now hope the incident has been dealt with however if something like that were to happen again and Marc wasn't there I can't imagine how much damage could have been inflicted to me and my daughters."

5. Dr Buchan, who reported on 20 May 2013, wrote as follows:

"Marc's removal from [M] would be extremely harmful to his interests and would be detrimental to both his mental health and the pathway he then follows ... There is a clear history of Marc and his wife endeavouring to get the correct support for [M], including accurate diagnoses and professional support despite many obstacles being put in his way and there remains a lack of service provision."

She then described her interview with M in which she said if his father had to leave the family home he would fight it and would carry on fighting it. She continued:

"I am convinced that his father being removed from the family home would lead to major panic attacks and major outbursts. A major contributing factor fuelled by his Autism would constitute a major change in his life causing great changes to routine or structure which causes enormous difficulties for any child with Autism. In addition, in relation to his Attention Deficit Hyperactivity Disorder, his impulsivity would become even greater and I am also of the opinion that his father not being present in the family home would increase his potential to come into contact again with the police and/or youth offending services. I also believe there would be an enormous impact on his mental health and an increased need for mental health services to become involved.

In relation to where he would live, his mother would be unable to manage on her own which comes from her own self-report, [M] himself as well as Marc. I am also concerned that the youngest child is potentially going to receive the diagnosis of Attention Deficit Hyperactivity Disorder (there is a strong genetic component to this disorder) that would add additional complexity to the family life.

I believe [M] would be removed from the family and even if this was planned carefully with a good transition, he would still find the move to a residential service extremely upsetting. There are very few residential services specialising in children with Autism and Asperger Syndrome and they are very expensive and vary a great deal in their quality."

6. In what is now the leading authority of HH v Deputy Prosecutor of the Italian Republic, Genoa [2013] 1 AC 338 the Supreme Court considered a number of appeals against extradition based on Article 8 of the Strasbourg Convention. The only appellant whose appeal was allowed was a single parent mother who had several children, one of whom was seriously disabled and who simply could not manage without her.
7. Article 8 points are raised in almost every extradition appeal which comes before the Administrative Court. It is very common for an argument to be run that if a male fugitive is extradited to the country in which he was convicted, or in which he is accused of an offence, leaving behind children in the sole care of their mother, the mother would find is difficult to cope. Such arguments are commonly advanced and rarely succeed. But there must be few cases in which the evidence of the inability to cope alone is as powerful as in this case. Certainly I have never seen one. It is well known to anyone with any knowledge of autism that teenage autistic children, particularly a tall and strong boy such as M is, present very difficult problems of handling. I see no reason to doubt the account by Mrs Ode of the incident earlier this year in which the police had to be called, and I see no reason to doubt that such incidents are likely to recur from time to time.
8. I therefore consider that Dr Buchan is right to predict that it is very likely that if the father is extradited to Ireland, the mother will be unable to cope with M's behaviour and he will have to be taken into care or into some form of residential institution, causing great trauma to him and, I might add, enormous cost to the public.
9. In HH v Genoa, Lord Judge, Lord Chief Justice (as he then was) said at paragraph 125:

"Self evidently theft by shoplifting of a few items of goods many years earlier raises different questions from those involved in an armed robbery of the same shop or store: possession of a small quantity of Class C drugs for personal use is trivial when set against a major importation of drugs. Equally the article 8 considerations which arise in the context of a child or children while nearly adult with the advantages of integration into a responsible extended family may be less clamorous than those of a small baby of a single mother without any form of family support. Ultimately what is required is a proportionate judicial assessment of sometimes conflicting public interests."

He continued at paragraph 132, after a reference to the decision of the House of Lords in Norris v Government of the United States of America [2008] AC 920:

"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. At the same time, we must exercise caution not to impose our views about the seriousness of the offence or offences under consideration or the level of sentences or the arrangements for prisoner release which we are informed are likely to operate in the country seeking extradition. It certainly does not follow that extradition should be refused just because the sentencing court in this country would not order an immediate custodial sentence: however, it would become relevant to the decision if the interests of a child or children might tip the sentencing scale here so as to reduce what would otherwise be an immediate custodial sentence in favour of a non-custodial sentence (including a suspended sentence)."

That passage seems to me apposite here. The offence with which Mr Ode is charged is not trivial; but on the spectrum of offences of which Lord Judge was speaking in paragraph 125, from shoplifting at one end of the scale to armed robbery at the other end, a fraud involving 10,000 Euros is towards the less serious end of the spectrum.

10. Turning to paragraph 132 of Lord Judge's judgment, my assessment of the attitude which the English courts would take to sentence in this case if Mr Ode were to be convicted is as follows. While he might very well be sent to prison if it were not for M's position, I do not think that any judge of the Crown Court in this country would impose an immediate custodial sentence for this level of offence given the very pressing need for him to be at home in order to assist with the care of his autistic son. The case seems to be analogous to the case of the successful appellant in HH v Genoa, the difference obviously being that because of the nature of M's illness one parent at home is simply not enough.
11. Accordingly, on the very unusual facts of this case, I consider that the appeal should be allowed, the order of the District Judge set aside and the appellant discharged.