Harry Clarke v The High Court of Ireland
| Jurisdiction | England & Wales |
| Judge | Mr Justice Lewis |
| Judgment Date | 06 July 2020 |
| Neutral Citation | [2020] EWHC 1772 (Admin) |
| Court | Queen's Bench Division (Administrative Court) |
| Docket Number | Case No: CO/3594/2019 |
| Date | 06 July 2020 |
[2020] EWHC 1772 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
Royal Courts of Justice
Strand, London, WC2A 2LL
THE HONOURABLE Mr Justice Lewis
Case No: CO/3594/2019
Catherine Brown (instructed by MW Solicitors) for the Appellant
Alex Tinsley (instructed by CPS Extradition Unit) for the Respondent
Hearing date: 24 June 2020
Approved Judgment
INTRODUCTION
This is an appeal against a decision dated 9 September 2019 of District Judge Coleman sitting in the Westminster Magistrates' Court. By that decision, the district judge held that the extradition of the appellant, Harry Clarke, would be compatible with the rights conferred by the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”). She therefore ordered that he be extradited to Ireland.
The appellant appeals on the ground that the district judge erred in concluding that extradition would not be a disproportionate interference with his, and his family's, rights pursuant to Article 8 of the Convention. In granting permission to appeal, Steyn J. observed that the appeal was arguable on the basis that there was no considered and cogent care plan in place for the appellant's daughter in circumstances where her mother had just been sentenced to a term of imprisonment and the appellant was to be extradited to Ireland.
The appellant also seeks permission to adduce new evidence comprising two additional proofs of evidence from him, a further statement of his mother a witness statement and exhibit from his current partner, and an addendum to a psychological report of Dr Saddik dated 10 March 2020. I deal with that evidence below.
THE FACTS
The appellant is a national of the United Kingdom. He is the subject of a European Arrest Warrant (“EAW”) issued by the judicial authorities in the Republic of Ireland on 14 January 2019 and certified by the National Crime Agency in this country on 25 April 2019.
The EAW sought the extradition of the appellant in respect of an allegation that he had assaulted a male with a glass or bottle outside Mollies Bar in Ballina in County Tipperary on 15 November 2015 causing one laceration of approximately 2 centimetres in length over the male's left eye, and one of approximately 2 centimetres in length in front of the male's left eye. The appellant was charged with assault. If convicted, a sentence of up to 5 years' imprisonment could be imposed.
The circumstances surrounding the appellant's appearances in court in Ireland, and his subsequent return to the United Kingdom are set out in the judgment of the district judge. She made findings of fact in the light of the further information from the Irish judicial authorities and having heard evidence from the appellant and his mother.
The appellant was arrested at Dublin Airport on 16 November 2019 where he intended to board a flight to the United Kingdom where he lives. He was interviewed at a police station and is said to have made certain admissions in relation to the incident. He was charged and appeared before Killaloe District Court on 16 November 2015. The case was adjourned to 5 January 2016. The appellant was released on bail on lodging a sum of 150 euros. The judge explained to the appellant that the case was adjourned and that he was being released on bail.
On 5 January 2019, the district court adjourned the case to 5 April 2109 with a view to the matter being sent to the circuit court. The appellant was not present in court on 5 January 2019 but his solicitor was. On 5 April 2019, the appellant was again not present in court but his solicitor was. His solicitor told the court that the appellant had been unable to get a flight to Ireland. On 3 May 2019, the appellant failed again to appear at the district court. A warrant was issued for his arrest. The Irish authorities made attempts to contact him to persuade him to return to the Republic of Ireland without the need for an EAW but those attempts were unsuccessful. An EAW was subsequently issued. The appellant was arrested and brought before the Westminster Magistrates' Court.
At the extradition hearing, the appellant gave evidence and said that he had not had a solicitor at the police station and had not been legally represented at the district court in Ireland. He said that he believed that the proceedings in Ireland had been concluded and that he had been fined 150 euros. The district judge accepted the evidence from the Irish judicial authorities as to what had happened in Ireland. She found that the appellant was untruthful. She expressly rejected his claim that he believed that the proceedings had been concluded and that he had been fined 150 euros. She said at paragraph 52 that:
“My finding is that the having been released from the District Court on 16 November 2015 the RP returned immediately to England and failed to appear at court in the requesting state on the appointed days as required. He is a classic fugitive from justice”.
The district judge dealt with and rejected a claim that extradition would be incompatible with Article 3 of the Convention. There is no appeal on that ground.
In relation to Article 8 of the Convention, the district judge summarised the evidence. The appellant was a single man who lived with his mother in Southampton. His evidence was that his mother's health was not good as she suffered from fibromyalgia which, the appellant said, was a condition that affected her muscles. She had chronic pain and memory impairment and required significant help from the appellant. As an only child, the appellant was the only person available to help her. She also considered and summarised the evidence from the appellant's mother in which she confirmed that she suffered from fibromyalgia, and also Raynaud disease which affected her hands and feet. She suffered from post traumatic stress disorder stemming from events in her own childhood.
The appellant's evidence was that he had two children. They had different mothers. One was a son, whom I will refer to as A, who was 18 months old and lived with his mother. The appellant had regular contact with his son in the evenings and at weekends.
The appellant had another child, a daughter whom I will refer to as B. B was 9 years old at the time of the extradition hearing. Sadly, her baby brother had died, aged only 9 months of age, about 18 months before the extradition hearing. B had witnessed attempts to revive her brother. She was receiving counselling for emotional problems that she suffered as a result. Furthermore, the district judge was told at the hearing on 9 September 2019 that B's mother had been convicted of an offence of causing grievous bodily harm and sentenced to 18 months' imprisonment. B was living with the appellant and her grandmother.
The district judge referred to a report of a special educational needs co-ordinator at the school attended by B. That referred to the significant trauma suffered by B and the effects on her. The district judge also referred to the opinion of the child psychiatrist, Dr Saddik, who had assessed B. The district judge noted that Dr Saddik had found that B was suffering from moderate to severe post traumatic stress disorder and complicated grief. At the time that the psychiatrist wrote her report, B's mother had not been sentenced. Dr Saddik noted that B was at risk of losing both her parents in the same week if her mother were imprisoned and her father faced extradition to Ireland. She noted the view of Dr Saddik that there were no other adults who could care for B in those circumstances and B would have to be taken into the care of the local authority and placed into a foster home. Dr Saddik's view was that separation from both parents was likely to be experienced by B as an alienating and depersonalising and would contribute further to her mental health difficulties including her depression. It would be likely to influence most of her childhood.
The district judge also considered evidence about the appellant's mental health. An opinion from a consultant psychiatrist, Dr Brown, dated 30 August 2019, stated that he did not suffer from attention deficit hyperactivity disorder but had symptoms consistent with post traumatic stress disorder and reported symptoms of depression and anxiety.
The district judge identified the factors favouring, and militating against extradition as follows:
“I have identified the following factors in favour of extradition
• There is constant and weighty public interest in extradition that those accused of crimes should stand trial for them. The offence is very serious alleging an assault in a public place involving a weapon (a glass or glass bottle) resulting in two facial lacerations of approximately 2 centimetres each.
• The UK should honour its international treaties.
• The UK should not be a safe haven for fugitives. On my finding this RP left the requesting state, failed to comply with his bail obligations and has not yet been tried. The victim is awaiting his opportunity to obtain justice for the harm perpetrated upon him.
• A Bench Warrant was issued for the RP's arrest.
“60. I have found the following factors which militate against extradition.
• The RP is a British citizen.
• He was recently made subject to an order of conditional discharge in respect of possession of a class A...
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