England and Wales High Court (Administrative Court) Decisions

IN THE HIGH COURT OF JUSTICE
KING'S BENCH DIVISION
ADMINISTRATIVE COURT
SITTING IN LONDON

		16th May 2024

Judgment as delivered in open court at the hearing Note: This judgment was produced and approved by the Judge, after using voice-recognition software during an ex tempore judgment.

FORDHAM J:

Introduction

1. The Appellant is aged 39 and is wanted for extradition to Sweden. That is in conjunction with an accusation Extradition Arrest Warrant issued on 7 November 2022 on which he was arrested on 18 November 2022. The alleged offending carries a maximum of 6 years imprisonment. It is a course of alleged offending between October 2017 and December 2019 (aged 32 to 34) of knowingly incorrect accounting records and tax returns involving significant sums being underrepresented to Swedish tax authorities. Mr Joyes accept that the overall sums in question come to an equivalent of around £100,000. Extradition was ordered by District Judge Cieciora ("the Judge") on 25 August 2023 after an oral hearing on 7 July 2023. At that hearing oral evidence was given by the Appellant, by his wife, by his mother ("the grandmother") and by a clinical psychologist Dr Jessica Crumpton who had written a report dated 28 June 2023.
2. This is not a fugitivity case. But nor is it a substantial passage of time case. The Appellant was under investigation in Sweden from September 2019. The Judge found that he came to the UK for work in July 2020, in circumstances where there was no restriction on him doing so. He has lived openly here. He returned to Sweden, where the family had lived for the previous 8 years since around 2012, to be interviewed in connection with the investigation into the alleged offences. That was in September 2020 and October 2020. He was aware, as at March 2021, that he was being prosecuted in Sweden. The passage of time was fully explained in Further Information before the Judge. Matters have been promptly and properly pursued, culminating in the Extradition Arrest Warrant.
3. After the Appellant came to the UK in the summer of 2020, the wife and their then 3 year old son came to join him here in December 2020. The grandmother (who is now aged 65) also joined them at that time. The youngest son was then born here in September 2022 and so the two boys are now aged 6 and 19 months. Another member of the household was the Appellant's brother. At the heart of the case was whether the impact for the various family members, each of whose Article 8 private and family life rights would be interfered with by the Appellant's extradition, was such that in all the circumstances of the case extradition was a disproportionate interference. In his oral submissions, Mr Joyes has rightly put at the forefront of the case the position of the two boys.
4. The wife's evidence to the Judge was of health difficulties which meant that she could not look after the children alone or support the family financially. Her witness statement described her high blood pressure and carpal tunnel syndrome which made it difficult to care for a baby. She said the Appellant was sole provider for the family and that she did not have access to any money to support herself. The grandmother's evidence to the Judge was that she was unable to assist due to her own health difficulties. Her witness statement described the Appellant as her carer who cooked for her and undertook all household chores for her. As the Judge explained, the witnesses each painted a picture of all members of the household being incapable of acting independently and being "wholly reliant" on the Appellant "for virtually all indoor and outdoor activity".
5. Dr Crumpton's report described her investigation of the facts. She listed interviews and assessments and observations which had taken place in June 2023 on various occasions through MS Teams. She described a telephone conversation with the older son's schoolteacher. She also describes psychometric tests relating to mental health which Mr Joyes has helpfully clarified at today's hearing. Those tests are essentially interview questions to which responses are given by the relevant individual. In Dr Crumpton's description of those tests there is a recorded statement of caution about context being important and the prospect that an individual, asked and answering questions, may seek to present an overly positive or an overly negative impression . Dr Crumpton recounted what she had been told and explained her conclusions. Her opinion included that the two children would suffer from emotional well-being difficulties of a severe intensity. It would be difficult for the wife to meet all of the needs of the children. Based on the information obtained, they would be likely to suffer severe harm. The wife had reported being dependent on the Appellant is a range of ways and it was unclear whether she would be able to cope with caring for the children.

