Bruno Manuel da Cunha Mós v Tribunal Judicial da Comarca de Lisboa, Portugal [2025] EWHC 1049 (Admin)

[2025] EWHC 1049 (Admin)Case No AC-2024-LON-001068
IN THE HIGH COURT OF JUSTICE
KING’S BENCH DIVISION
ADMINISTRATIVE COURT
IN THE MATTER OF AN APPEAL UNDER
SECTION 26 OF THE EXTRADITION ACT 2003
Venue Royal Courts of Justice, Strand, London, WC2A 2LLDate Date: 2 May 2025
Before
THE HONOURABLE MR JUSTICE MURRAY
Between
BRUNO MANUEL DA CUNHA MÓSAppellantTRIBUNAL JUDICIAL DA COMARCA DE LISBOA, PORTUGALRespondent
Mr Tihomir Mak (instructed by GT Stewart Solicitors and Advocates) for AppellantMs Honor Fitzgerald (instructed by the CPS Extradition Unit) for RespondentHearing Hearing date: 9 April 2025
Approved JudgmentThis judgment was handed down remotely at 10.30am on 2 May 2025 by circulation to the parties or their representatives by e-mail and by release to the National Archives..............................
[1]This is an appeal under section 26 of the Extradition Act 2003 (“the 2003 Act”) by the appellant, Bruno Manuel da Cunha Mós, against the order made on 23 February 2024 by DJ(MC) Clarke at Westminster Magistrates’ Court to extradite him to Portugal. The district judge set out her reasons for ordering the appellant’s extradition in a judgment handed down that day (“the Judgment”).[2]The respondent, the Tribunal Judicial da Comarca de Lisboa (Judicial Court of the District of Lisbon), seeks the appellant’s extradition pursuant to an arrest warrant dated 24 October 2022 (“the Arrest Warrant”), which was certified by the National Crime Agency on 5 May 2023. The respondent seeks the appellant’s return to serve his sentence of four years’ imprisonment, the whole of which remains to be served. The Arrest Warrant is therefore a conviction warrant.

Ground of appeal

[3]The sole ground of appeal for which permission has been granted is that the district judge was wrong to find the appellant’s extradition to Portugal was not a disproportionate interference with his and his family’s right to respect for private and family life under Article 8 of the European Convention for the Protection of Human Rights and Fundamental Freedoms (“the ECHR”).

Permission to appeal

[4]The appellant originally sought to appeal the district judge’s extradition order on three grounds, namely, under(i) Article 3 of the ECHR,(ii) under Article 8 of the ECHR, and(iii) on the basis that extradition was an abuse of process.[5]On 6 June 2024, following a review of the papers filed by the parties, Constable J refused permission to appeal on all three grounds.[6]Following a hearing on 26 September 2024 of the appellant’s renewed application for permission to appeal, Jay J granted permission on the single ground under Article 8 of the ECHR, observing in his order that:
“The real issue in this case is whether paragraph 5 of Mr Justice Constable’s reasons provided a complete answer to the Article 8 case if the District Judge should have been focusing on a delay of 4.5 years.”
[7]In refusing permission under Article 8, Constable J had said the following in his reasons appended to his order dated 6 June 2024:
“2. It is not reasonably arguable that the Judge’s overall evaluation was wrong because crucial factors should have been weighed differently and that if all the features had been considered in the round, these features should have cumulatively led the Judge to a different decision. It is clear that the Judge set out the applicant’s evidence in some detail and set out factors both in favour of and against the extradition with some care. 3. The Judge’s statement of the general proposition that ‘the UK should not be seen as a safe haven for those seeking to evade justice’ does not suggest that she ignored her overall finding that (despite some reservations) the Applicant should not be considered a fugitive, which was repeated on a number of relevant occasions in her judgment. 4. It is not reasonably arguable that the Judge was wrong to consider the Applicant’s criminal record, and thus absence of good character, as part of the overall balancing exercise. 5. Whilst it seems [it] is clear the Judge underestimated the amount of relevant delay, in the context of the other factors, including the weighty public interest in upholding extradition, the nature of the crime and the length of the prison sentence and the limited (albeit not negligible) family impact, it is not reasonably arguable that had the Judge factored in the correct period, it should have led the Judge to a different decision.”

