Miklovan Bazegurore v Public Prosecutor’s Office of the Court of Appeal in Ghent, Belgium [2025] EWHC 1721 (Admin)

[2025] EWHC 1721 (Admin)Case No AC-2023-LON-001891
IN THE HIGH COURT OF JUSTICE
KING'S BENCH DIVISION
ADMINISTRATIVE COURT
In the matter of an appeal under s. 26 of the Extradition Act 2003
Venue Royal Courts of Justice, Strand, London, WC2A 2LLDate 08/07/2025
Before
MR JUSTICE CALVER
Between
Miklovan BAZEGUROREAppellantPublic Prosecutor’s Office of the Court of Appeal in GhentRespondentBELGIUMRespondent
Amanda Bostock (instructed by Carson Kaye) for AppellantHannah Burton (instructed by CPS Extradition Unit) for RespondentHearing Hearing dates: 01/07/2025
JUDGMENT
[1]This is the appeal of Miklovan Bazegurore (“the Appellant”) pursuant to s.26 of the Extradition Act 2003 (“the EA”) against the decision of District Judge Leong (“DJ Leong”) dated 14 June 2023 to order the Appellant’s extradition to Belgium. By order of Mr. Justice Lane dated 18 June 2024, permission to appeal was granted on one ground under Article 8 ECHR. The Appellant also seeks permission to adduce fresh evidence in the form of items 28-35 in the trial bundle, being 3 witness statements of the Appellant, one witness statement of his wife, Sherife Rexha and two expert psychologist reports of Dr Graham Rogers (“Dr Rogers”) and Dr Sharon Pettle (“Dr Pettle”).[2]Ms Hannah Burton, who ably represented the Respondent, did not object to the Court considering the fresh evidence adduced by the Applicant de benne esse and accordingly I proceeded on that basis. However, the Respondent maintained that the evidence is not admissible as it is not decisive and its admission is not required to avoid a breach of the European Convention on Human Rights: see Szombathely City Court v Fenyvesi [2009] EWHC 231 (Admin).

The arrest and sentencing of the Appellant

[3]The Appellant’s return is sought pursuant to an Arrest Warrant (‘AW’) (dated 10th October 2018 and certified by the National Crime Agency (‘NCA’) on 12th October 2018) in order for the Appellant to serve a remaining sentence of 4 years and 3 months’ imprisonment (being originally 5 years, but reduced by reason of his having spent 6 months on remand in Belgium and a further 3 months in the UK). The sentence was imposed by the Court of Appeal in Ghent, Belgium on 2nd March 2018, the court having overturned the first instance court’s imposition of a suspended sentence on 27 June 2017. Whilst the Appellant has a sentence of 4 years and 3 months still to serve in Belgium, if he were to be granted early release by the Belgian Court, it is common ground that he would have approximately 11 months still to serve in prison.[4]The Appellant’s Belgian sentence relates to the facilitating, for financial gain, of the unlawful immigration of 13 Albanian citizens (including 4 children) through Belgium to the UK on the night of 25 – 26 August 2016. The Ghent Court of Appeal explained that the Appellant was centrally involved in the unlawful people smuggling, and that it was an habitual, tight and well organised international smuggling ring, which operated over time on a number of occasions (in Belgium, France and the UK) and which, in this case, put the lives of the immigrants at risk as they were smuggled in a lorry which contained a concrete mixing mill. The Appellant was involved in a high speed car chase (200km/h) when the police attempted to arrest him.[5]The Ghent Court of Appeal stressed the seriousness of the offending as follows:
“Human smuggling is a global phenomenon that affects all countries of the world, including Belgium. Trafficking in human beings is a fundamental violation of human rights. It can take various forms, but often the vulnerable position in which the victims find themselves is abused, as in the present case. Perpetrators of human trafficking seek quick and important financial gains, often at the expense of their victims: refugees and other foreign nationals who are illegally staying in the various countries to which they are smuggled and are transported to and are accommodated in an inhumane and degrading manner. The way in which the defendants intended to bring the thirteen smuggled persons to the United Kingdom with the vehicle, which was totally unsuitable for such a crossing, which contained parts of a concrete mixing mill and, in view of the method of storage, could pose a danger to the persons in the cargo area, shows that they were ruthless for the sake of great monetary gain. A criminal law approach to people smuggling is a necessary link in the fight against the phenomenon of people smuggling. The penalties determined by the legislature for the crime, aggravated according to the circumstances, indicate how heavily society weighs on these facts. In choosing the sentence and determining the level of punishment, the court in this case pursues the following objectives: - express public disapproval of the crime committed; - the restoration of social balance and the damage caused to society; - protection of the society. The nature and seriousness of the proven facts, taking into account the aforementioned objectives, means that the court unanimously considers that the imposition of the effective prison sentence determined below for each accused person is absolutely necessary.”
