OQR v The Government of Norway [2026] EWHC 894 (Admin)

[2026] EWHC 894 (Admin)Case No AC-2025-LON-000857
IN THE HIGH COURT OF JUSTICE
KING'S BENCH DIVISION
ADMINISTRATIVE COURT
Venue Royal Courts of Justice, Strand, London, WC2A 2LLDate 20/04/2026
Before
MRS JUSTICE BRUNNER
Between
OQRAppellantTHE GOVERNMENT OF NORWAYRespondent
Amelia Nice (instructed by GT Stewart Solicitors) for AppellantDavid Ball (instructed by CPS Extradition Unit) for RespondentHearing Hearing dates: 24 March 2026
Approved JudgmentThis judgment was handed down remotely at 12:00 pm on 20 April 2026 by circulation to the parties or their representatives by e-mail and by release to the National Archives..............................MRS JUSTICE BRUNNER

Introduction

[1]This case involves an Article 8 challenge to extradition. This is an appeal pursuant to section 103 of the Extradition Act 2003 (“the 2003 Act”) brought by the Appellant against the judgment of District Judge Zani (“the DJ”) handed down on 16 December 2024, ordering his extradition to Norway. The Appellant is a Norwegian national born on 28 December 1980 who has settled status in the UK. Part 2 of the Extradition Act 2003 applies to these proceedings. A separate anonymity order has been made.[2]Extradition was ordered in respect of a conviction request issued on 4 April 2024, certified on 13 April 2024. A certificate was issued by the Secretary of State pursuant to section 70 of the Extradition Act 2003 on 17 May 2024. As I detail below, the conviction request relates to an aggravated drugs offence.[3]An extradition hearing was held at Westminster Magistrates Court on 5 October 2024, with judgment in favour of extradition handed down on 16 December 2024. The Secretary of State ordered extradition on 3 March 2025. The Appellant applied for permission to appeal which (after procedural issues which are irrelevant here) was refused on the papers on 7 October 2025. In a renewal application the Appellant relied on an Article 8 ground only. At a hearing on 18 November 2025, Mould J granted the renewed application for permission to appeal on that ground, and gave permission to the Appellant to file expert evidence and evidence about financial resources, with the admissibility of that evidence to be determined by the court hearing the appeal.[4]Accordingly, the only ground of appeal before me is that extradition would constitute a disproportionate interference with the Article 8 right to respect for private and family life and the DJ was wrong to have concluded otherwise.

The Offence, The Norwegian Proceedings and The Extradition Request

[5]The Respondent seeks the Appellant’s return in respect of a serious drugs offence. He is a fugitive from the Norwegian justice system, having fled the country during the criminal proceedings.[6]On 12 May 2015, Norwegian police carried out a search of the Appellant’s apartment in Oslo. They found 687 grams of heroin ‘packed in plastic’ in portions of about 50 and 100 grams. That quantity is described as approximately 3,000 ‘user doses’. The Appellant’s fingerprints and DNA were on the plastic wrapping around the drugs. The drugs were found in a plastic bag which also contained a set of electronic scales, on top of a kitchen cabinet.[7]In 2015, the Appellant met his wife who had five children from an earlier relationship. Their first child was born in 2016, and in the same year the Appellant says he came to the UK. His wife and some of the children joined him the following year.[8]The trial was not until 18 April 2018. It seems that the Appellant travelled back to Norway for the trial and did not tell the court that he had moved to the UK: court documents record that he ‘lives in Oslo’. A co-accused admitted to the police that he had placed the drugs in the flat. The Appellant’s case at trial was that he did not know anything about the drugs being stored at his flat. The court rejected this account and found that he deliberately decided to keep the drugs in his apartment even after realising that the drug might be heroin. This was one of two apartments which the Appellant had keys for, and the court found that it was a ‘depot apartment’ where drugs were placed for the Appellant to look after them.[9]The Appellant was found guilty of one count of illegally having stored heroin. He was sentenced to 3 ½ years imprisonment, and had served 51 days on remand which was to be deducted from time to serve. It is of note that the court found that the starting point for the sentence was five years. That was reduced because of the delay between the offence and the trial, partly caused by the co-accused’s disappearance.[10]The Appellant appealed, and on 21 June 2019 the Bogarting Court of Appeal rejected the appeal and affirmed the sentence. The court noted that attempts to contact the Appellant at the address he had given and on the telephone number he had given had been fruitless. His lawyer said he had last had contact with the Appellant by telephone on 5 February 2019. The Court of Appeal determined that there was ‘a clear preponderance of probabilities in this case that the accused has deliberately evaded prosecution’.[11]On 12 November 2019 a summons was issued for the Appellant to surrender to custody and serve the sentence. On 22 November 2019 the Oslo Public Prosecutor declared him as nationally wanted.[12]In the meantime, the Appellant was still in the UK. He and his wife had their second Child, Child A in 2021. Various attempts by the Norwegian authorities to locate the Appellant failed and on 5 April 2024 he was announced as internationally wanted.

