PA v Criminal Court Coimbra (Portugal) (Rev 1)

The appeal against the order of extradition

There is before the Court an appeal from the judgment of District Judge Snow of the 3^rd February 2016 in which he granted a request by Judge De Abreu Domingues of the Criminal Court of Coimbra (“the Issuing Judicial Authority” or “JA”) pursuant to a European Arrest Warrant (“EAW”) for the extradition of PA (“the Requested Person” or “RP” – an anonymity order has been in relation to the Appellant). The Requested Person has been convicted, in Portugal, of offences of armed robbery, swindling and forgery and she has been sentenced to a term of imprisonment of 3 years and 8 months. The enforceable judgment occurred on the 1^st October 2004 but the date the judgment entered into force was the 15^th September 2011.

In this appeal the RP raises three grounds. They may be summarised as follows:

As I explain below the evolution of this case has taken a number of twists and turns since I first heard argument in August 2016. On 24^th January 2017 the parties applied to the High Court with a view to bringing the Court up to date. At the culmination of that hearing I made a Final Order in which I dismissed the appeal but directed that the coming into effect of the Order be delayed for [6] months to enable the Appellant through her legal advisers to explore the possibility with the National Offender Management Service (NOMS) of serving her sentence in the United Kingdom. There was liberty to apply. If the Portuguese authorities proved hostile to this possibility they could simply refuse to countenance the possibility in which case the Order would become definitive. The Order is thus final: In the absence of any agreement the Appellant will be extradited to Portugal to serve her sentence. I indicated that I would give my reasons later. I now set out my reasons.

Concerns about the adequacy of evidence about the child

The central issue concerns the rights of the RP’s daughter. She is presently 11 years of age and has spent her life in England. Before setting out the facts it is necessary, as a preliminary matter, to explain out how and why fresh evidence relating to M was directed to be produced by this Court.

In the course of the hearing on the 3^rd August 2016 an issue arose as to whether the Judge below had erred in failing to take account of the “voice” of M since her position, and her views, were relevant to the arguments advanced by the RP under Article 8 ECHR based upon her position as the mother of M and the child’s right of access to her mother which would, it is said, be adversely affected if the RP was extradited to Portugal.

At the conclusion of the oral hearing I adjourned proceedings to enable evidence to be given as to the position of M. This was upon the basis of the provisional concern that I entertained that there was no actual evidence before the Judge directly from M but that, instead, the Judge had made a number of assumptions about the position of the child which might have been but which were not necessarily accurate. I was concerned that in the absence of actual evidence concerning the child I could not be certain that those assumptions accurately reflected the child’s views and position. Ms Westcott for the Respondent argued that the assumptions made by the Judge about M’s position were reasonable and logical and were within the powers of the Judge to form. Ms Nice, to the contrary, submitted that the assumptions were, in effect, forensically unacceptable, and an improper short cut by the Judge who, instead, should have ensured that he had actual and detailed evidence about and from M before he made his decision.

It was clear that the Judge had experienced real difficulty in obtaining evidence about the child. For the most part the Appellant was not legally represented. Nonetheless, the law which governs how Courts should act when a child’s interests are in issue demands that a structured and evidentially well prepared approach should be taken. I could have proceeded to hear the case and, had my concerns persisted, allowed the appeal and quashed the extradition. But had I done this I would in substance have thwarted the EAW because of a failing in the domestic judicial system. The appeal is brought pursuant to Section 26 Extradition Act 2003 (“EA 2003”). The appellate powers of the High Court are well known. They entitle the High Court to allow an appeal only if the conditions laid down in Section 26(3) or (4) EA 2003 are met. The first condition, and I summarise, is that the High Court is satisfied that the Judge below ought to have decided a question before him at the extradition hearing differently and that had he so decided the question differently he would have been required to order the person’s discharge. The second condition concerns circumstances where a new issue or evidence arises on the appeal which, had it been available to the relevant judge, would have resulted in a question before that judge being decided differently where that different decision was material to the outcome.

The powers of the High Court in the event that the appeal succeeds are limited. Pursuant to Section 26(5) EA 2003 where a court allows an appeal it must: “(a) order the persons discharge; (b) quash the order for his extradition”. It is not possible, therefore, where a judge considers that the Judge below has erred to remit the matter for reconsideration. This leads to the unpalatable possibility that an error on the part of the domestic legal system (for instance an error by a judge at first instance) results in an otherwise perfectly valid EAW being defeated. It would in my view be a perverse consequence if a properly convicted person could escape extradition on an otherwise valid EAW by reason of an error in the judicial process in England.

To avoid this it is possible, where the High Court considers that there is or may have been a deficiency in the evidence available to the Judge below, to adjourn proceedings to permit fresh evidence to be adduced. In the light of the new evidence it will then be open to the High Court to arrive at a decision by reference to one or other of the conditions in Section 26(3) and/or (4).

