Extradition

AM v Examining Magistrate's Court No 4 Murcia, Spain: Queen's Bench Division, Administrative Court (London): 16 April 2014

European arrest warrant - Appellant Spanish national being accused of money-laundering offences - Appellant living in United Kingdom with three children, J, L and S

The appellant Spanish national was the subject of a European arrest warrant issued by the respondent judicial authority. She was accused of involvement in a conspiracy to launder money which was the proceeds of crime. The appellant had three children living with her in the United Kingdom, J who was 15 years old, L who was eleven years old and S who was five years old.

It was common ground that the appellant was the sole carer of her three children in the UK and that there was no one in the UK who would be in a position to look after them. At the appellant's extradition hearing, the district judge heard evidence from an expert clinical psychologist, G. G concluded that the appellant's extradition would have a mild to moderate impact on J's emotional and social functioning, a moderate to severe impact on L's emotional functioning and a moderate to severe impact on S's long-term relationships and emotional functioning.

The appendices to his report included the results of what were described as 'strengths and difficulties questionnaires' (the questionnaires). The judge formed her overall assessment about the evidence of G substantially on the view she took of the questionnaires, the extent to which G had relied upon them and the absence of comment upon what she believed to be significant in the difference between the answers given by the appellant and the teacher relating to L.

As a result of there being no comment, the judge gave little weight to G's conclusions and thought the appellant had exaggerated L's difficulties. However, G was subject to little by way of cross-examination before the judge. His conclusions were not challenged on the basis that he had formed his opinion on the strength of the questionnaire relating to L, nor had he been asked to comment upon any aspect of the questionnaires. The judge ordered the appellant's extradition and the appellant appealed.

The appellant submitted that as a result of the opportunity being denied to G to comment upon the points concerning the district judge, his evidence had been misconstrued. The appellant sought to rely on an addendum report (the addendum report) produced by G which dealt with the matters that he had not been given an opportunity to comment on or respond to when he had given evidence at the extradition hearing.

The appellant submitted that, in the circumstances, her extradition would amount to a disproportionate interference with the family rights of her children, particularly L and S, as guaranteed by article 8 of the European Convention on Human Rights. She submitted that the circumstances of the instant case had been exceptional.

The appeal would be allowed.

(1) As a general rule no witness who gave oral evidence should have it rejected upon a basis which was not canvassed with him (see [34] of the judgment).

The problem with the approach of the judge to G's evidence had been that it had appeared to have been rejected on the basis of considerations upon which he had not been asked to comment. That had not been fair to him, but more importantly, it had created potential unfairness for the appellant and her children. The addendum report's contents would be taken into account to the extent that they had dealt with matters not put to G. That had been consistent with the flexible approach to fresh evidence in extradition appeals concerned with rights under the Convention (see [34], [35] of the judgment).

Szombathely City Court v Fenyvesi [2009] All ER (D) 202 (Feb) applied.

(2) It was settled law that it was only if some quite exceptionally compelling feature, or combination features, was present that interference with family life consequent upon extradition would be other than proportionate to the objective that extradition served. Further, the approach on an appeal against an extradition order was ordinarily to respect, in their entirety the factual findings of a district judge after hearing oral evidence in the magistrates' court (see [7], [38] of the judgment).

In the instant case, the circumstances in which G's evidence had been rejected, coupled with the additional explanations given in the addendum report had led to the conclusion that his opinions about the impact of extradition upon L and S should not have been discounted in the way that they had been. Moderate impact would be treatable when they occurred, but had been likely to recur throughout childhood, or longer.

Severe impacts would have lifelong adverse consequences for education, relationships, work and future parenting. Taking all the factors into account and balancing them against the undoubted public interest in delivering those wanted on suspicion of having committed serious criminal offences to foreign jurisdictions, the likely damage to L in particular, also to S and to a limited degree to J had been such that the extradition of their mother to Spain would have amounted to a disproportionate interference in their rights under article 8 of the Convention.

The adverse consequences for the children had given rise to exceptional circumstances and the consequences of extradition would have been exceptionally severe (see [38], [41], [42] of the judgment).

Norris v Government of the USA [2010] All ER (D) 256 (Feb) applied; HH v Deputy Prosecutor of the Italian Republic, Genoa; PH v Deputy Prosecutor of the Italian Republic, Genoa; F-K (FC) v Polish Judicial Authority [2012] All ER (D) 130 (Jun) applied; Wiejak v Olsztyn Circuit Court of Poland [2007] EWHC 2123 (Admin) considered; JP v District Court of Usti nad Labem, Czech Republic; JE-H v Government of Australia; IE-H v Government of Australia [2012] All ER (D) 161 (Sep) considered.

Benjamin Newton (instructed by Hodge Jones & Allen Solicitors) for the appellant; Ben Lloyd (instructed by the Crown Prosecution Service) for the judicial authority.

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