The Extradition Hearing

[13]The Appellant was arrested on 18 April 2024. He appeared for the initial hearing at Westminster Magistrates’ Court the following day. He was remanded on conditional bail, with conditions of residence and curfew.[14]The full extradition hearing took place on 5 November 2024.[15]The Appellant’s bases for challenge included passage of time and that his extradition would be a disproportionate interference with his family’s Article 8 rights. The Appellant and his wife parent six children. They are: Child F, who was an adult by the time of the extradition hearing; Child E, who was 17 at the time of the extradition hearing and is now an adult at 18; Child D, who was 13 at the time of the extradition hearing and is now 14; Child C who was 11 at the time of the extradition hearing and is now 12; Child B who was 8 at the time of the extradition hearing and is now 9, and Child A who was 3 ½ at the time of the extradition hearing and is now 5. The Appellant is the biological father of the youngest two.[16]The Appellant filed a number of documents in support of his case, including statements from himself and his wife, a detailed report from a psychologist Dr Pettle and a letter from special educational needs support service about Child A, recording that his developmental age was between 12 and 18 months.[17]Dr Pettle’s report dated September 2024 addressed the impact of extradition. That report set out a great deal of information about family members, which is briefly summarised as follows: i. The Appellant was not experiencing psychological problems. He presented as a warm father and was distressed at the idea of not being available to provide for his family. He and his wife worked in a small retail shop, covering for one another, and he also drove a bus, usually for two days a week. He has no extended family. The Appellant reported that he did not know how his wife would cope with all the children if he was extradited. Child A had considerable needs, and two of the other boys also had considerable health needs. ‘He recalled times when his wife was attending an appointment with one young person and another needed parental attention- he had usually been available to respond’. ii. The Appellant’s wife had studied to be a nurse but was not working as a nurse, and worked in the family shop when time allowed. She was taking tablets to manage high blood pressure. There were complexities around trying to manage work and the children attending different schools and ‘at times [the Appellant’s wife] has needed to resort to using an Uber to collect them’. She said there were no relatives who could help her. She reported that the older children had a good relationship with their grandmother who lived in Norway, but her mother did not know how to manage Child A. iii. Dr Pettle reported that the youngest child, child A, was being assessed for a neurodevelopmental disorder and she strongly suspected that he would be diagnosed with Autism Spectrum Disorder, at the severe end of the continuum. He has significant social and communication difficulties and the level of parental support and supervision he requires is very high. He has recently started nursery. He needed an adult with him as he did not understand danger, was still using a bottle, had outbursts, and did not sleep well. Consistent attendance and ongoing input from parents is expected and important. Child A has attended A&E twice with burns and a third time when he fell down stairs and became unconscious. The Appellant’s wife found it difficult to manage his needs, and described the Appellant as very involved with all the children. Her health records showed a number of issues including intermittent thyroid issues and gastric reflux. iv. The other children were said to all be attending school and making progress. In observations Child B was a confident child who said his father noticed when he did well and gave him the most cuddles. His health records showed no significant illnesses. v. Child C was a gentle girl who worried about the health of other family members and described her grandmother warmly. She has borderline emotional difficulties. Her health records raise some issues such as tension migraines. vi. Child D had asthma and used an inhaler every day. His health records showed that in July 2024 his asthma control was considered poor. He loved and respected his stepfather who set boundaries. He was affectionate with his grandmother. vii. Child E’s health records show a diagnosis of Type 1 diabetes and some non-compliance with management, although that had improved as he matured. Child E told the psychologist that his approach had resulted in his parents being very involved in the day to day management until recently. He liked visiting his grandmother in Norway. He said he would miss the Appellant who he thought might be going away for some reason, as he had a strong bond with him and confided in him.[18]Dr Pettle identified the likely effect of extradition in this way: i. Children with autism cope poorly with change and the process of settling into nursery is likely to be interrupted further if the Appellant is suddenly absent from the family. As Child A would not be able to understand what was happening, the impact of separation on his progress, development and social skill would be severe. She concludes “if in the care of a solo parent (especially with a large sibling group and where others have medical issues) Child A is very unlikely to meet his developmental potential.” ii. The other children are resilient but ‘[the Appellant’s] absence is likely to result in significant financial hardship and have a profound emotional impact on all of them, both directly, and indirectly through the effect on their mother.’ The Appellant’s extradition is ‘likely to have a significant deleterious impact with long-term negative consequences’ on all. iii. For Child E, his diabetes management during adolescence will be challenging, all the more so if the Appellant who has been a strong support, is absent. Stress levels are likely to increase for the whole family in the Appellant’s absence and stress can influence management and outcomes of diabetes. iv. For Child D, the Appellant’s absence is likely to create considerable anxiety, which is linked to exacerbation of asthma. v. The Appellant’s wife is managing multiple challenges and the Appellant’s absence would reduce her availability for each of her children. It is questionable how much the oldest siblings will be able to assist with the younger children while managing their own emotional responses. She may not be able to attend the necessary medical appointments for herself and the children.