RT v The Circuit Court in Tarnobrzeg, Poland

On 18 October 2016 District Judge Goldspring ordered the appellant’s extradition to Poland on a conviction European arrest warrant (“EAW”) in respect of a sentence of three years’ detention imposed for an offence of robbery, which was committed on 19 December 2002. The sole ground on which extradition had been resisted was pursuant to article 8 of the European Convention on Human Rights and section 21 of the Extradition Act 2003 (“the 2003 Act”). In short, the contention before the judge was that the impact of extradition upon the appellant’s nine year old son would be so severe as to make extradition disproportionate.

On 23 May 2017 we heard a rolled-up application for permission to appeal. The original grounds contended that the judge erred in his conclusion relating to article 8 on the material before him. That said, the application for permission to appeal is advanced by Ms Gallagher QC relying on new evidence of developments in the appellant’s family situation which have unfolded since the hearing in Westminster Magistrates’ Court. She submits that permission to appeal should be granted (and indeed the appeal allowed) pursuant to section 27(4) of the 2003 Act:

“27 Court’s powers on appeal under section 26

(1)

On an appeal under section 26 the High Court may—

(a)

allow the appeal;

(b)

dismiss the appeal.

(2)

The court may allow the appeal only if the conditions in subsection (3) or the conditions in subsection (4) are satisfied.

(3)

…

(4)

The conditions are that—

(a)

an issue is raised that was not raised at the extradition hearing or evidence is available that was not available at the extradition hearing;

(b)

the issue or evidence would have resulted in the appropriate judge deciding a question before him at the extradition hearing differently;

(c)

if he had decided the question in that way, he would have been required to order the person’s discharge.

(5)

If the court allows the appeal it must—

(a)

order the person’s discharge;

(b)

quash the order for his extradition.”

The material facts relate to the circumstances of the boy and difficulties of his mother in caring for him. In those circumstances, we acceded to an application for anonymity, which was not resisted by Mr Hardy QC on behalf of the judicial authority. We directed that the appellant should be anonymised as RT, his ex-partner as XT and his son as YT. We shall refer to YT as the child.

The developments in the family situation have led to the appellant initiating proceedings in the Family Court for a residence order in respect of the child. This appeal thus raises questions about the relationship between extradition proceedings and proceedings in the family court concerning a child of a requested person who would be affected by the surrender. That ground was traversed in PA v Criminal Court Coimbra (Portugal) [2017] EWHC 331 (Admin). One reason for this matter coming before a Divisional Court on a rolled-up hearing was to enable that decision to be reconsidered in the light of experience. Additionally, the appellant suggested that the information available to us at the hearing in May was insufficient to enable this court properly to determine the article 8 issue. That led to two applications. First, that the child should be represented independently in these appeal proceedings by the Official Solicitor. Secondly, that we should consider the application for permission but, if granted, adjourn the hearing of the appeal for further information detailing what would happen to the child if his father were extradited to Poland.

It had been expected that a report from Social Services prepared for the Family Court pursuant to section 7 of Children Act 1989 would be available in advance of the rolled-up hearing. It had been due on 18 May and we were told that it was delayed but would be available within a day or two. As a result, at the conclusion of the hearing we adjourned to enable that report to be provided to us with short supporting submissions from both parties in the extradition proceedings, including whether further information should be gathered to enable this appeal to be determined. To that extent, circumstances dictated that the appeal proceedings could not be completed on the date of the original hearing. The following day we were told that Social Services had applied to the Family Court for an extension to serve their report until 15 June 2017. Counsel drafted questions for Social Services designed to elicit relevant information to assist us in the extradition appeal. We redrafted those questions before the end of May and looked forward to receipt of all the information available by 15 June. The timetable slipped. There is no profit in setting out the detail of what happened. It is sufficient to note that a report directed to our questions was eventually completed on 28 June 2017. It is a comprehensive document and we are grateful to Victoria Bannon, its author, for the evident care she took. Although a section 7 report was prepared at about the same time for the Family Court we have not seen a copy because the necessary consent from XT was not forthcoming. An order from the Family Court or this court could have been sought but that would have caused yet further delay.

The appellant’s advisers then sought a further hearing of half a day. A date was identified (21 July) but we considered that an hour was sufficient. We directed that the parties lodge supplementary skeleton arguments limited to six pages dealing with the new material.

We did not explicitly state that those skeletons should otherwise be in the usual format – 12 point font and 1.5 line-space. We might grudgingly admire the ingenuity of the appellant’s team in producing six pages of single spaced text in a font size of which the reading may have been aided by a magnifying glass. But we would hope not ever to have to struggle with such a document again. It is common for the length of skeleton arguments to be limited by order, by rules of court or practice direction. The font size and line spacing remains the same.

The issues before us are these:

Although Mr Hardy urged us to refuse permission to appeal, we have no doubt that permission should be granted in view of the new circumstances which have overtaken the factual position considered by the judge.

The appellant was born on 9 December 1984 and so was 18 years old when he committed the robbery for which he was sentenced to three years’ custody. His appeal in Poland was dismissed with the domestic proceedings coming to an end in March 2005. He failed to surrender to serve his three year sentence. He had two years and ten months to serve. He fled Poland to avoid serving his sentence. The appellant had grabbed his victim around the neck, kicked him to the face and neck and made threats to kill him before stealing a Walkman and mobile phone. The victim’s nose was fractured.

A warrant for his arrest was issued in Poland on 26 September 2005. The precise date of the appellant’s arrival in the United Kingdom is uncertain, but he indicates that he left Poland a week before the date on which he was due to surrender to custody. The child was born in August 2007. The EAW was issued on 13 November 2009 and circulated through Interpol a month later. At the time, the relevant authority in the United Kingdom (the predecessor of the National Crime Agency (“NCA”) had no information suggesting that the appellant was in England although he had made an application for an Accession State Worker Registration Certificate with the Home Office. On 6 November 2013 intelligence was received by the NCA from Poland that the appellant was working in this country. They identified the county where he did indeed live. The EAW was certified on 14 November 2013 and issued a few days later to the local police force. The appellant was not arrested until 4 May 2016. There is evidence from the appellant and XT that the police had been looking for him two years before and that he had spent nights away from home as a result. Miss Gallagher submits that the timetable suggests no urgency on the part of either the Polish or British authorities to catch up with the appellant.