In these circumstances I therefore directed that a psychiatrist or psychologist be instructed to assess M whose assessment would include articulating the child’s views. The instructions given to the experts were to be jointly agreed to eliminate the need for multiple experts and to expedite the evidence collection process. I also permitted M, if she so wished, to produce a statement of her views. I made clear that there was to be no element of compulsion and that the cooperation of M in these proceedings was a decision for her to take as she saw fit. The difficulty presented by seeking to obtain actual evidence about the child turned out to be substantial. This was not least because at the time there were ongoing care proceedings in the County Court in relation to the child pursuant to which the possibility of M being placed in the care of her paternal family in Portugal were being considered. Therefore for understandable reasons significant delays occurred. Nonetheless at the end of the day the adjournment has allowed the position of M to be fully clarified. In one sense the ends (clarification) justified the means (adjournment leading to delay). It is a point that I will refer to later but whilst it is a truism that extradition proceedings should occur expeditiously, where the interests of a child are at stake undue expedition may need to be tempered with the need for a full investigation into the position of the child and that this is best achieved at the first stage, i.e. before the Magistrates Court, rather than on appeal. Indeed, time will be saved (and expedition better served overall) by detailed early engagement with the evidence collection exercise. (Footnote: ¹)

I should record that I was given real assistance by the Judge hearing the care proceedings (DJ Russell) who, in a valuable exercise in judicial cooperation, kept me informed of proceedings as they evolved before her and this then enabled me to ensure that she, and the parties to those proceedings, were informed about developments in the extradition proceedings (see paragraphs [28ff] below).

I should also mention the test for the admission of fresh evidence which involves a consideration of the nature of the duty of the Court to obtain evidence about a child affected by the decision of a Court. This was considered by the High Court in Hungarian Authorities v Fenyvesi [2009] EWHC 231 (Admin) at paragraphs [27] and [32]. In particular at paragraph [32] the Court stated as follows:

“32.

In our judgment, evidence which was "not available at the extradition hearing" means evidence which either did not exist at the time of the extradition hearing, or which was not at the disposal of the party wishing to adduce it and which he could not with reasonable diligence have obtained. If it was at the party's disposal or could have been so obtained, it was available. It may on occasions be material to consider whether or when the party knew the case he had to meet. But a party taken by surprise is able to ask for an adjournment. In addition, the court needs to decide that, if the evidence had been adduced, the result would have been different resulting in the person's discharge. This is a strict test, consonant with the parliamentary intent and that of the Framework Decision, that extradition cases should be dealt with speedily and should not generally be held up by an attempt to introduce equivocal fresh evidence which was available to a diligent party at the extradition hearing. A party seeking to persuade the court that proposed evidence was not available should normally serve a witness statement explaining why it was not available. The appellants did not do this in the present appeal.”

In the present case the Appellant had not been able to obtain evidence relating to the child to be placed before the first instance Court and I therefore concluded that it was proper for me to ensure that this new evidence was obtained. However, even if it had in fact been possible to have obtained evidence about M at the time of the first hearing but it had not been collected I would still have considered that I had the inherent jurisdiction to permit the obtaining of such evidence for two reasons. The law attaches great importance to the views and to the position of affected children. The child has not been represented during these proceedings. In my judgment I am under a duty to ensure that I do not take a decision which is based upon an evidential void pertaining to M. If I had proceeded to decide the case exclusively upon the basis of partial and potentially misleading evidence from the parties this might have been to the unfair prejudice of the affected child. In my view it was therefore incumbent upon me to avoid this end result and the way to do this was by adjourning to permit M’s position and voice to be known and heard.

In ZH (Tanzania) v SSHD [2011] UKSC 4 at paragraph [46] Lord Kerr stated that in reaching decisions that would affect a child “…primacy of importance must be accorded to his or her best interests”. He also observed that this was not a factor of “limitless importance in the sense that it will prevail over all other considerations”. But it was, however, a factor that should rank higher than any other and was not merely one consideration that weighed in the balance alongside other competing factors. Where the best interests of a child clearly favoured a certain course the course should be followed unless other countervailing reasons of considerable force displaced them.

In HH v Deputy Prosecutor of the Italian Republic, Genoa [2012] UKSC 25 Baroness Hale of Richmond stated, at paragraph [15] that ZH (Tanzania) (ibid):

“… made it clear that in considering Art 8 in any case in which the rights of a child are involved, the best interests of the child must be a primary consideration. They may be outweighed by countervailing factors, but they are a primary importance. Importance of the child’s best interests is not to be devalued by something for which she is in no way responsible, such as the suspicion that she may have been deliberately conceived in order to strengthen the parent’s case.”

In paragraphs [82] and [83] Baroness Hale stated:

“82.

If the children's interests are to be properly taken into account by the extraditing court, it will need to have some information about them. There is a good analogy with domestic sentencing practice, although in the first instance the information is likely to come from the parties, as there will be no pre-sentence report. The court will need to know whether there are dependent children, whether the parent's removal will be harmful to their interests and what steps can be taken to mitigate this. This should alert the court to whether any further information is needed. In the more usual case, where the person whose extradition is sought is not the sole or primary carer for the children, the court will have to consider whether there are any special features requiring further investigation of the children's interests, but in most cases it should be able to proceed with what it has.

83.

The cases likely to require further investigation are those where the extradition of both parents, or of the sole or primary carer, is sought. Then the court will have to have information about the likely effect upon the individual child or children involved if the extradition is to proceed; about the arrangements which will be made for their care while the parent is away; about the availability of measures to limit the effects of separation in the requesting state, such as mother and baby units, house arrest as an alternative to prison, prison visits, telephone calls and face-time over the telephone or internet; and about the availability of alternative measures, such as prosecution here or early repatriation.”