[19]The Appellant provided a statement. He said that he was threatened in Norway and so came to the UK around the end of September 2016. He said he had no family, and his wife’s mother would come from Norway to the UK to help for two week periods. The whole family could not move to Norway as the younger children only speak English. His wife does not drive and he normally drives the children to school which are far from home. He does the shopping and helps with house chores and takes care of all 4 children. He said that they had to ensure that Child E takes his injections and watch his diet. The Appellant has no other convictions.[20]The Appellant’s wife made a statement. She described the health difficulties of her children and how she was permanently deprived of sleep. She said that the Appellant ‘helps me with everything, getting kids ready dropping them to schools, picking up and getting shopping supplies’. She described the difficulties of looking after Child A who would wake at 3am, and required constant supervision or else he would run into the street. She said that ‘on top of taking care of Child A, I have to work, clean the house, clothes, dishes, cook, take care of the rest of 4 children’. She said it is hard on the days when the Appellant goes to work as a bus driver and she cannot imagine how she would cope on her own. She worried about practicalities, and worried about the children going off the rails. She said her mum lives in Norway but has medical issues and cannot be relied on. There were no friends who could help.[21]She has an app on her phone which alerts her at night if Child E’s sugar levels are too high so she gives him the insulin injection, and has to intervene in the management of his diabetes about twice a day. Child D, who has asthma, also needs constant care and attention, and she is sometimes called to his school in the middle of the day to provide medication. She says that she has a blood clot and at times feels very ill.[22]The DJ heard oral testimony from the Appellant and his wife which did not significantly differ from their statements. He had the benefit of medical records for the Appellant’s wife and children.[23]The DJ found that the Appellant was a fugitive. He found that the Appellant was aware that he had been convicted and sentenced and knew an appeal was pending, and then chose to cease all contact with his defence lawyer. The DJ recorded that he ‘did not find him to be a completely honest witness’.[24]The DJ listed three ‘factors said to be in favour of granting extradition’. The first two in summary were the seriousness of the criminal conduct, and the Appellant being a fugitive. The third was:
‘albeit some of the children have health issues – especially Child A, they are currently well looked after, in the main by the defendant’s mother (who is the primary carer) albeit with important assistance from the defendant. Appropriate access to social services and medical assistance (from the GP) is being maintained and there is no reason to think that this will not continue were surrender ordered’
. The reference in that passage to the defendant’s mother must be a slip, and I take the reference to be to his wife.[25]The DJ then listed six ‘factors said to be in favour of refusing extradition’. Five factors were, in summary, that the Appellant had been in the UK since 2016, he is the sole breadwinner, he has no other criminal convictions, he says he is not a classic fugitive as he left because he was being threatened, and delay since the crimes were committed. The sixth factor was phrased in this way: ‘he is very concerned as to how his wife and the children will cope in the event that he is surrendered. He expressed particular concerns for the case of his youngest son Child A who has serious ongoing developmental needs and who requires a considerable amount to care. Some of the other children also have health issues that cause some concern and his wife is suffering from ongoing stress and depression by reason of the strain of caring for the children and the uncertainty of the extradition proceedings”.[26]The DJ then undertook the usual balancing exercise. At paragraphs 152-164 he set out various observations and findings. They included finding that the offending was very serious, and the Appellant had deliberately fled the jurisdiction, and rejection of a submission that in the UK he may have received a non-custodial or suspended sentence. The DJ identified that the impact on Child A was a ‘prime consideration’ for him. His view, having heard evidence, was that the Appellant’s wife ‘came across as a particularly resilient individual as well as a devoted and caring mother’. He took into account the unchallenged evidence of the psychologist Dr Pettle and it is plain that he accepted that evidence. He noted that Child A had ongoing medical needs and had recently been attending nursery. He was receiving all necessary medical care and social services were on hand to offer necessary assistance. He noted the health issues of two of the other children but found that ‘without wishing in any way to minimize their health issues, I find that they do not raise concerns which would mean that extradition would be Article 8 disproportionate either individually or cumulatively’.[27]The DJ concluded that:
“163. This court does not underestimate the difficulties that will arise for this family were surrender to be ordered. It has in the forefront of its mind the effect this will have not only on the defendant and his wife but more particularly the children (especially Child A). However I am not satisfied that surrender would be Article 8 disproportionate even in the difficult personal family circumstances of this case. 164. I am satisfied that the family should be able to make satisfactory arrangements -whether in the UK or in returning to Norway- for the continued welfare needs of the defendant’s wife and children. As mentioned above they have friends who have been ready and able to offer immediate (financial) assistance when the cash security needed to be raised. The wife is also very close to her mother and sister and albeit her expresses reservations as to the help they may be able to provide, nothing has been received from either to say that, in fact, further help would/could not be provided”
.

