Joshua Hobson v Investigating Court No 2 Palma, Spain

............................. Mr Justice Mansfield: Introduction

1. This is an appeal pursuant to section 26 Extradition Act 2003 against an extradition order made by District Judge Minhas on 4 February 2025.

2. The District Judge ordered the Appellant’s extradition to Spain, on a European Arrest Warrant issued on 8 May 2023 by an Investigating Court in Palma. The warrant relates to two alleged offences, sexual abuse of a child and possession of child pornography.

3. The appeal is advanced on two grounds: i) The District Judge was wrong to find that extradition would not be unjust or oppressive pursuant to s.25 of the Act . ii) The District Judge was wrong to find that extradition was a proportionate interference with the Appellant’s rights under article 8 ECHR and s.21 A(1)(a) of the Act .

4. At the heart of both grounds is an assessment of the Appellant’s mental health and risk of suicide. Legal Framework The approach to appeal

5. An appeal against an extradition order may be brought on a question of law or fact ( s.26(3) ). By s.27, the Court may allow the appeal only if the conditions in subsection (3) or (4) are satisfied. Those subsections provide: (3)The conditions are that— (a)the appropriate 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 appropriate 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. Section 25

6. Section 25 provides: (1)This section applies if at any time in the extradition hearing it appears to the judge that the condition in subsection (2) is satisfied. (2)The condition is that the physical or mental condition of the person in respect of whom the Part 1 warrant is issued is such that it would be unjust or oppressive to extradite him. (3)The judge must— (a)order the person’s discharge, or (b)adjourn the extradition hearing until it appears to him that the condition in subsection (2) is no longer satisfied.

7. Both counsel relied on the guidance relating to suicide risks set out by Aiken LJ in Turner v Government of the USA [2012] EWHC (Admin). At paragraph 28, Aiken LJ stated the following propositions: (1) the court has to form an overall judgment on the facts of the particular case: United States v Tollman [2008] 3 All ER 150 at [50] per Moses LJ. (2) A high threshold has to be reached in order to satisfy the court that a requested person's physical or mental condition is such that it would be unjust or oppressive to extradite him: Howes v HM's Advocate [2009] SCL 341 and the cases there cited by Lord Reed in a judgment of the Inner House. (3) The court must assess the mental condition of the person threatened with extradition and determine if it is linked to a risk of a suicide attempt if the extradition order were to be made. There has to be a “substantial risk that [the appellant] will commit suicide”. The question is whether, on the evidence the risk of the appellant succeeding in committing suicide, whatever steps are taken is sufficiently great to result in a finding of oppression: see Jansons v Latvia [2009] EWHC 1845 at [24] and [29]. (4) The mental condition of the person must be such that it removes his capacity to resist the impulse to commit suicide, otherwise it will not be his mental condition but his own voluntary act which puts him at risk of dying and if that is the case there is no oppression in ordering extradition: Rot v District Court of Lubin, Poland [2010] EWHC 1820 at [13] per Mitting J. (5) On the evidence, is the risk that the person will succeed in committing suicide, whatever steps are taken, sufficiently great to result in a finding of oppression: ibid. (6) Are there appropriate arrangements in place in the prison system of the country to which extradition is sought so that those authorities can cope properly with the person's mental condition and the risk of suicide: ibid at [26]. (7) There is a public interest in giving effect to treaty obligations and this is an important factor to have in mind: Norris v Government of the USA (No 2) [2010] 2 AC 487 .

8. In Wolkowicz v Regional Court at Bialystok, Poland [2013] EWHC 102 (Admin) a Divisional Court adopted the principles in Turner and said that it would be only in a very rare case that a requested person will be likely to establish that measures to prevent a substantial risk of suicide will not be effective.

9. In Farookh v Germany [2020] EWHC 3143 (Admin) , Fordham J formulated proposition (3) of Turner, when approached with propositions (5) and (6), as follows: The question is whether, on the evidence, whatever steps are taken – and even if the Court is satisfied that appropriate arrangements are in place in the prison system of the country to which extradition is sought so that those authorities will discharge their responsibilities to prevent the requested person committing suicide – the risk of the requested person succeeding in committing suicide, by reason of a mental condition removing the capacity to resist the impulse to commit suicide, is sufficiently great to result in a finding of oppression. Section 21 /Article 8

10. In HH and v Deputy Prosecutor of the Italian Republic Genoa [2102 UKSC 25 at paragraph 8 Lady Hale derived the following principles from Norris v USA [2010] UKSC 9 : (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.