By 2016 the appellant had been with XT for 14 years. She suffered from depression and was said to be an alcoholic and thus the appellant had real concerns that if he were returned to Poland, XT would struggle to look after their son. Social Services had become involved with the family before the extradition hearing and concluded that they could “not say that [XT] would not be able to care for [the child].” Social Services concluded that were the appellant extradited, a “Child-in-Need Plan” would be put in place to offer support to XT. A report was prepared by Dr Tom Grange a psychologist who, as the judge observed, is a well-known witness in extradition cases. He thought that with the right support XT could potentially cope but he considered that separation from the appellant might adversely affect her mental health and increase her drinking. He concluded that separation from his father would have a traumatic effect on the child. This conclusion was based on the following:

Dr Grange cited “attachment theory” in support of his conclusion and its underlying premise that development of a child is highly dependent on the relationship with primary carers in childhood. The impact of separation is linked with its duration and the extent to which contact can be maintained during physical separation, and also with the number of individual separations. Dr Grange thought that there had been a separation as a result of the appellant being remanded in custody, but this was an error. The appellant has been on conditional bail. The overall conclusion was that there would be an extremely serious impact on the child’s development if the appellant were extradited. It would be enduring and would be exacerbated by XT’s mental health problems, instability in the child’s life and financial difficulties that might follow.

The feature identified by Dr Grange which is different from the ordinary run of cases in which a loving parent is being extradited (or indeed sent to prison in this country) was, in reality, limited to the features in XT’s makeup which called into question her ability to cope on her own. The Social Services report put the position perfectly adequately when it said:

“In conclusion, it is the view of the Local Authority that [the child] would be impacted upon the loss of his father, as it would be expected any child with a positive relationship with their father would be. He has a close relationship with his father and it is clear that [the child] has already begun to be emotionally impacted upon by the fear of his father’s extradition. Also it has been identified that [XT] has issues with both her mental health and with alcohol misuse, [the appellant] provides a safeguarding factor for this. Should he be extradited [XT] will need ongoing support from the Family Safeguarding Service under a Child in Need Plan.”

Dr Grange was asked by the appellant to produce a further report, which is dated 12 July 2017. In its preparation, he had seen the section 7 social services report, but it is unclear on whose authority. His view is that the appellant’s extradition would cause severe harm to the child.

Whatever may have been the views of either Social Services or Dr Grange before the extradition hearing last year, neither foresaw that the underlying instability in the parents’ relationship, including allegations of infidelity and violence, would lead to their separation. Indeed, the premise upon which both spoke to Social Services in the course of the investigation of the family’s circumstances was that they were both intent on keeping the family together by doing everything possible to resist extradition.

The new evidence available at the hearing in May suggests that the appellant and XT separated on 9 January 2017. He left the family home and moved in with his brother, sister-in-law and two small children. The appellant was concerned about the child’s safety because of XT’s drinking and instability. That concern was heightened when her father and brother came from Poland to stay with her. Social Services were fully engaged. On 6 March 2017 there was an incident at the family home when the child was injured in consequence of a fight between XT’s father and brother. As a result, he moved to live with the appellant in cramped conditions. On 16 March 2017 the appellant applied for a Child Arrangements Order in the Family Court. On 23 March he was granted an interim order that the child should live with him. XT would see the child for four hours each Sunday, in a public place and in the presence of the appellant. It made provision for further indirect contact with XT. XT was not represented at the hearing and it is unclear whether she opposed the interim order.

The Family Court’s order recited the “approach suggested in [the PA case] that where there are concurrent family and extradition proceedings where the best interests of a child are being considered that the family court should make a decision prior to the extradition proceeding conclusion.” It set a timetable for the production of the Social Services report and evidence from the parties. The specific issues identified for consideration in the Social Services report did not include what arrangements should be made in the event of the appellant’s extradition. That was in contrast to the report produced by Social Services in advance of the extradition hearing in Westminster Magistrates’ Court. The focus seems to be on the relative suitability of each parent to provide a home for the child. A hearing was set for 11 July but that has since slipped to a date late in August.

We have the written minutes of the child protection conference held on 24 March 2017. The formal decision was to make the child subject to a Child Protection Plan. The meeting noted problems that had manifested themselves at school for sometime, the child’s addiction to inappropriate video games provided by his parents and sexualised behaviour. The underlying context was the problems with XT’s drinking (the extent of which is disputed), domestic violence and parental dispute. The parents made allegations against each other which each denied. Before the child moved to live with the appellant, there had been evidence that he was unkempt. The appellant is recorded as saying that “if he has full custody of [the child] then he is unlikely to be extradited to Poland.”

A later minute foreshadowed that the appellant and his brother’s family were planning to move to a larger property which would enable both the appellant and the child to have their own bedrooms. That happened the day before the hearing before us. It is a four bedroom rented property. That extended family of three adults and three children had been living in a two bedroom flat. The appellant has been in constant full-time work with the result that his sister-in-law has assumed practical caring for the child, alongside her own children, while the appellant was out.

Ms Bannon’s report summarised the developments in the family since October 2016. It explains more of the conflict between the parents, the suggestion that drink is a common problem, unresolved allegations of domestic violence and difficulties with some of the extended family. The underlying lack of stability and security in the child’s life is explained as well as the damage he has suffered. A parenting assessment of XT is underway and expected to be completed by mid-August. There are concerns about both parents’ care of the child; but XT’s mental health problems, alcohol misuse and what are termed “lifestyle choices” give rise to particular concern. The child was removed from her care because of the violence between her father and brother. Although XT has indicated that she would give up drinking if the child were returned to her care Ms Bannon, without prejudging the outcome of the assessment, provides indications which lead her to doubt how realistic that is. Nonetheless, XT wants the child to live with her. His removal has had an adverse impact on her emotional well-being. Yet a recent mental health assessment shows that she is not suffering from a major depressive disorder nor suffering from a psychotic disorder. Alcohol misuse appears to be at the root of her problems.

