AM v Examining Magistrate's Court No. 4 Murcia, Spain (Rev 2)

This is an appeal against the order of District Judge Bayne of 25 July 2013, ordering the appellant’s extradition to Spain pursuant to a European Arrest Warrant [“EAW”] issued by the judicial authority in Spain on 11 July 2012 and certified by the Serious Organised Crime Agency on 12 October 2012. The EAW is an accusation warrant alleging two offences which relate to money-laundering the proceeds of crime to the tune of about one million euros and involving, in particular, a property in Spain owned by a company of which the appellant was the administrator. The appellant’s husband is in custody in Spain relating to the same matters. He is also wanted in the United States of America which has requested his extradition from Spain. Her father too is an accused in the same proceedings. He is currently on bail in Spain but spent about six months in custody before being released. He lives in Spain with the appellant’s mother. Other family members, including the appellant’s brother and a cousin, are also implicated.

The sole basis upon which extradition was resisted before the District Judge was that to send the appellant to Spain would amount to a disproportionate interference with her family rights and particularly those of her children, guaranteed by article 8 of the European Convention on Human Rights.

The District Judge heard evidence from the appellant and from Dr Tom Grange. He is a clinical psychologist experienced in assessing children for the purpose of family proceedings in this jurisdiction. The appellant has three children, J who is just 15, L who is 11 and S who is five. If the appellant is extradited to Spain, J will remain in this country to continue his education. Arrangements would be made for him to stay with family or friends during term time with the expectation that he would join the rest of the family during school holidays. The two younger children would go with the appellant to Spain where all three would live with her parents. In the event that the appellant were denied bail, the children would nonetheless live with their grandparents.

Additional evidence was placed before the District Judge in documentary form.

Having regard to the principles articulated by the Supreme Court in Norris v Government of the United States of America (No 2) [2010] 2 WLR 572 and H(H) v Deputy Prosecutor of the Italian Republic [2012] 3 WLR 90, the District Judge concluded that, difficult though extradition would be for the family, those difficulties did not outweigh the strong public interest in extradition.

In this Court, the appellant advances her appeal almost exclusively on the basis of the article 8 rights of the two younger children. She recognises that her own article 8 rights, in circumstances where her younger children would accompany her to Spain, are of very little account even were she to be remanded in custody for any period. She also accepts that her 15 year old son would be in no different a position from thousands who are separated from their foreign based families during school term time, albeit that separation from his younger siblings would be upsetting for all of them.

The principles engaged in extradition cases which raise article 8 issues were considered in the two cases to which the District Judge referred and were summarised in cases involving children by Sir John Thomas, PQBD in JP v District Court at Usti Nad Lebem, Czech Republic [2012] EWHC 2603 (Admin). Norris decided that there should be no absolute rule that extradition would always be proportionate in cases where the article 8 rights of the requested person and his family were engaged. In paragraph 56 of his judgment Lord Phillips of Worth Matravers, with whom all other members of the court agreed, said:

“The reality is that only if some quite exceptionally compelling feature, or combination of features, is present that interference with family life consequent upon extradition will be other than proportionate to the objective that extradition serves. That, no doubt, is what the Commission had in mind in Launder (1997) 25 EHRR CD67, 73 when it stated that it was only in exceptional circumstances that extradition would be an unjustified or disproportionate interference with the right to respect for family life. I can see no reason why the District Judge should not, when considering a challenge to extradition founded on article 8, explain his rejection of such a challenge, where appropriate, by remarking that there was nothing out of the ordinary or exceptional in the consequences that extradition would have for the family life of the person resisting extradition. "Exceptional circumstances" is a phrase that says little about the nature of the circumstances. Instead of saying that interference with article 8 rights can only outweigh the importance of extradition in exceptional circumstances it is more accurate and more helpful, to say that the consequences of interference with article 8 rights must be exceptionally serious before this can outweigh the importance of extradition. A judge should not be criticised if, as part of his process of reasoning, he considers how, if at all, the nature and extent of the impact of extradition on family life would differ from the normal consequences of extradition.”

In paragraph 8 of her judgment in H(H) Baroness Hale of Richmond drew the following conclusions from Norris:

“(1)

There may be a closer analogy between extradition and the domestic criminal process than between extradition and deportation or expulsion, but the court has still to examine carefully the way in which it will interfere with family life.

(2)

There is no test of exceptionality in either context.

(3)

The question is always whether the interference with the private and family lives of the extraditee and other members of his family is outweighed by the public interest in extradition.