Background

[8]The appellant is a Portuguese national, who was born in Lisbon on 14 May 1983.[9]The Arrest Warrant relates to an offence committed by the appellant on Avenida Santo Condestável in the Chelas area of Lisbon on 13 July 2010 at about 8.30 pm, when he used a stone to break the passenger side window of a car in order to enter it and steal the car’s Blaupunkt brand car radio. As he was coming out of the car, he was confronted by the owner, who happened to be an agent of the Polícia de Segurança Pública (PSP), the Portuguese national police force, and who identified himself to the appellant as such. The appellant picked up pieces of broken glass with the intention of throwing them at the PSP agent in order to assist his escape, but the PSP agent managed to seize and immobilise him. The Arrest Warrant describes this as a single offence of “violence after subtraction” (violência depois da subtração), which, if it had occurred in this country, might have been charged as robbery but perhaps more likely would have been charged as separate, but associated, offences of criminal damage, theft, and common assault (to make good his escape).[10]The appellant was present at his trial for this offence and was convicted. On 24 January 2013, the respondent imposed on him a sentence of four years’ imprisonment, which was initially suspended for four years with a probationary regime to be supervised by the Social Reintegration Services. Under the sentence, a four-year probationary period commenced on 25 February 2013 and ended on 25 February 2017.[11]The suspension of the sentence was revoked on 12 April 2018 by an order that became final on 23 May 2018.[12]On 15 February 2021, the respondent declared that the appellant was contumaz, or an absconder, with certain consequences under the Portuguese Code of Criminal Procedure, including the suspension of the period of limitation for the enforcement of the sentence imposed on him.[13]The appellant has nine other convictions in Portugal between 6 June 2010 and 30 January 2018, for various offences of theft, including aggravated theft, and common assault. The last of these convictions was for an offence of common assault that occurred on 13 February 2015, which was while the appellant was subject to the suspended sentence to which the Arrest Warrant relates. That offence was not the reason why the suspension of the sentence to which the Arrest Warrant relates was revoked, because apparently it was not known about by the respondent at the relevant time. The sentence for the conviction on 30 January 2018, which was made final on 5 May 2021, was imprisonment for one year and four months. It appears in relation to this that the appellant was convicted in absentia, as he was resident in the United Kingdom by that time.[14]The appellant also has convictions in this country as follows: i) in December 2017 for theft at the Leicester and Rutland Magistrates’ Court, for which he received a community order; ii) in December 2017 for failing to surrender to custody, for which he received a fine of £50; iii) in February 2018 for failing to comply with the community order, for which his unpaid work requirement was extended, and he was ordered to pay £60 in costs; and iv) in July 2018 for failing to comply with the community order, for which he was fined £100 and ordered to pay £60 in costs.[15]His community order was ultimately revoked and replaced with a conditional discharge.[16]The appellant was arrested under the Arrest Warrant on 10 May 2023 and remanded in custody, where he has remained ever since.

