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 May 2015

1. MR JUSTICE KING: This is an appeal against the making of an extradition order by which the appellant is to be extradited to Portugal to serve a 1 year 2 month sentence of imprisonment for assault on his own child. The extradition is sought pursuant to a European Arrest Warrant issued by the respondent court of Funchal in Portugal on 8 April 2014. It was certified by the NCA on 3 September 2014.
2. The appellant was arrested under that warrant on 18 December 2014. He appeared before the Westminster magistrates on 19 December. The hearing was adjourned to 23 December. On that date he was remanded on conditional bail. District Judge McPhee held a contested hearing on 9 March 2015 and a written judgment ordering extradition was handed down the same day.
3. The EAW is a conviction warrant. The conviction was on 26 October 2011, which became effective on 2 July 2012 following an unsuccessful appeal against sentence in July 2012. The offence itself was committed in March 2010.
4. The circumstances of the offence are set out in box E:

i. "On the last days of the month of March 2010, the minor, aged 10 years and 4 months at the time, was at the father's home studying his math tables, and was unable to answer a particular result or results by heart.

ii. Then, in response to this ignorance shown by his son, the accused hit him with a soup ladle on the back of his left hand, until the ladle broke off its handle.

iii. After it was broken, he placed the end of the respective handle at his son's neck, as if he was going to stab him, and the son had to move it away with his hands.

iv. Still not satisfied, the accused went and got a belt and beat the son various times on his legs and thighs.

v. That night, the father and son had lasagna for dinner, and the son, who had previously informed his father that he did not like that food, vomited.

vi. When the son was vomiting at the kitchen sink, the accused punched him on the back.

vii. On that occasion, the accused forced the minor to clean up the vomit with tissues.

viii. On some occasions while he was beating him, the accused called his son a 'son of a bitch'.

ix. At another time when the accused asked his son for the time indicated by the kitchen clock, as the son was not able to answer correctly, the accused smacked him on the head.

x. At a certain point, the accused asked his son if he was going to tell anybody about what had happened, namely his mother, and the minor responded affirmatively, for which the accused threatened that if he did so, he would beat him even more.

xi. When the minor went to bed, the accused went to the minor's bedroom, and said to his son 'so don't you say goodnight?' and gave him a slap on the face.

xii. As a result of the described conduct of the accused, the minor suffered physical bruising, namely a bruise to the right orbital, extensive bruising to the entire back of his left hand, bruising to the left clavicular area, various bruises from the central third of the back part of his thighs to the upper third of the back part of his legs and scratches to the front of the neck.

xiii. The mentioned lesions were a direct and necessary cause of a period of 10 days of illness, without affecting the capability for general work.

xiv. Further to the situation related above, on a date not absolutely determined, but a few weeks before, the minor was at his paternal grandparents' home, where his father then lived.

xv. At a certain point, because the minor did not know his school subjects, the accused picked up the book and used it to beat the child's face, causing him an injury adjacent to his right eye and a tear to his lip."

5. I have described the offence as one of assault. In fact, the nature and legal classification of the offence set out in the warrant is the crime of mistreating a minor. It is clear that there was more than one attack on the appellant's son.
6. The appellant came to the United Kingdom after that appeal, in September 2012. The District Judge found that he could not be treated as a fugitive but did find the following:

i. "The requested person, after some vacillation, acknowledged that he came to England some two months after his appeal had failed. He maintained however that he was unaware that his appeal had failed and that his lawyer had previously assured him that he would have no future problem. He did not, however, give any evidence that he had sought to discover the outcome of his appeal prior to leaving Portugal for England."

7. After his arrival in England he shared a home with his partner. In November 2014 he moved out of that to allow her to make a claim for housing benefit. He rented a room in Brixton for some £350 a month but his evidence to the District Judge was that he always paid the rent on his partner's property at £800 a month. Her witness statement was that it was privately rented. The appellant has been in work. He has some three jobs. He works 8 to 10 hours overnight each day. His relationship with his partner goes back many years in Portugal itself. In January 2014, his daughter was born of the present relationship. She is now some 15 months.
8. The sole ground of appeal is that the District Judge came to the wrong conclusion when considering the question under section 21 of the Act, which is whether or not extradition would be incompatible with the Article 8 rights of the appellant and the Article 8 rights indeed of his partner and his daughter.
9. The approach on appeal to such a challenge to an Article 8 conclusion has now been authoritatively set out in the judgment of the Divisional Court in Polish Judicial Authorities v Celinski & Ors [2015] EWHC 1274 (Admin), a court with a constitution including the Lord Chief Justice. The material paragraphs for these purposes are paragraphs 20 through to paragraph 24:

i. "20. The court has in these circumstances recently considered the approach to be adopted on appeal in relation to issues of proportionality under Article 8.