12. Where article 8 is engaged, the Court must carry out a balancing exercise, guidance as to which is set out in Celinski v Poland [2012] EWHC 3877 (Admin) . The Appellant relied on a number of additional authorities to demonstrate the propositions (1) in the absence of clear evidence of sentencing practice in the Requesting State it may be appropriate to consider the likely sentence in England; and (2) it is relevant to consider in the article 8 balancing exercise whether the Appellant has served on remand all of or in excess of his likely sentence. I need not cite all of the cases relied on but see Molik v Poland [2020] EWHC 2836 (Admin) and Kozak v Hungary [2023] EWHC 149 (Admin) . Judgment under Appeal

11. The hearing before the District Judge took place on 16 January 2025 at Westminster Magistrates’ Court. The Court heard evidence from the Appellant and from an expert psychiatrist, Dr Boolaky. Dr Boolaky had filed two expert reports, the first dated 6 December 2024, and an addendum report dated 5 January 2025. At the hearing he gave oral evidence. He was asked some supplementary questions by the Appellant’s counsel, and cross examined by the Respondent’s counsel.

12. The District Judge gave a reserved judgment on 4 February 2025. She summarised the key points from Dr Boolaky’s evidence at paragraph 11, and from the Appellant’s evidence at paragraph 12. She set out factual findings at paragraph 21. I note, in particular, the following findings: i) The Appellant is a British citizen with a private and family life in the UK at the time of his arrest, though he had a private and family life in Spain at the time of the offending. His employment and relationship with a girlfriend in the UK both terminated when he was remanded. He has no emotional or financial dependents in the UK and no caring responsibilities in the UK. ii) Dr Boolaky diagnosed the Appellant with Borderline Personality Disorder (BPD). This came with symptoms of emotional instability/dysregulation, impulsivity and, for this Appellant, a vulnerability to express or carry out acts of self-harm at times of significant emotional distress or dysregulation. iii) At paragraphs 21(d) and (e) the District Judge said the following: I find that Dr. Boolaky had not assessed the RP as a person at substantial risk of committing suicide in his addendum report. Dr Boolaky noted the RP had expressed no intention to harm himself imminently. As confirmed by Dr Boolaky in his addendum report, and maintained during questioning at the hearing, I find the RP’s diagnosis of BPD does not remove his capacity to resist the impulse to commit suicide. The RP may act impulsively whilst dysregulated but would retain capacity and understanding of his actions. iv) The District Judge went on to find that the Appellant was a fugitive.

13. The District Judge dealt with s.21 A of the 2003 Act and article 8 of the ECHR at paragraphs 38-48. In relation to article 8, she correctly directed herself as to the principles in Norris and Celinski . She set out a checklist of factors “pro” and “con” extradition at paragraph 40. The “con” factors included the Appellant’s diagnosis of BPD and the risk of self-harm. She then carried out a balancing exercise of those factors. She found that the Appellant’s private and family life in the UK was limited and founded on his fugitivity. The key passages relating to the medical position and the conclusion on article 8 are at paragraphs 45-47:

45. I attached the greatest weight and the balancing exercise to the RP's mental health diagnosis of BPD. I accepted the evidence of Dr Boolaky, that the RP had a history of suicide attempts, was impulsive and his illness meant that he would become emotionally dysregulated. I accepted there was an ongoing risk the RP may attempt to self-harm. Despite this, I found the RP was not at substantial risk of self-harm, nor was he unable to resist the impulse to commit suicide. Fortunately for the RP, his condition appeared to be adequately managed whilst in custody thus far with anti-psychotic medication. The RP was placed on a normal wing, not a health care or hospital wing at the prison. If the RP's MH declined further after extradition, I have no doubt that JA would provide the RP with an adequate level of healthcare. The RP provided no evidence to indicate otherwise. The anti-psychotic medication the RP was prescribed in the UK, was initially prescribed to him in Spain so it is plainly available there.

