On 24 July Moses LJ and Mackay J heard the extradition appeal of A and B v Hungary. The appeal was by a husband and wife Ben Keith was the barrister instructed on behalf of the husband by Harry Grayson at Shaw Graham Kersh and Mary Westcott was the barrister instructed on behalf of the wife by Katherine Newey at Lawrence and Co The child “V was also separately represented. Moses LJ in dismissing the appeal of “A” but allowing the appeal of “B” on the grounds of Article 8 of the European Convention on Human Rights that it would be disproportionate to extradite gave the following guidance:
- The case involved serious offences of fraud – some 34 offences in the conviction EAW and £100,000 mortgage fraud in the accusation EAW.
- The appeal concerned the mother as sole carer as the father had left the scene.
- The principals the judge had to apply were not in issue but they amply demonstrate the difficulties which any court be it the DJ, this Court or for that matter the Supreme court face in striking the balance between welfare of a child and public interest in those accused / convicted of crime in requesting state or serving a sentence that has been imposed. The principles were set out by Baroness Hale in para 8 of HH. Of particular importance is that the Court must decide whether in extradition cases just as in deportation cases examine carefully the way in which extradition will interfere with family life.
- The court must always consider whether interference outweighed by public interest in extradition.
- The comment made by Baroness Hale at para 8 of HH is that there is no test of exceptionality but she predicts that the public interest in extradition will outweigh family unless “exceptionally severe” plainly she was not going back on her previous comment merely making a prediction. What she says underlined the proposition that unless the consequences are “exceptionally severe” an attempt to avoid extradition on the grounds of detriment to family life will not success. The use of adverb exceptionally is not a test but underlining the important proposition … in all cases there are sad and sometimes tragic consequences…
- In the instant appeal the principles of particular importance relate to the need to require the best possible information of the effect on the child should the extradition take place. This was emphasised by Baroness Hale in her speech and in particular where she appears to have adopted subs of official solicitor that consideration must be given to alternatives to extradition (HH para 20 ) and in those circumstances the court will need to have information about the likely effect on the individual child and arrangements made for the child while parent away, arrangements in requested state and requesting state, of course prison visits, telephone calls and what she described a “facetime” (para 83).
- Baroness Hale drew attention of difficulty of executing state not considering child rights when issuing warrant … doesn’t mean might want to play a part in laying before Court as to the steps which can ameliorate the adverse consequences (para 83).
- The problem that this court faces is similar to the problem faced by the DJ whatever the reasons for it there simply is no cogent plan in place as to what will happen to child where both parents to be extradited. This absence of any cogent plan in place is of particular concern since once extradition ordered there is but 10 days before the extradition must take place and the child will be left. This emphasises the need for somebody to put arrangements into place for consideration by court how effect on child may be ameliorated.
- There are difficulties in comparing cases, there will never be an exact comparison. Dangerous to enter into a mechanical exercise of comparing features dissimilar and not. Question of where the balance will be struck is a matter about which views can differ but nevertheless difficult though it is it is a task which first the District Judge must take and if appealled then this court.