The rights of a child to have a “voice” finds expression in Article 24 of the EU Charter of Fundamental Rights entitled “The Rights of a Child”. Under Article 24(1) children have the right to such protection and care as is necessary for their wellbeing: “They may express their views freely. Such views shall be taken into consideration on the matters which concern them in accordance with their age and maturity”. Under Article 24(2) in all actions relating to children a child’s best interests must be a primary consideration. Article 24(3) states: “Every child shall have the right to maintain on a regular basis a personal relationship and direct contact with both his or her parents, unless that is contrary to his or her interests”.

In Sosik v Prosecutor General, Lithuania [2014] EWHC 2487 (Admin) Mrs Justice Cox, in the context of an appeal under Section 26(1) EA 2003 was critical of a District Judge in terms of the depth of analysis engaged in with regard to the interests of the child:

“27.

While the District Judge did refer expressly to considering certain factors ‘on the one hand’ and other factors ‘on the other side’, I am not persuaded that in doing so he avoided falling into the trap identified in HH, with the result that he was, in error, looking for something exceptional or striking in this case, rather than considering the potential impact of extradition on the Appellant and the members of his family. His observation that ‘we hear this on a daily basis’ supports that conclusion and was unfortunate. The frequency with which Article 8 rights are raised in extradition cases has no bearing on the need for a careful balancing exercise to be carried out on the specific facts of each case. The District Judge must always examine carefully the ways in which extradition would interfere with the private and family life of the requested person and the members of his or her family, and whether that is outweighed by the strong public interest in extradition.”

All of the above establishes that a judge, whether at first instance or on appeal, must pay particular attention to the interests of children where the extradition will impact upon the children and that in appropriate circumstances this may only be properly achieved by a court ordering the production of fresh evidence about and/or from a child.

The second reason why I would, in any event, have directed the obtaining of the fresh evidence is because, as case law emphasises, there is a very great public importance to be attached to an efficient extradition system based upon mutual respect as between the participating criminal authorities. If I were to quash the extradition simply because, to test the argument, there was an error in the approach to the collection of the evidence by the first instance judge, then I would be undermining that system of mutual trust that is meant to exist as between the states who are party to the EAW system. I would be allowing an error by the criminal justice system in this jurisdiction to thwart the principles which underpin extradition. If however I direct the production of fresh evidence I am then in a position to determine effectively whether the result arrived at by the first instance judge was justifiable or not.

I now turn now to the facts of the case.

The Requested Person has been convicted in Portugal of offences of armed robbery, swindling and forgery. She has been sentenced to a term of imprisonment of 3 years and 8 months. These are serious offences. It is argued that the RP is an exceptionally vulnerable person due to a history of sexual abuse by a step-father and other physical mental and emotional abuse sustained as a child. She has a long history of drug abuse. She is HIV positive and she suffers from Hepatitis C. She has, in the past, been a suicide risk. There is before the Court a psychiatric report from Dr Walters who records that she suffers from depression, anxiety and chronic insomnia. She has made four suicide attempts, two as an adolescent and two since 2014. Dr Walters expresses the opinion that the childhood sexual abuse predisposes the Appellant to a range of mental health illnesses. In psychiatric terms Dr Walters states that the Appellant has the following diagnoses: mental and behavioural disorders due to opioids, dependency syndrome with episodic usage; moderately severely depressive disorder with some somatic syndrome; and adjustment disorder, mixed anxiety and depressive reaction. In her skeleton argument Ms Nice, for the Appellant, invited the Court to consider that the Appellant’s sad life trajectory falls within a not uncommon profile of victims of serious childhood sexual abuse. It was said that the Appellant first communicated her childhood history of abuse to her current partner and then her current legal representatives and to Dr Walters and that she has thus had no professional support at any point in her life for the issues which have resulted from that abuse.

The Appellant’s daughter, M, is now 11 years old. She has had no family in the United Kingdom other than the Appellant. She has had no significant or relevant contact with her birth father. The Appellant was arrested on the 24^th April 2015 and remanded on bail on the 1^st May 2015. In April 2015 in view of the Appellant’s impending arrest on the EAW social services intervened and M was placed in foster care under an Interim Care Order pending resolution of the extradition. On the 6^th November 2015 a Deputy High Court Judge ordered that M be placed in long term foster care. The final order states that the local authority would continue to investigate the making of a Special Guardianship Order (“SGO”) to enable M to move to live with her Aunt in Portugal. The authorities also conducted an assessment of the paternal grandparents, also in Portugal.

It is relevant to the present appeal to consider the reasons why M was taken into care. This was not exclusively or even largely upon the basis that the mother was at risk of extradition. In proceedings before HHJ Richards, sitting as a Deputy High Court Judge on the 2^nd November 2015 the key issues in the case were identified as: (a) emotional/risk physical harm; (b) flight risk and extradition; (c) domestic violence; and (d) mother’s mental health and drug misuse. A parenting assessment of the Appellant had been conducted for the purpose of the hearing. It did not recommend a return of M to her mother’s care for a multiplicity of reasons. These may be summarised as follows. First, despite being offered professional support the Appellant had not engaged meaningfully and had shown no capacity to address her longstanding heroine usage nor did she recognise the adverse effects of this drug usage upon her parenting and the associated risks to M; second, the Appellant was highly critical of M considering her to be naughty and difficult and in consequence M experienced deep feelings of guilt and sadness that she was to blame for the predicament that her mother was in; third, that the Appellant had been unable to prioritise M’s needs resulting in M taking on more of a parenting role vis-à-vis her mother; fourth, the Appellant had been consistently late for contact with her daughter and M had been forced to try to meet her mother’s emotional needs during contact; fifth, there was continued uncertainty about whether the Appellant would be extradited to Portugal which would result in her serving a prison term for robbery and thus being unavailable to care for her daughter; sixth, a return to the Appellant’s care would put M at potential physical risk and would risk her long term emotional welfare and mental health; and seventh, the Appellant did not accept that there were any deficits in her parenting and sought to transfer blame to both M and to professionals whilst at the same time expressing an interest in suicide.