The extradition hearing and the Judgment

[17]The full extradition hearing took place on 23 February 2024 before the district judge. She handed down the Judgment on 22 March 2024.[18]In the Judgment, having summarised the facts of the offence and then of the sentence imposed, the district judge summarised at paragraph 8 the Further Information dated 27 November 2023 provided by the respondent, noting in particular the following points: i) at paragraph 8(i) that the sentence was one of four years’ imprisonment, suspended for four years, with a probation regime to be supervised by the Social Reintegration Services (Further Information, paragraph 2); ii) at paragraph 8(ii), that while it was not clear from the case file whether the appellant was informed at the time of sentence that a breach of the probation regime could lead to revocation of the suspension (that is, activation) of the sentence of imprisonment, however in the view of the respondent the appellant would have become aware of the consequences of failing to comply with the terms during the course of the supervision (Further Information, paragraph 3); iii) at paragraph 8(iii), that the suspended sentence had been activated as a result of the appellant’s “gross and inexcusable non-compliance with the probation regime imposed in the Judgment [sentence]” and the “complete absence of contact and cooperation with the Social Reintegration Services” (Further Information, paragraph 4); iv) at paragraph 8(iv), that the appellant was under an obligation to remain in contact with the Social Reintegration Services for the entirety of the suspension period (in our terms, the operational period), which ran until 25 February 2017, and that it had become impossible to contact him after September 2015, so that it could not be said that the appellant had complied fully with the conditions of his suspended sentence (Further Information, paragraph 5); v) at paragraph 8(v), that the appellant had not notified the respondent in advance of his intention to leave Portugal, the court only becoming aware of that intention in July 2015 (Further Information, paragraph 6); vi) at paragraph 8(vi), that the appellant had been present when his sentence was imposed on 24 January 2013 (Further Information, paragraph 10); vii) at paragraph 8(vii) of the Judgment, that the respondent had taken various steps to locate the appellant, including enquiries with the Portuguese consulate in the UK, a request for information sent to the “probation service” (namely, the Social Reintegration Services), and enquiries with the Portuguese police, as a result of which enquiries the respondent learned on 15 December 2018 that the appellant had, by that time, been living in England for about 15 months (or, in other words, roughly since September 2017).[19]The district judge then summarised at paragraphs 9 to 11 of the Judgment the appellant’s convictions in Portugal and the UK (see [13]-[14] above).[20]At the extradition hearing, the district judge had an opening note, statement of issues, skeleton argument, hearing bundle of 303 pages, and an English translation of relevant Portuguese legislation. Included in these papers were a statement from the appellant’s mother and an expert report from Dr Timothy Green, a clinical psychologist instructed by the appellant’s solicitors to provide an expert assessment of the appellant’s mental health in the context of his possible extradition.[21]The district judge heard live evidence from the appellant and from Ms Diana Silva Pereira, a Portuguese lawyer instructed by the appellant’s solicitors to provide expert evidence on matters of Portuguese criminal law. In the Judgment, she set out a detailed summary of the evidence of each of the appellant and Ms Pereira.[22]The district judge noted that the witness statement of the appellant’s mother was unchallenged and confirmed that she took its contents into account.[23]The district judge also took account of Dr Green’s report, the principal conclusions of which she set out at paragraph 63 of the Judgment. She summarised Dr Green’s conclusions, including, among other things, that the appellant suffered from “mild anxiety and depressive disorders”, that his attachment to his mother was strong, and that extradition of the appellant to Portugal “may” be harmful to the appellant’s mental health.[24]The district judge considered whether the appellant was a fugitive and concluded that she could not be sure to the criminal standard that he was. There was a lack of clarity in the evidence about(i) what the appellant knew and when in relation to his obligation to notify the respondent of his change of address or residence during the term of the suspended sentence and(ii) whether he was aware that a breach of the terms of the suspended sentence could lead to its being activated.[25]The district judge noted that there was some evidence that the appellant had settled in the UK in February 2017, which would have been about the time that his suspended sentence expired. She accepted that there was nothing preventing the appellant from leaving Portugal. She noted that there was a conflict in the evidence about when the respondent had become aware that the appellant had moved to the UK.[26]The district judge noted, on the basis of the further information provided by the respondent, that the appellant had complied with some, but not all, of the requirements of his suspended sentence.[27]The district judge accepted that the appellant had a settled family and private life in the UK, that he had lived with his mother in the UK before he was remanded in custody and had a strong bond with her, had been employed prior to his arrest in the extradition proceedings, and had indefinite leave to remain in the UK. She noted that the appellant’s mother suffered from a number of medical conditions and mobility issues, although she had not seen any medical evidence to support this. She also noted that the appellant’s brother lived with the appellant’s mother and that the appellant “did not speak highly” of his brother. She concluded that the appellant’s mother was, despite her difficulties, able to cope in the appellant’s absence.