The Applications to Admit New Evidence

[28]The applications to admit further evidence, dated 25 April 2025, 26 January 2026 and 3 March 2026, relate to almost 400 pages of further evidence. I have considered it all, and set out a summary below.[29]Dr Green, a psychologist, wrote a report in relation to Child A, dated 30 January 2026 (and so a year and four months after Dr Pettle’s report). Dr Green confirmed a formal diagnosis of autistic spectrum disorder, which had in fact been made (unknown to the Appellant’s solicitors it appears) in December 2024. Dr Green noted that there was an Education Health Care Plan which described Child A’s complex profile of needs and a school Support Plan which described regular access to 1:1 support, and that he needed adult supervision in accessing all areas of the nursery. Dr Green reported that Child A did not always go to school or had often been sent home. He was taken to school in a pushchair or wheelchair. The Appellant would often have to leave work because he was required to assist with one of the other children at school, when his wife was looking after Child A.[30]Dr Green observed during an assessment both parents spending time supervising Child A and keeping him safe. His view was that Child A ‘has not as yet received, in my view, all the help that might be required for him and his family to assist him addressing this disorder and the needs which arise from it’. In his view, it will be necessary for Child A to be supported in alternative educational provision which had not yet been identified. He has profound communication difficulties and is a significant risk of accidental harm. There is evidence of emotional distress. The consistency of the caregiver and the environment will assist his development and change will impede proper and necessary psychological, educational and physical development. The lack of the father in the home would be significantly detrimental to Child A’s well-being. He has ‘clear and consistent attachment and established consistent routine with both his parents present. He is extremely vulnerable at the age of rising five.. it would take significant time for new caregivers or professionals to learn, producing risk’. The absence of his father would destabilise Child A and affect him extremely negatively, exacerbating difficulties which he has, and it will be difficult to recapture the relative stability he has achieved thus far in his life. Dr Green’s view was that it was unlikely that mother will be able to cater to all Child A’s needs alone.[31]There is new material showing that the Appellant has applied to transfer his sentence from Norway to the UK. That process is still underway, and it is not submitted that it plays any significant role in my decision-making.[32]There is a new statement from the Appellant’s wife dated 21 January 2026. That provides updated information including: i. She says she has a heart condition, and has felt unwell since a covid vaccination in February 2025. She has developed heaviness in her legs which makes it impossible to take care of Child A who is now 25kg and often aggressive and out of control. On 3 or 4 occasions the Appellant has had to leave work to pick up Child A from school as she felt too unwell to do so. ii. Updated information about Child A’s lack of understanding of danger and recent injuries sustained by Child A. She said that despite the new melatonin medication, Child A still wakes up in the night screaming. The Appellant sleeps with Child A and looks after him when he wakes. iii. Information about the likely financial effects of the Appellant’s absence. iv. Updated information about Child E who is now 18 and at college, who forgets his medication and needs picking up about once a fortnight when his sugar levels are out of control, and still needs attention at night with gel and sweets to control his sugar levels.[33]Updated medical notes of the Appellant’s wife show that she sought GP and emergency healthcare repeatedly, and had many investigations with no organic cause found for reported symptoms. A doctor’s letter confirms that the Appellant’s wife was referred to a cardiologist and to the long-COVID clinic in January 2026 to rule out dysautonomia and tachycardia.[34]An Education Health and Care plan for Child A dated October 2025 sets out his difficulties, the support he needs in the mainstream school which he attends, including some 1:1 time, and that the family have decided to proceed with an Early Help assessment. A school risk assessment identifies various significant risks including running off and falling.[35]A statement from the Appellant’s adult stepdaughter dated 23 January 2026 says that Child A has a strong dependency on his father, partly because the Appellant is strong enough to pick him up. She says that her mother does ‘more than her fair share’ during the days when the Appellant is working. She is at University and unable to provide care.[36]A statement from the Appellant’s wife’s mother dated 23 January 2026. She lives in Norway, and cannot relocate to the UK. She also notes that Child A is now strong and heavy and she cannot be of practical assistance with his care.[37]Financial documentation and a statement from the Appellant’s solicitor setting out the family’s financial position. Broadly, the Appellant’s absence may reduce the household income by around £10,000.[38]Updated medical records about Child A confirming his diagnosis, and reported injuries such as a burn to his hand from touching a hot stove, and information about a speech and language therapy programme. A letter dated 5 June 2025 records that his sleep had improved since starting melatonin and that he would very occasionally wake up at night. The Legal Framework The Legal Framework re: the question on appeal