Both RT and XT have indicated alternative family members who might have primary care of the child if RT is extradited. RT’s preference would be for RT’s brother and sister-in-law to care for him. That is their preference too. As we have noted he is living with them and their two small children at the moment, along with RT. There is some concern that their living arrangements might be affected were he extradited, because he contributes significantly to the rent and running costs of the four bedroom house they share. The local authority would provide assistance to the family in understanding how to meet the child’s emotional needs. There would be uncertainty, if a move were necessary, about schooling.

Alternative relatives have been identified in Poland by both parents but there is no detail about either their willingness or suitability to care for the child. Whilst not excluding the possibility of a temporary move to Poland, this seems to us to be an unlikely outcome given the considerable disruption to the child’s life and education it would entail. It might also result in loss of close contact in the short term with both parents.

Ms Bannon describes the child’s relationship with his uncle and aunt and their children as “good”. The child is very positive about them. There would undoubtedly be disruption if RT were extradited, exacerbated if the family had to move. But there is nothing in the report which suggests that this preferred option is likely to be unsuitable, still less it will be unavailable.

If all else failed, the local authority would find foster parents.

Ms Bannon was asked to consider the extent of contact with RT that could be maintained if he were extradited. She was unable to comment on prison arrangements in Poland and the ease with which telephone, Skype (or similar) contact might be maintained. Realistically, she thought that visits to Poland would be limited if the child lived with his uncle and aunt.

Ms Bannon reiterated the sad truth that the child had suffered “significant harm in the form of emotional abuse”. This includes witnessing domestic violence and (allegedly) being exposed to group sexual activity between adults. There had been many other traumas. She thought that he was anxious about separation from his father and the uncertainty about his own future. This has become a significant concern for him. He wants to live with his father and associates that with being safe. The child understands XT’s alcohol abuse. She notes that parental imprisonment is a strong risk factor for a range of adverse outcomes for children. Whilst Ms Bannon notes that RT “has not always protected [YT] against harm and kept him safe” RT’s extradition “may make for more upheaval, trauma and psychological distress.” She concludes that during the period during which the child has been cared for by his father, aunt and uncle his basic needs have been met. RT’s extradition “may make for more psychological distress to what is already a contributory factor in the emotional harm [YT] is currently experiencing.”

Dr Grange adds to the mix of difficulties that the child “may be showing features of autism and ADHD”. He recognises it is premature to state that RT will prove to be a suitable carer and more generally has “reservations about providing an opinion given so much is happening in [YT’s] life.” It is very difficult to give “a clear opinion” on the impact of separation but things seemed more settled since the child had been living with his father and extended family. Nonetheless, in the short to medium term he considers that separation would cause “severe harm”. In summary, he agrees with Ms Bannon.

Ms Gallagher recognised that the involvement of the Official Solicitor in extradition appeals was rare. She did not press this part of the case at the second hearing but since it raises a point of some importance, it is appropriate that we deal with the earlier submissions. She advanced three grounds in support of the application that the Official Solicitor should be invited to intervene in these proceedings, and confirmed that subject to funding he was willing to do so:

Having heard these submissions, we decided that we would not adjourn the hearing. We decided to hear substantive argument on appeal, and would decide whether the involvement of the Official Solicitor was necessary in the light of what we had heard, and the further information to which we have referred.

Mr Hardy did not take a formal position on the involvement of the Official Solicitor, but offered some general observations each of which we accept. First, the Official Solicitor is not able within the legal framework in which he operates to appear in a Magistrates’ Court. It would be incongruous to introduce him at the appellate level on the basis advanced by the appellant given that Parliament has entrusted extradition decisions to District Judges. Secondly, the child’s voice expressing a view about what should happen to the parent, as opposed to information about the impact of extradition upon the child, is of limited value. In the context of any loving parental relationship the child would not wish for extradition of a parent. Thirdly, the involvement of additional parties is antithetical to the scheme of the 2003 Act and Council Framework Decision of 13 June 2002 (2002/584/JHA) which is predicated on the swift resolution of extradition proceedings.

The language of “evidential void” tends to hyperbole. The question is whether a court which considers article 8 has sufficient information to enable it to make an informed decision on the proportionality of extradition. The best interests of a child affected by the extradition of a parent are “a primary consideration” for the purposes of article 8: HH v Deputy Prosecutor of the Italian Republic, Genoa [2012] UKSC 25; [2013] 1 AC 338 for example at para 86,101 and 162.

The extradition court may require evidence of the practical arrangements that have been, or will be, put in place to provide suitable care for the child when extradition takes place, and the effect of extradition on the child with those arrangements in place. Such evidence about the interest of the child as a primary consideration enables a sound judgment to be made about the proportionality of extradition for the purposes of article 8. In the HH case, Lady Hale identified the evidential needs at para 82 to 86. In summary:

It is self-evident that where it is necessary, this evidence should be provided to or obtained by the District Judge at first instance. That is precisely what District Judge Goldspring sought to achieve here in getting a report from Social Services pursuant to the Children Act 1989. The evidence may be provided sufficiently by parents or in the reports from Social Services which may already be involved with the family. These issues should be resolved before the District Judge, and cannot be left for initial examination on appeal. The HH case confirms that appropriate evidence should be obtained; there is nothing in HH to encourage the instruction of the Official Solicitor as the means of obtaining it. In our judgment, the Official Solicitor will very rarely need to be instructed to enable necessary evidence to be obtained about the arrangements that could be made for a child whose parent (or other carer) faces extradition, or where there are Family Court proceedings relating to the child underway.

Where on appeal further evidence is necessary, usually because of a change in circumstances, the same sources should be used. The High Court can give instructions for reports to be obtained from Social Services, or, where the expenditure is justified, it can approve extensions to representation orders to cover further expert reports. That will rarely be necessary or appropriate because the independent input from Social Services would almost always be more than adequate. It will be rare that those or other relevant sources cannot be used with the result that there is a need for the involvement of the Official Solicitor.