ii) In Dunham v USA [2014] EWHC 334 (Admin), Beatson LJ said at paragraph 66 in relation to an appeal in a Part II case:

i. 'When the time comes to resolve that tension, the fact that this court is exercising an appellate jurisdiction under s.103 of the Extradition Act 2003 Act may be relevant to the way it is done. In Re B (A Child) (FC) [2013] UKSC 33 a majority of the Supreme Court held that an appellate court should treat the determination of the proportionality of an interference with the rights protected by the ECHR as an appellate exercise and not a fresh determination of necessity or proportionality, notwithstanding the duty of the court as a public body to consider human rights, see in particular [35]-[36], [83]-[85] and [136]. Lady Hale and Lord Kerr dissented ibid, at [119], [121] and [205].'

iii) That observation was then followed in Belbin v Regional Court of Lille, France [2015] EWHC 149 (Admin) (a Part I case) where Aikens LJ set out the view of the court as to how the Divisional Court should approach an appeal in Article 8 cases. After referring to the views of Beatson LJ and of Lord Wilson in Re B (A Child) Aikens LJ said:

i. 'If, as we believe, the correct approach on appeal is one of review, then we think this court should not interfere simply because it takes a different view overall of the value-judgment that the District Judge has made or even the weight that he has attached to one or more individual factors which he took into account in reaching that overall value-judgment. In our judgment, generally speaking and in cases where no question of "fresh evidence" arises on an appeal on "proportionality", a successful challenge can only be mounted if it is demonstrated, on review, that the judge below; (i) misapplied the well established legal principles, or (ii) made a relevant finding of fact that no reasonable judge could have reached on the evidence, which had a material effect on the value-judgment, or (iii) failed to take into account a relevant fact or factor, or took into account an irrelevant fact or factor, or (iv) reached a conclusion overall that was irrational or perverse.'

ii. 21. In the argument before us, in addition to the argument in relation to paragraphs from Lord Wilson's judgment cited by Aikens LJ, we heard substantial argument on the passages in the judgment of Lord Neuberger. Lord Neuberger set out at paragraph 93 the ways an appellate judge might consider a trial judge's conclusion on proportionality:

iii. 'There is a danger in over-analysis, but I would add this. An appellate judge may conclude that the trial judge's conclusion on proportionality was (i) the only possible view, (ii) a view which she considers was right, (iii) a view on which she has doubts, but on balance considers was right, (iv) a view which she cannot say was right or wrong, (v) a view on which she has doubts, but on balance considers was wrong, (vi) a view which she considers was wrong, or (vii) a view which is unsupportable. The appeal must be dismissed if the appellate judge's view is in category (i) to (iv) and allowed if it is in category (vi) or (vii).

iv. 94 As to category (iv), there will be a number of cases where an appellate court may think that there is no right answer, in the sense that reasonable judges could differ in their conclusions. As with many evaluative assessments, cases raising an issue on proportionality will include those where the answer is in a grey area, as well as those where the answer is in a black or a white area. An appellate court is much less likely to conclude that category (iv) applies in cases where the trial judge's decision was not based on his assessment of the witnesses' reliability or likely future conduct. So far as category (v) is concerned, the appellate judge should think very carefully about the benefit the trial judge had in seeing the witnesses and hearing the evidence, which are factors whose significance depends on the particular case. However, if, after such anxious consideration, an appellate judge adheres to her view that the trial judge's decision was wrong, then I think that she should allow the appeal.'

v. 22. The approach of the Supreme Court was considered by the Court of Appeal in Re G (Care Proceedings): Welfare Evaluation [2013] EWCA Civ 965. The court, see particularly the judgment of McFarlane LJ at paragraphs 32-43, made clear that its view of Re B was that the appellate court was not required to undertake a fresh determination on an Article 8 issue. There was no need to reappraise the issue on proportionality but, as the consideration on Article 8 was not an exercise of discretion, the review of an appellate court had to be conducted to determine whether the determination was 'wrong'. That approach was followed in Re B-S, see paragraphs 75 to 83.

vi. 23. In the light of the argument before us, we entirely endorse the general approach adopted by Beatson LJ and Aikens LJ, but consider that application of that approach by use of the analysis in the judgment of Lord Neuberger is likely to achieve a more consistent approach that is compliant with Article 8 and the provisions of the 2003 Act dealing with appeals."