The position of the guardian, who had completed a final analysis and recommendation, was that she did not support M being cared for by the Appellant.

It was therefore plain from the above that even were the extradition to be quashed and the Appellant discharged there was no guarantee that she would resume care of M.

Norfolk County Council child protection team stated in a Position Statement of 10^th October 2016:

“Norfolk County Council issued Care Proceedings in respect of the child, (MS – D.O.B. 22/07/2005) on the 10^th May 2015, with the Appellant Mother having already placed the child in Local Authority foster care on 24th April 2015 under a s20 agreement. The Appellant was arrested the same day for an outstanding international warrant in respect of a Robbery Conviction and 3 ½ year sentence that the Appellant had failed to serve in Portugal.

An Interim Care Order in favour of Norfolk County Council was granted by the Norfolk Family Court on the 11^th May 2015 and at the Final Hearing on the 6^th November 2015 a Care Order was granted in favour of Norfolk County Council.

Following a positive viability assessment it remains the plan of the Local Authority for the child to reside with her Paternal Aunt in Portugal under a Special Guardianship Order, to initially be obtained in the Norfolk Family Court and then subsequently formalised in the Portuguese Courts. An application for a Special Guardianship Order is now in the process of being issued.

The child has not lived with the Appellant Mother for over 17 months and as the plan of the Local Authority is for the child to reside in Portugal with the Paternal Aunt, whether or not the Appellant Mother remains in the United Kingdom will have no impact whatsoever on the child. The Appellant Mother has only been having supervised contact with the child at a frequency of once a month for a period of one and a half hours, with the last visit taking place on the 30^th August 2016.

It is the belief of Norfolk County Council that any psychological assessment of the child would be completely unnecessary and would cause her undue upset and distress, as she is fully aware of the plan for her to move to Portugal as soon as this can be arranged. The fact that the Appellant Mother is seeking such an assessment of her child, who has not lived with her for an extended period and will not be returning to the Appellant Mother’s care, underlines her failure to put the best interests of her child above her own needs i.e. her desire to remain in the United Kingdom.”

In the course of the care proceedings M came to be represented by the Official Guardian; a representation order was made to enable the mother to express her views and position.

Various hearings were heard in the County Court before DJ Russell. The options for M were: (i) that she go to Portugal to stay with her paternal aunt’s family; (ii) that she stay in this country in care; and (iii), that she be returned to the care of her mother, also in this country. The choice of the appropriate option for M was bound up with the fate of the RP in the extradition proceedings. To assist DJ Russell and the parties in the care proceedings I produced a Note on my provisional views. For reference this is set out as an Annex to this judgment. The views set out in that note were as follows: (a) if M was entrusted to the care of family in Portugal then I would make an extradition order; (b) if she remained in the care of foster parents in this jurisdiction with the mother having only limited visiting rights then I would make an extradition order but might impose a stay on the drawing up of the order for a period of time to enable the mother to explore the possibility for her to serve her sentence in this jurisdiction; and (c) if the Family Court considered that the best interests of the child were that she be returned into the care of her mother in the immediate/near term and in this jurisdiction then I would have to consider the position carefully but did not (at that point) have a provisional view upon this. I made it clear that even in such circumstances it could not be assumed that I would necessarily allow the appeal.

Following this, matters progressed. M made her views clear. She did not wish to go to live in Portugal though she emphasised that she got on very well with her Portuguese family and did not wish to lose contact with them. For their part her Portuguese family wished to respect M’s wishes and do what was best for her. M has, as of the date of this judgment, been placed with a long term foster family where it is hoped and expected she will remain until she attains majority. I can summarise the final position of M by quoting the report prepared for this Court by Norfolk County Council:

“[M] currently has monthly contact with her mother, which is supervised. Contact has not been of a good quality and her mother is prioritising her own needs over and above those of [M] as evidenced by the fact that [the mother] has often discussed inappropriate things in contact such as her extradition proceedings to Portugal. [M] is emotionally affected by these conversations and she worries about her mother. It is unknown if [the mother] will remain in the UK or be extradited to Portugal where she would need to serve a prison sentence and therefore contact would be limited, if this was the outcome of the extradition proceedings.

The Local authority wants stability for [M] and is proposing to reduce contact with her mother. If [the mother] does not go to prison, the Local Authority is  proposing that contact will take place once every three months for a duration of one hour during the school term and for one and half hours, during the school holidays.

[The mother] will also be able to send letters, cards or presents once every three months to [M], if she does not go to prison. If [the mother] is send to prison in the UK, the Local Authority is proposing twice per year contact, depending on the length of the prison sentence. Both [M] and her mother would be able to write to each other on two occasions per year, if [the mother] is in prison in the UK.

