JUDGMENT BY SHERIFF F. CROWE
Court reference 2B342 &343/10
IN THE SHERIFF COURT OF LOTHIAN AND BORDERS AT EDINBURGH
UNDER THE EXTRADITION ACT 2003
CRIMINAL COURT OF LISBON, PORTUGAL V J B K AND N F
Act: Mr. D Dickson, Crown Office International Unit for the Criminal Court of Lisbon, Portugal
Alt; Jackson QC and Ms M McKenzie, Advocate instructed by Nicholas J Scullion & Co, Solicitors, Hamilton for J K
& Bovey QC and Mr Mason, Advocate instructed by Ms Emma Todd of V Good & Co, Court Lawyers, Edinburgh for N F
Edinburgh 10th January 2013
The Sheriff having resumed consideration of the requests made under the provisions of the Extradition Act 2003 by the Criminal Court of Lisbon, Portugal:-
(i) for the extradition of J K answers the question posed in section 21(1) of the Extradition Act 2003 in the AFFIRMATIVE and in terms of section 21(3) of the said Act orders that the said J K be extradited to the Republic of Portugal conform to the warrant of even date;
(ii) answers the said question in the NEGATIVE in respect of N F and orders her discharge in terms of section 21(2) of the said Act.
 The cases of Mr. K and Ms F were referred back to me to proceed as accords by the Appeal Court on 9 December 2011-see  HCJAC 121. After hearing parties early in 2012 I decided exceptionally, unlike all other extradition cases in which I was involved, to delay deciding the parties' Article 8 arguments until decisions from the Supreme Court were published. Their Lordships' decision in Norris v Government of the United States of America  UKSC 9 had been challenged in a number of cases where the accused had young children and, either as in this case, both parents faced extradition or extradition would potentially face the children without parents to look after them.
 Since in my decision of 21 December 2010 I had purported to deal with all of the parties' arguments I indicated that I could only consider Article 8 ECHR arguments in relation to new case law which had been reported in the interim.
 Evidence was led from the accused N F, Dr. Boyle, a child psychologist, T D, Social Worker and A H, Head teacher at S's school. Mr. K did not give evidence at the hearing on 12 November 2012 but had given evidence at the earlier hearing in September 2010. I also had affidavits from the accused and other witnesses which were lodged earlier in the proceedings and material from the Crown to consider. The purpose in hearing further evidence was to ascertain the up-to-date position regarding the accused's family circumstances and to cover issues which had been deemed relevant in the recent Supreme Court cases in this context.
 The evidence which was led on behalf of Ms F appeared credible and reliable. Since the last time I heard evidence of the accused's family circumstances, they had married and had a son, J who was born in May 2011. He seems to be meeting the normal developmental milestones. Mr K's son S whom the accused have looked after since September 2009 has continued to display difficult and challenging behaviour such that he had to be accommodated elsewhere in August 2012. More recently S has lived part of the week with the accused but continues to display severe behavioural traits.
 S made false allegations of assault against both accused and has in the past made false allegations against a taxi driver who took him to school. He also accused Ms F of shoplifting when out with her one day which led to her being detained by staff and her bags searched. Nothing had been stolen. He is obsessed with food and steals it from the fridge at home and from other pupils at school. He searches bins for food and often hides it as a security.
 S stays for half the week with his great aunt and uncle Mr. and Mrs. H who had been identified as substitute carers previously. S has assaulted Ms F and has been aggressive towards his young half-brother J such that it is not safe to allow the children to be in the same room unsupervised. Ms F's health has suffered as a result of S's challenging behaviour and she has undertaken counselling to assist her in dealing with S. Mr. K has not been affected in this way by S's behaviour and is better able to discipline S but it was accepted that Ms F has been and is S's main carer when he is in their charge. S does regard Ms F as his mother.
 Because of S's behaviour at home and at school he was sent to a special "nurture group" for part of the school week. Normally this facility is deployed with certain pupils for about a year to 18 months. S was there for two and a half years until October 2012. While the nurture group somewhat stabilised S's behaviour, since that facility ended, his behaviour has deteriorated and he attacked a female pupil in November 2012 in the school playground causing injury. The attack was unprovoked and was accompanied by racist abuse by S.