10. At paragraph 24 the court said this:

i. "The single question therefore for the appellate court is whether or not the district judge made the wrong decision. It is only if the court concludes that the decision was wrong, applying what Lord Neuberger said, as set out above, that the appeal can be allowed. Findings of fact, especially if evidence has been heard, must ordinarily be respected. In answering the question whether the district judge, in the light of those findings of fact, was wrong to decide that extradition was or was not proportionate, the focus must be on the outcome, that is on the decision itself. Although the district judge's reasons for the proportionality decision must be considered with care, errors and omissions do not of themselves necessarily show that the decision on proportionality itself was wrong."

11. The District Judge in this case set out the terms of Article 8, set out the principles to be derived from the Supreme Court in Norris v Government of the United States of America [2010] 2 AC 487, and in HH v Deputy Prosecutor of the Italian Republic, Genoa [2012] UKSC 25. He referred to the seven propositions which Lady Hale in HH at paragraph 8 had distilled from Norris. They include:

i. "(6) The delay since the crimes were committed may both diminish the weight to be attached to the public interest and increase the impact upon private and family life.

ii. (7) Hence it is likely that the public interest in extradition will outweigh the article 8 rights of the family unless the consequences of the interference with family life will be exceptionally severe."

12. Earlier on in those propositions, one finds:

i. "(4) There is a constant and weighty public interest in extradition ...

ii. (5) That public interest will always carry great weight, but the weight to be attached to it in the particular case does vary according to the nature and seriousness of the crime or crimes involved."

13. The reasoning of the District Judge in finding that there would not be any disproportionate interferences with the Article 8 rights is set out at page 6:

i. "This is an offence of some seriousness, an attack on his own son, a young child in his care which was sustained and involved the use of a weapon and on conviction was met with a term of 14 months imprisonment.

ii. It is right to say that there will be a significant impact upon his daughter [V], born on [date of birth] and so 13 months old. I have no doubt that he assists in the day to day care of his daughter but it is clear that his partner is the child's primary carer, she gave up her employment in August 2013 and has not returned to work, as he explains in his proof, '[She] is currently not working due to the young age of the baby'. Fortunately the baby [V], now just over 1 year of age has been able to spend her first formative year with her father and no doubt has been able to form a bond and an attachment with him within that important first year. That is not to say that her father's incarceration in Portugal will not affect her, of course it will. Such separations can cause great upset and can be very upsetting for a child. Fortunately for [V] she will remain in the care of her mother, where she can continue to feel safe and secure and to an extent that comfort will assist [V] in coming to terms with temporary separation from her father. I readily accept that financially the requested person is providing for his family in England and he says for his family in Portugal. I readily accept that if she is not yet in receipt of housing benefit the partner will have to claim that benefit and no doubt Employment Support Allowance or Jobseekers Allowance where appropriate. The evidence is that the partner receives child benefit for [V]. It was the partner's claim for housing benefit which the requested person says persuaded him to move from her home and to rent his own room in Brixton, and thereafter the potential loss of child benefit which made him stay away, although he would spend his days at his partner's home as evidenced by the fact that he was arrested at her home on 18.12.2014. I have little doubt that the state will cater for his partner and their child [V] by the provision of benefits appropriate to a single carer with a child. In any event the requested person has benefited from legal representations and since December 2014 no information to the contrary has been provided. If this had been a central issue I have little doubt that evidence would have been provided.

iii. This is not one of those cases in which it can properly be said that the interference with family life will be exceptionally severe. The circumstances of the family are not such as would or should displace the treaty obligations of the United Kingdom and the weighty public interest in extradition and for serious offences such as these. The requested person must know and understand that this court should respect the decision of the court in Portugal, that of another European country, signatory to the ECHR to seek his surrender to serve his sentence of 14 months imprisonment.

iv. There will inevitably be an impact upon his partner and their child both emotionally, practically and financially. The care the child will receive from the mother will I find ameliorate any harm likely to be occasioned to her. I make no finding that the requested person came to England as a fugitive from the sentence imposed upon him as the only evidence to base such a finding on would be the coincidence of him arriving in England 2 months after his appeal was unsuccessful and the sentence and conviction were confirmed. It would require evidence of communications sent to him by the Portuguese court, or the Portuguese prison system which are not contained in the EAW.

v. I find that the request for surrender for a serious offence in the scheme of the European framework decision in the family circumstances he describes and which I have accepted remains proportionate to the constant and weighty public interest in extradition that people accused of crimes should be brought to trial, that people convicted of crimes should serve their sentences, that the United Kingdom should honour its treaty obligations to other countries, and that there should be no safe haves to which either can flee in the belief they will not be sent back. I have therefore determined that it is a proportionate and necessary response and compatible with his convention rights provided for by the Human Rights Act 1988 to order his extradition."

