PA v Criminal Court Coimbra (Portugal) Norfolk County Council (Interested Party)
| Jurisdiction | England & Wales |
| Judge | Mr Justice Green |
| Judgment Date | 22 February 2017 |
| Neutral Citation | [2017] EWHC 331 (Admin) |
| Docket Number | Case No: CO/628/2016 |
| Court | Queen's Bench Division (Administrative Court) |
| Date | 22 February 2017 |
and
[2017] EWHC 331 (Admin)
Mr Justice Green
Case No: CO/628/2016
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
Royal Courts of Justice
Strand, London, WC2A 2LL
Ms Amelia Nice (instructed by Kaim Todner) for the Appellant
Ms Mary Westcott (instructed by the Extradition Unit, CPS, International Justice and Organised Crime Division) for the Respondent
Ms Kathryn Duff (instructed by NP Law) for the Interested Party
Hearing dates: 3 rd August 2016 and 24 th January 2017
Judgment Approved
A. Introduction
(i) 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:
i) First, it is said that the Respondent has been guilty of chronic delay which has caused severe prejudice to the Appellant and that this is a reason for refusing extradition.
ii) Second, it is argued that pursuant to Article 8 ECHR it is unlawful to extradite the RP because this would involve enforced separation of the RP from her child ("M") to the substantial detriment of the child which would be so grave as to tilt the balance against the extradition. As the case has evolved this has become the central issue.
iii) Third, it is argued that the personal medical and psychiatric condition of the RP was such that this, also, amounted to a good reason not to extradite her.
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.
B. The adjournment to obtain the "voice" of the daughter of the Requested Person
(i) 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.
(ii) The adjournment and the family court care proceedings
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. 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).
(iii) The law relating to obtaining evidence about the interests of the child...
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