European Court of Human Rights

 

 

 

FOURTH SECTION

Application no. 38844/12
K.A.S.
against the United Kingdom
lodged on 22 June 2012

STATEMENT OF FACTS

 

The applicant, Ms K.A.S, is a British national, who was born in 1978 and lives in West Lothian. She is represented before the Court by Graeme Brown, a lawyer practising in Glasgow with Thompson & Brown Solicitors.

A.  The circumstances of the case

The facts of the case, as submitted by the applicant, may be summarised as follows.

1. Family History

The applicant and her estranged husband, H, are both British citizens. They are aged 34 and 48 years of age respectively. The applicant is the mother of six children A, B, C, D, E, and F born in 1997, 1999, 2002, 2006, 2009 and 2011 respectively. H is the father of the youngest four children – C, D, E and F. A, the eldest child has never had contact with her own father. B, the second child, lived with her mother and her father until the couple separated in 2001. It would appear that B has no ongoing relationship with her father. H was the applicant’s employer in 2001 and helped her to find accommodation with her two children, A and B, after her relationship with B’s father had broken down. In 2002, the applicant and H formed a relationship. In 2008, the applicant and H got married.

H had previously lived in Arkansas in the United States of America (“USA”) where he had a daughter J, born in 1986. When J was six years of age, she made disclosures of sexual abuse against H which led to a police investigation and J being taken into social services’ care. H left the state of Arkansas to avoid criminal prosecution. H and J’s mother remained in contact secretly and, after J had been returned to her mother’s care by social services, they left Arkansas to join H and travel to the United Kingdom. Their relationship came to an end and, for unknown reasons, J was later taken into the care of social services in the United Kingdom.

In 2002, after the birth of C, the applicant and H’s first child together, Middlesbrough social services (after becoming aware of the earlier sex abuse allegations against H relating to J) brought proceedings in the Family Division of the High Court seeking that H’s contact with the applicant’s children A, B and C be terminated. In a judgment dated 30 January 2004, the High Court found that H had sexually abused J on a number of occasions in Arkansas and Texas in 1993 and 1994; was satisfied that H remained a real and continuing danger to young girls; and continued the family proceedings so that the applicant’s position in relation to those findings could be ascertained. The applicant accepted the High Court’s findings and, on 6 September 2004, the High Court issued an injunction prohibiting H to have any further contact with any of the applicant’s children. The applicant and H ignored this order and moved the family to Scotland in April 2005.

In July 2009, the children (A, B, C, D and E) were placed on the social services child protection register as a result of allegations of sexual abuse against H by the nine year old daughter of a neighbour. No criminal prosecution was ever pursued against H in relation to those allegations. The children were all removed from the child protection register in December 2011 (on the basis that H remained in custody pending his extradition and there were no concerns about the children in the care of the applicant whilst it was not possible for H to have contact with them).

2. Domestic police investigations

On 23 March 2005, search warrants were granted by Teesside Magistrates’ Court under the Firearms Act 1968 in connection with a criminal investigation into H. Those warrants were executed at both a business address in Stockton-on-Tees and a residential address in Middlesbrough. Two handguns were recovered as well as documents, computers and bank records which contained information relating to the sale of chemicals through a website, www.kno3.com. The chemicals included red phosphorus and iodine and the information found demonstrated both that those chemicals had been sold to customers around the world, including to four hundred customers in the USA, and that the applicant and H had been aware that it was illegal to sell those substances in that country. As a result, a police investigation was initiated into suspected offences under section 20 of the Misuse of Drugs Act 1971 (which relate to the assistance in the commission in any place outside the United Kingdom of an offence punishable under the provisions of that other State).

In early April 2005, the applicant and H left Middlesbrough, England and moved to Scotland where they have remained ever since.

On 21 June 2006, further search warrants were granted by Teesside Magistrates’ Court authorising a search for “substances, including chemicals and all related documentation, transactions, electronic or otherwise, or any other evidence, supporting section 20 of the Misuse of Drugs Act 1971 offences”. On 23 June 2006, those warrants were backed by a sheriff at Falkirk Sheriff Court. Those warrants were executed the same day on the applicant and H’s business and home address. A quantity of red phosphorus and iodine was recovered as well as documents, computers and bank records indicating that the applicant and H were still trading in those substances.