[6]The Appellant was separately convicted in the UK on 19September 2018 Having been bailed in Belgium to come to the UK for his trial here for the separate offence. Whilst awaiting sentence for his offence in the UK, he was convicted in his absence in Belgium. , having pleaded guilty on 23 March 2018 to a conspiracy to do an act to facilitate the commission of a breach of UK immigration law by a non-EU person in respect of 11 illegal immigrants on 14 June 2016. This again concerned Albanian citizens. In respect of this conviction, the Appellant received a sentence of 9 years imprisonment, which sentence he was still serving at the time of his arrest pursuant to the AW. The UK and the Belgian offences, whilst separate offences, were of comparable scale and complexity.[7]The Appellant was arrested on the extradition warrant on 26 June 2019 at Westminster Magistrates’ Court, having been produced from prison while serving his UK sentence. DJ Leong ordered the Appellant’s extradition to Belgium in her written judgment which was handed down on 14 June 2023.[8]Permission to appeal was initially refused by Johnson J on 4 October 2023. On 28 November 2023, Heather Williams J refused permission to appeal on two grounds based upon a complaint of double jeopardy and trial in the absence of the Appellant but she adjourned the ground concerning Article 8 to allow for expert evidence on the impact of extradition on the Appellant’s 10 year old daughter (“X”).[9]Expert evidence from Dr Rogers was then served on 8 January 2024 on behalf of the Appellant (with an Addendum on 13 February 2024) in which X was diagnosed with “Autistic Spectrum Disorder with Disorder of Intellectual Development, moderate, with impaired functional language” (“ASD”), as a result of which Lane J granted permission to appeal on the Article 8 ground but adjourned the application to adduce fresh evidence to the Judge hearing the appeal.[10]The substantive appeal hearing was further adjourned on 6 February 2025 pending a further assessment and service of a further child psychologist report of Dr Pettle. That report, dated 25 March 2025, highlights X’s high degree of developmental delay. Her condition means that she does not spend any time in mainstream education and requires constant supervision.[11]This all took place before the publication on 11 June 2025 of the Supreme Court’s decision in Andrysiewicz v Circuit Court in Lodz, Poland [2025] UKSC 23, concerning the proper approach to an article 8 argument in the context of an extradition case.

Ground of Appeal

[12]In the UK the Appellant served his sentence for his conspiracy conviction between its date of imposition, namely 19th September 2018, and his conditional release date on 20th March 2023, being a total time served of 4 ½ years. Because he was subject to extradition proceedings, however, he was not released and remained in custody (by reason of the Belgian sentence) until the High Court (Sir Ross Cranston) ordered his release on 8th June 2023. In this way, he has accordingly served approximately 9 months of the Belgian sentence of 5 years (6 months plus 3 months).[13]On this appeal, the Appellant advances one ground of appeal under Article 8, contending that DJ Leong erred in concluding that extradition would not be a disproportionate interference with his, his wife’s and his children’s Article 8 rights (the right to respect for their private and family life).