46. Notwithstanding the RP's diagnosis of BPD and the risk of suicide, I find the nature and seriousness of the alleged offences was such that, in my view, the balance would still fall firmly in favour of extradition. This was not a borderline decision. Spain was a signatory to the ECHR. The RP presented no evidence to indicate the JA could not meet their ECHR obligations and provide adequate mental or physical health care to the RP as required. I must trust the JA would make proper provision for a prisoner serving a lengthy sentence in accordance with their ECHR obligations. The RP has presented no evidence to indicate they would not.

47. I weighed in the balancing exercise all the factors in favour of and against extradition. I find that it would not be a disproportionate interference with the Article 8 rights of the RP for extradition to be ordered. On balance, the individual or combined weight to be attributed to the factors militating against extradition; The RP's private life in the UK and the RP's mental health, whilst relevant, were not such that they outweighed the weighty public interest in favour of extradition given the nature and seriousness of the offending and the likely sentence that could be imposed if convicted. On the evidence before me, the hardship or impact of extradition does not go beyond the hardship ordinarily present when extradition is ordered. I find the consequences of extradition are not so significant that they will have a disproportionate impact on the Article 8 rights of the RP or his family.

14. At paragraphs 49-54 the District Judge addressed the question of proportionality under the separate provisions of s.21 A(1)(b). Ms Grudzinska, for the Appellant, made clear during the hearing that she made no separate challenge to the decision under s.21 A(1)(b).

15. At paragraphs 55-57 the District Judge set out her conclusions on section 25 :

55. I adopt and echo the reasons provided above in the s21 A balancing exercise in respect of the RP's mental health in my view the evidence presented by the RP his far from established that his physical or mental health was such that it would be unjust or oppressive to extradite the RP. The RP was in receipt of medication he had previously obtained in Spain. He was not in receipt of any therapeutic input in the UK which would be disrupted. Dr Boolaky did not give evidence that the RP was at substantial risk of suicide. Dr Boolaky gave clear evidence, within the addendum report, that the RP's diagnosis was not such that it would remove his capacity to resist the impulse to commit suicide.

56. In terms of what extradition would mean for the RP as part of his daily living the risk of suicide would fluctuate and would increase at times when the RP was emotionally dysregulated but as confirmed by Dr Boolaky risk management strategies could be put in place. The risk could be managed. The RP had previously been placed on an ACCT the UK. His risk of self-harm was known to the prison authorities and that information ought to be provided to the JA in Spain, and those escorting the RP to Spain. the RP presented no evidence to support the submission that the prisons in the UK or Spain would be unable to comply with their ECHR obligations. Dr Boolaky specifically stated the RP's mental health was such that it would not remove his capacity to resist the impulse to commit suicide. If the RP's mental health were to decline whilst incarcerated in Spain, he had provided no evidence that he would not be afforded the presumption of adequate medical care. There was no evidence that he could not be treated or safeguarded in Spain.

57. I find the RP had not established, on the evidence, that due to his mental health condition, extradition would be unjust or oppressive. I find the RP's challenge to extradition pursuant to this 25 of the Act was not successful. Section 25

16. The Appellant submits that the District Judge was wrong to find that it was not oppressive to extradite the Appellant. Ms Grudzinska made four points, which I summarise as follows: i) The District Judge was wrong to find that the Appellant was not at substantial risk of self-harm (paragraph 45) and wrong to find that Dr Boolaky did not give evidence that the Appellant was at substantial risk of suicide. ii) The District Judge was wrong to find that the Appellant was not unable to resist the impulse to commit suicide (paragraph 45). iii) The District Judge was wrong to find that the Appellant’s condition appeared to be adequately managed whilst in custody with anti-psychotic medication. iv) The District Judge was wrong to find that, if the Appellant’s mental health were to decline while in prison in Spain, there was no evidence that the Appellant could not be treated or safeguarded in Spain.

17. A number of the Appellant’s points involved submissions as to the oral evidence heard in the Magistrates’ Court. However, there was no agreed position as to the evidence given in that court. During the course of the hearing, Ms Grudzinska provided a witness statement of her instructing solicitor, Mr Chaplin made that day (i.e. 19 November 2025) exhibiting his notes taken during the course of the hearing in the Magistrates Court on 16 January 2025. It is clear that note is not verbatim, but is rather a series of bullet points summarising answers to questions. Ms Hinton, for the Respondent, was unable to agree that the Appellant’s account of the oral evidence was accurate.