The Social Services report can cover both the arrangements to be made and the effect of extradition on the child with those arrangements in place or with a range of possibilities where there is some uncertainty. The need for psychological expert evidence independent of Social Services will be rare because the first topic under consideration will be the range of arrangements which will or might be available following extradition, to which such an expert can add little. Secondly, unless there is something very unusual about the child or parents, no additional expert evidence is needed to demonstrate the impact of separation. That is well within the scope of evidence which might be expected from Social Services. In the countless criminal cases which repeatedly consider the impact of imprisonment on children the necessary information is provided to the court in a pre-sentence report. The context of extradition does not justify an extensive (and expensive) collation of expert evidence.

In our judgment, there was never any proper basis to think that the Official Solicitor should be involved in this case. As events have shown, comprehensive evidence has been made available in answer to specific questions furnished by the court. We attach as an annex to this judgment the questions we asked. We emphasise that they were tailored to meet the circumstances of this case and should not be seen as a template of any sort. Most cases in which article 8 and children fall to be considered will be straightforward evidentially. But in the confused state of the evidence before us they seemed to us (with the agreement of counsel) to provide a proper basis to strike the balance in the light of the judgments in the HH case. It can be seen that an extradition court may be faced with a range of possibilities without certainty of what will happen. That is inevitable, just as it is when a court sentences an offender. We are in a position to strike the article 8 balance having regard to the best interests of the child as a primary consideration.

In the HH case, unusually, the Official Solicitor had been invited to intervene in the High Court on the initial appeal. As Lady Hale was at pains to emphasise (paragraphs 85 and 86) such a course would rarely be necessary. There was a particular conflict between the parents in HH which may have underpinned the involvement of the Official Solicitor. The extradition of both parents was sought and there was the possibility that one, but not both, might be extradited. Although six of the justices in the Supreme Court concluded both should be extradited, Lady Hale would have extradited only one. A similar conflict arose in A and B v Central District Court of Hungary [2013] EWHC 3132 (Admin). The Official Solicitor once more became involved. As we have already observed, it is the District Judge who must strike the balance in such cases and must necessarily do so without the assistance of the Official Solicitor. Such a conflict should not in itself be thought to justify his involvement in an appeal. That said there is no conflict of that sort in this appeal. The appellant and XT have provided accounts of the deterioration of their relationship which blame each other. Both accept some of the criticisms advanced, but at the margins of the bad behaviour each alleges. That is typical in such disputes. That is a conflict of a different nature. The possibility that the mother might be trying to obtain an advantage in the Family Court proceedings, through the extradition of the father, seems remote on the evidence before us. It is no part of our function to resolve such evidential disputes. Yet even were we to attempt to do so, the Official Solicitor could not help. Nor could the involvement of the Official Solicitor assist on the issue troubling Ms Gallagher, namely how far we might take the disputed evidence into account in weighing the best interests of the child.

In paragraph 85 of her judgment in the HH case Lady Hale referred to the UN Convention on the Rights of the Child (UNCRC) and, in particular, article 12 which requires the views of the child to be obtained in certain circumstances. In paragraph 33(iii) above we have summarised our understanding of the effect of this part of Lady Hale’s judgment including her summary which we have quoted. None of the other six justices of the Supreme Court referred to article 12 UNCRC. A unanimous conclusion was that the interests of children should be “a primary consideration”, albeit with Lord Kerr regarding the term as conceptually difficult (paragraph 143). That is a term which comes from article 3.1 UNCRC and is reproduced in article 24.2 of the Charter of Fundamental Rights of the European Union. The UNCRC can be an interpretative aid in cases concerning article 8 ECHR: see, for example, paragraph 86 of the judgment of Lord Reed in R (SG) v Secretary of State for Work and Pensions [2015] UKSC 16. The HH case is not authority for the proposition that article 12 UNCRC is part of domestic law. Indeed, such an argument would be bound to fail on the well-established principle that international treaty obligations not incorporated into domestic law form no part of our domestic law. The SG case involved a recent extensive discussion of that principle in the judgments of Lord Reed, Lord Carnwath and Lord Hughes.

To the extent that children affected by the potential extradition of a parent have anything different to say on the matter from their parents or carers, that evidence may be given through the parents, carers or Social Services professionals. As Lady Hale recognised, it does not suggest the involvement of the Official Solicitor, save in rare circumstances. The important information needed by the District Judge should be about the impact on the child of extradition. That is related to the practical arrangements to be made. The assessment by the child itself of the impact on him or her of parental extradition is unlikely to be valuable even if, which we doubt, it were sensible to seek it directly. It is obtaining the relevant information from suitable sources which matters, not obtaining the views of the child about extradition.

That said, we are very doubtful whether Article 12 UNCRC (or its analogue in article 24.4 of the Charter of Fundamental Rights) can be read as contemplating giving children a right to be heard in criminal proceedings involving their parents. There is nothing in the provisions of the UNCRC itself which can be read as introducing such a wide-ranging obligation (binding in international law) on its state parties, nor in any of the formal Comments from the relevant UN Committee. There is nothing in the jurisprudence of the Strasbourg Court to that effect (nor the Luxembourg Court) nor were we shown any material which indicates that such a practice operates in other jurisdictions. There is no such practice in the criminal courts of England and Wales, although we recognise that it would be within the power of the Court of Appeal Criminal Division to seek the assistance of the Official Solicitor if it were considered necessary.

Were any of these international instruments interpreted as providing an obligation to enable children to participate in sentencing or extradition decisions, it would mark a radical departure from what appears to be universal practice. There would be some sign of the obligation in the texts or commentaries relating to those instruments. We repeat Lady Hale’s words from paragraph 86 of the HH case:

“The important thing is that everyone … is alive to the need to obtain information necessary in order to have regard to the best interests of the children as a primary consideration and to take steps accordingly.”

It is unnecessary to complicate extradition (or other criminal proceedings) by seeking to turn them into surrogate Family Court proceedings relating to children.