Meanwhile, a separate investigation was being conducted by authorities in the USA over the same period which led to the extradition proceedings below.

3. The Extradition Proceedings

a. The indictment and the extradition request

On 27 September 2006, an indictment against the applicant and H was filed at the United States District Court for the District of Arizona, USA. The indictment included eighty two counts of conspiracy, distribution and unlawful importation of chemicals (iodine and red phosphorus) used to manufacture methamphetamine (a highly addictive stimulant drug also known as ‘crystal meth’) between August 2004 and September 2006, in the knowledge that the chemicals would be used for that purpose. The charges related to the sale of the chemicals through the applicant and H’s internet business, www.kno3.com. It was alleged that the applicant and H had known at all times that the chemicals could be used to manufacture methamphetamine. The indictment stated that the website offered “discreet packaging” and shipped orders to its customers with incorrect and misleading labelling as to the contents. The indictment also stated that the applicant and H had received emails informing them that the chemicals were being used to manufacture methamphetamine and that a recipe for manufacturing methamphetamine was saved on the applicant’s computer. The applicant and H were alleged to have supplied over 80 methamphetamine laboratories in the USA and to have sold 296 kilograms of red phosphorus and 44 kilograms of iodine to customers in the USA at a value of USD 132,922 (US dollars). This amount of chemicals could have allegedly produced a street value of methamphetamine of approximately USD 13.3 million.

On 28 September 2006, arrest warrants were issued against the applicant and H by the District Court in Arizona. On 3 November 2006, the USA sought the applicant and her husband’s extradition under the terms of the Extradition Act 2003.

On 15 January 2007, the Scottish Ministers issued a certificate under the Extradition Act 2003 to the effect that the extradition request was valid. On 16 January 2007, warrants were issued for the applicant and H’s arrest.

On 31 January 2007, the applicant and her husband appeared for the first time before Edinburgh Sheriff Court and were remanded in custody pending the extradition proceedings. On 31 August 2007, they were both released on bail and returned home to continue to care for their children, who had been cared for by the applicant’s mother whilst they had been detained. On 21 April 2011, H’s bail order was revoked when he failed to attend a High Court hearing relating to his appeal. Since 26 April 2011, H has been remanded in custody whilst the applicant has remained on bail caring for her children. The applicant claims that she has been separated from H since that date.

b. Edinburgh Sheriff Court judgment, 3 April 2008

In a judgment delivered on 3 April 2008, Sheriff Garden McColl sitting at Edinburgh Sheriff Court held, inter alia, that the applicant’s extradition would be compatible with her rights under Article 8 of the Convention. The sheriff did not regard either the applicant or H to be credible or reliable witnesses and refused to disregard as irrelevant the High Court’s judgment made during the course of the family proceedings in 2004. In her view, that judgment was relevant to the applicant and H’s’ reliability. It was inconceivable that they had not been aware of the terms of the injunction which had been put in place ordering that H’s contact with the children be stopped given that they had both been individually legally represented during the proceedings. H had previously put himself out of the jurisdiction of the Arkansas police when facing charges relating to J and had again put himself beyond the jurisdiction of the Middlesbrough High Court by moving to Scotland.

The sheriff refused to accept the picture that the applicant and H had tried to put forward of themselves and their children being totally united and alone with no available external support if the extradition request were granted. She did not accept that the applicant and H had made out the bleak scenario of the four children [the judgment having been delivered before the birth of the final two children E and F] being taken into care and housed separately with no possibility of sustaining their relationship with their parents.

She accepted that the applicant’s mother had at times during 2007 (when the applicant and H had both been detained) been overwhelmed with the care of the children, who had naturally been upset by the removal of their parents. She also accepted that the applicant’s mother had said that she would not be able to cope with caring for them again but noted that she had not said that she would not be prepared to play a part in the children’s care should the need arise. Indeed, in the past, she had shown great care and support for the children.