18. However, during the course of the appeal hearing, the disputed passages of evidence narrowed. The dispute concerned one sentence in Ms Grudzinska’s Skeleton Argument at paragraph 33(ii), in support of the first of her submissions summarised above. After referring to the fact that staff at HMP Wandsworth placed the Appellant on ACCT (which is undisputed) Ms Grudzinska said “ Dr Boolaky accepted that at those points, the Appellant’s risk of suicide would have been substantial”. Ms Hinton did not accept that accurately reflected the evidence. Mr Chaplin’s note records answers to supplementary questions from Ms Grudzinska after Dr Boolaky was sworn in. The first two answers of the 15 supplementary answers are as follows: Supplementary questions (including one from the judge) in respect of substantial risk and says: Concerned and placed on an ACCT Substantial risk of suicide at those points

19. The way in which the evidence below was referred to and introduced was unsatisfactory. I will return to this at the end of my judgment. Ultimately, however, the disputed point makes no difference to the analysis or the outcome of the appeal. Taking the Appellant’s case at its highest and assuming Ms Grudzinska’s summary of the evidence and Mr Chaplin’s note are correct, I do not find that the District Judge was wrong in her decision on s.25 . Point 1: Did the District Judge err in assessing the risk of suicide?

20. In my judgment she did not.

21. It is clear that the District Judge had in mind Dr Boolaky’s evidence, which she summarised at paragraph 11 of the judgment and in respect of which she made findings at paragraphs 21(c) to (e), 45-46 and 55.

22. That evidence was to the effect that the suicide risk fluctuated depending on the Appellant’s emotional dysregulation and stress levels (para 11 bullet point 1); it was difficult to give a clear cut opinion as to whether the Appellant would be able to stop himself from committing suicide when dysregulated (para 11 bullet point 6); that for patients with BPD, attempts or threats of suicide are not uncommon when the patient is dysregulated, when the patient was regulated they would be “fine”.

23. The District Judge was right to find that Dr Boolaky had not said, in his addendum report that the suicide risk was substantial. When asked the direct question whether there was a substantial risk that the Appellant would commit suicide Dr Boolaky said, at paragraph 4 that it was not possible to definitively ascertain the risk. When assessed by Dr Boolaky, the Appellant described chronic intrusive thoughts of suicide but did not express any intent to harm himself imminently. His history of six prior attempts coupled with his impulsive nature and intrusive thoughts indicate the risk remains but was likely to fluctuate depending on his level of emotional dysregulation and the stressors he encounters. Paragraph 45 of the judgment accurately reflects that evidence.

24. Even accepting Ms Grudzinska’s submission that Dr Boolaky said that the risk of suicide would be substantial at the points he was placed on ACCT, the District Judge had regard to the submission that the Appellant had been placed on an ACCT and the suicide risk was a fluctuating one (judgment paragraph 14). The clear implication of Dr Boolaky’s evidence was that at other times the risk was not substantial. The District Judge was entitled to form an overall assessment of how substantial or otherwise the risk was. She was not wrong in her assessment.

25. In any event, even if the risk was at times substantial, I accept Ms Hinton’s submission that the District Judge was entitled to take account of the measures the Requesting State could be expected to put in place to manage that risk, as she did at paragraph 45. I also accept her submission that the risk of a successful suicide attempt has to be assessed considering both the Appellant’s intention and his ability to carry such intention through. His ability to make further attempts (whether by way of overdose or otherwise) would be controlled by measures the Requesting State could be expected to put in place. The District Judge’s evaluation was amply supported by the evidence taken as a whole. Point 2: was the District Judge wrong to find that the Appellant was not unable to resist the impulse to commit suicide?

26. It is said that Dr Boolaky’s oral evidence was that it was difficult to give a clear cut opinion, and the District Judge was wrong to discount the possibility that when the Appellant becomes dysregulated he will not be able to resist the impulse to commit suicide.

27. I reject this argument. Dr Boolaky’s addendum report said the following at paragraph 5: Mr Hobson’s mental condition does not remove his capacity to resist the impulse to commit suicide, While individuals with BPD can act impulsively and become emotionally dysregulated, they retain capacity and understanding of their actions.

28. There is nothing in the note of the oral evidence to suggest Dr Boolaky resiled from that opinion. The District Judge accurately reflected the evidence at paragraphs 45 and 55 of the judgment. There was ample evidence to justify the District Judge’s finding. Point 3: was the District Judge’s finding (paragraph 45) that the Appellant’s condition was adequately managed with anti-psychotic medication inconsistent with the evidence?