We have not been shown any example where the child of a parent being sentenced was represented. R v Bishop [2011] EWCA Crim 1446 is a striking example of an appeal where the sentencing court had failed to make any inquiries into what would happen to the offender’s children if he were sent to prison. It is an example of a serious procedural error, but not one in which article 12 was invoked or the Official Solicitor involved. R v Carter [2010] EWCA Crim 2468 is another; an assumption that a new born baby would go with the mother to a mother and baby unit proved ill-founded. The judge should have found out the position before sentence. The Court of Appeal made inquiries through the probation service and because no place was available suspended the sentence. Once more, there was no question of involving the Official Solicitor.

The reality of the impact upon children of sentencing decisions (or remands in custody) is given appropriate weight in countless decisions daily in our criminal courts. In his judgment in the HH case Lord Judge discussed the approach between paragraphs 126 and 131 which was echoed by Hughes LJ, as he then was, in R v Petherick [2012] EWCA Crim 2214; [2013] 1WLR 1102. There is no question of the child being represented in the criminal proceedings, but the court makes sure it is equipped with appropriate information to make a sentencing decision that takes proper account of the article 8 rights of children. The same approach should be applied in extradition cases.

We have not overlooked the procedural obligation that may arise under article 8 in family proceedings relating to children and the discussion which has taken place in a number of immigration cases of its reach in that context. See, for example, MS (Ivory Coast) v Secretary of State for the Home Department [2007] EWCA Civ 133, [2007] INLR 513; Nimako-Boateng (Residence Orders – Anton Considered) Ghana [2012] UKUT 216 (IAC); RS (immigration and family court proceedings: India) [2012] UKUT 218 (IAC). We can well understand why Ms Gallagher QC did not seek to draw any support from these cases. There is nothing in the Strasbourg jurisprudence which suggests that the procedural obligation of this sort, whatever its reach, would extend to criminal proceedings.

We are satisfied that there was no need to invite the Official Solicitor to represent the interests of the child in this extradition appeal.

Extradition cases are governed by the 2003 Act which, throughout, imposes strict time limits for every step in those proceedings. Moreover, article 17.1 of the Framework Decision requires that an EAW shall “be dealt with and executed as a matter of urgency”. Article 17.3 provides that the final decision on the execution of an EAW should take place within 60 days of the requested person’s arrest but, if that is not possible, article 17.4 requires the reasons to be conveyed to the requesting judicial authority and then allows a further 30 days.

In the PA case the judge discussed the interests of the child in question in a context which included fresh evidence about what would happen to her if her mother were extradited to Portugal. There were parallel Family Court care proceedings. The appeal was heard on 3 August 2016 (the decision in the Magistrates’ Court having been in February) but adjourned to enable further evidence to be obtained, including to reflect the views of the child herself about whether she would willingly move to Portugal to live with relations there whilst her mother served her sentence. The requested person had been arrested on the EAW on 24 April 2015, so the proceedings were very stale before they reached the High Court. The judge recognised that the adjournment had caused substantial delay; and also that the necessary evidence should have been obtained for the hearing before the District Judge.

We emphasise that a requested person seeking to resist extradition on article 8 grounds is under an obligation to bring his case before the Magistrates’ Court. To the extent that the information available regarding children is inadequate, in the sense that further information may tip the balance, the requested person and his advisers are under a duty to obtain it. In the vast majority of cases where article 8 is argued, any children affected by the extradition of a parent will be left in the care of the other parent and no detailed evidence would be called for. If necessary, the assistance of the court in obtaining information from Social Services should be sought, as envisaged by Lady Hale, with a short adjournment for that purpose. We repeat that it would be a rare case that justified independent expert evidence at public expense.

The delay caused by the adjournment in PA proved to be long. The care proceedings led to multiple hearings in the Family Court. In November 2016, to assist that court, the judge produced what were described as “provisional views” about whether he would uphold the extradition order on various hypothetical outcomes in the care proceedings. He (rightly) made clear that even if the Family Court considered that the best interests of the child resulted in an order that she live with her mother, that could not determine the extradition appeal. Another hearing was held in the extradition appeal in January 2017 with judgment following on 22 February.

The factual position was undoubtedly unusual in the PA case and imported uncertainties about the child’s future. However, in paragraph 54 of the judgment, the judge gave general guidance about the relationship between extradition proceedings and proceedings relating to children in the Family Court. He concluded that the Family Court should come to its decision first because “only in this way can the Extradition Court then make a full assessment under Article 8”. We have seen that precedence reflected in the recitals recorded by the Family Court in its order in this case.

Ms Gallagher was unable to support that approach on behalf of the appellant and it was subject to measured criticism from Mr Hardy. Ms Gallagher submits that this court should have appropriate information to consider the article 8 issue but in terms she did not suggest that we should adjourn until the Family Court proceedings were resolved. She submits that there should be no rigid approach one way or the other but that the individual factual position should be considered by a court to determine what information will be needed to strike the article 8 balance. Mr Hardy submits that the extradition proceedings should always take precedence and not be held up by Family Court proceedings.

It was common ground before us that the outcome of the Family Court proceedings will not deliver an answer to the question whether it would be proportionate for article 8 purposes to extradite this appellant. The appellant’s personal contrary view recorded in the Social Services material is wrong. The two sets of proceedings are not concerned with the same question. Family Court proceedings about the future of a child are concerned with the child’s best interests. Those best interests determine the outcome of the proceedings. The best interests are but one factor that weighs in an extradition appeal and, as is clear from the jurisprudence, will only outweigh the strong public interest in extradition “if the consequences of the interference with family life will be exceptionally severe”: Lady Hale at paragraph 8(7) in the HH case. Moreover, the imperative for expedition in resolving extradition proceedings itself tells against waiting for parallel family proceedings to conclude.

We accept Ms Gallagher’s submission that there can be no inflexible rule about the order in which proceedings should be decided and respectfully conclude that the dicta in the PA case should not be followed. On the contrary, the expectation must be that extradition proceedings will progress swiftly with such information as is needed to determine an article 8 issue touching the future of children gathered quickly and deployed before the District Judge. We do not exclude the possibility that there may be cases in which a District Judge might conclude that the circumstances suggest a need to await the outcome of Family Court proceedings, but in our opinion that would be a wholly exceptional course.