 S's care continues to be supervised by the Children's Panel on account of his behaviour. S does not attach to adults or his peer group. Dr. Boyle was of the view that S needed "several parents" to cope with him and bring him up. His mother had abandoned him and he had various changes in his life until the accused had taken over his care first in September 2009 and resumed in March 2010 after being on remand. While S is a clever child he under-performs academically and appears to develop new ways to challenge those in authority over him, at school and at home.
 By contrast J is a normal child. He has the normal attachment to his parents, his mother in particular. While Dr. Boyle said he would be affected if both his parents were extradited he would expect him to recover from a separation of around 18 montHs. He did not consider it would be a good environment for a child of his age if he was to be in prison with his mother.
 While J could reasonably be expected to recover from separation from one or both parents if extradited, the boys would be accommodated separately and would see each other on a less frequent basis than at present. J would be looked after by Ms. F's father and his partner. Mr. F disapproves of his daughter's relationship with Mr. K. Ms. F thinks her father was not supportive of her when she was sexually abused as a child. There is a history of domestic abuse in Mr. F's household and Ms. F is concerned that if extradited the phased return of J to her care on her return may be problematic.
 If both accused were extradited they would lose their local authority tenancy and on their return to Scotland would have to present themselves as homeless and would not be able to have the children reside with them until they obtained a fixed address.
 In light of the decisions in BH and KAS or H v The Lord Advocate UKSC 24 and HH and PH v Deputy Prosecutor of the Italian Republic, Genoa and F-K v Polish Judicial Authority  UKSC 25 it is appropriate to take a structured approach to the factors arising in this case - HH paragraphs 8 and 30. At sub-paragraph 8(7) Lady Hale said:-
"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."
 At paragraph 68 in HH (supra) Lady Hale noted that it "is a very rare case indeed when the extradition of both parents is sought." JUSTICE who intervened in HH prepared a table which suggested that this case was the only other recorded case apart from HH and BH (supra). Mr Dickson was able to refer me to a subsequent case JE-H and IE-H v Government of Australia  EWHC 2603.
 Applying the structured approach to article 8 to determine whether extradition would not be incompatible with the accused's Convention rights the court has to answer three questions:-
(i) whether there will be an interference with the right to respect for private and family life?
(ii) whether that interference is in accordance with the law and pursuer one or more of the legitimate aims within those listed in article 8.2? And
(iii) whether the interference is "necessary in a democratic society" in the sense of being a proportionate response to that legitimate aim?
In answering the last question the court has to "weigh the nature and gravity of the interference against the importance of the aims pursued". It is a "balancing exercise" and "what may differ are the nature and weight of the interests to be put on each side of the scale." HH (supra) paragraph 30
 It seems appropriate to consider the various factors which arose in the HH, BH and JE-H (supra) cases as well as those which arose in F-K (supra) since in the latter case although both parents were not under threat of extradition (notwithstanding that F-K's husband had been a former co-accused) it was accepted that if the accused was extradited her husband would be unlikely to be able to cope with the children in her absence.
 The salient facts in F-K (supra) are summarised at paragraphs 35-43. The accused married in 1991 and she and her husband had five children ranging in age from almost 4 to 21. Ultimately the court focused on the younger children aged 8 and 3 years 10 months upon whom the impact of their mother's extradition "would be very severe". The accused was sought on two European Arrest Warrants one involving the theft of clothing in 2001 valued at £4,307 and the other concerned three offences of fraud between 1997 and 2000 involving £1,160 of property, the importation of a car and another unspecified fraud. It had been established that the accused fled from Poland in 2002 to avoid prosecution. The children who were the subject of concern were born when the accused was a fugitive. The Supreme Court was critical of the delay and the lack of urgency by the Polish authorities in bringing the accused to justice during which time the accused and her family had "made a new, useful and blameless life for themselves in this country."-paragraph 47
 The facts in HH (supra) are summarised at paragraphs 49-79. The accused married in 1996 and their oldest child was 11. A second child is 9 and was born shortly after the accused were arrested on the extradition offences. Their youngest child is now aged 3 and was conceived during the EAW proceedings in England. The mother displayed psychiatric symptoms but her evidence was assessed as being untruthful at the extraditions hearing (see para 56). Medical opinion about the mother's illness was divided but in general it was felt her symptoms had been brought on by the case and threat of extradition rather than some inherent condition. The mother's behaviour had upset the oldest child who was "highly anxious about the deterioration in his mother's functioning." (See para 63). He did appear to be a "well-adjusted boy....with a strong bond with his father". The middle child then nearly 7 "was a bright and articulate child who did not express anxiety about her mother's condition and whose strongest relationship was with her father." The youngest child then 15 months old "was meeting all her developmental milestones and clearly looked to her father as her primary attachment figure."