The Law

[14]At [76]-[78] of her judgment, DJ Leong correctly directed herself in accordance with the leading authorities on Article 8 ECHR in this context, in particular Celinski v Poland [2015] EWHC 1274 (Admin), [2016] 1 WLR 551;Love v USA [2018] EWHC 172 (Admin) and HH v Italy [2012] UKSC 25 and she undertook the appropriate balancing exercise, weighing up those factors which favoured extradition and those which militated against it.[15]In HH v Italy at [8], Lady Hale summarised the effect of the decision in Norris, and DJ Leong referred to this summary in correctly citing the applicable legal principles in a case such as this at paragraph 77 of her judgment as follows:(1) There may be a closer analogy between extradition and the domestic criminal process than between extradition and deportation or expulsion, but the court has still to examine carefully the way in which it will interfere with family life.(2) There is no test of exceptionality in either context.(3) The question is always whether the interference with the private and family lives of the extraditee and other members of his family is outweighed by the public interest in extradition.(4) There is a 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 havens" to which either can flee in the belief that they will not be sent back.(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.(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.(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.[16]Further, in Norrisv Government of the United States of America (No 2) [2010] UKSC 9 at [65] Lord Phillips stated in particular as follows:
“Indeed, in trying to envisage a situation in which interference with article 8 might prevent extradition, I have concluded that the effect of extradition on innocent members of the extraditee’s family might well be a particularly cogent consideration. If extradition for an offence of no great gravity were sought in relation to someone who had sole responsibility for an incapacitated family member, this combination of circumstances might well lead a judge to discharge the extraditee under section 87 of the 2003 Act.”
And at [82] he added:
“One has to consider the effect on the public interest in the prevention of crime if any defendant with family ties and dependencies … was thereby rendered immune from being extradited to be tried for serious wrongdoing. The answer is that the public interest would be seriously damaged. It is for this reason that only the gravest effects of interference with family life will be capable of rendering extradition disproportionate to the public interest that it serves.”
(emphasis added)[17]Following on from and consistently with this, in H(H) v Deputy Prosecutor of the Italian Republic [2012] UKSC 25the courtconsidered the approach to assessing the compatibility of extradition with Article 8 where the interference involved children’s rights. The court noted at [130] that it is an unfortunate reality that‘…in the overwhelming majority of cases when the criminal is convicted and sentenced for offences which merit a custodial sentence, the innocent members of his family suffer as a result of his crimes.’[18]And to like effect, in R v Boakye [2013] 1 Cr App R (S) 6, para 32 the court stated: "The position of children in a defendant's family may indeed be relevant, but it will be rare that their interests can prevail against society's plain interest in the proper enforcement of the criminal law. The more serious the offence, generally the less likely it is that they can possibly do so.'' (emphasis added)[19]Most recently, in Andrysiewicz v Circuit Court in Lodz, Poland [2025] UKSC 23 the Supreme Court has reiterated the essential points made in Norris, H(H) and Celinski as follows: “Cases in which a submission founded on article 8 ECHR may defeat the public interest in extradition will be rare. It is most unlikely that extradition will be held to be disproportionate on the ground of interference with private life. Even in cases where interference with family life is relied upon, it will only be in cases of exceptionally severe impact on family life that an article 8 ECHR “defence” will have any prospect of success”. (emphasis added) Early release?[20]In Andrysiewicz at [65], the Supreme Court also addressed the relevance of the possibility of early release in the requesting state as a factor in the Article 8 balancing exercise and stated as follows:
“The first and more fundamental observation is that the potential for early release on licence is only one minor factor in a list of potential factors which may militate against ordering extradition as being a disproportionate interference with article 8 ECHR rights. The significance to be attached to this factor is to be seen in the overall context that it is likely that the constant and weighty public interest in extradition will outweigh all the factors militating against ordering extradition in the balance sheet of the “pros” and “cons” “unless the consequences of the interference with family life will be exceptionally severe.”: see H(H), at para 8.”
