Ode v High Court of Ireland: the Right to Respect for Family Life is Alive and Kicking

by | Nov 28, 2013

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About Claire Overman

Claire Overman is a pupil barrister, and is a former Editor and Communications Manager of the OxHRH Blog. She studied for her BA and BCL at Keble College, University of Oxford. The views expressed in this post are her own.

There is a constant undercurrent of scepticism in the UK regarding the role of human rights in the legal system. Many see them as a tool to be exploited by litigants to somehow cheat the system. However, the recent case of Ode v High Court of Ireland presents a pleasing example of judicial commitment to the spirit of the European Convention on Human Rights in extradition cases, an area in relation to which public scepticism is often at its highest.

The appellant in this case was ordered by the District Judge to be extradited to Ireland to stand trial for a fraud offence. The main argument on appeal was that the District Judge had failed to consider the applicant’s rights under Article 8 of the European Convention.

Article 8(1) provides that “Everyone has the right to respect for his private and family life, his home and his correspondence.” The Appellate Judge in this case acknowledged that its facts were unusual. The reason for this was that the appellant claimed a violation of his Article 8 right, not because of any effect of his extradition on him personally, but rather, because of the effect it would have on his wife and son. The appellant’s 17-year-old son suffered from Attention Deficit Hyperactivity Disorder and severe autism, leading to pronounced behavioural problems. A consultant psychologist concluded that the removal of the appellant from the family home would provoke major panic attacks and outbursts in his son, which, given his age and physical maturity, would leave his wife unable to cope.

The Judge acknowledged that Article 8 arguments were commonly asserted in extradition appeals. He elaborated: “it is very common for an argument to be run that if a male fugitive is extradited to the country in which he was convicted, or in which he is accused of an offence, leaving behind children in the sole care of their mother, the mother would find is difficult to cope.” Moreover, he pointed out that such arguments rarely succeeded. However, on the unusual facts of this case, it did. First, there was compelling evidence that the appellant’s wife would indeed be unable to cope. In particular, there had been a previous incident in which the police were called to attend to the son’s violent behaviour. Second, although the Judge pointed out that the fraud with which the appellant was charged was not trivial, it was nevertheless on the less serious end of the spectrum. If he had been tried in the UK, an English judge would have been very reluctant to impose an immediate custodial sentence on him, precisely because of the “very pressing need for him to be at home in order to assist with the care of his autistic son.” On the basis of these facts, the order of the District Judge was set aside.

Several interesting conclusions may be drawn from this case. First, it demonstrates that, despite the regularity with which Article 8 arguments are put forward in extradition cases, judges are not unduly sceptical, and will consider whether there are circumstances in which such argument will succeed. Second, it shows a willingness to engage purposively with the protection that Article 8 should offer. Whilst the appellant’s extradition would not personally affect him in the way which usually engages an individual’s Article 8 rights, the detrimental effect that it would have on his wife and son engaged his right to respect for his family life. By taking an expansive view of what constitutes “the right to respect” for family life, the jurisprudence in this area demonstrates commitment to treating the Convention as a source of practical and effective rights, rather than seeking to interpret it formalistically.

Claire Overman is an Editor of the Oxford Human Rights Hub, and a frequent contributor. She completed her undergraduate degree and BCL at the University of Oxford.

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  1. Andrew

    Is it not discriminatory to extend mercy to an offender or alleged offender on the basis of what sort of private life s/he has?

    For example: the subject of a warrant who has sole charge of a child is far more likely to be female than male. If you do not extradite her where you would if there were no children involved why is that not indirect sex discrimination?

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