The Legal Framework

[39]There is no dispute about the legal framework in this case. Section 104 of the Extradition Act 2003 sets out the question on appeal: 104 (2)The court may allow the appeal only if the conditions in subsection (3) or the conditions in subsection (4) are satisfied. (3)The conditions are that— (a)the judge ought to have decided a question before him at the extradition hearing differently; (b)if he had decided the question in the way he ought to have done, he would have been required to order the person’s discharge. (4)The conditions are that— (a)an issue is raised that was not raised at the extradition hearing or evidence is available that was not available at the extradition hearing; (b)the issue or evidence would have resulted in the judge deciding a question before him at the extradition hearing differently; (c)if he had decided the question in that way, he would have been required to order the person’s discharge.[40]The question on appeal is, therefore, whether the DJ’s decision was wrong. That requires a focus on the overall outcome of the determination arrived at via the balancing exercise, rather than the identification of any individual errors or omissions. In Love v United States of America [2018] EWHC 712 (Admin), the Divisional Court emphasised the high bar for appeal, saying:
“The statutory appeal power under section 104(3) permits an appeal to be allowed only if the district judge ought to have decided a question before him differently and if, had he decided it as he ought to have one, he would have had to discharge the Appellant. The words “ought to have decided a question differently” (our italics) gives a clear indication of the degree of error which has to be shown. The appeal must focus on error: what the judge ought to have decided differently, so as to mean that the appeal should be allowed. Extradition appeals are not re-hearings of evidence or mere repeats of submissions as to how factors should be weighed; courts normally have to respect the findings of fact made by the district judge, especially if he has hear oral evidence. The true focus is not on establishing a judicial review type of error, as a key to opening up a decision so that the appellate court can undertake the whole evaluation afresh. This can lead to a misplaced focus on omissions from judgments or on points not expressly dealt with in order to invite the court to start afresh, an approach which risks detracting from the proper appellate function… 26 ……….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: that crucial factors should have been weighed so significantly differently as to make the decision wrong, such that the appeal in consequence should be allowed.”

The Legal Framework re: the approach to Article 8

[41]In HH v Deputy Prosecutor of the Italian Republic, Genoa [2012] UKSC 25, [2013] 1 AC 338 at para 8, Baroness Hale (giving the leading judgment) summarised the conclusions to be drawn from previous authority where Article 8 is concerned, as follows:
“(1)There may be a closer analogy between extradition and the domestic criminal process than between extradition and deportation and 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 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.”
[42]Baroness Hale identified that the best interests of children impacted by an extradition must be a primary consideration, albeit they could be outweighed by countervailing factors (para 15). It is not enough to dismiss these cases in a simple way and careful examination is required (para 34). Lord Hope described the decision-making (in one of the co-joined cases) as an exercise of judgment as to where the balance must be struck between two powerful and conflicting interests.[43]The sort of information required by the extraditing court was addressed (paras 82 and 83). The court will need to know whether the parent’s removal will be harmful to the interests of dependent children and what steps can be taken to mitigate this. Where the extraditee is not the sole or primary carer, the court will have to consider whether there are any special features requiring further investigation of the children’s interests. Where the extraditee is the sole or primary carer, or where extradition of both parents is sought, the court will need to have information about the likely effect upon the individual children and the arrangements which will be made for their care.[44]It is important to note that HH does not create a threshold of harm. Fordham J put it this way in Lipski v Poland [2020] EWHC 1257 (Admin):
“These references to “exceptionally serious” and “exceptionally severe” consequences do not mean that there is a “test of exceptionality”, as Lady Hale explained at paragraph 8(2) in HH and as the judge in the present case rightly recorded. Nor are they indicating the application of a single, fixed and universally-applicable threshold of harm, with cases being decided by determining on which side of that single fixed line the consequences fall. The balancing exercise in an article 8 case weighs in the scales all the factors in favour of and against extradition. It is a balancing exercise in which those factors are of their nature capable of having a variable weight, that weight being capable of depending on relevant aspects of the particular context and circumstances of the case. Ultimately, the nature of the consequences which will - or will not -be sufficiently weighty to lead to the overall conclusion that extradition is incompatible with article 8 will depend on (a) how weighty are the various factors in support of extradition and (b) the other various other factors against extradition.”
[45]In Polish Judicial Authorities v Celinski [2015] EWHC 1274 (Admin)(at paras 15 – 17), the Divisional Court commended a “balance sheet” approach to assessing whether the interference with the private life of the extraditee is outweighed by the public interest in extradition. The Divisional Court also emphasised “the very high public interest” in ensuring that extradition arrangements are honoured and the public interest in discouraging persons seeing the UK as a state willing to accept fugitives from justice (para 9). Where a Requested Person is a fugitive from justice, it was said that very strong counterbalancing factors would need to exist before extradition could be regarded as disproportionate (para 39).[46]Long unexplained delays can weigh heavy in the balance against extradition. As confirmed in HH, fugitive status does not preclude the court from relying on the overall length of the delay.[47]In undertaking the Article 8 balancing exercise courts may take into account periods when the requested person has been subject to an electronically monitored curfew as set out in, for example, Prusianu v Braila Court of Law, Romania [2022] EWHC 1929 (Admin) at para 49.