[28]At paragraphs 81 to 89 of the Judgment, the district judge considered the appellant’s challenge to extradition under Article 8 of the ECHR. She first briefly summarised the relevant authorities. She then noted the following as factors in favour of granting extradition: i) the strong and continuing public interest in the UK abiding by its international extradition obligations; ii) the importance of the UK not being seen to be a safe haven for those seeking to evade justice, although she bore in mind that the appellant was not a fugitive from justice; iii) the need for the respondent, as a foreign judicial authority, to be accorded a proper degree of mutual trust and confidence; iv) the offending, while “not the most serious in the criminal calendar”, was not trivial, would likely have been charged as criminal damage, theft, and common assault (or possibly robbery) in this country, and was aggravated by the appellant’s prior offending; v) there was a significant sentence of 4 years’ imprisonment, all of which remained to be served; and vi) given the appellant’s prior convictions, he was not of good character.[29]The district judge then noted the following as factors in favour of refusing extradition: i) the appellant was not a fugitive; ii) he had turned his life around, no longer took drugs, and had employment prior to his arrest; iii) he had settled status in the UK; iv) he was the only employed member of the household and was the “main carer for the family”; v) his mother had health conditions; vi) the index offence was 14 years old and there had been a delay since the respondent learned that the appellant was in the UK; vii) the impact upon the family as a whole was said to be disproportionate; and viii) the appellant suffered from anxiety and depressive disorders.[30]Having carried out the required balancing exercise, the district judge concluded that the factors against extradition were not so high as to counterbalance the weighty public interest in extradition. In summary, her reasons, set out at paragraph 89 of the Judgment, were as follows: i) The public interest in this case was high, given the need for the UK to be seen to be upholding its international extradition obligations, to accord a foreign judicial authority a proper degree of mutual trust and confidence, and not to be “seen as a safe haven for those seeking to evade justice, although of course there is no finding of fugitivity in this case”. The seriousness of the offence and the significant sentence still to be served, as well as the appellant’s offending history, increased the public interest in extradition, as well as the fact that the appellant had committed a further offence in Portugal while subject to the suspended sentence (namely, the common assault he committed in Portugal on 13 February 2015). ii) The district judge took into account there had been a delay between when the respondent became aware that the appellant was in the UK and when it issued the Arrest Warrant, but it was, in her view, not a significant passage of time and therefore she found no culpable delay. The relatively short passage of time, therefore, did not in her view diminish the public interest in extradition. iii) The factors against extradition included that the appellant had lived in the UK at least since 2017 on his own account, he had been employed prior to his remand in custody, had paid taxes, and had been granted settled status. He was clearly established in the UK and was settled here with his mother. His mother, who had a number of health conditions, was dependent on the appellant. The judge noted that it was said that her ability to remain in the UK might be affected by the appellant’s extradition, although she also noted that the appellant’s brother lived in the UK and was staying with his mother, who was therefore not alone. Also, his mother had other family in Portugal. The district judge considered that, given their close bond, the appellant’s extradition would have an emotional and physical impact on his mother, but it seemed that she had been able to cope while the appellant was on remand in custody. The district judge also noted that the appellant had anxiety and depressive disorders, but these conditions were said to be mild, and she noted that there was no history of self-harm or suicidal thoughts. These were not uncommon conditions, and Portugal as a Part 1 territory under the 2003 Act would be presumed to be able to provide appropriate treatment for them.[31]In relation to the Article 8 challenge, the district judge concluded that, notwithstanding the clear evidence that there would be an adverse impact on the appellant and on his mother of his extradition to Portugal, the factors in favour of extradition clearly outweighed those against it. Having also dealt with and dismissed the other challenges to extradition, the district judge ordered the appellant’s extradition to Portugal under section 21(3) of the 2003 Act.[32]Given that the crux of this appeal is whether the district judge erred in her analysis of the question of the delay, which I have briefly summarised at [30(ii)] above, and the extent to which the delay reduced the public interest in extradition in this case, I set out in full the judge’s analysis of delay at paragraph 89(c) of the Judgment:
“Delay diminishing the public interest: It is said that there is delay in this case from when the JA became aware that the RP was in the UK. There are two different dates which are provided within the FI and taken into account when considering fugitivity as above. However, it was either 2015 or 2018. There is therefore a passage of time of either 4 or 7 years between the JA establishing that the RP was in the UK, and issuing the AW in this case. However, it is important to highlight that the activation hearing in this case did not take place until 2018 and therefore, any passage of time should be seen from 2018 in my view, as before that the RP was able still to comply with his order if he had wanted to. That activation did not become final until 2021. I do not know why that is the case, but it therefore is only 1 year before the AW was issued. I have no explanation for that. However, there cannot be said to be a significant passage of time in this case, in which I can find culpable delay. I find no culpable delay and as a result, the relatively short passage of time does not in my view diminish the public interest in extradition.”

