Clarke v The High Court of Ireland

In an extradition case engaging family life, the court must balance the interference with the extraditee’s and family members’ Article 8 rights against the weighty public interest in extradition. There is no test of exceptionality, but extradition will ordinarily be proportionate unless the consequences for family life are exceptionally severe. The best interests of affected children are a primary consideration, although not necessarily the paramount consideration. Where a child may lose both parents or a sole or primary carer, the court must obtain sufficiently reliable evidence about the child’s future care and the practical and emotional consequences. A failure to obtain a necessary social-services assessment may be an error of law, but the appellate court may determine the proportionality issue afresh where the statutory conditions for doing so are met.

Harry Clarke appealed under section 26 of the Extradition Act 2003 against the decision of District Judge Coleman in the Westminster Magistrates’ Court, dated 9 September 2019. The district judge had ordered his extradition to Ireland under a European Arrest Warrant concerning an alleged assault, holding that extradition was compatible with Article 8 of the Convention.

The appeal focused principally on the effect of extradition on Clarke’s nine-year-old daughter, whose mother had been imprisoned shortly before the extradition hearing and whose father might therefore be absent. The appellant also relied on new evidence concerning his daughter, his son, his mother, his partner and his own mental health. The central issues were whether the district judge had erred by failing to obtain a social-services assessment, whether the new evidence should be admitted, and whether extradition would be a disproportionate interference with Article 8 rights.

1. Appeal dismissed. The ultimate conclusion of the district judge was correct. Extradition was not barred by section 21A of the Extradition Act 2003.

2. The High Court applied the established Article 8 approach stated in HH v Deputy Prosecutor of the Italian Republic, Genoa [2012] UKSC 25, Norris v USA [2010] UKSC and Polish Judicial Authorities v Celinski [2015] EWHC 1274 (Admin). There is no exceptionality test. The question is whether the interference with the private and family lives of the extraditee and family members is outweighed by the public interest in extradition. That public interest includes ensuring that accused persons stand trial, honouring extradition arrangements and preventing fugitives from evading justice.

3. The best interests of children are a primary consideration, but not necessarily the paramount consideration. Careful attention must be given to what will happen where a child’s sole or primary carer is extradited.

4. On the facts then before the district judge, the judge erred in failing to obtain a social-services assessment. The daughter was being cared for by both parents, her mother was in prison, and extradition could have left her without either parent. The feasibility and consequences of remaining with her paternal grandmother, with social-services support, or entering foster care had not been assessed. Krusinina v Lativia [2014] EWHC 2509 (Admin) and A, B v Central District Court of Pest Hungary [2013] EWHC 3132 (Admin) illustrated the need for such an assessment.

5. The court admitted the specified new evidence and conducted the proportionality assessment afresh. The daughter would remain in her mother’s care, although she would probably suffer severe emotional effects from losing her father. The effects on the appellant, his son, mother and partner were also material. However, none of those consequences was exceptionally severe. They did not outweigh the very high public interest in extradition, particularly given the seriousness of the alleged assault and the appellant’s deliberate evasion of the Irish criminal process.

• High Court (Administrative Court): The appeal from the Westminster Magistrates’ Court was dismissed. The High Court held that the district judge had erred in failing to obtain a social-services assessment, but determined the Article 8 issue afresh and upheld the extradition order.
• Westminster Magistrates’ Court: District Judge Coleman ordered extradition to Ireland on 9 September 2019, holding that extradition was compatible with the Convention.