And at [77]-[78] and [80] the Court stated as follows: 77. … save in rare cases, a court in this jurisdiction should not embark on predicting the likelihood of the outcome of the application in Poland. This is for reasons of international comity and because of the strong practical considerations which mean that, save in the most exceptional circumstances, there cannot be any accurate prediction by a judge in this jurisdiction as to the outcome of an application in Poland for early release. It is also because account should be taken in the Celinski “balance sheet” of the fact that a court in this jurisdiction cannot impose licence conditions or impose any probationary period when discharging an offender. If these factors are included as “pro” factors in favour of extradition then whatever assessment is made as to the likelihood of a Polish court ordering early release on licence featuring on the “cons” side of the balance sheet, will be outweighed by these important countervailing public interest on the “pros” side of the balance sheet. 78. Because (save in rare cases) a court in this jurisdiction should not embark on predicting the likelihood of the outcome of the application in Poland, the bare possibility of early release on licence adds “little weight” in determining whether extradition is a disproportionate interference with article 8 ECHR rights. … 80. We envisage that a rare case is confined to cases where there is agreed or uncontested evidence sufficient to demonstrate an overwhelming probability: (a) that the requested person would be released under article 77 of the Polish Penal Code upon an application; (b) as to when that release would take place; (c) as to what the probation period and conditions attached to that release would be; and (d) that the inability of a court in this jurisdiction to provide for such a probationary period and to attach such conditions would not adversely affect the interests of the offender or of the public.”[21]There is no evidence in the present case to establish an overwhelming probability of early release of the Appellant from his sentence for the separate offence of conspiracy for which he was convicted in Belgium.[22]Ms Bostock, who argued the case skilfully on behalf of the Appellant, first submitted that the Court of Appeal (Criminal Division) in R v Bazegurore and Shuti [2020] EWCA Crim 375, in dealing with the Appellant’s appeal against sentence for his UK conspiracy offence, approached the sentence on the basis that, if considering the totality of the UK and Belgian courts’ sentences, the Belgian court’s sentence should be reduced by one-third to reflect the possible early release of the Appellant. Accordingly, she submits, this court should, as a matter of fairness, approach this appeal in the same way and assume that the Appellant would be subject to early release in Belgium with the consequence that he would only have 11 months left to serve of his sentence of 4 years and 3 months.[23]I do not accept that submission. In R v Bazegurore and Shuti, the Court first emphasised (at [10]) that the Appellant was properly sentenced both in the UK and in Belgium “for two quite separate offences”. The sole issue before that court was said to be whether the sentence in Belgium should have resulted in some incremental discount to the sentence imposed here, based upon totality. The Court concluded that it should not. The Court held first (at [20]) that, prima facie, there was no reason for the judge to adjust the sentence upon the basis of totality to take into account the sentence imposed in Belgium. That was because the Belgian offending was not before the English court and there were no unusual or exceptional circumstances requiring an international overview of the sentence because the two sets of offending were separate and distinct. Moreover, the court observed that there was force in the argument that when criminals engage in criminality spanning frontiers, they must be taken to accept the risk of criminal sanctions in multiple jurisdictions of potentially variable severity being imposed upon them. It is neither unjust nor disproportionate to require those engaged in international criminality to bear this risk ([19)].[24]The Court then went on to say that even if that were wrong, and the Court considered totality, then a sentence in this country of circa 15 years for two separate conspiracies could not be criticised. What the court was not doing was suggesting that the Appellant would be subject to early release in Belgium. On the contrary, it clearly stated at [7]:
“The Appellants are eligible for early release at the one third point of their sentences. There is, however, no absolute guarantee of early release, which depends upon the application of a variety of different factors and considerations.”