The court’s powers on an extradition appeal

[33]Under section 27(1) of the 2003 Act, the court may either allow or dismiss the appeal. If it allows the appeal, it must order the person’s discharge and quash the order for his or her extradition.[34]Under section 27(2), the court may allow the appeal only if the conditions in subsection (3) or (4) are satisfied. Subsection (4), which concerns the raising of a new issue or the introduction of fresh evidence on appeal, is not relevant in this case. Subsection (3) provides that the court may allow the appeal if the court is satisfied that the district judge ought to have decided a question before her differently, and had she done so, she would have been required to order the requested person’s discharge.[35]The test on appeal is whether the district judge’s decision was wrong, namely, whether the district judge erred in such a way that she ought to have answered the statutory question differently: Love v United States of America [2018] EWHC 172 (Admin), [2018] 1 WLR 2889 (DC) at [25]-[26].

Appeals under Article 8 of the ECHR

[36]In relation to an appeal under Article 8 of the ECHR, the focus of the court must be on the outcome, namely, whether the decision on proportionality was wrong, rather than on any errors or omissions in the district judge’s reasoning: Poland v Celinski [2015] EWHC 1274 (Admin), [2016] 1 WLR 551 (DC) at [24]. If the court decides that the district judge’s reasoning was flawed in some material respect, then it must conduct the necessary balancing exercise afresh in accordance with the principles set out in Celinski at [15]-[17], having regard to the leading authorities, in particular, Norris v USA (No 2) [2010] UKSC 9, [2010] 2 AC 487 (SC), H(H) v Italy [2012] UKSC 25, [2013] 1 AC 338 (SC) and Celinski. See, for example, Dabrowski v Poland [2017] EWHC 179 (Admin) at [39], Lysiak v Poland [2015] EWHC 3098 (Admin) at [32], and Vajdik v Slovakia [2022] EWHC 55 (Admin) at [36].

