Life in crime | The tide is turning in deportation cases

It is fair to say that there has been a welcome sea-change this year in the approach of courts to the children of persons facing deportation, extradition, or criminal sentencing. Article 8 has enjoyed nothing short of a resurgence, and it is most certainly to be welcomed.

In Laskowska v Poland, Collins J allowed an appeal against extradition on the basis that the article 8 rights of the requested person's son would be disproportionately interfered with. The appellant successfully relied upon the Supreme Court's recent decision in R (HH) v Deputy Prosecutor of the Italian Republic, Genoa [2012] UKSC 25, in which it was re-emphasised that the best interests of the child should be a primary consideration.

The appellant was convicted in 2006 of allowing someone else to divide up less than 50 grams of marijuana in her flat, and given a suspended sentence. That sentence was activated in 2009 due to an unpaid fine, but it was only in 2011 that a European arrest warrant was issued. By then, the appellant had a young son, who was two by the time the Administrative Court heard the appeal this year. After years of consistent magistrates court and High Court decisions to extradite the sole carers of young children, The decision in HH finally compelled the court to put the interests of the child above the public interest in extraditing the carer

This is a very welcome shift in the application of article 8 in extradition cases, but what of the many sole carers who come before our domestic courts for sentence? On 3 October 2012 the Court of Appeal (Hughes LJ, Wilkie and Popplewell JJ) heard the appeal against sentence in R v Petherick [2012] EWCA Crim 2214, in which the article 8 rights of the defendant's two-year-old child were advanced with reliance upon HH.

This was an exceptionally sad case in any event. The defendant was a 22-year-old nursing student and the single mother of a 16-month-old son. In a moment of immature recklessness, she had driven herself and three friends to buy more alcohol following an evening drinking brandy with them. Her male friends in the back seat encouraged her to drive quickly and dangerously down a busy night-time high street, which resulted in a head on collision with a double decker bus and the death of one of her passengers.

The court were at pains to emphasise that the sentencing judge had dealt with the matter impeccably. Nonetheless, the sentence of five-and-a-half years was reduced to three years and nine months: 'to reflect the combined factors of personal mitigation, coupled with the effect upon the child'. In the course of doing so, the court set out in detail how a sentencing court should approach this issue, the key points being that it will be for a sentencing judge to determine the balance, and that it is most likely to be of relevance where a case is on the custody threshold '“ although reductions of sentence are also a possibility.