(4)

There is a 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 havens" to which either can flee in the belief that they will not be sent back.

(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.

(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.

(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.”

There followed a detailed discussion of the impact of the approach that was appropriate in cases involving children, a summary of which I take from paragraph 13 to 15 of the judgment in JP.

“13.

Our task is to examine carefully the nature and extent of the way in which extradition will interfere with family life. In each of these cases where the interference relates to the children's rights, we must make a proportionate judicial assessment of the conflicting public interests of safeguarding the rights of the children under Article 8 and the obligation under the Framework Decision to return the appellant to serve her term of imprisonment, the strong public interest in the extradition of those convicted, the honouring of extradition treaties and ensuring that the United Kingdom does not become a safe haven for those who have committed a criminal offence (see Lord Judge in HH at paragraphs 121 and 125; Lord Wilson at paragraphs 152, 156 and 167).”

14.

We make that assessment on the basis that the children's interests must be at the forefront of the decision maker's mind and be a primary consideration. (see Lord Mance in HH at paragraph 98 and Lord Wilson at paragraph 153), though the order in which their interests should be considered may be more a matter of debate (see Lady Hale at paragraph 33, Lord Mance at paragraph 98, Lord Kerr at paragraph 144 and Lord Wilson at paragraph 153).

15.

It is permissible as Lord Judge explained at paragraph 132, where the interests of the child might tip the sentencing scale here, to consider what a court sentencing in this country would do:

"When resistance to extradition is advanced, as in effect it is in each of these appeals, on the basis of the article 8 entitlements of dependent children and the interests of society in their welfare, it should only be in very rare cases that extradition may properly be avoided if, given the same broadly similar facts, and after making proportionate allowance as we do for the interests of dependent children, the sentencing courts here would nevertheless be likely to impose an immediate custodial sentence: any other approach would be inconsistent with the principles of international comity. At the same time, we must exercise caution not to impose our views about the seriousness of the offence or offences under consideration or the level of sentences or the arrangements for prisoner release which we are informed are likely to operate in the country seeking extradition. It certainly does not follow that extradition should be refused just because the sentencing court in this country would not order an immediate custodial sentence: however it would become relevant to the decision if the interests of a child or children might tip the sentencing scale here so as to reduce what would otherwise be an immediate custodial sentence in favour of a non-custodial sentence (including a suspended sentence).”

The EAW alleges that the appellant’s husband was involved in a criminal drug-related enterprise in the United States of America and that the proceeds of that criminal enterprise were laundered through Spain. The detail alleges against the appellant, along with other family members, involvement in a conspiracy to launder money which was the product of that enterprise. It is said that a number of shell companies were created and used to purchase properties and move money around. The involvement of the appellant is limited to a company called Palmilla Homes which came into existence in April 2006 and in respect of which she was named as the sole administrator. The appellant is said to have provided a property valued at €378,000 to the company, that funds of just over €250,000 went into the company from the UK and €583,000 went out to the United Kingdom and Morocco. The overall suggestion is that there was a group of companies used to facilitate the movement of money. Further information from the Spanish authorities suggests that it was the appellant’s cousin who created Palmilla Homes in 2006, and not the appellant. The District Judge characterised the overall alleged conspiracy as being very serious but accepted that the role within it alleged against the appellant was “limited”.

At the time that her husband was arrested in Spain, that is June 2010, the Appellant was on a visit to the United Kingdom with S, then a toddler, to look after her mother in connection with an operation. At that time the appellant, her husband and children lived in Spain. They lived there from 2000 and then moved to the United States. She and her husband separated in 2005. The appellant returned to Spain with J and L, who went to school there. There was a reconciliation in 2009 which resulted in the whole family coming together in Spain. S was born in Spain.

Following her husband’s arrest in 2010, the appellant arranged for J and L to travel to the United Kingdom. They had been in his care whilst she was visiting her mother here. The family unit comprising the appellant and her three children has remained in the United Kingdom since then. She regularly visited her husband in custody in Spain until the summer of 2012.

The United States authorities have shown no interest in the appellant.

No charges have yet been laid against any of those alleged to have been involved in the conspiracy. The Spanish proceedings are at the diligencias previas stage. That is a preliminary investigative stage. The appellant is wanted for pre-charge questioning. The investigation is held up in Spain because one of the accused has challenged it via proceedings which are now outstanding in the Supreme Court. It appears that nothing can happen pending the resolution of those proceedings. The Spanish authorities have been unable to give any timetable, indicative or otherwise, in connection with the proceedings. It follows that there is no indication in the material provided by the Spanish authorities of how long the preliminary stage will take to complete, still less what further period there might be before any trial could take place if the appellant is charged.

