AM v Examining Magistrate's Court No. 4 Murcia, Spain (Rev 2)

In extradition cases engaging Article 8, there is no automatic rule that extradition is proportionate. The court must carefully assess the interference with private and family life and balance it against the strong public interest in extradition. The interests of affected children must be a primary consideration. Extradition will ordinarily remain proportionate unless its consequences for family life are exceptionally severe. Relevant factors include the seriousness and nature of the alleged offending, delay, the likely duration of separation, uncertainty about custody or bail, the availability and suitability of alternative care, and the likely impact on the children. An appellate judge may receive fresh evidence where it addresses unfairness in the proceedings below.

The appellant appealed against District Judge Bayne’s order of 25 July 2013 directing her extradition to Spain under a European Arrest Warrant. She was wanted for pre-charge questioning in preliminary proceedings concerning an alleged money-laundering conspiracy. Her sole ground of resistance was that extradition would disproportionately interfere with the Article 8 rights of herself and her three children.

The District Judge accepted that extradition would cause substantial upheaval but concluded that the public interest in extradition prevailed. On appeal, the principal issues were whether the District Judge had fairly evaluated expert evidence about the effect on the two younger children, and whether the resulting interference with their family life was proportionate.

1. Appeal allowed. The appellant was discharged. The court applied the principles in Norris v Government of the United States of America (No 2) [2010] 2 WLR 572 and H(H) v Deputy Prosecutor of the Italian Republic [2012] 3 WLR 90. There is no absolute rule that extradition is proportionate where Article 8 rights are engaged. The question is whether the interference is outweighed by the public interest in extradition. The children’s interests must be at the forefront of the decision and be a primary consideration.
2. The court adopted the guidance summarised in JP v District Court at Usti Nad Lebem, Czech Republic [2012] EWHC 2603 (Admin). It was permissible to consider the likely domestic sentencing outcome, but with caution. The seriousness of the alleged conspiracy had to be balanced against the appellant’s limited alleged role, the possibility of a suspended sentence, the open-ended Spanish proceedings, the real uncertainty about bail, and the proposed care arrangements.
3. The District Judge had rejected Dr Grange’s expert evidence substantially because of matters on which he had not been questioned. As a general rule, oral evidence should not be rejected on a basis that was not canvassed with the witness. That principle has particular importance for expert evidence. The additional report was taken into account insofar as it addressed those matters, consistently with the flexible approach to fresh evidence in extradition appeals identified in Fenyvesi [2009] EWHC 231 (Admin).
4. The corrected assessment was that extradition would probably cause moderate to severe harm to L and S, with additional disruption to J. The younger children might be separated from their mother for an uncertain and potentially prolonged period, or uprooted to Spain for years, with uncertainty concerning their grandparents’ ability to care for them. Those risks made the consequences exceptionally severe. Extradition would therefore be a disproportionate interference with the children’s Article 8 rights.

• High Court (Administrative Court): The appeal against the extradition order was allowed and the appellant was discharged.
• District Judge: On 25 July 2013, District Judge Bayne ordered the appellant’s extradition to Spain under a European Arrest Warrant.