QUEEN'S BENCH DIVISION
Strand, London, WC2A 2LL
B e f o r e :
|- and -
|Criminal Court Coimbra (Portugal)
|- and -
|Norfolk County Council
Ms Mary Westcott (instructed by the Extradition Unit, CPS, International Justice and Organised Crime Division) for the Respondent
Ms Kathryn Duff (instructed by NP Law) for the Interested Party
Hearing dates: 3rd August 2016 and 24th January 2017
Crown Copyright ©
Mr Justice Green:
(i) The appeal against the order of extradition
i) First, it is said that the Respondent has been guilty of chronic delay which has caused severe prejudice to the Appellant and that this is a reason for refusing extradition.
ii) Second, it is argued that pursuant to Article 8 ECHR it is unlawful to extradite the RP because this would involve enforced separation of the RP from her child ("M") to the substantial detriment of the child which would be so grave as to tilt the balance against the extradition. As the case has evolved this has become the central issue.
iii) Third, it is argued that the personal medical and psychiatric condition of the RP was such that this, also, amounted to a good reason not to extradite her.
B. The adjournment to obtain the "voice" of the daughter of the Requested Person
(i) Concerns about the adequacy of evidence about the child
(ii) The adjournment and the family court care proceedings
(iii) The law relating to obtaining evidence about the interests of the child
"32. In our judgment, evidence which was "not available at the extradition hearing" means evidence which either did not exist at the time of the extradition hearing, or which was not at the disposal of the party wishing to adduce it and which he could not with reasonable diligence have obtained. If it was at the party's disposal or could have been so obtained, it was available. It may on occasions be material to consider whether or when the party knew the case he had to meet. But a party taken by surprise is able to ask for an adjournment. In addition, the court needs to decide that, if the evidence had been adduced, the result would have been different resulting in the person's discharge. This is a strict test, consonant with the parliamentary intent and that of the Framework Decision, that extradition cases should be dealt with speedily and should not generally be held up by an attempt to introduce equivocal fresh evidence which was available to a diligent party at the extradition hearing. A party seeking to persuade the court that proposed evidence was not available should normally serve a witness statement explaining why it was not available. The appellants did not do this in the present appeal."
"… made it clear that in considering Art 8 in any case in which the rights of a child are involved, the best interests of the child must be a primary consideration. They may be outweighed by countervailing factors, but they are a primary importance. Importance of the child's best interests is not to be devalued by something for which she is in no way responsible, such as the suspicion that she may have been deliberately conceived in order to strengthen the parent's case."
"82. If the children's interests are to be properly taken into account by the extraditing court, it will need to have some information about them. There is a good analogy with domestic sentencing practice, although in the first instance the information is likely to come from the parties, as there will be no pre-sentence report. The court will need to know whether there are dependent children, whether the parent's removal will be harmful to their interests and what steps can be taken to mitigate this. This should alert the court to whether any further information is needed. In the more usual case, where the person whose extradition is sought is not the sole or primary carer for the children, the court will have to consider whether there are any special features requiring further investigation of the children's interests, but in most cases it should be able to proceed with what it has.
83. The cases likely to require further investigation are those where the extradition of both parents, or of the sole or primary carer, is sought. Then the court will have to have information about the likely effect upon the individual child or children involved if the extradition is to proceed; about the arrangements which will be made for their care while the parent is away; about the availability of measures to limit the effects of separation in the requesting state, such as mother and baby units, house arrest as an alternative to prison, prison visits, telephone calls and face-time over the telephone or internet; and about the availability of alternative measures, such as prosecution here or early repatriation."
"27. While the District Judge did refer expressly to considering certain factors 'on the one hand' and other factors 'on the other side', I am not persuaded that in doing so he avoided falling into the trap identified in HH, with the result that he was, in error, looking for something exceptional or striking in this case, rather than considering the potential impact of extradition on the Appellant and the members of his family. His observation that 'we hear this on a daily basis' supports that conclusion and was unfortunate. The frequency with which Article 8 rights are raised in extradition cases has no bearing on the need for a careful balancing exercise to be carried out on the specific facts of each case. The District Judge must always examine carefully the ways in which extradition would interfere with the private and family life of the requested person and the members of his or her family, and whether that is outweighed by the strong public interest in extradition."
B. Relevant facts
(i) The Requested person
(ii) The daughter / The care proceedings
"Norfolk County Council issued Care Proceedings in respect of the child, (MS – D.O.B. 22/07/2005) on the 10th May 2015, with the Appellant Mother having already placed the child in Local Authority foster care on 24th April 2015 under a s20 agreement. The Appellant was arrested the same day for an outstanding international warrant in respect of a Robbery Conviction and 3 ˝ year sentence that the Appellant had failed to serve in Portugal.
An Interim Care Order in favour of Norfolk County Council was granted by the Norfolk Family Court on the 11th May 2015 and at the Final Hearing on the 6th November 2015 a Care Order was granted in favour of Norfolk County Council.