And whilst I, like both counsel in this case, respectfully find paragraph [24] of the Court’s judgment to be somewhat difficult to follow, the court nonetheless clearly stated that “we do not know whether in fact the appellants will be released at the on-third point when serving their sentences in Belgium.”[25]This is, accordingly, not one of those “rare” cases where the evidencedemonstrates an overwhelming probability that the requested person would be released early by the requesting state. Even if it were, this court cannot predict what the probation period and the conditions attached to that release would be.[26]Applying Andrysiewicz, the public interest in the Appellant being extradited to serve his sentence for this very serious offence in Belgium is very strong indeed. There is no guarantee of early release; and the (unevidenced) possibility of early release is a factor of little or no weight in the circumstances.[27]It follows that the court must approach this matter on the basis that the Appellant is wanted on an extradition warrant to serve the remaining sentence of 4 years and 3 months in respect of a grave offence, namely people smuggling. Indeed, that is an offence which, as Ms Burton pointed out, in the ordinary way would inevitably attract a custodial sentence in this country: see Le v Stark [1999] 1 CR. App. R. (S) 422 at 425. The burden accordingly rests upon the Appellant to show that the consequences of the interference with his family life will be exceptionally severe if he is extradited and that, in carrying out the Celinski balancing exercise, that feature outweighs the public interest in his serving his lengthy sentence for this very serious offence. That is a very difficult burden to discharge. Relevance of effect of Belgian extradition proceedings on UK sentence[28]The second submission of Ms Bostock is that the extradition proceedings have had a deleterious effect on his UK sentence and this was not known to Counsel acting at first instance and not known to the Judge. She submits that had it been known, it would have weighted the balancing exercise in the Appellant’s favour.[29]In particular, the extradition proceedings prevented him from being moved to an open prison at the end of 2020 and he remained in closed conditions for a further 2 years and 3 months as a result (the approval which had been granted by the prison authorities on 28 December 2020 for him to move to category D, open conditions was rescinded on 13 January 2021 by reason of the extradition proceedings). He has also been on an 8 hour curfew since his release in June 2023 by reason of the extradition proceedings. Ms Bostock submits that since the Belgian sentence has now been passed, “credit” for these aspects of his punishment are unlikely to be taken into account by the Belgian Court in order to reduce his sentence. It is too late. Ms Bostock submits that this is unfair, as if the Belgian authorities had waited to issue their AW until just before the Appellant’s release from his UK sentence, he would not have had to experience these additional restrictions on his liberty; and that had DJ Leong known this, her decision would have been “very different”.[30]The difficulty with this submission is that the harsher regime which the appellant had to undergo by reason of the existence of the extradition proceedings (category C conditions and a curfew) is entirely his fault, by reason of his international course of offending (see R v Bazegurore and Shuti at [19]).[31]Moreover, as the Respondent points out, DJ Leong expressly adverted to the fact that a curfew measure would not be considered to be part of the custodial term in Belgium (at [17]), and nor would it as a matter of English sentencing practice (albeit that it could be taken into account by the sentencing judge). Moreover, the curfew requirement (which was only overnight, from 10pm to 6am) in fact meant that the Appellant could be at home with his family whilst awaiting extradition rather than being held in custody: in that sense it was beneficial to him.[32]In the circumstances, these features are not capable, in my judgment, of adding any real weight to the balance against extradition. Failure to give sufficient weight to Article 8 rights in balancing exercise?[33]This brings me to the third and final submission of Ms Bostock which was her strongest: she argues that the interference with family life, if the appellant is extradited, will be exceptionally severe, and so this is one of those rare cases where the article 8 right tips the balance in favour of not acceding to the extradition request.[34]There is no doubt that X’s needs, as a result of her ASD, are severe and complex. She needs constant supervision and high levels of support, with significant intellectual impairment. There is no doubt that both of the Appellant’s children, but particularly X, would find his absence very difficult indeed.[35]Dr Rogers’ evidence is that X’s needs are severe and complex. Her language and communication abilities are severely limited. Interacting with her is challenging. She lacks the skills and abilities to make her needs known. Dr Rogers was the expert who finally diagnosed X’s condition as ASD.[36]Dr Pettle’s evidence in particular is as follows:(1) The Appellant was not around so much when X was younger as he worked long hours in his construction job. Since his release from prison in 2023, the Appellant has worked at the end of the day loading and unloading materials for scaffolding at a yard close to the family home. He takes the children to and from school and has become closer to them. It will be extremely disruptive for the children if he is now extradited. His wife is the main bread winner. She works as a full time book keeper, with some flexibility in hours. At weekends she often takes her two children to visit relatives.