29. The District Judge was not wrong in her findings. There was ample evidence to support it, including the Appellant’s own assessment (reported to Dr Boolaky, first report paragraph 35) that he found the medication effective in managing his emotional well-being; and the history of his effective management in prison, where the Appellant’s last attempt was in February 2024 (Dr Boolaky’s first report paragraph 78). I reject Ms Grudzinska’s submission that the Appellant’s condition was sufficiently complex that further enquiries should have been made about how it could properly be managed. Dr Boolaky’s evidence was that BPD is a relatively common mental illness (addendum report paragraph 5) and he gave evidence in both reports as to proposed management which did not involve measures that were particularly complex or unusual. Point 4: was the District Judge wrong to find that there was no evidence that the Appellant could not be treated or safeguarded in Spain?

30. It is argued that the District Judge “understated” the Turner criteria. I reject this argument. Ms Grudzinska accepted that there was no evidence to suggest that the Spanish authorities cannot deal with mental illnesses in custody. I do not accept that the Appellant’s condition was sufficiently complex, unusual or severe to mean that the District Judge should have found that the Spanish authorities would not be able to manage any suicide risk. Paragraph 6 of Dr Boolakys’ addendum report said: Borderline Personality Disorder is a relatively common mental illness, and individuals with this condition are often subject to close observation during periods of emotional dysregulation, including 24 hour monitoring if necessary. There is no evidence to suggest that being remanded in custody, including such measures, would be inherently oppressive to his mental health. With appropriate care, monitoring, and mental health support in place, his condition can be effectively managed.

31. I accept Ms Hinton’s submission that there is nothing to undermine the presumption that the Appellant will be able to access services in Spain akin to those in the UK. It was, clear to the District Judge that the Appellant’s condition was being managed in the UK, and would be in Spain. She was not wrong in that assessment.

32. I dismiss the appeal on this ground. Article 8

33. Mr Grudzinska repeats the submissions made as to the Appellant’s mental health under section 25 as applying equally under article 8.

34. She makes a further point that the District Judge failed properly to take into account the seriousness of the offending and the likely sentence in carrying out the article 8 balancing exercise. She advanced that submission by reference to the Sentencing Council Guidelines that would be applicable if the offences were tried in England. The District Judge had considered the Sentencing Guidelines in the absence of evidence as to sentencing practice in Spain. She had found that the possession of indecent images would likely receive a significant custodial sentence and the sexual assault would result in a lengthy custodial sentence in excess of twelve months. In Ms Grudzinska’s submission: i) The sexual assault would be assessed in category 3B, with a starting point of 26 weeks and a range of high level community order to one year’s custody. ii) The possession of pornographic images would likely result in a community order or a suspended sentence.

35. Ms Grudzinska then points to the fact that the Appellant has served 1 year and 5 months on remand, so that he has served all of the sentence he would be sentenced to in Spain, rendering it a disproportionate interference with his article 8 rights to extradite him.

36. I reject these submissions.

37. In my judgment, Ms Grudzinska’s assessment of likely sentence in this country is unrealistic. Despite Ms Grudzinska’s submissions as to the interpretation of the Arrest Warrant, it is clear that the allegation in the warrant is one of touching of naked genitalia, which would tend to place the offence in Harm Category 2. There is an element of abuse of trust (given the victim was a child of a partner) which may suggest Culpability A. The starting point for 2A is 4 years, and for 2B, 2 years. Similarly, the possession of images offence appears more serious (given the volume of images and nature of their content) than Ms Grudzinska has submitted. While it is not for me to second guess the Spanish court’s precise sentence, it is in my view highly unlikely that the Appellant has served all, or even nearly all, of the imprisonment to which he may be sentenced by the Spanish court if convicted.

38. I accept Ms Hinton’s submission that there is a public interest in convictions being recorded for these offences, if guilt is proved. These are patently serious offences of a kind where there is a strong public interest in any defendant standing trial, particularly where, as here, that defendant was a fugitive from justice.

39. The article 8 assessment is, in any event, a balancing exercise. The District Judge found limited private and family life interest in the UK. She carried out a balancing exercise of the relevant factors taking into account, in my view, a realistic assessment of the least likely sentence. It cannot possibly be said that her conclusion was wrong.

