BY v The District Court In Paphos, Cyprus

On an appeal under the Extradition Act 2003, the appellate court must decide whether the district judge’s overall proportionality decision was wrong. It may reassess the evaluation without identifying a conventional judicial-review error. In an Article 8 extradition case involving children, the court must evaluate the practical consequences of removal, including the likely effect on carers and the children’s welfare. Fresh evidence may be admitted where the statutory requirements are met and may be considered as part of a compendious assessment of the appeal. Where exceptionally vulnerable children depend substantially on the requested person’s support, and removal would create serious practical difficulties and probably worsen the remaining carer’s mental health, the public interest in extradition may be outweighed by the family’s Article 8 rights.

This was an appeal under section 26 of the Extradition Act 2003 against a District Judge’s order for the appellant’s extradition to Cyprus under a European Arrest Warrant. The appellant faced an allegation of obtaining credit by false pretences.

The appeal challenged the refusal to find a forum bar, the conclusion that extradition would not breach Article 8, and the assessment of Article 3 risk. The court heard argument only on Article 8, together with an application to adduce fresh evidence concerning the appellant’s role in caring for his five children and the effect of extradition on their mother. The central issue was whether the District Judge’s proportionality assessment was wrong in light of the evidence before her and the fresh evidence.

1. Appeal allowed. The court admitted the fresh evidence under section 27(4) of the Extradition Act 2003. It was sufficiently material and determinative of the appeal.
2. Under section 27(3), the appellate question is whether the district judge’s decision was wrong. The appellate court may stand back from the reasoning and conclude that the overall evaluation should have been different because crucial factors required materially different weight. A conventional judicial-review error is unnecessary.
3. The Article 8 balancing exercise required consideration of the exceptional needs of the appellant’s five children, the appellant’s current and substantial practical support, the difficulties that would follow his removal, and the probable effect on the children’s mother’s mental health. The appellant was not a primary carer, but his frequent and proactive involvement remained important. The evidence showed that the parents were cooperating in the children’s interests.
4. The District Judge was entitled to take credibility into account, although that factor should not be overstated. Her reliance on the possible relocation to Scotland was of limited weight and did not address all the practical consequences of relocation or the possibility that it would become necessary only because the mother could not cope locally.
5. The court found that the District Judge had not properly addressed the practical difficulties facing the mother if the appellant were extradited and had been wrong to reject the expert prognosis that her mental health would probably deteriorate. Considering the fresh evidence together with the material before the District Judge, the likely consequences of extradition were highly deleterious.
6. The public interest in extradition was therefore outweighed by the Article 8 rights of the appellant and his family. The appellant was discharged.

• High Court (Administrative Court): appeal under section 26 of the Extradition Act 2003 allowed; the District Judge’s extradition order was set aside and the appellant was discharged.
• District Court: on 20 December 2018, District Judge Mallon ordered the appellant’s extradition to Cyprus.