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England and Wales High Court (Administrative Court) Decisions
You are here: BAILII >> Databases >> England and Wales High Court (Administrative Court) Decisions >> Rebelo v Court of Funchal, Portugal  EWHC 2513 (Admin) (11 May 2015)
Cite as:  EWHC 2513 (Admin)
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QUEEN'S BENCH DIVISION
THE ADMINISTRATIVE COURT
London WC2A 2LL
B e f o r e :
|COURT OF FUNCHAL, PORTUGAL||Respondent|
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Ms E Pottle (instructed by the Crown Prosecution Service Extradition Unit) appeared on behalf of the Respondent
Crown Copyright ©
i. "On the last days of the month of March 2010, the minor, aged 10 years and 4 months at the time, was at the father's home studying his math tables, and was unable to answer a particular result or results by heart.
ii. Then, in response to this ignorance shown by his son, the accused hit him with a soup ladle on the back of his left hand, until the ladle broke off its handle.
iii. After it was broken, he placed the end of the respective handle at his son's neck, as if he was going to stab him, and the son had to move it away with his hands.
iv. Still not satisfied, the accused went and got a belt and beat the son various times on his legs and thighs.
v. That night, the father and son had lasagna for dinner, and the son, who had previously informed his father that he did not like that food, vomited.
vi. When the son was vomiting at the kitchen sink, the accused punched him on the back.
vii. On that occasion, the accused forced the minor to clean up the vomit with tissues.
viii. On some occasions while he was beating him, the accused called his son a 'son of a bitch'.
ix. At another time when the accused asked his son for the time indicated by the kitchen clock, as the son was not able to answer correctly, the accused smacked him on the head.
x. At a certain point, the accused asked his son if he was going to tell anybody about what had happened, namely his mother, and the minor responded affirmatively, for which the accused threatened that if he did so, he would beat him even more.
xi. When the minor went to bed, the accused went to the minor's bedroom, and said to his son 'so don't you say goodnight?' and gave him a slap on the face.
xii. As a result of the described conduct of the accused, the minor suffered physical bruising, namely a bruise to the right orbital, extensive bruising to the entire back of his left hand, bruising to the left clavicular area, various bruises from the central third of the back part of his thighs to the upper third of the back part of his legs and scratches to the front of the neck.
xiii. The mentioned lesions were a direct and necessary cause of a period of 10 days of illness, without affecting the capability for general work.
xiv. Further to the situation related above, on a date not absolutely determined, but a few weeks before, the minor was at his paternal grandparents' home, where his father then lived.
xv. At a certain point, because the minor did not know his school subjects, the accused picked up the book and used it to beat the child's face, causing him an injury adjacent to his right eye and a tear to his lip."
i. "The requested person, after some vacillation, acknowledged that he came to England some two months after his appeal had failed. He maintained however that he was unaware that his appeal had failed and that his lawyer had previously assured him that he would have no future problem. He did not, however, give any evidence that he had sought to discover the outcome of his appeal prior to leaving Portugal for England."
i. "20. The court has in these circumstances recently considered the approach to be adopted on appeal in relation to issues of proportionality under Article 8.
ii) In Dunham v USA  EWHC 334 (Admin), Beatson LJ said at paragraph 66 in relation to an appeal in a Part II case:
i. 'When the time comes to resolve that tension, the fact that this court is exercising an appellate jurisdiction under s.103 of the Extradition Act 2003 Act may be relevant to the way it is done. In Re B (A Child) (FC)  UKSC 33 a majority of the Supreme Court held that an appellate court should treat the determination of the proportionality of an interference with the rights protected by the ECHR as an appellate exercise and not a fresh determination of necessity or proportionality, notwithstanding the duty of the court as a public body to consider human rights, see in particular -, - and . Lady Hale and Lord Kerr dissented ibid, at ,  and .'