It is common ground that the appellant is the sole carer of her three children in the United Kingdom and that there is no one here who would be in a position to look after them. It is in those circumstances that the appellant herself has suggested that the two younger children would be obliged to follow her to Spain and live with their grandparents. She too would live with their grandparents (her parents) assuming she was granted bail. It was her evidence before the District Judge that the children have a good relationship with their grandparents and that they would be able to cope. That is despite the fact that her father is himself implicated in the alleged conspiracy and on bail and her mother infirm and recovering from very serious illness.

Dr Grange produced a psychological report dated 27 March 2013, which dealt in detail with the position of the appellant and her three children. He examined the children. His evidence relating to the children may be summarised as follows. All three children witnessed their mother’s arrest by five police officers. She became hysterical and the children became distressed. All have been adversely affected by the circumstances of their mother’s arrest. It should be noted that she was arrested at home and then spent one night in custody. J did not wish to move to Spain if his mother was extradited, in part because he had an unhappy experience when he was at school there. He did, nonetheless, wish to remain with his younger siblings.

L has had considerable and longstanding problems. These manifest themselves in physical symptoms, which probably have a psychological cause. She also has educational problems. She started school in England in year 3 but was a long way behind. She continues to struggle. She has been protected from the truth relating to her father’s position. She was anxious about her mother’s arrest and possible extradition. She was fearful about returning to education in Spain. Finding out that she might have to return there to live was “the saddest time in her life”.

S reacted badly to her mother’s arrest. However, she is a happy child when in nursery and has formed close friendships.

Dr Grange considered the impact that separation from the appellant would have on the children individually and collectively. His overall conclusion was that each of them would be damaged if they were separated. His conclusion so far as J was concerned was that he would be likely experience “mild to moderate” emotional difficulties as a result of his mother’s extradition. However, given that he is moving towards independence by virtue of his age and has a good level of functioning at present, Dr Grange did not think that any ensuing difficulties would necessarily be long lasting.

Dr Grange considered an important fact in the case of L was that she had specific learning difficulties and had struggled up to 2010 when she was in a Spanish school. He considered that the postulated move to Spain had the potential to undermine academic functioning and her social functioning as a result of the instability that such a move would introduce. His diagnosis was that L is experiencing anxiety with associated psychologically caused physical symptoms that might benefit from psychological intervention. She would respond particularly badly to separation from her mother and would suffer “moderate to severe” anxiety. That would probably manifest itself in further physical symptoms.

So far as S is concerned, disruption in the relationship with the appellant would be damaging to her future emotional and social well being.

All of these conclusions were based upon the premise that the children would be separated from their mother. He also had regard to anxiety and depression which he diagnosed in the appellant herself. He considered that the inevitable uncertainty about what would happen to the appellant on return to Spain would increase the emotional problem which the children might sustain.

Dr Grange relied upon a body of academic material in support of the proposition that separation of children from their primary care giver is damaging to their well being, unless the relationship is an abusive one.

In a short passage in his report Dr Grange considered the prospect of the children, or the youngest of them, living with their grandparents in Spain. He suggested that the children had a good relationship with their grandparents but that it was not consistent, stable or reliable because the family had moved around a lot and contact had been irregular. He considered that there were doubts about the emotional well being of the children’s grandmother and referred to the stress she must have suffered as a result of the arrest of so many within her family. He considered that were such a placement being contemplated within family proceedings in this jurisdiction, a viability assessment would be undertaken.

Dr Grange provided an “executive summary” of his findings in paragraph 3.03 of his report. He said this:

“On the basis of my assessment, I am of the opinion that, in the event mother was extradited to Spain, the impact on the children would be damaging, particularly with respect to L and S. More specifically, separation 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. I am not of the opinion that any steps can be taken that would adequately address the harm.”

The appendices to his report included the results of what are described as “strengths and difficulties questionnaires”. He described them as brief screening tools for children. They include 25 items based on psychological attributes and the level of difficulty the child may be experiencing. They are completed by people who have regular contact with the child concerned, and by the child himself if over the age of 11. The report explains that questionnaires are used to assist in diagnosis of mental illness but must be viewed with caution. Questionnaires were completed in March 2013 for J by the appellant, his teacher and by himself. It showed a low risk of any diagnosis of hyperactivity or concentration disorder.