The Legal Framework re. Fresh Evidence

[48]Fresh evidence, that is evidence which was not raised or available at the extradition hearing, may be considered by the court on appeal pursuant to section 104(4)(a) of the 2003 Act.[49]The receipt of fresh evidence was considered in Szombathely City Court, Hungary v Fenyvesi [2009] EWHC 231 (Admin) (‘Fenyvesi’) at paras 28-35. Evidence that “was not available at the extradition hearing” means evidence which either did not exist at the time of the extradition hearing, or which was not at the disposal of the party wishing to adduce it and which he could not with reasonable diligence have obtained (para 33). The fresh evidence must have been decisive, that is, had the evidence been adduced, the result would have been different resulting in the person’s discharge (para 36).[50]Where the Appellant is permitted to rely on fresh evidence, the appellate court must make its own assessment de novo based on the material as it now stands, in order to determine whether extradition would be a disproportionate interference with Article 8 rights: Jozsa v Tribunal of Szekesfehervar, Hungary [2023] EWHC 2404 (Admin) at para 18.[51]This fresh evidence test has been approved by the Supreme Court in Zabolotnyi v Hungary [2021] UKSC 14, §57-58, albeit that the Supreme Court identified that section 27(4) of the 2003 Act, which is in identical terms to section 104(4) of the 2003 Act, does not set out admissibility conditions, but rather sets out conditions for establishing the appeal. The power to admit fresh evidence on appeal is exercised as part of the High Court’s jurisdiction to control its own procedure, and the underlying policy is whether it is in the interests of justice to do so.

Submissions and Conclusions: Fresh Evidence

[52]In proceedings before me, Counsel for the Appellant, Ms Nice and Counsel for the Respondent, Mr Ball made helpful and cogent submissions expanding upon their skeleton arguments.[53]The Appellant’s submission is that the new material sets out a profoundly different position, which shows Child A’s diagnosis, demonstrates greater challenges than previously known, and demonstrates that the effect on Child A would be greater than previously thought. It is said that the scale of his current and prospective needs are much clearer. It is said that the new material also shows that the Appellant’s wife’s health has deteriorated. I invited Ms Nice to identify material which, on her case, is truly new material rather than being material which provides an update of a position which was known to the DJ. Ms Nice rightly accepted that there is a degree of continuity in the material, particularly in its descriptions of Child A’s condition, but sought to identify new information. The Appellant submits that I should admit the new evidence, should then consider the Article 8 balancing exercise afresh, and should determine that extradition would lead to a disproportionate interference with the family’s Article 8 rights.[54]The Respondent accepts that I should consider all of the new material de bene esse in order to evaluate its significance and determine its admissibility. The Respondent’s submission is that the new material is no more than updating evidence about issues which were known to the DJ, and there are no decisive new factors. The Respondent submits that, applying the wording in section 104(4)(b), this is not evidence which would have resulted in the judge deciding a question before him at the extradition hearing differently. The Respondent says that I should not admit the evidence or conduct a fresh balancing exercise, and that the appeal should not be allowed under section 104(4).[55]Some of the new material, namely witness statements from various family members, includes information that could have been provided earlier. Some of it is information about developments since the extradition hearing. Determining precisely what is, and what is not, material which was unavailable to the Appellant at the time of the extradition hearing would require a line by line analysis of some documents, and is not a useful exercise.[56]The Respondent’s argument that this material does not take matters much further has some force. Ms Nice struggled to identify any highly significant new information. However, I consider it in the interests of justice to admit this material. A year and four months has passed since the extradition hearing, which is a significant period in the life of a young child. Child A was three at the time of that hearing, and is now five. I accept that the majority of the new evidence, which I have summarised above, relates to events that post-date the extradition hearing. It is, in part, material that was requested by the judge giving permission and I agree that it is relevant to the Article 8 assessment of the proportionality of the extradition. It is not material which is entirely in the Appellant’s favour: the Respondent identifies some aspects of the new material which show improvements in the Appellant’s family’s health conditions. In all of the circumstances of this case, it is in the best interests of the Appellant’s children that the court considers the most up-to-date material. I admit the material in its entirety in fairness to the Appellant so that I may consider it as part of the Article 8 balancing exercise; its significance will fall to be determined at that later stage.