 The charges HH and her husband PH faced were serious ones involving the importation and trafficking of drugs. They had been involved in the importation of cannabis with other persons and had organised seven importations totalling 1818 kilos of cannabis. Both were sentenced to 14 years imprisonment of which HH has over 91/2 years to serve. PH's sentence had been reduced on appeal as he had been deemed a lesser participant in the conspiracy and he still had 8 years 4 months to serve with the potential of only serving half of this sentence with good behaviour (see para 53).
 In the case of BH (supra) and his wife they face accusation warrants involving 33 charges between 2004 and 2006 of allegedly selling chemicals worth over $130,000 to about 400 customers in the United States knowing these would be used to manufacture methamphetamine. If convicted the accused face sentences of between 4 and 20 years imprisonment. BH and KAS or H have 6 children and married in 2008. At the time of the Supreme Court hearing the children were aged 14, 13,9,6,3 and 1. BH is the father of the four youngest children. Search warrants were executed at the accused's home in 2005 and 2006 and extradition proceedings against them began in January 2007.
 Proceedings were delayed in the BH (supra) case due to frequent changes of representation, the birth of the two youngest children and BH's attempts to secure a psychiatric disposal in the proceedings-see para 43 where he is described as a "devious and manipulative individual".
 In JE-H (supra) the couple faced an accusation warrant involving frauds totalling AUS $600,000 arising in 2008. The accused left Australia separately but arrived together in the United Kingdom early in 2010 and their daughter was born at the end of that year. Proceedings were raised by the Australian authorities in 2011. The authorities indicated they would bear the costs of transporting the family to Australia and any costs for their daughter should the need arise. Both accused had family members living in Australia. The court was satisfied that suitable arrangements were in place for the accused's daughter and the accused's extraditions were confirmed.
 In the present case while proceedings have taken a long time to conclude no blame can be laid at the door of the accused. They were arrested in Portugal in November 2007 and remanded in custody for almost 7 months until their trial in June 2008. They were convicted in terms of their own confessions and given suspended sentences. They were allowed to return to Scotland and further proceedings were taken against them following a successful prosecution appeal against sentence held in their absence.
 EAW proceedings have been ongoing since October 2009. The original warrants issued by the Portuguese authorities were found to be defective by the High Court and fresh proceedings were raised in March 2010. I discharged the accused in December 2010 but my decision was held to be incorrect on appeal and I was ordered to proceed further with the case December 2011. There were difficulties in scheduling the case after the Supreme Court decisions were issued in June 2012 due to problems which arose in respect of Mr. K's son S. Eventually further evidence was heard on 12 November and submissions on 17 December 2012. The accused have co-operated throughout the proceedings.
 Mr. K is 48 years of age and Ms. F is 27. They have been in a relationship for the last 6 years and are now married. Mr. K has a son S from a previous relationship who is now aged 7. S's mother neglected him and had left him in the accused's care in September 2009 when she moved to England with a new partner. She seems to have had no further contact with her son since February 2010. When the accused were remanded in custody initially in 2009 S was cared for by Mr. and Mrs McC, Mr K's sister and brother-in-law but they had found S difficult to deal with and were not prepared to look after him further. The accused have a son J who is 18 months old and is meeting his developmental milestones.
 The accused were convicted of importing 5.657.4 kilos of cocaine in two suitcases when they arrived on a flight from Brazil to Portugal in November 2007. The accused had acted as couriers and provided the authorities with such information which they had about those who had made the arrangements. The accused had been promised employment if they brought items back from Brazil and had travel arrangements made for them. They assisted the Portuguese police in trying to capture the man who organised their trip but no arrest seems to have been made.
 Arrangements have been made for S and J to be looked after separately by family members. If the case simply involved the accused's son J there would in my view be insufficient circumstances to outweigh the public interest that extradition should take place notwitHstanding the interference to the accused's family life. The position regarding S is however much more complex. His behaviour has deteriorated significantly since the last time I heard evidence in the case in September 2010. At that time given S's history it seemed clear that S suffered from "attachment disorder" see C v The Circuit Court in Poznan, Poland  EWHC 2262.