So far as L is concerned, the appellant’s responses to the questionnaire suggested that L was at a high risk of a diagnosis of an emotional disorder and medium risk so far as behavioural disorder and hyperactivity was concerned. However, the questionnaire completed by her teacher suggested that, so far as observations at school were concerned, she was average and not showing any particular risk.

The appellant completed a questionnaire in relation to S, which suggested low risk for each of the factors considered.

The District Judge set out a summary of the evidence she heard and referred to the executive summary provided by Dr Grange quoted above. She also recorded Dr Grange as expressing the view that L would respond particularly badly to separation from her mother and that he had concerns should the children end up living with their grandparents in the absence of their mother.

The District Judge made a series of factual findings the principal of which were these:

The italicised passages in f) and g) show that the District Judge formed her overall assessment about the evidence of Dr Grange substantially on the view she took of the questionnaires, the extent to which he had relied upon them and 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.

The appellant challenges the conclusion of the District Judge in rejecting Dr Grange’s evidence that L and S would suffer moderate to severe adverse consequences if they were taken to Spain and separated from their mother for an unknown length of time. Mr Newton submits that the District Judge misunderstood the importance of the questionnaires and was wrong to rely upon an absence of comment by Dr Grange upon the difference in answers given by the appellant and the teacher as a relevant factor. That is because the appendix in which they appeared itself spoke of their limited value and Dr Grange did not comment further upon them because he was not asked to do so.

Mr Newton submits that the circumstances of this case are exceptional. The appellant is the sole carer of her three children. Her extradition will separate J from her and his siblings. It would uproot L and S from their home, schools and friends. The likelihood is that the appellant would be remanded in custody, as is her husband and as was her father for a period, and the prospects of bail are uncertain. The Spanish authorities have confirmed that the appellant can apply for bail and that her family circumstances would be relevant factors in any subsequent decision. However, they have been unable to state that bail would be granted and the prosecution have not indicated that they will not oppose an application for bail. In that connection, Mr Newton alluded to a document produced by the prosecuting authority which amounted to an attack upon the character of the appellant, and which the District Judge expressly ignored because its content was improper. Mr Newton refers to it only because the nature of its content suggests that an application for bail would be opposed.

Dr Grange was subject to little by way of cross-examination before the District 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 was he asked to comment upon any aspect of the questionnaires. The argument developed on behalf of the Spanish authorities (and repeated by Mr Lloyd in this court) was that even taking the evidence at its highest the circumstances were not sufficient to protect the appellant from extradition.

The problem with the approach of the District Judge to the evidence of Dr Grange is that it appears to have been rejected on the basis of considerations upon which he was not asked by anyone to comment. That is not fair to him but more importantly it creates potential unfairness for the appellant and her children. As a general rule no witness who gives oral evidence should have it rejected upon a basis which was not canvassed with him. The witness should be given an opportunity to deal with the issue and to answer the potential concern or criticism. This appeal demonstrates the importance of that approach when dealing with expert evidence, particularly if a concern felt by a judge is not shared by the party given an opportunity to challenge the evidence. Mr Newton’s submission is that as a result of the opportunity being denied to Dr Grange to comment upon the points concerning the District Judge, his evidence has been misunderstood.

In consequence Dr Grange has produced an addendum report. He has sought to confine it to the matters upon which he was not given an opportunity to comment or respond when he gave his evidence below. Mr Lloyd objects that he has not succeeded in that aim and has taken the opportunity to reargue the case generally. There is force in that objection. I am prepared to take the new report’s contents into account to the extent that they deal with matters not put to him. That is consistent with the flexible approach to fresh evidence in extradition appeals concerned with Convention rights identified in Fenyvesi [2009] EWHC 231 (Admin).

The limited importance of the questionnaires was referred to in the original report prepared by Dr Grange. He has expanded upon that. He explains that the Strengths and Difficulties Questionnaire is a brief screening tool, which gives a quick indication of progress and differences between presentation at school and in the home. It indicates areas where further assessment may be necessary – “nothing more”. It is brief, with only 25 questions, and so entirely different from tools used by professionals. Discrepancy between the observations of teachers and parents is commonplace, reflecting the different dynamics of school and home. His earlier report referred to specific difficulties which L suffered at home. The medical evidence (to which he referred) confirms that L has psychological problems and the evidence of learning difficulties is unequivocal. Furthermore, his report had set out the fruits of his discussions with L’s teacher. She referred to a particular problem suffered by L which, like her physical problems, was an obvious manifestation of anxiety, even though it was not recognised as such by the school. The questionnaire did not feature strongly in his conclusions. Indeed, it would not be best practice to base a substantive opinion upon the questionnaire. Nowhere had he stated that his findings were based upon the questionnaire. Its importance had been “profoundly misinterpreted” in the District Judge’s findings.