If a court accepts that it will await the outcome of the Family Court proceedings, it becomes tied to the progress of those proceedings over which it has no control. They are not geared to reaching a conclusion as swiftly as is expected in extradition cases. As we have noted, the question being considered in the two courts is different. The extradition court does not require certainty of the impact on a child to enable it to strike the balance under article 8. The extradition court will, of course, take account of the possibilities, together with the likelihood of each as disclosed by the evidence, and will have in mind the consequences of what may be considered the realistic worst case.

Ms Gallagher expressed real concerns about the practice of a judge charged with determining the extradition proceedings providing provisional views to the Family Court. She did not ask us to do so. Both she and Mr Hardy expressed strong reservations, which we share, in the context of these proceedings because of a perception of unfairness consequent upon a court expressing a view provisionally before seeing all the evidence or receiving argument on it. That provisional view could have a decisive impact on the Family Court proceedings even if it turns out not to be reflected in the final view.

The law is well settled and was distilled by the Lord Chief Justice in the judgment of the court in Polish Judicial Authority v Celinski [2015] EWHC 1274 (Admin); [2016] 1 WLR 551. We would not wish anything we say to qualify the clear statements of principle found between paragraphs 5 and 13 which for convenience we reproduce:

“(a)

The general principles in relation to Article 8”

5.

The general principles in relation to the application of Article 8 in the context of extradition proceedings are set out in two decisions of the Supreme Court: Norris v Government of the United States of America (No.2) [2010] ₂ AC 487 (“Norris”) and HH [2013] _I AC 338.

6.

In HH Baroness Hale of Richmond JSC, at para 8, summarised the effect of the decision in Norris; in sub-paras (3), (4) and (5), she made clear that the question raised under Article 8 was whether the interference with private and family life of the person whose extradition was sought was outweighed by the public interest in extradition. There was a constant and weighty public interest in extradition that those accused of crimes should be brought to trial; that those convicted of crimes should serve their sentences; that the UK should honour its international obligations and the UK should not become a safe haven. That public interest would always carry great weight, but the weight varied according to the nature and seriousness of the crime involved. This was again emphasised by Baroness Hale JSC at para 31, by Lord Judge CJ at para 111 (where he set out a number of passages to this effect from Norris) and at para 121, Lord Kerr of Tonaghmore JSC, at para 141; Lord Wilson JSC at paras 161-162 and 167.

7.

It is clear from our consideration of these appeals that it is important that the judge in the extradition hearing bears in mind, when applying the principles set out in Norris and HH, a number of matters.

8.

First, HH[2013] _I AC 338 concerned three cases each of which involved the interests of children: see in particular the judgment of Baroness Hale JSC at paras 9-15, 24-25, 33-34, 44-48, 67-79, 82-86; Lord Mance JSC at paras 98-101; Lord Judge CJ, at paras 113-117, 123-132; Lord Kerr of Tonaghmore JSC at paras 144-146; Lord Wilson JSC at paras 153-156 and 170. The judgments must be read in that context.

9.

Second 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. We would expect a judge to address these factors expressly in the reasoned judgment.

10.

Third the decisions of the judicial authority of a Member State making a request should be accorded a proper degree of mutual confidence and respect. Part I of the 2003 Act gave effect to the European Framework Decision of 13 June 2002 on the European arrest warrant and surrender procedures between member states (Decision 2002/584/JHA); it replaced the system of requests for extradition by Governments (of which the judicial review before the court in respect of the Polish national is a surviving illustration). The arrangements under Part I of the 2003 Act operate between judicial authorities without any intervention of governments. In applying the principles to requests by judicial authorities within the European Union, it is essential therefore to bear in mind that the procedures under Part I (reflecting the Framework Decision) are based on principles of mutual confidence and respect between the judicial authorities of the member states of the European Union. As the UK has been subject to the jurisdiction of the Court of Justice of the European Union since 1 December 2014, it is important for the courts of England and Wales to have regard to the jurisprudence of that court on the Framework Decision and the importance of mutual confidence and respect.

11.

Fourth, decisions on whether to prosecute an offender in England and Wales are on constitutional principles ordinarily matters for the independent decision of the prosecutor save in circumstances set out in authorities such as R v A (RJ) [2012] 2 Cr App R 8, [2012] EWCA Crim 434; challenges to those decisions are generally only permissible in the pre-trial criminal proceedings or the trial itself. The independence of prosecutorial decisions must be borne in mind when considering issues under Article 8.

12.

Fifth, 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 warrant 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.

13.

Sixth in relation to conviction appeals:

(i)

The judge at the extradition hearing will seldom have the detailed knowledge of the proceedings or of the background or previous offending history of the offender which the sentencing judge had before him.

(ii)

Each member state is entitled to set its own sentencing regime and levels of sentence. Provided it is in accordance with the Convention, it is not for a UK judge to second guess that policy. The prevalence and significance of certain types of offending are matters for the requesting state and judiciary to decide; currency conversions may tell little of the real monetary value of items stolen or of sums defrauded. For example, if a state has a sentencing regime under which suspended sentences are passed on conditions such as regular reporting and such a regime results in such sentences being passed much more readily than the UK, then a court in the UK should respect the importance to courts in that state of seeking to enforce non-compliance with the terms of a suspended sentence.

(iii)

It will therefore rarely be appropriate for the court in the UK to consider whether the sentence was very significantly different from what a UK court would have imposed, let alone to approach extradition issues by substituting its own view of what the appropriate sentence should have been. As Lord Hope of Craighead DPSC said in HH [2013] _I AC 338 at para 95 in relation to the appeal in the case of PH, a conviction warrants:

‘But I have concluded that it is not open to us, as the requested court, to question the decision of the requesting authorities to issue an arrest warrant at this stage. This is their case, not ours. Our duty is to give effect to the procedure which they have decided to invoke and the proper place for leniency to be exercised, if there are grounds for leniency, is Italy.’