Following a positive viability assessment it remains the plan of the Local Authority for the child to reside with her Paternal Aunt in Portugal under a Special Guardianship Order, to initially be obtained in the Norfolk Family Court and then subsequently formalised in the Portuguese Courts. An application for a Special Guardianship Order is now in the process of being issued.
The child has not lived with the Appellant Mother for over 17 months and as the plan of the Local Authority is for the child to reside in Portugal with the Paternal Aunt, whether or not the Appellant Mother remains in the United Kingdom will have no impact whatsoever on the child. The Appellant Mother has only been having supervised contact with the child at a frequency of once a month for a period of one and a half hours, with the last visit taking place on the 30th August 2016.
It is the belief of Norfolk County Council that any psychological assessment of the child would be completely unnecessary and would cause her undue upset and distress, as she is fully aware of the plan for her to move to Portugal as soon as this can be arranged. The fact that the Appellant Mother is seeking such an assessment of her child, who has not lived with her for an extended period and will not be returning to the Appellant Mother's care, underlines her failure to put the best interests of her child above her own needs i.e. her desire to remain in the United Kingdom."
In the course of the care proceedings M came to be represented by the Official Guardian; a representation order was made to enable the mother to express her views and position.
"[M] currently has monthly contact with her mother, which is supervised. Contact has not been of a good quality and her mother is prioritising her own needs over and above those of [M] as evidenced by the fact that [the mother] has often discussed inappropriate things in contact such as her extradition proceedings to Portugal. [M] is emotionally affected by these conversations and she worries about her mother. It is unknown if [the mother] will remain in the UK or be extradited to Portugal where she would need to serve a prison sentence and therefore contact would be limited, if this was the outcome of the extradition proceedings.
The Local authority wants stability for [M] and is proposing to reduce contact with her mother. If [the mother] does not go to prison, the Local Authority is proposing that contact will take place once every three months for a duration of one hour during the school term and for one and half hours, during the school holidays.
[The mother] will also be able to send letters, cards or presents once every three months to [M], if she does not go to prison. If [the mother] is send to prison in the UK, the Local Authority is proposing twice per year contact, depending on the length of the prison sentence. Both [M] and her mother would be able to write to each other on two occasions per year, if [the mother] is in prison in the UK.
In the event that [the mother] is extradited to Portugal, the Local Authority is proposing that contact will take place on the occasions that [M] will be visiting [the paternal aunt]. If [M] continues to refuse direct contact with [the aunt], the Local Authority does not propose that contact should take place between [M] and her mother, if she is extradited to Portugal.
[M] is [in] agreement with proposals to reduce contact with her mother which she describes as 'awkward' citing an example where her mother brought old toys which she asked [M] to take to her placement.
[The mother has] also agreed to have contact reduced and she does not want [M] to visit her in prison. The Local Authority will continue to review any contact arrangements for [M] in the Looked After Children Review meetings and contact should remain in [M's] best interests."
C. Ground I: Delay
(i) Delay – the law
"'unjust' I regard as directed primarily to the risk of prejudice to the accused and the conduct of the trial itself, 'oppressive' is directed to hardship to the accused resulting from changes in his circumstances that have occurred during the period taken into consideration; but there is room for overlapping; and between them they would cover all cases where to return him would not be fair."
(ii) Delay – relevant chronology
(iii) The judgment below
"29. I approach the information provided by the JA on the basis of mutual respect and trust. I am satisfied so that I am sure that RP was required to reside at a given address and not to change that residence without the permission of the authorities. I am satisfied to the criminal standard that this requirement would not have been imposed unless the RP faced ongoing criminal proceedings. Given the gravity of the crimes committed, the RP's admissions to the police and the residence requirement, I am satisfied that the RP was aware that she faced trial for those matters. I am satisfied so that I am sure that she was deliberately absent from her trial and that she became a fugitive from justice when she left Portugal in breach of her residence requirement on 24th November 2004."
D. Ground II: The interests of the child
(i) The approach adopted by the Judge
"[M] will undoubtedly be distressed by her inability to have access to her mother and returned to her mother's care will be delayed by the remaining prison sentence."
"I accept that [M] will be distressed by separation from her mother, but her care will be provided by social services under the supervision of the Family Proceedings Court."
(ii) The parties competing submissions
(iii) The fresh evidence relating to the child
(iv) Analysis and conclusion on Article 8
"I approach this case on the basis that the RP's HIV and depression will be dealt with by appropriate medication provided by the JA. The age of the case is substantially due to RP evading justice. I accept that [M] will be distressed by separation from her mother, but her care will be provided for by social services under the supervision of the Family Proceedings Court. The crimes committed in this case were grave. The JA are entitled to protect the integrity of its criminal justice system."
"(5) Procedural rights in criminal proceedings are a crucial element for ensuring mutual confidence among the Member States in judicial cooperation. Relations between the Member States, which are characterised by special mutual confidence in other Member States' legal systems, enable recognition by the executing State of decisions taken by the issuing State's authorities. Therefore, a further development of the cooperation provided for in the Council of Europe instruments concerning the enforcement of criminal judgments should be envisaged, in particular where citizens of the Union were the subject of a criminal judgment and were sentenced to a custodial sentence or a measure involving deprivation of liberty in another Member State. Notwithstanding the need to provide the sentenced person with adequate safeguards, his or her involvement in the proceedings should no longer be dominant by requiring in all cases his or her consent to the forwarding of a judgment to another Member State for the purpose of its recognition and enforcement of the sentence imposed.