In the event that [the mother] is extradited to Portugal, the Local Authority is proposing that contact will take place on the occasions that [M] will be visiting [the paternal aunt]. If [M] continues to refuse direct contact with [the aunt], the Local Authority does not propose that contact should take place between [M] and her mother, if she is extradited to Portugal.

[M] is [in] agreement with proposals to reduce contact with her mother which she describes as 'awkward' citing an example where her mother brought old toys which she asked [M] to take to her placement.

[The mother has] also agreed to have contact reduced and she does not want [M] to visit her in prison. The Local Authority will continue to review any contact arrangements for [M] in the Looked After Children Review meetings and contact should remain in [M’s] best interests.”

I turn now to the grounds of appeal.

Delay – the law

Section 14 EA 2003 provides that a person’s extradition is barred by reason of the passage in time if, and only if, it appears that it would be unjust or oppressive to extradite that person by reason of the passage of time since that person is alleged to have become unlawfully at large.

It is trite that where the person subject to extradition has caused the delay that save for the most exceptional circumstances it is not open to the individual to rely upon delay: Gomes v Government of Trinidad and Tobago [2009] 1 WLR 1038 at paragraphs [21] and [26]. In Kakis v Government of Cyprus [1978] 1 WLR 779 at page [783] Lord Diplock stated that delay in the commencement or conduct of extradition proceedings brought about by the accused himself by fleeing the country, concealing his whereabouts or evading arrest could not be relied upon as a ground for holding that it was either unjust or oppressive to extradite the person.

In Kakis (ibid) at page [782H] Lord Diplock defined the concepts of injustice and oppression in Section 14, in the following terms:

“‘unjust’ I regard as directed primarily to the risk of prejudice to the accused and the conduct of the trial itself, ‘oppressive’ is directed to hardship to the accused resulting from changes in his circumstances that have occurred during the period taken into consideration; but there is room for overlapping; and between them they would cover all cases where to return him would not be fair.”

The Appellant contends that there has been an overall delay in this case of approximately 13 years which delay lacks any rational explanation as to why it took the Judicial Authorities seven years to reach a final conviction and a subsequent three years to reissue the warrant.

In order to understand the sequence of events it is necessary, briefly, to recite a short chronology. The offences were committed between the 10^th and 29^th April 2003. A prison sentence of 3 years and 8 months was imposed. The judgment was delivered on the 1^st October 2004. However the judgment entered into force only on the 15^th September 2011. The Appellant arrived in the United Kingdom in 2004. M was born on the 22^nd July 2005. The Appellant’s extradition was sought in 2010 but the EAW was withdrawn on the 27^th January 2011 pursuant to Section 41 EA 2003. This was upon the basis that the old EAW required the Appellant to serve a prison sentence when in fact the Judicial Authority regarded the EAW as an accusation matter. The EAW was only reissued on the 5^th June 2014 (i.e. over three years later) and the Appellant arrested shortly thereafter in April 2015.

In the judgment below the Judge addressed the issue whether there had been any delay and also whether the RP was a fugitive from justice. He set out in paragraphs [14] – [23] his reasoning, which he referenced with relevant case law. His position on the law and as to whether the RP was a fugitive can be summarised as follows. First, the Judge addressed the test under Section 14 EA 2003 to the effect that he had to apply a test of injustice or oppression. Second, the Judge cited relevant authority to the effect that where an individual had caused the delay then save in the most exceptional of circumstances the individual could not rely upon that delay. Third, the Judge cited authority (for example Brzeski v Poland [2012] EWHC 1138 (Admin)) to the effect that there had to be a causal connection between any delay fond to exist and the alleged injustice and/or oppression. Fourth, the Judge cited authority to the effect that those who fled justice and became a fugitive could not rely upon delay to oppose extradition. Fifth, he reminded himself that the burden of proving that an individual was a fugitive lay with the requesting state or Judicial Authority. Sixth, the Judge stated that the seriousness of the extradition offence was also a relevant consideration. There has in this appeal been no criticism of the Judge’s analysis in this regard.

In relation to the evidence the Judge set out (in paragraph [25ff]) the facts he relied upon for his conclusion that he was sure (thereby applying a criminal standard of proof) that the Appellant became a fugitive from justice in Portugal. The evidence included documentary evidence provided by the Portuguese authorities of the proceedings in Portugal and of the RP’s participation or (more accurately) non-participation) in these proceedings. Having recited the evidence he summarised the position in the following way:

“29.

I approach the information provided by the JA on the basis of mutual respect and trust. I am satisfied so that I am sure that RP was required to reside at a given address and not to change that residence without the permission of the authorities. I am satisfied to the criminal standard that this requirement would not have been imposed unless the RP faced ongoing criminal proceedings. Given the gravity of the crimes committed, the RP’s admissions to the police and the residence requirement, I am satisfied that the RP was aware that she faced trial for those matters. I am satisfied so that I am sure that she was deliberately absent from her trial and that she became a fugitive from justice when she left Portugal in breach of her residence requirement on 24^th November 2004.”

The Judge did however also find that there had been delay on the part of the Portuguese authorities between 2011 when the EA was withdrawn and 2014 when it was reissued (see paragraph [35] above).