14. Mr Stansfeld has made elegant and cogent submissions inviting me to find, first, that there are a number of errors in the approach of the District Judge demonstrated in his judgment in the balancing exercise which he has undertaken and, secondly, if this court were minded to make its own value judgment, that the conclusion should be that extradition would be disproportionate.
15. I disagree with Mr Stansfeld, strongly and cogently though he has put his submissions. I say at once that even if there is substance in his submissions that the District Judge erred in failing to have regard to certain factors or putting too much weight on others, this court in exercise of its own judgment would have come to the same conclusion as the District Judge. However, let me turn to the alleged errors of approach of the District Judge. Firstly, it is said no weight has been given to delay in this case. When the court asked what was the delay referred to, the answer given was the delay between the final appeal in July 2012 and the issue of the European Arrest Warrant in April 2014. This delay, it is said, has given rise to a significant impact upon the appellant's family life. During that passage of time his child has been born and since then the child and her father, the appellant, have bonded. As the District Judge, said:

i. "Fortunately the baby [V], now just over 1 year of age has been able to spend her first formative year with her father and no doubt has been able to form a bond and an attachment with him within that important first year."

16. I do not regard the delay in this case of any significance. In the broad scheme of things, it is a modest passage of time between the final appeal and the authorities in Portugal issuing the warrant.
17. It is said by Mr Stansfeld that the onus is on the judicial authority to justify this delay. That may be so in a case which shouts out for explanation. But in this case, the appellant, although not a fugitive, chose to go to ground, chose to leave Portugal, chose to make no enquiries whatsoever as to the outcome of the appeal hearing, which he did not attend. It does not easily lie in his mouth, in my judgment, to say that the delay in this case is such that he can rely on it so to significantly affect the balancing exercise on proportionality.
18. But even if I am wrong in this assessment and even if the delay here is to be treated as significant, it really adds nothing, in my judgment, to the essential issue in this case, which is the second alleged error of approach relied on by Mr Stansfeld, namely that the District Judge has not given sufficient regard to the impact of extradition upon the child and the family. Mr Stansfeld put it in this way: the District Judge has underplayed the emotional impact on the child of being separated from her father at such an important time in her life and has not given sufficient weight to the public interest that children should be brought up in a stable family environment. He relies on Lady Hale at paragraph 33 in HH.
19. I am afraid I disagree with him. In my judgment, the District Judge did have regard to, and was very conscious of, the impact which the appellant's separation would have upon the partner and the child "both emotionally, practically and financially". I take that from the passages I have already cited.
20. This is not a case where the appellant is the primary carer. Although separation may well have the emotional impact on the child which Mr Stansfeld has emphasised, that does not in the context of this case, in my judgment, mean that the balance is tipped in favour of a conclusion of disproportionality.
21. Then it is said that the District Judge treated the seriousness of the offence as a trump card. I find nowhere in his judgment where he uses it as a trump card. He obviously put into the balance that this was an offence of seriousness. He referred to the request for surrender for a~serious offence in the family circumstances described as remaining proportionate to the constant and weighty public interest in extradition. That is not treating the seriousness of the offence as a trump card. It is simply putting the seriousness of the offence in its proper place in the balancing exercise. If he did treat it as a trump card, then I would reassess the position. The seriousness of the offence, although not a trump card, patently, in my judgment, militates towards extradition being wholly proportionate.
22. I have to say I was taken aback (and I mean this with great respect to Mr Stansfeld) with the submission that this offence was of insufficient seriousness to merit an immediate custodial sentence in this jurisdiction, and that the likely sentence in the United Kingdom would be one of a suspended sentence.
23. On the facts again set out in the warrant, this was a sustained attack on more than one occasion with a weapon on one occasion, upon a child in the care of the appellant. This would be a case, if it be relevant, in my judgment, where the likely sentence in this country would be an immediate custodial sentence.
24. Finally, it is said that the District Judge applied a threshold test of exceptionality contrary to principle.
25. I have looked carefully at that and I cannot find anything to justify that. The high water mark of the submission is the statement within the reasons I have already set out where the District Judge says:

i. "This is not one of those cases in which it can properly be said that the interference with family life will be exceptionally severe."

26. I do not take that in any way as the application of a threshold test. The District Judge has properly had regard to that that which Lady Hale extracted as one of the propositions from Norris, namely:

i. "Hence it is likely that the public interest in extradition will outweigh the article 8 rights of the family unless the consequences of the interference with family life will be exceptionally severe."

27. But even if there were merit in this latter submission, and this court were to look at the question afresh, balancing the weight to be given to the public interest in extradition and the seriousness of the offence, as against the likely impact of extradition upon the Article 8 rights of the appellant and his family, I have no doubt that extradition here is wholly proportionate.
28. This appeal must be dismissed. However, I repeat I mean no disservice to the way the submissions were put by Mr Stansfeld.