Exaggeration

6. With the benefit of oral evidence and cross-examination, together with all the documents and materials that she had read, the Judge came to the conclusion that the 3 family members who had given oral evidence had each exaggerated that evidence with a view to establishing a position which favoured the refusal of extradition. The Judge did not accept "the extent" of the difficulties that they were describing. She did not accept their claimed wholesale reliance on the Appellant.
7. The Judge listed eight reasons why she had concluded that the evidence was exaggerated. These included credibility issues, including after the Appellant made assertions about communications with Swedish lawyers but, when invited to show the Judge the evidence, said it was on a different phone. He also said he had given evidence to his solicitors which they had not included in the bundle. Another point was that the grandmother had stated categorically that she would be unwilling to fly. But given previous air travel the Judge concluded that this meant she was willing and able to fly when it suited her own purposes, but her refusal was linked to the extradition proceedings. Another point was about who took the oldest son to school. Both the Appellant's proof of evidence and the wife's witness statement had clearly stated that the Appellant did this. But Dr Crumpton's report had recorded speaking to the teacher who had only seen the Appellant once, and said all dealings had been with the wife. The Judge then recorded how their evidence unconvincingly shifted to be a description of going together to the school with the wife going into the classroom. Another point was that the Judge observed that the evidence of the grandmother was of health conditions which meant she was unable to do anything for herself beyond the most basic of daily tasks, and yet the Appellant and the wife were both now saying that the baby was left with the grandmother for approximately 90 minutes every weekday while they did the 'school run' together. A further point, as the Judge explained, concerned evidence given about finances, where the fact that they owned their own home outright had only come out in cross-examination.
8. Pausing there, two points are worth emphasising. The first is that the Appellant was being said to have a full-time 40 hour a week job, working from home. That is itself important context for the idea being put forward of a wife and grandmother being wholly reliant on him for virtually all indoor and outdoor activity, especially given that there was a baby in the house. The second is that the evidence about ownership of the house, which came out only in cross-examination of the wife, had involved her acceptance that the family home was her property bought outright with savings and from the sale of a house in India.
9. Mr Joyes has adopted the submissions that he set out fully in writing and has emphasised key points in his oral submissions today. I need to deal with all of the key points that have been put forward. On this topic, Mr Joyes submits that it is reasonably arguable that the Judge's conclusions as to exaggeration are now undermined by fresh evidence, including a PIP decision of 23 October 2023 in respect of the grandmother which records her needs and makes reference to a carer's help. Mr Joyes also contests that Dr Crumpton acknowledged that the Appellant had overemphasised his role within the family in what he had been saying.
10. In my judgment, having considered all the evidence, there is no realistic prospect of undermining the Judge's conclusions about exaggeration. The Judge was careful in explaining that the exaggeration meant she could not accept that the wife and grandmother were "wholly reliant" on the Appellant and that she did not accept the "extent" of the difficulties set out by them. The Judge expressly recorded her acceptance that the grandmother has health conditions which caused some degree of incapacity, but she did not accept the "extent" to which the health conditions impacted the grandmother's ability to perform daily tasks. Pausing there, it is fair to record that the PIP decision letter of October 2023 which records the position in relation to 10 daily living activities includes scores for the grandmother above zero for 5. They are preparing food; washing and bathing; managing toilet needs; dressing and undressing; and moving around. Using that same sequence, the scores are 2/8, 2/8, 2/8, 2/8 and 4/12. The Judge recorded that Dr Crumpton's report itself recognised that the Appellant may have given a degree of overly positive responses, and that in her oral evidence Dr Crumpton was questioned as follows by the Judge herself: "I asked whether Dr Crumpton was saying that some people provide overly positive responses, or that the requested person did provide overly positive responses, and Dr Crumpton responded 'I guess I'm saying both'." The Judge was very well placed to assess whether this was an acknowledgement that Dr Crumpton did consider that the Appellant had overemphasised his role within the family. And that point was, in any event, only one of the 8 points that the Judge listed as informing her conclusion on exaggeration.