 In applying the "test of proportionality" I have to bear in mind that the "public interest in extradition weighs very heavily indeed" Norris (supra) para 51. The reality is that only if some quite exceptionally compelling feature of combination of features is present that the interference with family life consequent upon extradition will be other that proportionate to the objective that extradition serves. Para 56. If however the particular offence is at the bottom of the scale of gravity, this is capable of being one of a combination of features that may render extradition disproportionate with human rights.-para 63.
 These principles were re-visited in HH (supra) at para 8. It is not a test of exceptionality but whether interference with the private and family life of the accused is outweighed by the public interest in extradition. It is likely this will happen when the consequences of interference with family life will be exceptionally severe. In a case of this type the rights of the children are a primary, but not the paramount consideration.
 In F-K (supra) the Supreme Court was critical of the time taken by the Polish authorities notwithstanding the fact that the accused had been a fugitive who had absconded prior to trial. The offences contained in the two EAWs were described as "by no means trivial. But they are offences of dishonesty which can properly be described as "of no great gravity". Furthermore, we can take notice of the fact that no prosecutorial discretion is exercised by the Polish authorities when deciding whether or not to apply for the issue of an EAW, no matter how comparatively minor the offences, how much time has elapsed since they were committed, and how respectable the life which the offender has led since then. The European Commission has criticised the lack of a proportionality check in some states before issuing an EAW; it is not suggested that an article 8 proportionality check is required, but there should be some relationship of proportionality between the offending and the consequences." Para 45
 For the above reasons the Supreme Court discharged F-K and while Baroness Hale was prepared to discharge PH the remainder of the Court confirmed the decisions to extradite HH and her husband and similarly BH and his wife. In both of these cases notwithstanding the effects which extradition would have on the children extradition was regarded as proportionate by the Court. HH and BH had been convicted of involvement in "a major drug smuggling conspiracy, persisted over many months." HH (supra) para 71.
 In BH (supra) Lord Hope said at paragraph 58 that "the crimes alleged were persisted in over a substantial period, are very serious". While there are risks in equating such cases to the likely fora of proceedings and sentences if dealt with in Scotland it could be suggested that in F-K (supra) the Supreme Court took the view that the case was a summary matter whereas BH and HH (supra) are undoubtedly of significant High Court level. It was accepted that the present case lay somewhere in between serious sheriff and jury or lower-end High Court gravity c.f. JE-H (supra).
 What is clear is that the accused were sentenced to 31/2 years' imprisonment and notwithstanding what is said in section (c) 2 of the EAWs the accused spent almost 7 months in custody in Portugal and were remanded in custody in Scotland on the original EAWs from 1 October to 31 December 2009-see opinion of Lord Wheatley  HCJAC 39 at para . In an e mail sent to the Crown by the Portuguese authorities on 9 November 2012 (production No. 2) it was accepted that the accused had 2 years 11 months' imprisonment to serve. From that period would have to be deducted the 3 month period the accused spent on remand in Scotland. While the accused may qualify for release after half of their sentences are served subject to good behaviour, i.e. a further 16 months' imprisonment, release may not take place until ⅔ of the sentence has been served or 5/6 served-the latter release being on an unconditional basis. While the accused if extradited could seek to have their sentence transferred to serve in the United Kingdom this would be at the discretion of the authorities and outwith the control of the court c.f. BH (supra)at para 53. Apparently in one case a British citizen was transferred from Portugal to the United Kingdom to serve the remainder of his sentence. While the Portuguese authorities said Ms. F could have her child with her in prison neither she nor Dr. Boyle thought it suitable for a child of J's age and development.
 If both accused were extradited the Social Work Department plan would be to have S accommodated full-time with Mr. and Mrs. H and J with Mr. F and his partner. I accept Dr. Boyle's concerns that S may prove difficult if not impossible to parent full-time. S has severely tested the accused and his schoolteachers and it seems to me that a continuing element of parenting from the accused is necessary in his life as he seems very much at risk of continuing to have and develop a serious personality disorder through his childhood and adolescence.
 Given the serious nature of the charge in this case I have considered whether it is possible to extradite the accused in tandem so that S and his half-brother have continuity of parenting from the accused and the continuing security of a home which would be lost if both accused were extradited. This however is not possible since arrangements to delay extraditions are at the behest of the requesting state and certainly are outwith my powers to act at the extradition hearing in terms of the Extradition Act 2003 section 35 (4) (b) and section 36 (3) (b).