In the present case any delay which occurred is irrelevant to any question of injustice. If the Appellant is returned to Portugal she will not face trial, since that is already behind her. There is no suggestion that the trial was in any way unfair or that any judicial proceedings remain to which delay could be relevant. Accordingly there is no arguable ground of appeal under Section 14 EA 2003 in relation to injustice. Ms Nice for the Appellant did not submit otherwise.

So far as oppression is concerned this is, in my view, simply another facet of the Article 8 ground relating to the interests of the child, which I consider below. The argument here is that – causally - because of the delay M has been brought up in the United Kingdom and has lived her entire life here. She is, under ordinary principles, entitled to access to her mother and if her mother is removed to Portugal this will have adverse consequences for M and this is oppressive for M which is a relevant category of oppression under section 14 EA 2003. This alleged “oppression” then leads, in due turn, to the conclusion that it would be wrong (and oppressive) to extradite the RP because of the adverse impact upon the child. This is, in substance, the same argument as arises under Article 8, though this time framed under the heading of delay.

As to the position of the RP I am satisfied that the analysis conducted by the Judge was correct. He concluded that the preponderant part of the period elapsing was not attributable to delay but was caused by the fact that the Appellant was a fugitive from justice and there was no causal connection between the passage of time and any prejudice she might suffer. In this regard the Judge made findings of fact, summarised above, that the Appellant in full knowledge of the risk of a custodial sentence, fled Portugal for the United Kingdom and has remained here ever since, a fugitive from Portuguese justice. There is no basis upon which I could or should interfere with the fact finding of the Judge.

However the Judge did find a short period of delay of circa 3 years (cf paragraphs [42] and [43] of the Judgment below) which the Judge balanced in the pros and cons weighing and balancing process. In his view there was an element of delay between the date of the sentence becoming enforceable (15^th September 2011) and the issuance of EAW (2014) and he took this more limited period of delay into account in the balancing exercise which he was required to conduct.

It follows that on a stand-alone basis and so far as the RP is concerned the ground of appeal relating to delay does not succeed. The Judge did not err. To the extent that it is relevant as a result of the position of the child it is taken account of below in relation to the arguments under Article 8.

I turn now to the second, and principal, ground of appeal. I start by describing the approach adopted by the Judge.

The position of M is dealt with relatively briefly in the narrative part of the Judgment. In paragraph [40] the Judge records that M was taken into care when it was plain that the RP was to be arrested upon the EAW. The Judge records that the RP saw her daughter every fortnight. The Judge recorded that M’s case was before the Family Court who were awaiting the outcome of the first instance decision before deciding upon the next stage of M’s care. The Judge recorded that the RP had formed a new relationship and was living in a one bedroom apartment and the RP accepted that M could not be returned to her care whilst she remained at that address.

In paragraph [43] the Judge stated as follows under the heading “Cons against extradition”:

“[M] will undoubtedly be distressed by her inability to have access to her mother and returned to her mother’s care will be delayed by the remaining prison sentence.”

At paragraph [47] the Judge stated:

“I accept that [M] will be distressed by separation from her mother, but her care will be provided by social services under the supervision of the Family Proceedings Court.”

Save for those two brief references the position of M was not otherwise addressed as part of the balancing exercise conducted to decide whether extradition should be ordered.

In the paragraphs referred to the Judge made a number of assumptions about the child which Ms Westcott argued were favourable to the Appellant and a fair reflection of the position of the child such that her interests could therefore be properly assessed. These assumptions were that M would be distressed by separation because the mother would be incarcerated in Portugal for the entire period of the sentence and that M would not have access during that period to the RP. These assumptions were favourable to M and to her mother since they amounted to reasons militating against extradition (in which case M would have access to her mother in this jurisdiction) and thus weighed heavily in the balancing exercise conducted by the Judge. As such there was no prejudice to the Appellant or child arising out of the approach adopted by the Judge.

Ms Nice argued that this was not good enough. First, these assumptions were based upon no evidence and might in actual fact be understating M’s position. Who knows – she might prove to be suicidal or so bereft that she self-harmed argued etc.? The expression “distressed” (used by the Judge) did not indicate the degree of distress. It was, therefore possible that M would be far more seriously affected by an inability to have access to her mother than was contemplated by the Judge. This might not be the case but absent any expression of view by M or any psychologist or psychiatrist on her behalf, this remained an unknown and case law emphasised the real importance of a thorough evidentially based approach to a court understanding the position of a child. Second, in any event, the short recitation of assumptions in the judgment did not expose the reasons for the conclusion and could amount to no more than a formulaic and convenient way of disposing of the “child” point without in actual fact giving it the due weight which on the basis of authority was demanded. Third, there were in any event a number of imponderables about the assumptions made by the Judge. It was unclear whether the Judge assumed that M would or would not be able to travel to Portugal to have access to her mother through the prison visiting system operative there and it was also unclear as to the length of time that the Judge considered that M would be separated from her mother. There was no evidence, for instance, as to whether the RP would be released on licence at any point during the sentence of 3 years and 8 months such that the period would be less than the total period sentenced. Perhaps the Judge assumed that M would be able to visit her mother in Portugal and/or that she would be released early on licence whereas in fact (a) the child would not be able to visit and/or (b) the mother might (as a fugitive from justice) be required to serve the entirety of her allotted sentence, in which case the “distress” of the child would be greater and not lesser.

I now have the benefit of fresh evidence about M and I am aware of her present, and settled, position. I have set this out fully above.