Submissions

[37]Mr Tihomir Mak, counsel for the appellant, submitted that the district judge’s overall evaluation of the impact of extradition on the Article 8 rights of the appellant and his family was wrong because she should have weighed crucial factors differently. Had she weighed the relevant factors properly, she would have been bound to conclude that the impact of extradition was disproportionate. In particular, Mr Mak submitted that: i) the district judge erred in including in her balancing exercise that “the UK should not be seen as a safe haven for those seeking to evade justice”, given her finding that the appellant was not a fugitive; ii) the district judge failed to take sufficient account of the appellant’s successful recovery from drug dependence, which had been the underlying condition of his offending, and of the fact that the appellant had turned his life around; iii) the district judge’s analysis of the question of delay was wrong, including factual errors in her assessment and a failure to find that the respondent’s delay in issuing the Arrest Warrant was culpable, such that she gave insufficient weight to this factor as reducing the public interest in extradition; iv) the district judge failed to give adequate weight to the overall passage of time since the offence was committed in 2010, which substantially reduced the public interest in extradition; v) the judge gave too much weight to the alleged seriousness of the crime, this offence having been unsophisticated low-level acquisitive, criminality in the context of drug dependency, during which no injury was caused; vi) the district judge gave insufficient weight to the degree to which the appellant had complied with his suspended sentence, there having been three positive reports on his progress under the probation regime, during which he completed the drug rehabilitation programme; and vii) the district judge gave inadequate weight to the impact of extradition on both the appellant and his mother, particularly having regard to the significant health needs of his mother and the strong bond between them.[38]On the central question of delay, Mr Mak focused on two particular errors in the district judge’s analysis of the question of delay in paragraph 89(c) of the Judgment. Mr Mak submitted that the district judge: i) was wrong to find that the appellant was still able to comply with his suspended sentence until the activation hearing took place in 2018, given that the term of his suspended sentence ended on 25 February 2017, and so he was unable to comply with it after that earlier date; and ii) was wrong to find that the activation of the appellant’s sentence did not become final until 2021 and to conclude that the delay: a) should be measured from that point, which was only a year before the Arrest Warrant was issued; and b) therefore, could not be considered to be a culpable delay diminishing the public interest in extradition.[39]For the respondent, Ms Honor Fitzgerald submitted that the district judge had considered the question of delay appropriately, even if there was a minor error or two in her assessment of the factual sequence. Ms Fitzgerald noted that at paragraph 88(VI) of the Judgment the district judge had referred expressly to the delay since the respondent “learned that the RP was in the UK” and the district judge had referred to the overall time since the index offence had occurred, which, at the time of extradition hearing, was a period of 14 years.[40]Ms Fitzgerald accepted that the district judge was wrong to state at paragraph 89(c) of the Judgment that the activation of the sentence was not final until 2021. She suggested that the district judge may have confused the activation becoming final, which occurred in 2018, with the appellant having been declared contumaz on 15 February 2021. Despite this error, Ms Fitzgerald submitted, the district judge took appropriate account of the relevant delay between when the respondent established that the appellant was in the UK and when it issued the Arrest Warrant, including that there was uncertainty on the face of the evidence as to whether the appellant had taken up residence in England in 2015 or in 2017.[41]Ms Fitzgerald further submitted that, even if the district judge wrongly considered that the appellant could still comply with his suspended sentence order during the period between the expiry of the operational period in February 2017 and the activation of the suspended sentence in April 2018 (which became final in May 2018), that period of 14 months would not have tipped the balance in favour of discharge such that the district judge’s conclusion on proportionality was wrong.[42]As to the other points raised by the appellant, Ms Fitzgerald submitted that the district judge’s evaluative assessment of those other points (for example, of seriousness of the offence or the potential impact on the appellant and his mother of his extradition) could not be said to be wrong. In relation to the district judge’s reference to the importance of the UK not being seen to be a safe haven for those seeking to evade justice, Ms Fitzgerald submitted that the district judge made it clear that she bore in mind that the appellant was not a fugitive, and this therefore could not be said to have resulted in her reaching the wrong conclusion on proportionality.