Conclusions: The Article 8 Balancing Exercise

[57]In light of the new evidence that I have admitted, it is appropriate for me to re-conduct the Article 8 balancing exercise. That approach avoids the artificiality of seeking to determine what the DJ would have done if he had been in possession of this new material.[58]Although before me Ms Nice made various criticisms of the DJ’s approach to Article 8, including criticisms that he had insufficiently explained what he made of the expert report, and had not given sufficient weight to certain factors, these can be put to one side because I have to decide the Article 8 issue for myself. In any event, criticisms about weight being wrongly attributed to particular factors are generally not sufficient to found a successful appeal to this court, which must focus on the overarching question of whether the DJ was wrong.[59]In summary, the factors in support of extradition are as follows: i. The constant and weighty public interest in extradition that people convicted of crimes should serve their sentences and that the United Kingdom should honour its treaty obligations to other countries; ii. The United Kingdom should not become a “safe haven” to which those convicted in other jurisdictions can flee in the belief that they will not be sent back; iii. The Appellant is a fugitive; iv. The offending of which he was convicted is serious. It involved being a custodian of a large volume of Class A drugs and it attracted a substantial immediate prison sentence; v. A sentence of 3 ½ years imprisonment was imposed, all of which remains to be served save for 51 days.[60]In summary, the factors against extradition are as follows: i. The offences were committed a considerable time ago, in 2015. ii. The Appellant has been settled in the United Kingdom since 2018 and has led a productive life here, having been in employment for at least some of the period; iii. The Appellant has not offended since coming to the United Kingdom and has no previous convictions; iv. The Appellant has been subject to restrictive bail conditions almost two years, since April 2024; and v. The adverse impact, emotionally and financially that extradition would have upon the Appellant’s wife and his children (which I discuss below).[61]I have borne all of the above factors in mind. The public interest factors that I have identified carry substantial weight in this case, individually and cumulatively. As the Appellant is a fugitive, very strong counterbalancing factors would need to exist before the extradition could be regarded as disproportionate. His explanation to the DJ, that he fled Norway because of threats, was not found to be credible, and in any event does not detract from the fact that this was a deliberate decision to hide from Norwegian authorities, relocate to the UK and avoid incarceration.[62]As the DJ identified, this was a serious drugs offence, reflected by the Norwegian court’s view that it would have attracted a sentence of nearly five years were it not for the delay in proceedings, which justified a reduction to three and a half years. Prediction of sentencing in the UK is of limited value, but the DJ was right to reject the Appellant’s argument that this offence may not attract a non-custodial sentence here. Possession of this quantity of a Class A drug with intent to supply (which is how the offence would in all likelihood have been charged here given that the drugs were not for personal use), would have led to a substantial custodial term under the relevant sentencing guidelines. This was not just possession of a few street deals, but involved such a large quantity of drugs that when it ended up on the streets, as it was bound to, could have been sold as 3,000 individual wraps. I note that the court in Norway found that the Appellant had not sold drugs himself and did not profit from the storage. However, the Appellant’s provision of a safe space, referred to by the court in Norway as a ‘depot’ apartment, for storing that valuable consignment of drugs and the equipment necessary to weigh it, was an important service in the chain of drug supply. The fact that the Appellant only stored the drugs for about a week does not detract from the seriousness, given that the situation was only brought to an end because of a police search. On any view, the type of drug, quantity of drugs, and Appellant’s role makes this serious and gives particular weight to the public interest in him serving his sentence.[63]I only give limited weight to the age of the offences, given that there was only a short period where there was any culpable delay by the Norwegian authorities and an absence of fault on the part of the Appellant. The court in Norway accepted that there had been some avoidable delay and reduced the Appellant’s sentence to reflect that. The Appellant chose to absent himself from Norway. He did not tell anyone including the court and his lawyer that he was living in the UK. In those circumstances the Appellant bears a responsibility for a significant portion of the time that has elapsed. Furthermore, importantly, this is not a case where the Appellant was lulled into a false sense of security by the passing of time as he established a life in the United Kingdom. He was aware through his lawyer of proceedings in Norway, and knew of the sentence that had been imposed on him and the failed appeal against the conviction and sentence. It was with that knowledge that he set up his family life in the UK, and went on to have more children.[64]Some weight is to be attached to the bail conditions that the Appellant has been subjected to. The curfew, coupled with the residence condition, has restricted his movement. However, the weight that I give this factor is less than the weight that I attach to the fact that the Appellant has deliberately avoided serving any of the prison sentence which was imposed.[65]I accept that the Appellant’s extradition will present real difficulties for his wife. She will undoubtedly be adversely affected by the loss of his financial contribution to the family, losing perhaps £10,000 of income once the benefits situation has been adjusted. She will be extremely distressed. Most of all she will feel keenly the loss of his support in looking after the children. Although both parents are involved in the care of the children, the overall thrust of the evidence is that she is the primary carer not least because the Appellant sometimes works whereas she is always at home. This is a family where the demands on the parents are greater than in many families; two of the children have chronic health conditions (diabetes and asthma) and the youngest has a profound developmental disorder. In the Appellant’s absence, his wife will not have his support with Child A at night, although I note that the updated evidence shows that his sleep has improved with medication. She will not have the benefit of his strength when Child A needs to be physically restrained or picked up from the floor. She will not have the benefit of his help in emergencies, to pick up Child A from school. She will not have his emotional support. She does not have any significant family support in the UK, but I find it can be expected that her mother and sister will provide emotional support. at the very least.