In assessing Article 8 I need to evaluate the child’s interests in the overall assessment giving it appropriate weight.

When this matter first came before the Court and there was real uncertainty as to the actual position the arguments that were advanced were far removed from those which were sensibly open to be argued when the position of M became settled and the matter came back before the Court in January 2017. For instance it was a possibility at the outset that M might go to live in Portugal; that was a possibility that subsequently fell away.

To my mind this shows the signal importance of the Court ensuring that it is fully appraised of the position of an affected child and that is far better done at first instance and not on appeal. It also seems to me that to avoid a chicken and egg scenario where the outcome of both the extradition and the family decisions could be dependent upon each other, the logical course is for the Family Court to come to its decision first of all. Only in this way can the Extradition Court then make a full assessment of the position under Article 8. There is of course a difficulty in this. If for instance in the present case the Family Court had decided that it was very strongly in the interests of the child that she be returned forthwith to her mother that (albeit unlikely) outcome would have triggered a very difficult decision for the Extradition Court to take. But at least the Court would have known the full extent of the child’s interest and the fact that the decision would have been difficult is not a reason for the Court to be inadequately informed of the child’s best interests. The fact that the outcome of the Family Court proceedings might create a dilemma for the Extradition Court is an inherent possibility which arises whenever two Courts are taking potentially inconsistent decisions. The paradigm conflict arises where a Family Court orders that a child be returned to a mother forthwith but the Extradition Court then orders the extradition of the mother in full knowledge that this is not in the best interests of the child. This however might be no more than a recognition on the evidence that the interests of a child though very important do not inevitably, in law, prevail over the interests of the extradition system and, in such a case, the Family Court would need to reconsider its options.

This illustration may be unlikely but it is not impossible and could have arisen in the present case had (hypothetically) the RP been, at the date of the extradition proceedings, in full mental and physical health and able to care for the child. In my view mutual cooperation between the Extradition Court and the Family Court can ensure that both courts are fully informed of each other’s position and might make the risk of such conflicting decisions less likely.

In the present case on the facts as now settled the upper limit of the interests of the child which must be placed into the balance are periodic and relatively infrequent visitation and/or contact rights. Sadly the present bond between mother and child is not strong. It therefore follows that in the weighing scales the interests of the child in this particular case are not those of unfettered, immediate and permanent unification of mother and daughter. They are a different and (regrettably from a personal perspective) lesser species of interest.

I turn now to the balancing exercise which the Judge below was required to conduct. The approach to be adopted by a court was summarised by the Divisional Court in Polish Judicial Authorities v Celinski and others [2015] EWHC 1274 (Admin). The judgment of the Court, presided over by Lord Thomas CJ, provides a valuable synthesis of the relevant principles. In essence a court considering issues arising under Article 8 must set out the pros and cons relating to extradition and then balance them. In relation to the balancing of all relevant consideration the Court indicated that judges hearing cases should set out clearly an analysis of the facts as found and a succinct and clear and adequate reasoning for the conclusion arrived at by balancing the necessary considerations (cf paragraph [15]). The approach should be one where the judge, after finding the facts, ordinarily sets out each of the pros and cons in what has aptly been described as a “balance sheet”. The Judge should list the factors favouring extradition and then the factors militating against extradition. The Judge should set out his conclusion as the result of balancing those factors.

So far as these apply to cases involving children it is made plain that the public interest in ensuring an extradition arrangements are honoured “… is very high as is the public interest in discouraging persons seeing the UK as a state willing to accept fugitive from justice. These were powerful interests which had to be taken account of, alongside the interests of a child”(see at paragraph [9]).

The Judge below adopted the approach endorsed by the Divisional Court. In paragraphs [42] – [47] the Judge set out the pros and cons and the balancing exercise. In relation to pros the Judge stated that the offences were extremely serious and the RP was a fugitive from justice. In relations to the cons against extradition he referred to the fact that the RP suffered from ill health, that M would undoubtedly be distressed by her inability to have access to her mother, and that the JA was guilty of delay between the sentence becoming enforceable and the issuance of the EAW. In the balancing exercise he reminded himself of the high importance in ensuring that extradition arrangements were honoured and the public interest in discouraging fugitives from justice and the need to accord mutual confidence and respect to the request of the Judicial Authority. He concluded, in particular given his finding that the RP was a fugitive from justice, that there were “very strong counter-balancing factors before extradition would be disproportionate”. He then stated this at paragraph [47]:

“I approach this case on the basis that the RP’s HIV and depression will be dealt with by appropriate medication provided by the JA. The age of the case is substantially due to RP evading justice. I accept that [M] will be distressed by separation from her mother, but her care will be provided for by social services under the supervision of the Family Proceedings Court. The crimes committed in this case were grave. The JA are entitled to protect the integrity of its criminal justice system.”

For these reasons the Judge concluded that extradition was not incompatible with RP’s Article 8 rights.

The new evidence does not undermine the Judge’s ultimate conclusion. But it does show that the use of assumptions may risk being inappropriate. The position of M in actual fact is considerably more complex that a mere assumption that she would be distressed. In fact M’s position has changed over the course of the months leading up to the making of the Order in this case. The issue now does not focus upon whether M is distressed or not; it is targeted at the taking of steps which might at some point in the future enable mother and daughter to resume a more normal relationship. This might not even occur until M has reached majority but it may rest on the possibility of contact in the interim.