If the requesting authority had suggested this course I would have had to consider the effect on the accused's children over a period of 3-4 years-c.f. HH (supra) para 20.
 In both BH and HH (supra) the Supreme Court, as they were bound to do, considered the article 8 rights of the accused spouses separately. In HH's case she had been sentenced to a longer term of imprisonment in light of her greater culpability and it was noted that her husband had a greater attachment to the children nonetheless he was extradited also. By the time BH's case was dealt with by the Supreme Court the couple had separated and the older children did not want to see their father. The Court seemed to have little difficulty in ordering BH's extradition and made the same order in respect of his wife on account of the gravity of the allegations see para 56. Since BH was an accusation case there would be risks in returning only one of the co-accused for prosecution-see para 70.
 In the present case Mr. Dickson pointed out that the accused had been equally culpable in the offence since the drugs had been imported in two suitcases. Since J's circumstances alone would not be sufficient to preclude extradition if a choice had to be made between the accused Mr. K had the stronger claim since he is S's natural father and seemed to be better able to control him than Ms. F whose health had suffered trying to control S. The Social Work Department had no criticisms of the accused's parenting and Ms. F had undertaken courses to help her cope with S's behaviour and reduce stress on herself.
 I am extremely concerned about S's wellbeing and while the Social Work Department and education authorities have done what they can, his behaviour has deteriorated. Dr. Boyle clearly found S's case to be an extreme one and considered the child needed several parental figures such was the difficulty in controlling him. While Ms. F is not S's natural mother she is regarded as mother by S. As I found previously Ms. F's evidence was very frank almost to the point of not being helpful to her at times. Her conduct and indeed that of Mr. K's throughout the proceedings can be contrasted favourably to that displayed by HH and BH. I also considered S's circumstances to be more severe than those of the children described in the recent Supreme Court cases.
 I noted from Crown Production No. 1 if the reverse situation occurred with a request by EAWs to Portugal the authorities under their legislation could refuse to surrender the accused but enforce the sentences in Portugal which had been imposed by the requesting state. This would enable accused to seek a home arrest regime monitored by electronic tagging after serving, in a case identical to this one, perhaps no more than a further 4 montHs in prison-see Article 44 of the Portuguese Criminal Code paras 1(b) and 2(d). These provisions do seem particularly directed towards respecting the article 8 rights of accused persons generally. In JE-H (supra) the Australian authorities were able to offer arrangements which would secure the accused's child, where at all possible, in a family setting and maintain links with the accused. That was against a backcloth that both accused had families in the requesting state who were in a position to help. The accused in the present case have no such help available in Portugal or the ability to benefit from the requesting state's arrangements to respect article 8 rights to a proportionate degree under the home arrest regime.
 In the instant circumstances however, the Portuguese authorities appear to have no discretion in the matter. The nature of the proceedings which the accused faced resulted in sentences of imprisonment being imposed in their absence without the court having the benefit of their up-to-date circumstances. There is no scope other than the present proceedings to weigh and balance the accused's current family circumstances against the requests that they serve prison sentences in Portugal.
 Having weighed up all of the circumstances of this case I have decided that the seriousness of the offence requires extradition to take place in the public interest. If however both accused were to be extradited this would have a serious effect upon S and disrupt their family for a period much longer than the sentences they face serving. They would lose their home and some considerable period might pass before they would be in a position to offer a home to their children even if in S's case that continued to be on a shared basis with the Mr and Mrs H.
 In my view in this case the proportionate response is to order the extradition of one parent to serve the remaining portion of the sentence imposed, given the gravity of the charge and the need to deter others from becoming involved in drug smuggling, but to discharge the other parent to preserve the family, in particular to maintain parental responsibilities with S. It seems unlikely that Mr and Mrs H will be able to cope with S full-time for a prolonged period well in excess of a year. Both accused have experienced significant terms of custody in separate prisons in Portugal and Scotland. It was clear from Ms. F's evidence that she had found the whole experience one that she would not wish to experience again or have her son J experience. Ms. F has been the main carer of S during the time he has been in the accused's care. Also she has a young son at a crucial age who would benefit from continuing to live with his mother in a non-custodial setting.
 For these reasons I order the extradition to Portugal of Mr. K and discharge Ms. F from the EAW she faces.