QUEEN'S BENCH DIVISION
London WC2A 2LL
B e f o r e :
MR JUSTICE IRWIN
|HIGH COURT DUBLIN||Appellant|
WordWave International Limited
Trading as DTI
8th Floor, 165 Fleet Street, London EC4A 2DY
Tel No: 020 7404 1400 Fax No: 020 7404 1424
(Official Shorthand Writers to the Court)
Mr Daniel Mansell (instructed by Stokoe Partnership) appeared on behalf of the Respondent
Crown Copyright ©
LORD JUSTICE HAMBLEN:
The factual background
(1) The respondent was interviewed on 7 May 2012 when she provided a UK address of "3 Golf House Cottage, The Cowan, Stutstown, IUP2 14AA". The respondent states that the address should read "3 Gold Cottage, The Common, Stutstown, IP21 4AA" and that she provided the correct address, as the district judge accepted.
(2) A decision to prosecute was not made on that date and there was, therefore, no power to detain the respondent or make her the subject of bail conditions under Irish law. She was released pending charge.
(3) Immediately upon her release, it was believed that the respondent returned to the UK.
(4) The decision to charge the respondent was made on 27 August 2012. The Irish Garda contacted Interpol to have her last known address checked, but she could not be found. No further sightings of the respondent were reported until 29 October 2014 when a woman matching the same details flew into London Gatwick from Amsterdam.
(5) Whilst the respondent was not made aware of proceedings having been authorised at the time of her release, she was aware of the possibility of those proceedings, given that she admitted guilt in interview.
(1) Mothers with young children can take their children into the Dochas Centre attached to the Mountjoy Prison Complex where there is a dedicated mother and child unit with 24/7 medical care available.
(2) Normally a child would leave the prison when they reached the age of one, but if the mother is close to her release date soon after the child is one, an exception can be made whereby a child stays with the mother until her release.
(3) If the mother has someone who she is happy to care for the child, the child will be left in their care, if the Child and Family Agency approve; otherwise foster care will be sought.
(1) "...the public interest in ensuring that extradition arrangements are honoured is very high. So too is the public interest in discouraging persons seeing the UK as a state willing to accept fugitives from justice..." (Paragraph 9)
(2) "...the decisions of the judicial authority of a Member State making a request should be accorded a proper degree of mutual confidence and respect..." (Paragraph 10)
(3) "...The independence of prosecutorial decisions must be borne in mind when considering issues under Article 8." (Paragraph 11)
(4) "... factors that mitigate the gravity of the offence or culpability will ordinarily be matters that the court in the requesting state will take into account; it is therefore important in an accusation EAW for the judge at the extradition hearing to bear that in mind. Although personal factors relating to family life will be factors to be brought into the balance under Article 8, the judge must also take into account that these will also form part of the matters considered by the court in the requesting state in the event of conviction." (Paragraph 12)
"The single question... for the appellate court is whether or not the district judge made the wrong decision... 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."
The hearing and the district judge's judgment
"The RP committed a serious offence attempting to assist the illegal entry of persons into Ireland. She made a full and frank confession. She gave correct contact details to the police before release. The police mis-recorded the details. She lived and worked in the UK legitimately. She is a single parent of a child of five months. If she is extradited, the child is likely to be taken into care and likely to suffer as a result of the separation."
"The public interest considerations in favour of extradition are persistent and weighty. However, in this case, the hardship to the daughter, born to a mother who had no way of knowing she was still wanted in Ireland, would be extreme, facing as she would do an application by the local authority to take her into care and to be placed with foster parents. She is forming positive attachments to the mother, which will be displaced and that displacement will be likely to cause both short-term and long-term harm to her. Balancing these factors up, including the delay in reaching this point and the effect of that delay upon the RP's personal life, it would be disproportionate to order extradition as the facts militating against extradition outweigh those for it."
The parties' contentions
(1) The offence for which return is sought is extremely grave, with a maximum sentence of 10 years' imprisonment, which could be imposed if convicted. The public interest in extraditing someone to stand trial for an offence of this gravity, where guilt is accepted and there has been limited delay, is very high indeed.
(2) The district judge has ignored the clear statement of the Irish authorities that, having accepted she was guilty of the offence, she was aware of "at least the possibility of being prosecuted in the future for the offence for which she is arrested."
(3) The district judge appeared to hold that the Irish authorities were responsible for delay due to mis-recording the address for the respondent. This is not a fair conclusion on the evidence.
(4) The actual delay in the case is relatively minor. The offending behaviour took place in May 2012 and there is no culpable delay by the authorities.
(5) Although the respondent does now have a child born on 30 September 2015, the Irish authorities have made it clear that the child can remain with the respondent until she is 12 months old. The district judge references this information, but does not appear to accord it any weight. The district judge failed to consider that the EAW was an accusation warrant seeking the respondent's return to stand trial. Following conviction, the Irish court could have been required to consider the child and the impact of any sentence upon her before imposing a custodial sentence. It must be accepted that an Irish court is just as able to consider the interests of the child when passing sentence as a UK court is in considering extradition.
(6) The district judge failed to take sufficiently into account the respondent's evidence that her mother would come to the UK and care for the child if she is extradited or serves a sentence beyond 12 months in Ireland. The district judge was wrong to conclude that there was no immediate family to care for the child and should have, additionally, taken into account that the respondent had not been forthcoming in assisting the court with alternative care for the child.
(7) The district judge failed to take into account that the child is only six months old and is said to have received care only from her mother previously. If remaining with her mother in custody, the Irish authorities make clear that a mother and baby unit is available and an appropriate standard of care will be provided. Given that the child's only known caregiver will remain with her, and her very young age, it is submitted that the child will suffer limited consequences travelling with her mother to a mother and baby unit in Ireland. This is particularly so given that she would not be leaving her father or siblings behind.
(1) There is uncertainty as to what would happen to the respondent's daughter if extradition was ordered.
(2) The impact of any separation of the respondent and her daughter would be exceptionally severe and long-lasting.
(3) The respondent's account was believed by the district judge.
(4) The appellant's inaction has led to delay, which diminishes the weight to be attached to the public interest and increases the impact upon private and family life.
(5) The district judge took proper account of the seriousness of the offence and noted that the respondent had a non-organisational role.
(6) The respondent is now pregnant with her second child and is due to give birth around 29 October 2016.
The issue on appeal
"I was thinking that if I returned to Ireland, I would be arrested in relation to these proceedings. It is a normal thing to think. I was arrested for a serious crime and released."
"...Although personal factors relating to family life will be factors to be brought into the balance under Article 8, the judge must also take into account that these will also form part of the matters considered by the court in the requesting state in the event of conviction."
MS BOSTOCK: My Lord, thank you. As I understand it, it then falls for the case to be remitted back to Westminster Magistrates' Court.
LORD JUSTICE HAMBLEN: Is that necessary, because we do not want delay, do we?
MS BOSTOCK: I was looking at the legislation just over lunch. It does say if the court allows the appeal, it must quash the order and remit the case to the judge and direct him to proceed. I do not think there is any way out of that.
LORD JUSTICE HAMBLEN: An order needs to be made which reflects that. I would hope that can be progressed reasonably expeditiously.
MS BOSTOCK: My Lord, I can draft that and send it to your clerk immediately.