Lord Judge CJ made clear at para 132, again when dealing with the position of children, that:

‘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).’ ”

This appeal concerns an undoubtedly serious offence of violent street robbery attracting a sentence of three years’ custody. The appellant is a fugitive. He left Poland to avoid serving the two years and ten months of that sentence which remain. The strong public interest in extraditing convicted criminals to serve their sentences is engaged; and the more so when the requested person has actively sought to evade justice. The safe-haven point referred to in both HH and Celinski is strongly in play.

In paragraph 8 of her judgment in HH Lady Hale explained that delay may be relevant for two reasons when considering Article 8. First, delay in seeking extradition may reduce the weight to be attached to the public interest in surrendering a person for prosecution. We observe that something similar would weigh in the public interest balance considered by prosecuting authorities in this jurisdiction before prosecuting, if they were dealing with an old, relatively minor offence. Delay may also reduce the weight to be accorded to the public interest in surrendering a person to serve a sentence following conviction, even when he has deliberately absconded to avoid serving the sentence, but its impact will obviously be less than in an accusation case. Secondly, the passage of time may have an impact on the nature and extent of the private or family life developed by the requested person in this country. This appeal concerns the interests of a child born after the appellant became a fugitive.

Ms Gallagher submits that there has been unexplained, rather than culpable, delay in this case which diminishes the weight which should be attached to the public interest in this appellant’s extradition to serve his sentence for robbery. There was a period of four years between the issue of a domestic warrant in Poland in 2005 and the EAW in 2009. There was then a further four years before it was certified in the United Kingdom following the receipt of concrete information that the appellant was here. It then took the police two and a half years to arrest him. Ms Gallagher submits that the appellant was living in plain sight in the United Kingdom and that he should have been located much sooner.

The Framework Decision does not contemplate that requesting judicial authorities will routinely explain the chronology of proceedings and, save perhaps in a pure delay case relying upon section 14 of the 2003 Act, it would not be appropriate to request information from them. They might provide some explanation once they were aware that an issue had arisen. Yet the chronology upon which the appellant relies is not unusual. An EAW will not be issued until the requesting judicial authority believes that the wanted person has left the country and is elsewhere in the European Union. Until there is clear information of his location here the NCA will not consider certification. To behave in any other way would result in the waste of resources in dealing with cases which may not have any practical worth. Evidence before us confirms that intelligence about the appellant’s presence in the United Kingdom was received on 6 November 2013. The EAW was certified eight days later and sent to the relevant police force for execution.

It is a frequent submission that someone has been living in the United Kingdom openly, often having had contact with various official bodies here. But neither the foreign judicial authority nor the NCA can be expected to explore the byways and alleyways of British officialdom to discover whether someone is in this country. In this case, it is true that the local police took a long time to arrest the appellant, although as we have noted the evidence suggests they had tried earlier and the appellant was taking steps to avoid them.

In a conviction case for a serious offence involving a fugitive, neither this feature, nor the earlier delays, leads us to conclude that the public interest in extradition has appreciably diminished.

We recognise that the appellant has led a useful life since fleeing to the United Kingdom. He has worked, saved and not re-offended. That said, the only issue of substance that could impede the appellant’s extradition is the impact it would have on the child.

In considering that question in this case, as in others, the court must have regard to the reality of the sentence that a requested person will serve. In Borkowski v District Court in Lublin (Poland) [2015] EWHC 804 (Admin) at paragraph 16, King J referred to the “well-known fact that the Polish authorities have a discretion to allow release after one half or two-thirds of the sentence has been served.” That was a reference to articles 77 and 78 of the Polish Penal Code which, in the context of this appellant, would allow but not guarantee his release after serving half of the sentence. There is no reason to suppose that he would not benefit from those provisions. It is also apparent from information referred to in AB v Regional Court in Poznan, Poland [2014] EWHC 1560 (QB) paragraph 9 that a convicted person can be granted release on temporary licence for important personal and family reasons. Moreover, as was discussed in PA, pursuant to Council Framework Decision 2008/909/JHAthere is a possibility for a sentence to be served in the United Kingdom.

Ms Gallagher pointed out that we have no information about the arrangements that would be available to a Polish prisoner to maintain contact with his family in the United Kingdom, for example by telephone or Skype (or something similar), or the regime for making visits. The availability of such contact was a feature discussed in the HH case.

The mutual trust and confidence that underpins the EAW system suggests that it is safe to assume that effective and humane arrangements are in place to enable prisoners serving sentences to maintain contact with their families. Article 8 would require no less. It is not for an extradition court in this jurisdiction to seek an explanation from the authorities in an EU state to provide detail of such arrangements, at least until there is cogent evidence of a systemic deficiency. Were the appellant to be extradited one would expect there to be appropriate communication with the child and that arrangements could be made for him to visit his father, although very likely not as frequently as he could if the appellant were incarcerated here. There is ample evidence of Polish relatives in this country and in Poland who could facilitate such visits. On behalf of the appellant it was argued no assumptions should be made regarding these matters but we cannot agree.

It is worth dwelling on what the position would have been if the appellant’s offending had occurred in this jurisdiction, his sentence was the same three years’ imprisonment but he had absconded whilst on bail between conviction and sentence. A warrant for his arrest, not backed by bail, would inevitably have been issued by the Crown Court. He would have committed an additional offence of failing to surrender for which if found guilty, he would expect to be punished with a consecutive sentence. That risk does not attend his absconding from Poland. If he were encountered many years after absconding, he would be taken before the court and into custody to serve his sentence. There would be no power in the Crown Court to reduce the sentence to reflect any change in the absconder’s circumstances in the intervening years. He might seek to appeal out of time to the Court of Appeal Criminal Division and pray in aid those circumstances even though, on this hypothesis, he would be unable to argue that there was anything wrong with the original sentence. He might get leave and it is not impossible that he would succeed in reducing his sentence. Being realistic there would be very little prospect of this exercise delivering to him a suspended or community sentence given the seriousness of the offending. The overwhelming likelihood is that he would have to serve the sentence, or most of it. The only difference between doing so in England as opposed to Poland is the ease with which the child could visit him.