iii) That observation was then followed in Belbin v Regional Court of Lille, France  EWHC 149 (Admin) (a Part I case) where Aikens LJ set out the view of the court as to how the Divisional Court should approach an appeal in Article 8 cases. After referring to the views of Beatson LJ and of Lord Wilson in Re B (A Child) Aikens LJ said:
i. 'If, as we believe, the correct approach on appeal is one of review, then we think this court should not interfere simply because it takes a different view overall of the value-judgment that the District Judge has made or even the weight that he has attached to one or more individual factors which he took into account in reaching that overall value-judgment. In our judgment, generally speaking and in cases where no question of "fresh evidence" arises on an appeal on "proportionality", a successful challenge can only be mounted if it is demonstrated, on review, that the judge below; (i) misapplied the well established legal principles, or (ii) made a relevant finding of fact that no reasonable judge could have reached on the evidence, which had a material effect on the value-judgment, or (iii) failed to take into account a relevant fact or factor, or took into account an irrelevant fact or factor, or (iv) reached a conclusion overall that was irrational or perverse.'
ii. 21. In the argument before us, in addition to the argument in relation to paragraphs from Lord Wilson's judgment cited by Aikens LJ, we heard substantial argument on the passages in the judgment of Lord Neuberger. Lord Neuberger set out at paragraph 93 the ways an appellate judge might consider a trial judge's conclusion on proportionality:
iii. 'There is a danger in over-analysis, but I would add this. An appellate judge may conclude that the trial judge's conclusion on proportionality was (i) the only possible view, (ii) a view which she considers was right, (iii) a view on which she has doubts, but on balance considers was right, (iv) a view which she cannot say was right or wrong, (v) a view on which she has doubts, but on balance considers was wrong, (vi) a view which she considers was wrong, or (vii) a view which is unsupportable. The appeal must be dismissed if the appellate judge's view is in category (i) to (iv) and allowed if it is in category (vi) or (vii).
iv. 94 As to category (iv), there will be a number of cases where an appellate court may think that there is no right answer, in the sense that reasonable judges could differ in their conclusions. As with many evaluative assessments, cases raising an issue on proportionality will include those where the answer is in a grey area, as well as those where the answer is in a black or a white area. An appellate court is much less likely to conclude that category (iv) applies in cases where the trial judge's decision was not based on his assessment of the witnesses' reliability or likely future conduct. So far as category (v) is concerned, the appellate judge should think very carefully about the benefit the trial judge had in seeing the witnesses and hearing the evidence, which are factors whose significance depends on the particular case. However, if, after such anxious consideration, an appellate judge adheres to her view that the trial judge's decision was wrong, then I think that she should allow the appeal.'
v. 22. The approach of the Supreme Court was considered by the Court of Appeal in Re G (Care Proceedings): Welfare Evaluation  EWCA Civ 965. The court, see particularly the judgment of McFarlane LJ at paragraphs 32-43, made clear that its view of Re B was that the appellate court was not required to undertake a fresh determination on an Article 8 issue. There was no need to reappraise the issue on proportionality but, as the consideration on Article 8 was not an exercise of discretion, the review of an appellate court had to be conducted to determine whether the determination was 'wrong'. That approach was followed in Re B-S, see paragraphs 75 to 83.
vi. 23. In the light of the argument before us, we entirely endorse the general approach adopted by Beatson LJ and Aikens LJ, but consider that application of that approach by use of the analysis in the judgment of Lord Neuberger is likely to achieve a more consistent approach that is compliant with Article 8 and the provisions of the 2003 Act dealing with appeals."
i. "The single question therefore for the appellate court is whether or not the district judge made the wrong decision. It is only if the court concludes that the decision was wrong, applying what Lord Neuberger said, as set out above, that the appeal can be allowed. Findings of fact, especially if evidence has been heard, must ordinarily be respected. In answering the question whether the district judge, in the light of those findings of fact, was wrong to decide that extradition was or was not proportionate, the focus must be on the outcome, that is on the decision itself. Although the district judge's reasons for the proportionality decision must be considered with care, errors and omissions do not of themselves necessarily show that the decision on proportionality itself was wrong."