If the applicant’s mother was not able to care for the children, then the Local Authority might be required to accommodate the children looking in the first instance within the children’s wider family and close friends. If there were no friends or family willing or able to take care of the children, then the Local Authority would place the children in foster care. The sheriff accepted the evidence of social services that it would prove difficult to find a placement for all of the children together but that they would do everything possible to foster their relationship both with one another and with their parents. The sheriff found it highly unlikely that the applicant’s mother would not participate in any efforts by the social services to maintain those relationships.

The sheriff did not accept that the fact that the applicant and H were the parents of four children could as a matter of principal of law bring the case within the exceptional range required to resist extradition on Article 8 grounds. What would happen to the children if the applicant and H were extradited remained uncertain. The sheriff found that the mechanisms operated by the US authorities to remain and assist in the fostering of family bonds would assist the applicant and H to maintain their bond with the children, even if such arrangements were not ideal. If the applicant and H were convicted and sentenced to a period of imprisonment, they could make an application to serve their sentence in the United Kingdom and more specifically in Scotland. Therefore, the sheriff did not accept that the Article 8 rights of either of the respondents or of their children would be completely denied or nullified in the USA.

c. The extradition order, 29 May 2008

On 29 May 2008, the Scottish Ministers ordered the applicant and H to be extradited to the USA under the Extradition Act 2003. They appealed against the extradition order to the High Court of Justiciary relying, inter alia, on Article 8 of the Convention and the impact upon their children.

d. The High Court of Justiciary decision, 29 July 2011

The appeal proceedings before the High Court of Justiciary were, as acknowledged by the High Court itself, exceptionally protracted after many procedural and interim hearings due to, inter alia, the changes in legal representation of both the applicant and H; the amendment of the relevant grounds of appeal; the birth of further children; the applicant’s health problems; and the instruction of experts.

On 29 July 2011, the High Court (Lord Osborne, Lord Reed, and Lord Mackay) delivered a judgment dismissing their appeals against the extradition orders.

i. The extradition offences

The High Court allowed their appeal in part and found that counts 34 to 82 and paragraph 12 (c) of Count 1 on the indictment would not constitute offences under Scottish law and were therefore not “extradition offences”. Nevertheless, the High Court found that counts 1 to 34 would constitute offences in Scottish law and were therefore extradition offences as required by the Extradition Act 2003.

ii. General Approach to Article 8 in extradition cases

In relation to their complaints under Article 8 of the Convention, the High Court considered in detail the Supreme Court’s judgments of both Norris v. Government of the United States of America (No 2) [2010] 2 AC 487, and ZH (Tanzania) v. Secretary of State for the Home Department [2011] 2WLR 148 and noted that ZH (which had dealt with the weight to be given by decision-makers to the best interests of children) was concerned not with extradition but with deportation. Since there was a strong public interest in the comprehensive application of extradition treaties which was not present in deportation cases, the High Court considered that it followed that the approach adopted to Article 8 rights in extradition cases must be radically different from that adopted in deportation or expulsion cases. The High Court therefore considered that decisions on Article 8 rights in deportation or expulsion cases were of no direct relevance in the context of extradition. The High Court was not persuaded that anything said in ZH was intended to modify or depart from what had been said in Norris (an earlier case which had dealt with the approach to be taken to Article 8 in extradition proceedings), or indeed had been said with extradition in mind. Although accepting that in a case where it was necessary to determine whether the extradition of a person with dependent children was justified under Article 8 (2) of the Convention, the best interests of the children were naturally a primary consideration, the High Court found that that consideration would be outweighed in all but exceptional circumstances by the public interest in the application of extradition arrangements.

iii. Application to the facts

The High Court noted that the offences to which the extradition requests related were of an extremely serious nature and could not be described as at the bottom scale of the gravity. The effect of extradition on the children was difficult to predict, in so far as it depended on the outcome of the proceedings in the USA, whether or not the applicant and H would be transferred to serve part of that sentence in Scotland and what arrangements would be made for the children, partly as a result of the applicant and H’s refusal to co-operate in identifying potential carers in the United Kingdom. The High Court therefore proceeded on the basis that there was a risk that the children may be taken into social services’ care and that there was a risk that they would be required to be separated from one another.