In my view the making of assumptions is likely to be an innately inaccurate basis for a decision. It is not a substitute for a full investigation into a child’s position. If, in a truly extreme case, that proved quite impossible (and I find it hard to see why that would be the case) then perhaps an assumption is all that can be made. But in such a case it will risk being unduly favourable to one party and unduly prejudicial to the other. If the price that has to be paid to avoid this is an adjournment then that is a price worth paying and (i) it will ensure that ultimately the extradition is properly founded on the evidence; (ii) it will reduce the risk of appeals; and (iii), it will in an overall sense save time.

On the present facts there is thus no reason to allow the appeal. The RP must be extradited. The interests of the child are not so strong that they can alter this conclusion. But this conclusion does not mean that the child’s interests cannot be protected in other ways which are still consistent with the extradition regime.

I accept that the interest of M in the possibility of longer term reunification is better served with her mother in this jurisdiction than in Portugal. To this end the possibility exists for the Portuguese authorities to agree to the RP serving her sentence in this country.

This is provided for under Council Framework Decision 2008/909/JHA of 27 November 2008 on the application of the principle of mutual recognition to judgments in criminal matters imposing custodial sentences or measures involving deprivation of liberty for the purpose of their enforcement in the European Union (“the Decision”).

Article 3 sets out the purpose of the Decision: “The purpose of this Framework Decision is to establish the rules under which a Member State, with a view to facilitating the social rehabilitation of the sentenced person, is to recognise a judgment and enforce the sentence”.

Recitals [5] – [9] of the Decision explain in greater detail its central objectives:

“(5)

Procedural rights in criminal proceedings are a crucial element for ensuring mutual confidence among the Member States in judicial cooperation. Relations between the Member States, which are characterised by special mutual confidence in other Member States’ legal systems, enable recognition by the executing State of decisions taken by the issuing State’s authorities. Therefore, a further development of the cooperation provided for in the Council of Europe instruments concerning the enforcement of criminal judgments should be envisaged, in particular where citizens of the Union were the subject of a criminal judgment and were sentenced to a custodial sentence or a measure involving deprivation of liberty in another Member State. Notwithstanding the need to provide the sentenced person with adequate safeguards, his or her involvement in the proceedings should no longer be dominant by requiring in all cases his or her consent to the forwarding of a judgment to another Member State for the purpose of its recognition and enforcement of the sentence imposed.

(6)

This Framework Decision should be implemented and applied in a manner which allows general principles of equality, fairness and reasonableness to be respected.

(7)

Article 4(1)(c) contains a discretionary provision which enables the judgment and the certificate to be forwarded, for example, to the Member State of nationality of the sentenced person, in cases other than those provided for in paragraphs 1(a) and (b) or to the Member State in which the sentenced person lives and has been legally residing continuously for at least five years and will retain a permanent right of residence there.

(8)

In cases referred to in Article 4(1)(c) the forwarding of the judgment and the certificate to the executing State is subject to consultations between the competent authorities of the issuing and the executing States, and the consent of the competent authority of the executing State. The competent authorities should take into account such elements as, for example, duration of the residence or other links to the executing State. In cases where the sentenced person could be transferred to a Member State and to a third country under national law or international instruments, the competent authorities of the issuing and executing States should, in consultations, consider whether enforcement in the executing State would enhance the aim of social rehabilitation better than enforcement in the third country.

(9)

Enforcement of the sentence in the executing State should enhance the possibility of social rehabilitation of the sentenced person. In the context of satisfying itself that the enforcement of the sentence by the executing State will serve the purpose of facilitating the social rehabilitation of the sentenced person, the competent authority of the issuing State should take into account such elements as, for example, the person’s attachment to the executing State, whether he or she considers it the place of family, linguistic, cultural, social or economic and other links to the executing State.”

In my judgment it follows that if the RP can arrange to serve her sentence in the United Kingdom this would be a proper balance of the interests of the child and those of the requesting state to ensure proper respect for their judicial system through use of the EAW system. My decision thus places the final decision in the hands of the Portuguese authorities. If they are content and the domestic authorities likewise agree then she can serve her sentence here. If the Portuguese authorities do not agree then she will be extradited to serve her sentence there.

Ms Nice pointed out to me that Portugal had recently (17^th December 2015) adhered to the procedures under the Decision.

I note in this regard that Mr Justice Foskett in Z v District Court in Kosice, Slovakia [2014] EWHC 1360 (Admin) made an order, also in the best interest of a child, staying the drawing up of an order for 28 days when rejecting an appeal. The system of transfer was also considered by Ouseley J in Piotr Sebastian Laszkiewicz v Regional Court in Szczecin Poland [2014] EWHC 3701 (Admin) at paragraphs [8] – [11].

Finally I can deal with the issue of the RPs medical condition very briefly. As the Judge correctly held there is no reason to believe that the RP’s medical and psychiatric health cannot be catered for in Portugal. There is no evidence before this Court which would enable me to have any concern on this score. The Judge placed this in the balance and weighed it, correctly in my judgment.

The appeal is dismissed. For the reasons given in the judgment the order is however not to take effect for 6 months. I set aside the Order made below and substitute it with the Order made on 24^th January 2017.

I would finally express my thanks to counsel in this case for the extremely sensible and pragmatic way in which they addressed the multiple practical difficulties which arose and for the valuable assistance they gave to me.