Discussion and conclusion

[43]In my view, the district judge approached the challenge under Article 8 of the ECHR with conspicuous care, paid close regard to the relevant evidence, had regard to the correct authorities, and carried out a proper balancing exercise in accordance with Celinski. The appellant has not identified any factors that the district judge should have taken into account but failed to do so or any factors that she took into account but should not have done. It is therefore necessary to consider whether there is any force in the appellant’s submissions regarding the weight that she accorded to each factor she identified, starting with the question of delay, which was the predominant issue discussed in the written and oral submissions and the basis on which Jay J granted permission to appeal on the Article 8 ground.[44]The key points in the chronology for the purposes of this appeal are as follows: i) 13 July 2010, the commission of the offence; ii) 24 January 2013, the date on which the respondent imposed on the appellant a sentence of four years’ imprisonment, suspended for four years with requirements to comply with a probationary regime supervised by the Social Reintegration Services; iii) 24 February 2013, the date on which the suspended sentence became final; iv) September 2015, the time after which, according to the Further Information at paragraph 5, it was no longer possible for the Social Reintegration services to establish contact with the appellant; v) 9 September 2015, the date of a report sent to the respondent by the Social Reintegration Services informing the Court that the appellant had already emigrated to the United Kingdom in July 2015 (Further Information at paragraph 6); vi) 24 February 2017, the date on which the four-year operational period of the suspended sentence ended; vii) 12 April 2018, the date on which the suspension of the sentence was revoked (or, in other words, on which the sentence of imprisonment was activated) by court order following a hearing at which the appellant was not present; viii) 23 May 2018, the date on which the revocation of the suspension (or, in other words, activation) of the sentence of imprisonment became final; ix) 17 September 2018, the date on which the respondent considered that the appellant was properly and validly notified of the activation of the suspended sentence (Further Information, paragraph 12); x) 15 December 2018, the date on which, following various inquiries, the respondent was informed that the appellant had been living in England for about 15 months, which means, on that information, that he had been living there since, roughly, mid-September 2017); xi) 15 February 2021, the date on which the appellant was declared contumaz (an absconder) by the respondent; xii) 24 October 2022, the date on which the Arrest Warrant was issued; xiii) 5 May 2023, the date on which the Arrest Warrant was certified by the NCA; xiv) 10 May 2023, the date on which the appellant was arrested in England and remanded in custody; xv) 23 February 2024, the date of the extradition hearing before the district judge; and xvi) 22 March 2024, the date on which the district judge handed down the Judgment and made the extradition order subject to this appeal.[45]On these facts, it seems to me that it is difficult to say that there was culpable delay on the part of the respondent prior to 15 December 2018, although a case can be made that the respondent should have taken more proactive steps to locate the respondent following the report on 9 September 2015 by the Social Reintegration Services that he had “emigrated” to England in 2015. On the appellant’s own case, however, that was not true. Although there appears to have been some apparent inconsistency between his proof of evidence and his oral evidence at the extradition hearing, the position he maintained before the district judge was that, although he had been in the UK previously, including with his mother in 2015, in each case returning to Portugal, he came to the UK “to settle permanently” on 2 February 2017, which was shortly before the end of the operational period of his suspended sentence. He maintained that he did not know when the operational period ended, other than that it was some time in February 2017, which is why he came then.[46]When on 15 December 2018, after enquiries, the respondent learned that the appellant was at that point living in England and had been there for some 15 months, it is legitimate to ask why it took over three years and 10 months for the respondent to issue the Arrest Warrant (on 24 October 2022) and a further six months or so for the NCA to certify the Arrest Warrant (on 5 May 2023). No explanation of any sort has been offered by the respondent for that delay of some four years and almost five months. It may be that the delay in the NCA’s certification of the Arrest Warrant was not the fault of the respondent, but we do not know, as the respondent has offered no explanation for it.[47]The respondent has not suggested that the declaration that the appellant was contumaz was a necessary precondition to issuing the Arrest Warrant, and, in any event, there has been no explanation as to why there was a delay of two years and two months between the issuing of the Arrest Warrant and the declaration of contumaz. While that delay is not, perhaps, out of the ordinary in an extradition case, it is part of a longer unexplained delay of four years and almost five months.[48]In my view, the district judge was wrong not to find this delay to be culpable. It does diminish the public interest in extradition.[49]It is common ground that the district judge was wrong, at paragraph 89(c) of the Judgment, to say(i) that the appellant was still able to comply with the suspended sentence order until the activation hearing in 2018 and(ii) that the activation did not become final until 2021. She then noted that there was “only 1 year” between the “activation” in 2021 (presumably referring to the declaration that the appellant was contumaz) and the issue of the Arrest Warrant, although this was, in fact, a period of one year and eight months. She acknowledged that the respondent had provided no explanation for this, but concluded:
“… However, there cannot be said to be a significant passage of time in this case, in which I can find culpable delay. I find no culpable delay and as a result, the relatively short passage of time does not in my view diminish the public interest in extradition.”
