Court of Appeal: Man fails in appeal to prevent extradition on Article 8 ECHR grounds
The Court of Appeal has dismissed the appeal of a man against an order for his surrender to the United Kingdom to face charges of sexual abuse of a young girl. The appellant argued that his surrender would be incompatible with his right to family and private life under Article 8 of the European Convention on Human Rights.
However, the court held that the appellant’s family situation was not sufficiently exceptional to warrant a refusal of surrender in the case. In coming to this conclusion, the court clarified the circumstances in which Article 8 rights may cause the refusal of a surrender.
The appellant was based in the west of Ireland. By order of the High Court, the appellant was to be surrendered to the UK to face three charges of sexual offences against a young girl committed between 1998 and 2001.
The principal objection raised by the appellant was that his family suffered from severe disabilities and that he was the primary carer. His son (19) suffered from spastic cerebal palsy with diplegia, which caused a very high degree of physical disability. As such, his son required a high level of continuous care and support. Similarly, his wife had right hemiplaegia due to cerebral palsy, which had gotten worse in recent years. She had significant mobility difficulties and could only engage in supervision of her son.
In light of these familial health issues, the appellant argued that it would be a disproportionate interference with his right to family and private life under Article 8 ECHR. He claimed that he had been the sole caregiver for his family and that no other professional support was provided to them. It was argued by the respondent that the family were on a waiting list for HSE support but that the appellant had failed to properly engage with them.
The High Court ultimately certified three questions on appeal to the Court of Appeal. These questions related to whether Article 8 ECHR rights could be the sole basis to refuse a surrender and what the appropriate test was for determining such a case.
The Supreme Court had already addressed the issue of Article 8 rights in several previous cases, including Minister for Justice and Equality v. JAT (No.2)  2 I.L.R.M. 262 and Minister for Justice and Equality v. Vestartas  IESC 12. However, the appellant argued that the discussion of Article 8 rights in these cases were clouded by other factors.
In the High Court, the trial judge held that there was an absence of other factors in the case (such as delay) which would indicate an abuse of process. It was held that there was a strong public interest in surrendering the appellant and that this surrender would not be incompatible with the State’s obligations under Article 8. However, the court did allow a six-month period to allow the appellant to make arrangements for his family.
Court of Appeal
Delivering judgment in the case, Ms Justice Aileen Donnelly began by outlining the key Supreme Court decisions relating to extradition and Article 8 ECHR. The court noted that the previous test of exceptionality to justify refusal of surrender had been replaced by a simple test of proportionality (Minister for Justice and Equality v. T.E.  IEHC 323).
Considering JAT (No. 2), it was noted that “the Court will only engage in an elaborate weighing or balancing exercise on Article 8 issues where it is obvious that the facts come close to the truly exceptional.” The Supreme Court agreed with the T.E. decision that a test of exceptionality was not appropriate, but that it was a “useful description.” Ultimately, it was held that the cumulative factors in JAT (No. 2) led to an abuse of process, of which family circumstances was included.
In Verstartes, the Supreme Court held that a court must engage in a fact-specific inquiry when a Constitution or Convention right was offered as resistance. It was held by Ms Justice Donnelly that, under Verstartes, Article 8 rights could be relied on in themselves to justify a refusal to surrender. The court also held that the Supreme Court’s comments on Article 8 in Verstartes were not obiter and the principles enunciated in that case were correctly decided.
Further, it was noted that any argument under Article 8 had to cross a high threshold before surrender would be refused. As such, Article 8 issues would only be successful in rare cases.
The court also placed emphasis on the decision in Minister for Justice, Equality and Law Reform v. Rettinger  3 I.R. 783. The Rettinger decision stated that a court must examine whether there is a real risk of a breach of human rights in a rigorous manner in cases where ECHR rights are cited by the person.
At paragraph 59 of the judgment, the court, having considered the approach in the cases of Minister for Justice and Equality v. Ostrowski  4 I.R. 206, JAT (No. 2) and Vestartas, set out 11 principles as guidance for Article 8 cases. In addition to the principles already outlined, it included 1) that surrender/extradition presupposed an impact on the family life of an individual 2) that cogent evidence must be produced by a requested person and 3) that a proportionality test need only be applied when the facts came close to being truly exceptional. The proportionality test would balance the public interest in pursuing offenders of serious crimes against the personal and family rights of the requested person.
Applying these principles to the appeal, the court held that hardship for the appellant’s family was not sufficient to be incompatible with the ECHR. The court noted that since the offences were alleging child sexual abuse, “the public interest in surrender could only be considered at the highest possible level.”
The court answered each of the questions certified in the appeal by repeating the principles at paragraph 59 of the judgment. As such, the court held that the appellant’s circumstances were not such to reach “the high threshold to demonstrate that they are close to the margin where surrender might be said to be incompatible” with Article 8 ECHR.
© Irish Legal News Ltd 2021