(6) This Framework Decision should be implemented and applied in a manner which allows general principles of equality, fairness and reasonableness to be respected.
(7) Article 4(1)(c) contains a discretionary provision which enables the judgment and the certificate to be forwarded, for example, to the Member State of nationality of the sentenced person, in cases other than those provided for in paragraphs 1(a) and (b) or to the Member State in which the sentenced person lives and has been legally residing continuously for at least five years and will retain a permanent right of residence there.
(8) In cases referred to in Article 4(1)(c) the forwarding of the judgment and the certificate to the executing State is subject to consultations between the competent authorities of the issuing and the executing States, and the consent of the competent authority of the executing State. The competent authorities should take into account such elements as, for example, duration of the residence or other links to the executing State. In cases where the sentenced person could be transferred to a Member State and to a third country under national law or international instruments, the competent authorities of the issuing and executing States should, in consultations, consider whether enforcement in the executing State would enhance the aim of social rehabilitation better than enforcement in the third country.
(9) Enforcement of the sentence in the executing State should enhance the possibility of social rehabilitation of the sentenced person. In the context of satisfying itself that the enforcement of the sentence by the executing State will serve the purpose of facilitating the social rehabilitation of the sentenced person, the competent authority of the issuing State should take into account such elements as, for example, the person's attachment to the executing State, whether he or she considers it the place of family, linguistic, cultural, social or economic and other links to the executing State."
D. Ground III: The Appellant's medical position
E. Conclusion: Rejection of appeal but stay on drawing up of order
Case No: CO/628/2016
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
Royal Courts of Justice
Strand, London, WC2A 2LL
|- and -
|Criminal Court Coimbra (Portugal)
|- and -
|Norfolk County Council
MR JUSTICE GREEN:
i) If she is entrusted to the care of family in Portugal then I will make an extradition order.
ii) If the child remains in the care of foster parents in this jurisdiction with the mother having only limited visiting rights then I will make an extradition order but might impose a stay on the drawing up of the order for a period of time to enable the mother to explore whether there is a possibility for her to serve her sentence in this jurisdiction. This order would be made on the basis of a balancing of the (strong) interest in the effective working of the EAW system and the (somewhat muted) rights/interest of the child to have periodic visits to the mother. Ultimately, however, if the mother cannot arrange to serve her sentence here then I would still order extradition.
iii) If the Family Court considers that the best interests of the child are that she be reunited with her mother in the immediate/near term and in this jurisdiction then I would have to consider the position very carefully. I do not (yet) have a provisional view on this. The interest of the child will in such circumstances obviously be a much weightier consideration. However, it should not be assumed that even in such circumstances it would be decisive. I recognise that a decision that I might make to extradite the appellant in such circumstances would then adversely impact upon the child. To form a final decision I would need to understand the reasons of the Family Court.
Mr Justice Green
18th November 2016
Note 1 The need for all issues to be identified and resolved at first instance was highlighted by the Lord Chief Justice in Puceviciene v Lithuania  EWHC 1862 (Admin) at paragraph [32ff]. An issue raised by counsel in the proceedings was as to the absence of any formal mechanism whereby the Extradition Court and a concurrent Family Court could interact and exchange information and evidence. In the present case whilst I received as much assistance as was proper from the Family Court this did not extend to the Court providing evidence which was before it to the High Court. There is no guidance or procedure governing this issue. I note that the absence of any formal means of judicial cooperation was commented upon by the House of Lords Committee on Extradition (2nd Report, 10th March 2015 at paragraphs [191ff]) where it was recommended that the Government consider a review of this area. In practice guidance from the High Court or Court of Appeal as to the ability of Family Courts to provide information and evidence to an Extradition Court, or procedural rules permitting that to happen, might be all that is required. A more formal means of inter-judicial cooperation would certainly have been helpful in the present case and might have expedited matters.
Note 1 The need for all issues to be identified and resolved at first instance was highlighted by the Lord Chief Justice in Puceviciene v Lithuania  EWHC 1862 (Admin) at paragraph [32ff]. An issue raised by counsel in the proceedings was as to the absence of any formal mechanism whereby the Extradition Court and a concurrent Family Court could interact and exchange information and evidence. In the present case whilst I received as much assistance as was proper from the Family Court this did not extend to the Court providing evidence which was before it to the High Court. There is no guidance or procedure governing this issue. I note that the absence of any formal means of judicial cooperation was commented upon by the House of Lords Committee on Extradition (2nd Report, 10th March 2015 at paragraphs [191ff]) where it was recommended that the Government consider a review of this area. In practice guidance from the High Court or Court of Appeal as to the ability of Family Courts to provide information and evidence to an Extradition Court, or procedural rules permitting that to happen, might be all that is required. A more formal means of inter-judicial cooperation would certainly have been helpful in the present case and might have expedited matters. [Back]