Before turning once more to the likely circumstances of the child in the event of extradition, we pause to consider the correct approach when fresh evidence is relied upon and it is said that it would have resulted in the judge deciding a question before him differently. The question in these extradition proceedings is that posed by section 21(1) of the 2003 Act, namely whether the appellant’s extradition would be compatible with article 8 ECHR. Ms Gallagher submits that the task for this court on an appeal is to put ourselves in the mind of the judge at first instance and determine whether the fresh evidence (or fresh issue raised) would have led that judge to decide the question differently. We were invited to do that by evaluating the language used by the judge when he concluded that article 8 could not prevent the extradition of the appellant, and from that deduce what he would have done had he been in possession of the evidence now available.

Whilst recognising that the language of section 27(4) (see paragraph 2 above) can support such an approach we do not accept the submission. Section 27(4) covers cases in which “an issue is raised that was not raised at the extradition hearing” as well as those where “evidence is available that was not available at the extradition hearing”. In both types of case there are then two steps which must be taken before the appeal can be allowed. First, the appeal court must be satisfied that “the issue or evidence would have resulted in the appropriate judge deciding a question before him differently”; and secondly that “if he had decided the question in that way he would have been required” to discharge the appellant.

In cases involving a new issue raised for the first time on appeal there would be little scope for divining from the language used in the judgment below how a District Judge would have decided any particular question, had the issue been raised. A good example would be an issue raised under article 3 relating to prison conditions in the requesting state. How can the appeal court be expected to second guess what the District Judge would have decided? The same would be true in many cases where new evidence is introduced, unless the District Judge had expressed himself in strong terms in determining a question, or in performing a balancing exercise said it was a close-run thing. We cannot agree that Parliament contemplated that the appeal court should second guess what the judge at first instance would have made of the fresh evidence (or new issue), abdicate its own judgement and responsibility to decide the question and engage in what might well be little better than attempting to read tea leaves to divine an answer. That would be quite unlike any other appellate function. It might require the appeal court to dismiss appeals when, having assessed the new material, it would have decided the question differently, and vice versa.

In a fresh evidence, or fresh issue case, the court hearing an extradition appeal must make its own determination on the relevant questions on the basis of all the material then available.

The features of this case which tell in favour of extradition can be distilled to a few short propositions. They start with the constant weighty public interest in extradition that those convicted of crime should serve their sentences and that the United Kingdom should honour its international obligations. There is a strong public interest in ensuring that the United Kingdom does not become, or be seen as, a safe haven. The weight varies with the seriousness of the crime in question. The offence of which the appellant was convicted was a serious one judged by both its circumstances and the sentence imposed. He is a fugitive in its purest sense, in that he left Poland to avoid serving his sentence. This is a case in which the public interest in extradition is very high not least because of the need to discourage foreign criminals from seeing the United Kingdom as a place which will protect fugitives from justice.

The underlying reality of this appeal is that the appellant seeks to avoid the consequences of his criminality and absconding from justice altogether in reliance on the article 8 rights of his son. We recognise that is subject to the theoretical possibility that if circumstances were to change, or when the child grows up, the Polish authorities might have another go at securing his extradition.

The detriment to the child must be weighed in the balance against the powerful interests identified. We have already indicated that we do not consider that delay adds anything of substance in the circumstances of this case. It is clear that the child has been damaged by his general family circumstances over a protracted period. The disintegration of his parents’ relationship has made that worse. The arrangements when he lived with his mother broke down. He continued to be exposed to the effects of adults who drank far too much and were violent. He is anxious about the possibility of RT being extradited and there is no reason to doubt that he will suffer the harm to which we have referred in that event. RT is not regarded by Social Services as a model parent but the arrangements now in place which involve RT and the child living in an extended family with his brother, sister-in-law and their two children appear to have brought long overdue stability.

The extended family is living in suitable accommodation and the child is benefiting from the association with his uncle, aunt and cousins.

The material before us from Ms Bannon identifies the various possibilities under consideration in the event of RT’s extradition. Nothing we say should be seen in any way as pre-judging the family proceedings. Given the time-scales involved in making the various necessary assessments referred to in Ms Bannon’s evidence those proceedings may have some way yet to go. The possibility that the child will return to live with his mother cannot be discounted, although on the basis of the material currently available that seems unlikely, at least in the short term. The possibility that he might relocate to Poland and live with relations there is a theoretical possibility, but no more. The family in the United Kingdom is keen to make sensible arrangements in the event of RT’s extradition. That is to be expected. Despite the parents’ shortcomings, there is no shortage of love for the child. Their problem has been in providing effective and appropriate parenting. RT is keen for the child to live with his brother and family in the event of extradition. Whilst the assessment of the suitability of that family continues, there are no red flags identified thus far. On the material before us, our conclusion is that the likely outcome in the event of RT’s extradition would be that the child would remain with the extended family. There is a suggestion that RT’s brother might have difficulty in paying for the current home without RT’s contribution. We do not know the term of the lease nor the extent of RT’s savings (their existence is not in evidence before us) and are not is a position to evaluate the risk of a move being forced on the family. A move may be undesirable and could be disruptive if it was to somewhere too far from the child’s current school to make it feasible for him to remain there. We cannot discount the possibility of foster care, if all else fails, albeit with continuing contact and involvement of the child’s mother and extended family.

The imprisonment of a parent of children with whom he has a close relationship usually has an adverse impact on those children. That impact may be particularly damaging if the family is dysfunctional – an all too common phenomenon when dealing with serious criminality. The current family circumstances have propelled RT into the position of being the main parental carer of the child. Were XT well able to care for him it would be very difficult to mount a credible argument that article 8 could impede RT’s extradition.

The question becomes whether the undoubted adverse impact upon the child overbears the strong public interest in extradition which the facts of this case suggest. We have concluded that it does not. This is a conviction case concerning a serious offence involving a fugitive from justice. RT’s extradition will cause damage to his child, but arrangements are likely to be made which will keep him close to his extended family. There is a strong family intention to do the best for him. Hard though it will be for him, we do not consider that the overall impact upon him is sufficient to protect RT from extradition.

In the result, we dismiss the appeal.