(2) X is changing schools in September (secondary school) and she is also undergoing hormonal changes, so the timing for her is very difficult. The local authority will provide transport to school for her although the Appellant would prefer to take her;(3) X has little concept of danger – if she goes into the kitchen alone she needs to be supervised. It follows that someone always needs to be with X and it is very difficult for one parent alone to manage her. The fact that X requires constant management and supervision means that her brother, who is 8 years old, can feel neglected.(4) When the Appellant was detained in Belgium, his wife sought and obtained considerable help from her friend, Zelije. His wife also learned to drive.(5) When the Appellant was sentenced to more than 4 years’ prison, his wife coped but found being alone with two small children very challenging. She relied heavily upon her friend Zelije. The Appellant’s absence did not have any obvious effect on X and when he returned home X approached him without any obvious restraint or anxiety and her brother quickly developed a deeper connection with him.(6) Whilst X’s brother might be able to retain his relationship with his father by telephone calls, this would be inadequate for X. It could have seriously long-term negative consequences for her.[37]The evidence of Dr Pettle suggests that whilst X’s brother may be able to cope with the Appellant’s absence, there is no doubt that it will be much more challenging for X. The Appellant’s wife is clearly extremely resourceful, and whilst she may be able to cope with the help of family and friends, it will clearly be very hard for her.[38]Although the Appellant’s wife told Dr Pettle that she cannot rely upon anyone in the family to help her, it is not clear why that is so. Unfortunately, the Appellant’s wife did not make herself available for cross-examination before DJ Leong and so the assertion of a lack of help to cope with the needs of the children could not properly be tested.[39]True it is that the children are older and some of the people that she relied upon no longer live nearby. But she has in the past sought and obtained help from family members (she says she has a close sibling group) and Ms Bostock accepted that she will be able to obtain help from those family members. Her friend Zelije is said no longer to live close by, although that fact is ameliorated to some extent by the fact that the Appellant’s wife can now drive. It is also accepted that, whilst it is by no means ideal, she could send the children to breakfast and after school clubs if necessary and as I have said the local authority would provide school transport. She has managed on her own in the past when the Appellant has been serving a custodial sentence.[40]That stated, it will undoubtedly be challenging for the Appellant’s wife and their children if the Appellant is extradited. But, as was pointed out in the authorities considered above, a sad consequence of serious offending is frequently that the offender’s family members suffer as a result.[41]In my judgment, this is not one of those rare cases (identified by Lord Phillips in Norris) which justifies, exceptionally, the refusal to honour an extradition request, such as a case where an offence of no great gravity was committed by someone who had sole responsibility for an incapacitated family member. Ms Bostock recognises this but argues that a joint, primary carer (such as the Appellant) of a child with special needs who requires constant supervision is equivalent to a sole carer of a child without special needs.[42]The difficulty with Ms Bostock’s submission is the seriousness of the offence for which the Appellant is wanted by the Belgian authorities (as DJ Leong pointed out). The offending was organised and planned. It exploited vulnerable people, including children, for financial gain. The offending sought to facilitate the unlawful entry of multiple people into this jurisdiction, thereby undermining the proper operation of the immigration systems and the security of national borders in multiple jurisdictions across Europe, including Belgium and the UK. The District Judge was correct to identify that the offending for which the Appellant is wanted is one of the most serious offences on the scale of offending.[43]I can well see that if the offence for which the Appellant were wanted in this case was, for example, an offence of shoplifting, then in view of the Appellant’s challenging family circumstances the analysis might be very different. But it is not: as the Ghent Court of Appeal emphasised the offence is very serious indeed. Added to this is the fact that X has her mother, family and friends to assist in her care (as happened on the last occasion when the Appellant was imprisoned), albeit I have no doubt it will be a very challenging time for them indeed without their father. Of course, if as the Appellant argues, he is likely to be subject to early release in Belgium, then his period of absence will at least only be for a further 11 months. But that is entirely a matter for the Belgian courts. Was DJ Leong wrong?[44]The role of the appeal court on an appeal in a case such as this was summarised in Love v USA [2018] EWHC 172 (Admin) as follows:
“The appellate court is entitled to stand back and say that a question ought to have been decided differently because the overall evaluation was wrong: crucial factors should have been weighed so significantly differently as to make the decision wrong, such that the appeal in consequence should be allowed.”
[45]And as Aikens LJ stated in Belbin v Regional Court of Lille, France[2015] EWHC 149 Admin):
“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.”