The reference to S having a low risk of mental illness (finding c) above) has also been misunderstood. The earlier report had noted that the scores in the questionnaire “indicate that S is at low risk of receiving any diagnosis linked to a mental health problem”. But critically that score did not take into account the consequences of separation. His original report had, in terms, said the impact of extradition would be “moderate to severe”. His task was to take into account all that was known and apply his professional judgement.

The approach on an appeal against an extradition order is ordinarily to respect in their entirety the factual findings of a District Judge after hearing oral evidence in the Magistrates Court (Wiejak v Olsztyn Circuit Court of Poland [2007] EWHC 2123 (Admin) at paragraph 23). However, the circumstances in which Dr Grange’s evidence came to be rejected coupled with the additional explanations to which I have referred lead me to conclude that his opinions about the impact of extradition upon L and S should not have been discounted in the way that they were.

With that in mind I return to the careful evaluation of the features of the case with the interests of the children a primary consideration which the authorities require. The starting point is to recognise that the appellant is the sole carer of her three children at the moment. Her husband has been in custody awaiting charge for approaching four years. Any prospect of his release in the near future can be discounted. J will be separated from his family for much of the time, and his siblings from him, if his mother is extradited. The life of the two younger children will be turned upside down because they would necessarily follow her to Spain. The District Judge’s finding on the question of bail recognises that a period in custody is at least probable but that bail is in due course likely. The District Judge concluded that she was “not convinced …that [the appellant] will necessarily be denied bail.” Taken on its own, that would suggest a high degree of probability that she would be denied bail. But the District Judge added later that “it is likely that separation … will be short lived.” From that two things flow. First, that the children would be separated from their mother for an uncertain period. Secondly, in speaking of likelihood that separation would be short-lived, there is recognition of a real risk that it might be protracted. The possibility of bail being refused altogether is a real one. That conclusion flows from the material provided by the Spanish authorities, the refusal to confirm that bail will not be opposed and the attitude of the prosecutor revealed in the document to which I have referred. Were bail denied, the younger children would be cared for by loving grandparents, located in Spanish schools and have access to Spanish support, but the problems with their grandmother’s illness and grandfather’s alleged involvement in the same conspiracy would inevitably cast a shadow. If the grandparents were living in the United Kingdom an assessment of their suitability to care for the children would probably have been ordered by the lower court (A & B v Central District Court of Pest, Hungary [2013] EWHC 3132 (Admin). Despite the appellant’s own confidence in her parents ability to cope, there is some uncertainty inherent in the proposed plans.

The Spanish proceedings are open-ended. This is not a case where there is an identifiable timetable which will bring clarity within a defined period. The children might be uprooted from the United Kingdom for years. The appellant has not attempted to minimise the seriousness of the conspiracy in which it is alleged she was involved, but prays in aid the limited role she is said to have played in it, a factor recognised by the District Judge. The Spanish authorities have themselves spoken of the possibility of a suspended sentence of imprisonment were the appellant eventually to be convicted. Sentencing in any jurisdiction relating to a conspiracy to launder the proceeds of crime is especially fact sensitive depending upon the degree of involvement of the accused and, in the context of a family dynamic, the extent to which one party was acting at the direction or under pressure from another. Mr Newton submits that the criminality alleged against the appellant and the possibility of a suspended sentence provide contrasts with the very serious offending identified, for example, in HH.

However, it is the impact upon L and S of going to Spain and separation from their mother (for a shorter or longer period) which is of particular concern. Dr Grange’s conclusion was that their mother’s extradition would have 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. In the light of the misunderstanding arising from the questionnaires and the explanation Dr Grange has given now he has had an opportunity to deal with it, I can see no reason to discount his conclusion. Moderate impacts are treatable when they occur but are likely to recur throughout childhood, or longer. Severe impacts would have lifelong adverse consequences for education, relationships, work and future parenting.

Taking all these 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, my conclusion is that the likely damage to L in particular, also to S and to a limited degree to J is such that the extradition of their mother to Spain would amount to a disproportionate interference in their article 8 rights. In the language of Norris and HH the adverse consequences for the children give rise to exceptional circumstances and the consequences of extradition would be exceptionally severe. There is no certainty about what would happen in the event of extradition but the risks involved are stark.

For these reasons the appeal will be allowed and the appellant will be discharged.