Gibbins v 3rd Division Criminal Court National Court Spain

New evidence on an extradition appeal should be admitted only where it was unavailable at the original hearing and is capable of being decisive. Evidence that merely updates the position, without addressing the central difficulty identified below, fails the second requirement.

Article 8 requires the court to weigh the impact of extradition on children and other family members against the seriousness and nature of the alleged offending. A very considerable family impact does not necessarily make extradition disproportionate, particularly where the evidence does not establish that the children will be taken into care.

The claimant appealed against Senior District Judge Riddle’s decision of 29 February 2012 ordering his extradition to Spain on an accusation warrant concerning a serious drug-trafficking offence involving more than two and a half million kilos of cannabis.

He sought to adduce updated social-services and medical evidence, and challenged the conclusion that extradition was proportionate under Article 8. The central issues were whether the new evidence should be admitted and whether the interference with family life made extradition disproportionate.

1. New evidence. The court applied the principles in Szombathely City Court & Ors v Fenyvesi & Anor [2009] EWHC 231. The evidence had to have been unavailable at the original hearing and had to be capable of being decisive.
2. The East Sussex social-services letter satisfied the first requirement because the family had moved after the earlier bail application. It failed the second requirement because it did not address the consequences of extradition to Spain or resolve the problem identified by the Senior District Judge. It was therefore not admitted.
3. The medical evidence also satisfied the first requirement because the claimant’s hospital admission occurred shortly before the original decision. It was not capable of being decisive. The claimant’s secondary polycythaemia was likely related to smoking, could be treated by stopping smoking, and presented no apparent difficulty in obtaining adequate treatment within the European Union.
4. Article 8 proportionality. The court considered HH v The Deputy Prosecutor of the Italian Republic, Genoa [2012] UKSC 25 and the related extradition authorities. The impact on children, family members and partners must be weighed against the seriousness and nature of the offending.
5. The family impact was considerable, but the evidence did not establish that extradition would result in the children being taken into care. Given the very serious alleged offending, extradition was proportionate. The appeal was dismissed.

• High Court (Administrative Court): Senior District Judge Riddle’s decision of 29 February 2012 was challenged. The appeal against extradition was dismissed.