40. Accordingly, I dismiss the appeal in its entirety. Treatment of the oral evidence in the Magistrates’ Court

41. I conclude with some observations about the dispute as to the evidence before the Magistrates’ Court. In part, the appeal was advanced relying on the evidence below, yet there was a disagreement as to what the evidence had been.

42. Although the Perfected Grounds of Appeal and Appellant’s Skeleton Argument made reference to Dr Boolaky’s oral evidence: i) Those documents did not state the exact evidence relied on, and did not clearly distinguish references to the oral evidence, references to the documentary evidence, and submission points; ii) It was not therefore clear to the Respondent that there was a reliance on oral evidence that was in dispute; iii) Accordingly, neither side sought to produce, or agree, a transcript or note of evidence.

43. To their credit, both counsel accepted at this hearing that the matter had not been dealt with well. Having explored the issue with both counsel, I make the following points not by way of criticism, but by way of suggestion as to how the difficulties may be avoided in future.

44. I do not make these observations to encourage challenges to District Judges’ decisions based upon the introduction of a record of the oral evidence given in the Magistrates’ Court. I would expect that in most cases references to the oral evidence will not be necessary, as the District Judge’s summary of the evidence will be all that the appeal court will need. However, there may be cases where reference to the oral evidence is appropriate. This type of case is one example, where it is alleged the District Judge’s findings were at odds with the oral evidence given. Another situation may be where the District Judge has failed to have regard to evidence given orally. There may be other situations. In each case, the parties’ representatives should assess carefully whether reference to the oral evidence is really required.

45. In a case where a party does wish to rely on the oral evidence below, it is vital that the parties do all they reasonably can to reach a settled position on what that evidence was.

46. I understand from counsel that it is not the practice of the Westminster Magistrates’ Court to record proceedings, and it is therefore not possible to obtain a transcript. I am told it may be possible to obtain a copy of the legal adviser’s note, on payment of a fee.

47. I also understand from counsel that there is nothing in the relevant rules or practice directions to address the procedure for producing a record of the oral evidence given below. I was taken to Archbold paragraph 4-105, which in a slightly different context (applications for permission for judicial review) says as follows (my emphasis added): On an application for judicial review, the Divisional Court would expect to see a note of the lower court’s reasons before deciding whether to grant permission for the application to proceed, and, if any oral evidence was given, an agreed note should be prepared, summarising its effect: R. (Ebrahim) v Feltham Magistrates’ Court; Mouat v DPP [2001] EWHC Admin 130 ; [2001] 2 Cr. App. R. 23, DC .

48. That guidance is, in my view, equally applicable in the context of an appeal against an extradition order. The parties’ representatives should seek to agree a note of the oral evidence. To facilitate that process, I would add the following observations: i) The party who wishes to rely on oral evidence given below should make that clear in the Grounds of Appeal or Respondent’s Notice. The oral evidence should be identified - ideally by quotation, or by summary. It must be made clear what the evidence is. Confusion will ensue if, as happened in this case, a paragraph of the Grounds of Appeal blends the effect of oral and documentary evidence; or, does not separate an account of the evidence from the party’s submission about it. ii) That party should produce a note of the evidence in a separate document. The note should be served on the other party and the parties should seek to agree the note. iii) It will be a matter of fact and degree as to how much of the oral evidence needs to be produced. In a short case it may be appropriate to produce the whole of a witness’s evidence. If the evidence is lengthy, it may be proportionate only to produce the evidence of the relevant topics. However, all parties should resist the temptation to “cherry pick” individual sentences or passages – often particular answers need to be seen in their proper context. iv) Parties should act reasonably and with common sense in agreeing the note and should not quibble over immaterial differences of detail. The touchstone should be the evidence that is material to the point in the appeal. v) In the (hopefully rare) case when the parties cannot agree the note, a request could be made for the legal adviser’s note. vi) If, even after the legal adviser’s note is obtained, there is still disagreement, it would be possible for a marked up note of evidence to be put before the Court showing the areas of disagreement. I would hope that would be a very rare case, as the Court will be unable to resolve the disagreement. vii) Ultimately, it seems to me the burden of proof is on the party who wishes to show that the District Judge’s summary of the evidence is inaccurate or materially incomplete.