Dr Crumpton's Information

11. Mr Joyes submits that the Judge was wrong – as the Judge put it – not to "place significant weight on Dr Crumpton's evidence … because she prepared her report on the basis of online interviews alone". What is said is that there was also online observation and there were other sources of evidence accessed by Dr Crumpton, namely medical records and the psychometric tests, as described in her report. But when the Judge referred to "online interviews alone" she was clearly contrasting Dr Crumpton's source of online information on the one hand with the benefit of "viewing the children, and the family, in their home environment". That was a fair point about the advantages of observation conducted within the home. It reflected the submission which the Judge recorded from the Respondent, that Dr Crumpton saw the family in online interviews alone, not "in person". The Judge then explained in the same paragraph of the judgment that Dr Crumpton was relying on a very limited snapshot of the Appellant and the family. The Judge also explained that Dr Crumpton was "in large part reliant on information provided by the Appellant, his mother and his wife". The phrase "in large part" itself recognises that there were other sources of information. As I explained, the psychometric testing was itself in fact in the form of questions and answers in an interview. The report was clear and was considered. The Judge was well aware of what it said. Indeed, the question of access to medical records was expressly recorded by the Judge, earlier in the judgment, in describing Dr Crumpton's evidence.
12. Mr Joyes next submits that Dr Crumpton's evidence should have been accepted in the absence of cross-examination about methods. But the judgment has a passage which specifically records that there was cross-examination and that, in that cross-examination, Dr Crumpton had confirmed that she had conducted interviews which have been conducted remotely. She was also then questioned about the reliance on what she was being told; and about the prospect that it had been overstated or overemphasised. There was no error of approach or procedural unfairness. The parties were in a position to make their submissions as to the information on which Dr Crumpton's conclusions were based, and the Judge fairly and properly assessed that feature of the case. The Judge was entitled, having heard live evidence from the grandmother and the wife, and from the Appellant, as well as from Dr Crumpton, to reach the conclusion she did about exaggeration. That did serve to undermine Dr Crumpton's opinion evidence, since it was reliant on what she was being told in those online interviews.

Impacts and Implications

13. It is important in this case not to lose sight of what the Judge specifically found. Having found exaggeration and having found limitations as to Dr Crumpton's report, the Judge nevertheless found all of the following. She accepted that the age of the two boys was such that the presence and input of both parents was highly desirable. She accepted that the Appellant, his wife and the grandmother provided a family environment contributing positively to the children's welfare and health. She accepted the Appellant's positive relationship with the two boys, and particularly the older one. The Judge accepted that the wife suffered from high blood pressure. She accepted that the grandmother suffered from the health conditions set out in the evidence. She accepted that those health conditions caused some degree of incapacity on the part of the grandmother. She accepted that the Appellant played an active role in the family in terms of care for his children, for his wife and for the grandmother. The Judge accepted that, if the Appellant were extradited, the family would experience difficulties in terms of care for the children and that there would be an impact on the Appellant's health, his wife's health and the grandmother's health. She also accepted that the Appellant's extradition would likely result in emotional trauma to the children, in particular the older boy. She accepted, based on Dr Crumpton's report, that such trauma could affect social functioning behaviour and overall educational attainment.
14. But the Judge went on to explain why – in all the circumstances – the Appellant's extradition would not be a disproportionate interference with the rights of the affected family members. The Judge noted Dr Crumpton's evidence as to the statutory services available to support the family should the Appellant be extradited, including as to education, health care and social care. She concluded that, taken in conjunction with the other protective factors, she was satisfied that there was sufficient support in place to mitigate the harm from extradition. The children would remain in a family unit consisting of their mother and grandmother and themselves. The finances were relatively secure. The older child has a stable school environment. Moreover, there are other family members present in the UK. The Judge said she did not doubt that the extradition would present challenges for the family; but she was sure that greater weight attached to the factors in favour of extradition which was not rendered incompatible with any person's Convention rights.
15. In my judgment there is no realistic prospect at a substantive hearing that this Court would overturn that outcome as wrong. That includes by reference to the series of putative fresh evidence that has been put forward. There is updating evidence about the wife's carpal tunnel syndrome and an anticipated operation which would involve 8 weeks recovery. There is evidence that the grandmother was for a time hospitalised in August 2023 (for 3 days). There is the PIP decision letter which records the various features regarding the grandmother and incapacity. There is a letter which confirms a point, previously raised in an opinion on immigration issues before the Judge, about the grandmother's loss of universal credit as a dependant of the Appellant were he to leave the UK following extradition. The strong public interest considerations in favour of extradition, beyond reasonable argument, do decisively outweigh these and all points which individually and collectively can be put forward in the balance against extradition. That includes with full and fair consideration of Dr Crumpton's report, which includes the points to which my attention was specifically drawn by Mr Joyes about mental health and mental health implications, and all of the putative fresh evidence. I will refuse permission to appeal and since it is incapable of being decisive I will refuse permission to rely on the putative fresh evidence.

16.5.24