[66]In relation to the Appellant’s wife’s health needs, I accept Mr Ball’s submission that, taken as a whole, the medical records show that although she has repeatedly sought medical attention for a variety of symptoms, no organic cause has been found. That was the position both at the time of the extradition hearing and since. The only significant development is a recent referral to a cardiologist and to the long-COVID clinic. There are no health conditions identified which would prevent her continuing as the primary carer for the children. Although there is evidence that she feels that she is struggling, which is unsurprising with a family with such complex needs, I also bear in mind the finding of the DJ that in evidence she came across as resilient. Although the medical notes record that she reports anxiety, there is no mental health diagnosis. I note Dr Pettle’s view that managing as a sole parent would be a significant burden which could become overwhelming. I note Dr Green’s view that she is unlikely to be able to cater to Child A’s needs alone. I accept that, as Dr Green says, input from social services will be vital. It is not incumbent on me in carrying out the Article 8 exercise to identify precisely what support will be available, and from which services or individuals. There is evidence that an Early Help Assessment is underway, and although I note Dr Green’s pessimism about the level of support available, it can be expected that appropriate social services support will be provided. I find, overall, that the Appellant’s extradition would result in the burden on his wife being increased substantially, that the increased burden is bound to have a negative effect on her wellbeing, that it will be difficult for her to manage the family alone, and she will need support in order to be able to cope with that burden.[67]I accept that the Appellant’s extradition will present real difficulties for his children, and the impact on them is a primary consideration. I have already summarised the witness evidence which sets out the health and emotional needs of his children. Child E is now, at 18, an adult, and attends college. He is diabetic and needs parental support when he forgets to take his medication or becomes unwell, and still needs attention at night with gel and sweets to control his sugar levels. Dr Pettle said that Child E’s ability to manage his condition had improved as he matured, and I consider that it is reasonable to expect that improvement to continue. Child D has asthma which was reported as being poorly managed in 2024, but whose medical notes do not show any significant ongoing difficulty with managing his condition. He sometimes needs parental assistance if he does not have the right medication with him at school. He is now 14 and again it can be expected that his reliance on parental support will decrease. Child C has borderline emotional difficulties. For all of the children, the loss of their father will have a profound effect as identified by Dr Pettle, but not in any way that is unusual in the context of extradition. In my view, the greatest significance of the health difficulties faced by the other children is in relation to the extra burden placed on their mother, which I have addressed above.[68]In relation to Child A, it is clear that he has complex needs, is non-verbal, emotionally dysregulated, cannot assess danger, is incontinent, and lacks social ability. There are some aspects of the new evidence which show some improvement to Child A’s functioning; as an example he is now medicated at night and sleeps better. Following his formal diagnosis with Autism Spectrum Disorder there is now an Education Health Care Plan and school support plans in place so that he is cared for within a mainstream school. There is a social services assessment underway. Overall, there are more professionals who are, and will be, engaged in assessing his needs and involved in supporting his development. There are some aspects of the new evidence which undoubtedly show greater challenges, such as his increased size, and the difficulties in physically controlling him.[69]Both psychologists identify that he has complex needs and that a very high level of supervision and parental support is required. Dr Green concludes that the Appellant’s absence would be significantly detrimental to Child A’s well-being and that any such change will impede his development. Dr Pettle also opines that the impact of separation on Child A’s progress, development and social skill would be severe. I accept that evidence, and conclude that Child A, who is already vulnerable as a result of his condition, is likely to be seriously detrimentally affected by the Appellant’s absence. That is a primary consideration, and weighs heavily against extradition. I accept that the Appellant has a strong bond with Child A and is instrumental in setting boundaries for him. I note, however, that in the Appellant’s absence, Child A would be cared for by his mother, who has always been his primary carer, and who is described by the District Judge as a ‘devoted and caring mother’. There would be some continuity for Child A, despite the significant upheaval.[70]As in the case of HH, I must conduct an exercise of judgment as to where the balance must be struck between two powerful and conflicting interests. The Article 8 rights of family members would be significantly interfered with if the Appellant was absent. That level of interference, particularly in relation to Child A, may well, in other circumstances, have rendered an extradition unlawful. However, in this case, where the Appellant has fled to the UK to avoid serving a lengthy sentence for a serious offence, there are such weighty factors on the other side that I am satisfied that the Appellant’s extradition will not amount to a disproportionate interference with the Article 8 rights of him or his family.[71]It follows that I do not allow the appeal under section 104(4) of the 2003 Act as the new evidence would not have led to a different outcome. It also follows that I do not allow the appeal under 104(3) as I do not find that the DJ’s conclusion was wrong.

Conclusion

[72]For the reasons given above I dismiss this appeal.[73]Since circulating the draft judgment to legal representatives, an application has been made by the Appellant for an order to defer the date on which the extradition order takes effect by a period of three months to come into effect on 20 July 2026. The Respondent submits that a deferral is appropriate, but for a shorter period. In the circumstances of this case I will grant the deferral for a ten week period to 29 June 2026.[74]The complexities of the Appellant’s family’s situation are significant, and statutory services will need time to put appropriate bespoke support in place for A. However, it is in nobody’s interests if the separation is dragged out for longer than necessary, and there is no evidential basis for a conclusion that any longer period is justified.