In the case of H, the High Court considered that it was plain that his extradition was justified under Article 8 (2) of the Convention – he was charged with very serious offences and his case did not come close to meriting his discharge under the Extradition Act 2003. The applicant’s case was more difficult, particularly given the serious consequences on her children. The High Court had to proceed on the basis that she, equally with her husband, was charged with extremely serious drugs offences and that there would be seriously damaging consequences for the public interest in the prevention of crime if an accused person with family dependencies such as those binding the applicant to her children was rendered immune from being extradited to be tried for very serious wrongdoing. Indeed, if the applicant were alleged to have committed analogous offences in the United Kingdom, she would undoubtedly be prosecuted notwithstanding the possibility that, if convicted, she might be separated from her children for a prolonged period. The High Court recognised that the family life of the applicant would inevitably be disrupted by her extradition and that the disruption may be severe, with the extradition of both parents making it worse. Nevertheless, applying Norris, the High Court came to the conclusion that her extradition would not be an unlawful breach of her family life under Article 8 of the Convention and considered it to be unnecessary to consider the possibility of a prosecution in the United Kingdom.

d. Application to the Supreme Court

The applicant and H applied for leave to appeal to the Supreme Court arguing that the public interest in giving effect to the extradition request of the USA was outweighed by the consequences that their extradition would have on the best interests of the children. On 11 August 2011, the High Court granted leave to appeal to the Supreme Court in respect of the devolution issues relating to Article 8 of the Convention.

e. The Supreme Court judgment, 20 June 2012

On 20 June 2012, the Supreme Court unanimously dismissed the applicant and H’s appeal. In the lead judgment, Lord Hope (with whom the other Lordships agreed) stated at the outset that if the applicant and her husband were the only persons whose interests had to be taken into account, the answer to the question of the proportionality of their extradition would have been relatively straightforward. The crimes of which they were accused were very serious, and the public interest in the honouring of extradition arrangements for the prevention and punishment of crime was compelling. However, the complicating factor was that the applicant’s children’s interests also had to be taken into account and it was quite obvious that the children’s interests would be interfered with by the extradition of either parent. The Lordships therefore observed that the weight to be given to the best interests of the children lay at the heart of the issue whether the extradition of both parents, or either of them, would be proportionate.

i. The seriousness of the offences

The Lordships considered that there was no doubt that, even after the subtraction from the indictment of certain counts on the indictment by the High Court, the remaining offences alleged against the applicant and H were very serious relating to a sustained and deliberate course of unlawful conduct over a two year period which had persisted even after the execution of the search warrants in England and after they had given an undertaking to desist in their behaviour having been made fully aware of the fact that the products they were selling were being used for the clandestine manufacture of methamphetamine.

ii. The approach to Article 8 in extradition cases

The Lordships did not agree with the High Court’s reasoning that the approach to Article 8 rights in extradition cases must be radically different from that adopted in deportation or expulsion cases. It was considered that the reasoning in ZH could have a very real and important part to play where those affected by extradition included the children of the persons to be extradited. Great weight would always have to be given to the public interest in giving effect to a request for extradition, and the more serious the offence the greater would be that weight. The public interest in immigration control lacked the treaty base which was at the heart of the extradition process. But, the question, so far as the Article 8 right was concerned, was the same in both cases. How to balance two powerful and competing interests? They considered that it would be more accurate where the family life of children is involved, as the best interests of children are a primary consideration, to put the question the other way round. Is the Article 8 right outweighed by the strength of any other considerations?

iii. The individual facts of the case

In considering the Article 8 rights in the applicant’s case, the starting point was whether the children’s best interests were outweighed by the strength of any other considerations. The strength of other considerations may outweigh the best interests of the children, provided that those other considerations were not treated as inherently more significant than they are. Thus it was important to have a clear idea of the circumstances of the family and of what was in their best interests before asking whether those interests were outweighed by the force of any other consideration.