i. "(6) The delay since the crimes were committed may both diminish the weight to be attached to the public interest and increase the impact upon private and family life.
ii. (7) Hence it is likely that the public interest in extradition will outweigh the article 8 rights of the family unless the consequences of the interference with family life will be exceptionally severe."
i. "(4) There is a constant and weighty public interest in extradition ...
ii. (5) That public interest will always carry great weight, but the weight to be attached to it in the particular case does vary according to the nature and seriousness of the crime or crimes involved."
i. "This is an offence of some seriousness, an attack on his own son, a young child in his care which was sustained and involved the use of a weapon and on conviction was met with a term of 14 months imprisonment.
ii. It is right to say that there will be a significant impact upon his daughter [V], born on [date of birth] and so 13 months old. I have no doubt that he assists in the day to day care of his daughter but it is clear that his partner is the child's primary carer, she gave up her employment in August 2013 and has not returned to work, as he explains in his proof, '[She] is currently not working due to the young age of the baby'. Fortunately the baby [V], now just over 1 year of age has been able to spend her first formative year with her father and no doubt has been able to form a bond and an attachment with him within that important first year. That is not to say that her father's incarceration in Portugal will not affect her, of course it will. Such separations can cause great upset and can be very upsetting for a child. Fortunately for [V] she will remain in the care of her mother, where she can continue to feel safe and secure and to an extent that comfort will assist [V] in coming to terms with temporary separation from her father. I readily accept that financially the requested person is providing for his family in England and he says for his family in Portugal. I readily accept that if she is not yet in receipt of housing benefit the partner will have to claim that benefit and no doubt Employment Support Allowance or Jobseekers Allowance where appropriate. The evidence is that the partner receives child benefit for [V]. It was the partner's claim for housing benefit which the requested person says persuaded him to move from her home and to rent his own room in Brixton, and thereafter the potential loss of child benefit which made him stay away, although he would spend his days at his partner's home as evidenced by the fact that he was arrested at her home on 18.12.2014. I have little doubt that the state will cater for his partner and their child [V] by the provision of benefits appropriate to a single carer with a child. In any event the requested person has benefited from legal representations and since December 2014 no information to the contrary has been provided. If this had been a central issue I have little doubt that evidence would have been provided.
iii. This is not one of those cases in which it can properly be said that the interference with family life will be exceptionally severe. The circumstances of the family are not such as would or should displace the treaty obligations of the United Kingdom and the weighty public interest in extradition and for serious offences such as these. The requested person must know and understand that this court should respect the decision of the court in Portugal, that of another European country, signatory to the ECHR to seek his surrender to serve his sentence of 14 months imprisonment.
iv. There will inevitably be an impact upon his partner and their child both emotionally, practically and financially. The care the child will receive from the mother will I find ameliorate any harm likely to be occasioned to her. I make no finding that the requested person came to England as a fugitive from the sentence imposed upon him as the only evidence to base such a finding on would be the coincidence of him arriving in England 2 months after his appeal was unsuccessful and the sentence and conviction were confirmed. It would require evidence of communications sent to him by the Portuguese court, or the Portuguese prison system which are not contained in the EAW.
v. I find that the request for surrender for a serious offence in the scheme of the European framework decision in the family circumstances he describes and which I have accepted remains proportionate to the constant and weighty public interest in extradition that people accused of crimes should be brought to trial, that people convicted of crimes should serve their sentences, that the United Kingdom should honour its treaty obligations to other countries, and that there should be no safe haves to which either can flee in the belief they will not be sent back. I have therefore determined that it is a proportionate and necessary response and compatible with his convention rights provided for by the Human Rights Act 1988 to order his extradition."
i. "Fortunately the baby [V], now just over 1 year of age has been able to spend her first formative year with her father and no doubt has been able to form a bond and an attachment with him within that important first year."
i. "This is not one of those cases in which it can properly be said that the interference with family life will be exceptionally severe."
i. "Hence it is likely that the public interest in extradition will outweigh the article 8 rights of the family unless the consequences of the interference with family life will be exceptionally severe."