[46]The question on this appeal is, therefore, whether DJ Leong’s overall evaluation can be said to have been wrong, adopting the approach in Belbin. I consider that even if the fresh evidence is admitted, DJ Leong’s overall evaluation cannot be said to be wrong; indeed, I consider it to be correct, particularly in the light of the Supreme Court’s recent reiteration in Andrysiewiczof the correct approach to Article 8 in a case such as the present. 47. DJ Leong carried out the Celinski balancing exercise at paragraphs 89-90 as follows. “89. Factors in favour of extraditiona. There is a weighty and constant public interest in ensuring that extradition arrangements are honoured. The court must have regard to the importance of mutual confidence and recognition between judicial authorities in the United Kingdom and requesting territories (cf para 50.2 of Criminal Procedure Rules 2020)b. The UK should not be seen as a safe haven to those who are wanted to serve a sentence or to stand trial. Although [the Appellant] is not a fugitive, he is nonetheless wanted by the Judicial Authority to serve a 5 year sentence. [The Appellant] has served about 6 months on remand in Belgium. He has now served a further 3 months on remand while in the United Kingdom after his release from having served half of the 9 year sentence for a similar offence in the United Kingdom.c. The offence of people trafficking is one of the most serious offences in the scale of criminal offending. It is a highly orchestrated and organised venture that involved transporting vulnerable immigrants from country to country where the operation could place the lives of the immigrants at risk. This offence committed by [the Appellant] is even more serious when seen against a background of similar offending in the United Kingdom. 90. Factors against extradition a. It is disproportionate to extradite [the Appellant] when [he] has served a lengthy sentence in the United Kingdom. b. The date of the offence ie 25th /26th August 2016 to the extradition proceedings spanned nearly 7 years. The passage of time in this context diminishes the public interest in extradition. c. [The Appellant] is eligible to apply for provisional release after serving 20 months of his 5 year or (60 month) sentence. He has already served 6 months on remand in Belgium and he would have served 3 months in the United Kingdom. He is likely to be returned only to serve another 11 months. If [the Appellant] were to be released, there is little public interest In extraditing him to serve a short sentence and it is disproportionate in such circumstances.d. [the Appellant], [his wife] and their children had not had the opportunity of being able to re-establish their relationship since he had been imprisoned. Further their daughter suffers from autistic syndrome disease. It is important for the welfare of [X], their daughter to have her parents present to support her. It is understandably difficult for [his wife] to have care of both children as well as being the sole breadwinner without [the Appellant] to support her.e. [The Appellant’s] custodial sentence in the United Kingdom was served during the pandemic where conditions were unfortunately, extraordinarily harsh. That included not seeing his family for over a year and being forced to be confined for longer hours in his cell. ( cf R v Manning [2020] 4 WLR 77.) It is thus a factor that counts in favour of the argument that it would be disproportionate to extradite [the Appellant].” arrangements are honoured. The court must have regard to the importance of mutual confidence and recognition between judicial authorities in the United Kingdom and requesting territories (cf para 50.2 of Criminal Procedure Rules 48. This is a well reasoned and coherent summary of the relevant balancing factors for and against extradition and I do not consider that DJ Leong’s application of the balancing exercise can sensibly be criticised. The Judge found that the balance came down in favour of extradition. She was clearly and rightly swayed by the gravity of the offending, stating: “the seriousness of such offending cannot be doubted where the lives of trafficked victims including underaged victims were placed in danger by the perpetrators. The seriousness of the offending is recognised by the courts here and abroad resulting in lengthy sentences being imposed.” 49. The Judge rightly referred to the fact that this was a repeated course of offending in two separate jurisdictions. The Appellant chose to engage in international offending and so he must accept the sanction imposed on him in Belgium. 50. The Judge further considered that the fact that the Appellant might be released having served a third of his sentence did not render extradition disproportionate in view of the gravity of the offending. Her conclusion in this respect is, of course, now supported by the Supreme Court’s decision in Andrysiewicz which post-dates her judgment. 51. Following Andrysiewicz, it will only be in rare cases where the impact on family life is exceptionally severe that extradition would be a disproportionate interference with an Appellant’s Article 8 rights. As the Appellant is wanted in Belgium to serve the significant remainder of a lengthy sentence of imprisonment for very serious offending, notwithstanding the undoubted hardship facing this family in the event of his extradition, that high threshold of the need to demonstrate a “rare” or “exceptional” case has not been met in this case. 52. Accordingly, in my judgment DJ Leong was not only not wrong to find that the Appellant’s article 8 rights did not outweigh the public interests in extraditing him for such a serious crime, but, post-Andrysiewicz, she was clearly correct so to find, even when viewed in the light of the fresh evidence referred to in paragraph 1 of this judgment. 53. Indeed, in the light of my findings above, that fresh evidence ought not to be admitted as it is not decisive and nor is its admission required to avoid a breach of the ECHR. 54. Accordingly the appeal must be dismissed.