The Lordships observed that it was impossible to state with precision how long it would take to bring the applicant and H to trial following their extradition to the USA and that, although bail was a possibility, they were more realistically going to be detained in custody until and throughout the trial. Mail and telephone calls would be permitted during this period provided that they had sufficient funds but direct face to face contact with visitors would not be possible. The trial itself would last about two to four weeks. In view of the dangers involved in the manufacture of methamphetamine and the harm that its use can give rise to, any conviction would be likely to attract very long sentences.

The Lordships noted that the effect of those sentences may be mitigated by the fact that arrangements exist under which the applicant and H might thereafter be permitted to serve part of their sentences in Scotland. Nevertheless, there was no certainty that permission would be given and it was not possible to predict when any such arrangements would be likely to be made even if they were agreed to. The prospect was that the applicant and H were likely to be kept apart from their children, and their children apart from them and perhaps from each other, for a very long time.

iv. The decision regarding H

In relation to H, the Lordships considered that the children’s family relationship with him had effectively been brought to an end by, inter alia, the fact that he had been in custody since April 2011; the fact that the applicant had finished her relationship with H so that the prospect of H ever living together with her and the children as a family again was remote; the judgment of September 2004 where a High Court judge had ordered that, in light of his abuse of his daughter J, H was to have no contact with the applicant’s three elder children who were all girls; two more of the applicant’s children who had subsequently been born were girls; and the fact that all of the children had been placed on the child protection register as a result of another more recent allegation of sexual abuse against H. Having regard to all of the above, the Lordships considered that the argument that it would be contrary to the children’s best interests for H to be extradited was, at best, very weak in the circumstances.

v. The decision regarding the applicant

The applicant’s case was more difficult. There was no doubt that the children’s best interests would be to continue to live with their mother. They would be deprived of her care and guidance if she were to be taken away from them and it seemed likely that the long term effects upon the children of a prolonged separation of the magnitude that was in prospect would be profound. Even though on the two occasions where the applicant had been detained on remand previously (from 31 January 2007 until 31 August 2007 and from 29 July 2011 until 12 August 2011), the applicant’s mother, with the help of other family members and friends, had been able to keep the children together, it was not certain that this would be possible again if the applicant were to be extradited. There was a risk that the children would be taken into social services’ care and, if that happened, that they would no longer be able to live together. Resuming family life after a prolonged separation was likely to be very difficult. The gravity of that situation was compounded by the fact that the children were, for all practical purposes, now fatherless.

On the other hand, the Lordships commented that there was no escape from the fact that there were criminal proceedings ongoing and that the crimes alleged, persisted in over a substantial period, were very serious. Obligations under the Extradition Treaty 2003 meant that the applicant had to be sent for trial in the USA and pointed to the conclusion that it was in that forum that her participation in the alleged crimes be determined. If there were any grounds for leniency or mitigation of sentence on the grounds of family circumstances, it would be for the US authorities, not the United Kingdom courts to make that assessment. The Lordships noted that this Court (Strasbourg) had “repeatedly said that it will only be in exceptional circumstances that an applicant’s private or family life in a contracting state would outweigh the legitimate aim pursued by his or her extradition”. They considered that the fact that this Court had not yet decided any extradition in favour of the applicant, even where those to be extradited were the parents of young children, indicated how high the bar against refusing a request for extradition had been set.

vi. The relevance of considering the forum of prosecution

Nevertheless, the Lordships considered that the best interests of the children suggested that the High Court had been wrong to hold that it was unnecessary to consider the possibility of a prosecution in the United Kingdom given that the extradition request extended to both parents and that there were six children, four of whom were under the age of ten. The best interests of the children suggested that they should be satisfied that the interests of justice could not be served equally well by prosecuting the parents in the United Kingdom.