(emphasis added)[50]Given the way this is phrased, having regard to the rest of paragraph 89(c), it is ambiguous whether she is referring to the gap between the declaration of contumaz in 2021 and the issue of the Arrest Warrant in 2022 or between the activation hearing in 2018 and the issue of the Arrest Warrant. Her reference to the “relatively short passage of time” favours the former interpretation, but arguably she had in mind the period between the activation hearing in 2018 (on 12 April 2018) and the issue of the Arrest Warrant (on 24 October 2022), a period of four years and a little over six months. It is harder, though, to describe this as a “relatively short passage of time”, even in the context of extradition, without some explanation for it, and it fails to take into account the further unexplained six month period before the Arrest Warrant was certified by the NCA.[51]In short, I must conclude that the district judge was wrong not to have found the delay in this case to be culpable. This is a material flaw in her analysis, and it therefore falls to me to conduct the Article 8 balancing exercise afresh. Having said that, however, and bearing in mind that this is a court of review, I must give appropriate deference to the factual findings of the district judge, particularly in relation to matters on which she heard live evidence, given the advantage that she had in considering all of the relevant evidence at the extradition hearing.[52]Before conducting the balancing exercise afresh, I should note that I do not think that the district judge gave undue weight in her analysis to the importance of the UK not being seen as a safe haven for those seeking to evade justice, given that each time she referred to that factor she was careful to remind herself that she had not found the appellant to be a fugitive. There was, however, for that very reason, no need for her to refer to that factor, as conventional and true as it is, given its irrelevance (on her finding that she could not be sure the appellant was a fugitive) to the facts of this case.[53]I have already stated that, in my view, the district judge identified all of the relevant factors for and against extradition and did not take into account any irrelevant factor.[54]When considering the appellant’s criticisms of the district judge’s assessment of various factors that she identified, as well as her overall conclusion, I bear in mind the guidance given by the Divisional Court in Belbin v France [2015] EWHC 149 (Admin) at [66] in relation to a challenge under Article 8 of the ECHR:
“… 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.”
(emphasis added)[55]I have already dealt with the district judge’s reference to the importance of the UK not being seen as a safe haven. I am satisfied that she gave this factor no significant weight. The district judge clearly had in mind: i) the appellant’s successful recovery from drug dependence and the positive changes that had occurred in his life (although he continued to offend, albeit in fairly minor ways, in the UK); ii) the fact that the appellant had complied with his suspended sentence in part, there having been some positive reports on his progress under the probation regime; and iii) the impact of extradition on the appellant and his mother, including the close bond between them.[56]I am not able to conclude that she reached a view on any of those factors that no reasonable judge could have reached.[57]I do not consider that the judge gave too much weight to the seriousness of the crime. She acknowledged that it was not “the most serious” of offences, but neither was it trivial. She was right to note that it carried a significant sentence of four years, all of which remained to be served.[58]Accordingly, the only real issue for me to determine is whether the fact that there was culpable delay by the respondent in this case has diminished the public interest in extradition to the point where the factors in favour of refusing extradition outweigh those in favour of granting it. It is important to note that this is a fact-specific exercise. The mere fact that there was culpable delay does not mean that extradition would be disproportionate. It is important to consider carefully the impact of the delay on the facts of the specific case. In Dabrowski, for example, the court concluded that, on the facts of that case, the culpable delay rendered the extradition disproportionate for purposes of Article 8. In Vajdik, the court concluded that it did not.[59]In this case, having regard to the factors for and against extradition identified by the district judge and bearing in mind my conclusion that there was culpable delay by the respondent, it is clear that the factors in favour of extradition nonetheless outweigh those against, even if the matter is more finely balanced, by reason of the culpable delay, than the district judge had concluded. In particular, there is the weighty public interest in honouring our international extradition obligations, the need to accord the respondent as a foreign judicial authority a proper degree of mutual trust and confidence, and the seriousness of the offence which, while not the most serious, has attracted a sentence of four years’ imprisonment, all of which remains to be served. The district judge was also right to note that the public interest in extradition is increased by the appellant’s commission of a further offence of common assault in Portugal while subject to the suspended sentence order, as well as by the appellant’s criminal history in the UK (albeit relatively minor offending).[60]As against this, even bearing in mind the overall period of 14 years between the index offence and the extradition hearing, as well as the culpable delay I have identified, there is simply nothing, individually or collectively, in the other factors in favour of refusing extradition to outweigh the public interest in extradition. The appellant’s mother has clearly had to cope without him while he has been in custody. There is evidence that the appellant’s brother is in the UK, and she is therefore not entirely alone. She has other family in Portugal. Given their close bond, his extradition will have an emotional and possibly physical impact on her, but not one that means that extradition would be disproportionate. The appellant has mild anxiety and depressive disorders. There is no reason to consider that these cannot be treated in Portugal.[61]I conclude that the factors in favour of granting extradition still outweigh those in favour of refusing it. The appellant’s extradition to Portugal would not be a disproportionate interference with his and his family’s right to respect for private and family life under Article 8 of the ECHR. The appeal is, therefore, dismissed.