Rebelo v Court of Funchal, Portugal

On an appeal against an extradition order, proportionality under Article 8 is reviewed rather than determined afresh. The appeal succeeds only if the lower court’s decision was wrong. Findings of fact, particularly where evidence has been heard, ordinarily receive respect. The appellate court focuses on the outcome, while examining the reasons with care.

Family separation is relevant, but the public interest in extradition remains weighty. Delay may reduce that interest and increase the impact on family life, but a modest delay does not necessarily carry significant weight. The seriousness of the offence is a factor in the balance, not an automatic or overriding answer. The absence of primary-carer responsibility may be material when assessing the effect on a child.

The appellant challenged an extradition order made by District Judge McPhee at Westminster Magistrates’ Court. Portugal sought his extradition under a European Arrest Warrant to serve a sentence for repeated mistreatment of his son.

The sole issue was whether extradition was incompatible with the appellant’s Article 8 rights and those of his partner and young daughter. The challenge alleged that the District Judge had mishandled delay, the impact on family life, the seriousness of the offence, and the reference to exceptionally severe consequences.

1. Appeal dismissed. The District Judge’s conclusion that extradition was proportionate was not wrong.
2. Following Polish Judicial Authorities v Celinski & Ors [2015] EWHC 1274 (Admin), the appellate task is one of review. The court must ask whether the District Judge made the wrong decision. It must not substitute a fresh proportionality assessment merely because it might have attached different weight to individual factors.
3. Findings of fact must ordinarily be respected. Errors or omissions in the reasons do not, without more, establish that the proportionality decision itself was wrong.
4. The delay between the unsuccessful appeal in Portugal and the issue of the warrant was modest and carried little weight. Even if treated as significant, it added little to the essential balancing exercise.
5. The District Judge had considered the emotional, practical and financial effects of separation on the partner and child. The appellant was not the child’s primary carer. Those effects therefore did not make extradition disproportionate in the circumstances.
6. The seriousness of the offence was properly placed in the balance. It was not treated as a trump card. Repeated assaults on a child in the appellant’s care, including use of a weapon, pointed strongly towards immediate custody and supported the proportionality of extradition.
7. The reference to consequences being exceptionally severe did not impose an impermissible threshold. It reflected the proposition that the public interest in extradition will generally outweigh Article 8 family rights unless the interference is exceptionally severe.

Even on a fresh assessment, extradition would have been wholly proportionate.

• Westminster Magistrates’ Court: District Judge McPhee ordered extradition on 9 March 2015.
• High Court (Administrative Court): the appeal against that order was dismissed.