In that regard, the Lordships noted that in King v. the United Kingdom, no. 9742/07, decision, § 29, 26 January 2010, this Court had observed that considerations as to whether prosecution existed as an alternative may have a bearing on whether the extradition would be in violation of one of the rights guaranteed by the Convention. However, he also noted that in Babar Ahmad v. the United Kingdom, nos. 24027/07, 11949/08, 36742/08, 66911/09 and 67354/09, partial decision, § 175, 6 July 2010, this Court had ruled that there was no right not to be extradited and that, by implication, there was no right to be prosecuted in a particular jurisdiction and thus that it was not for the Court to adjudicate on the natural forum for prosecution. It was considered that rarely, if ever, was the possibility of prosecution as an alternative likely in practice to tilt the scales against extradition. The issue remained one of proportionality and the more compelling the interests of the children, the more important it would be for the alternatives to extradition, if there were any, to be carefully examined and brought into the balance to see if they carry any weight. This was not to diminish the importance to be given to treaty obligations but rather to recognise that in cases involving the separation of parents from young children there would be another powerful factor which was likely to make the scales more finely balanced than they would be if the children were not there.

The Lordships observed that the Lord Advocate had said that the applicant’s case had not been investigated with a view to prosecution in Scotland. Nevertheless, in a note dated 5 May 2006, the Crown Prosecution Service had advised that, where offending had taken place both in England and Scotland, it would be possible to charge the suspects either with a number of offences under section 20 of the Misuse of Drugs Act 1971 with respect of the supply of red phosphorus to the USA or with an over-arching conspiracy covering the whole of the period of their operations. In a further note dated 4 April 2007, further consideration had been given to the possibility of prosecution for the offences in either England or Scotland. However, it was pointed out that a large number of witnesses would have to attend from the USA if the complete scale of the applicant’s involvement in drug making activities was to be before the court in the United Kingdom. A court in the USA would be best placed to deal with the legal issues and the number of witnesses who would need to travel for a trial there would be small. The public interest was best served by the British police assisting in the extradition of the applicant and H to stand trial in the USA. The Supreme Court therefore found that the USA had a substantial interest in trying the applicant and H there and that there were strong practical reasons for concluding that the USA, where most of the witnesses resided and where the degree of the criminality involved was best assessed would be the proper place for them to be tried. The very fact that the basis for a prosecution in the United Kingdom would be section 20 of the Misuse of Drugs Act 1971 further emphasised that the crimes which the applicant and H were alleged to have committed were really US crimes. Taking all of the above into account, it was considered that the proper forum in which the prosecution should be brought was in the USA and it was not considered to be appropriate for the applicant and H to be tried in the United Kingdom. Nor was it considered acceptable for the applicant not to be prosecuted at all for the crimes with which she had been charged. It was also not considered to be sensible to prosecute the applicant in the United Kingdom whilst sending H to the USA for prosecution.

Whilst acknowledging that the balance was not easy to strike, the Lordships came to the conclusion that the best interests of the children, even when weighed together with the applicant’s own Article 8 right to respect for family life with them, were not strong enough to overcome the overwhelming public interest in giving effect to the extradition request. Thus it was not incompatible under Article 8 for the Scottish Ministers to order the applicant’s extradition to the USA.

Finally, the Lordships commented that what was happening in the case was a tragedy, especially for the children, but he noted that was not a ground on which the extradition arrangements could properly be criticised.

COMPLAINTS

The applicant complains that her extradition would completely nullify her (and her six children’s) rights to family life under Article 8 of the Convention. She claims that, if she is extradited, there are no practical arrangements in place to ensure that the children will be looked after by friends or family and that the children will have to be placed into the care of British social services. She claims that social services have confirmed that they will not be able to find a foster placement for all six children together and that they will be separated thus meaning that they will be likely to lose contact with both their mother and their siblings.

She claims that she will be remanded in Arizona, USA, to face trial and that, if convicted, she faces between four and twenty years in prison. By the time of her release, she claims that her children will be adults and her family unit will have been wholly destroyed in the interim. She claims that the domestic authorities have not given sufficient consideration to the possibility that she could face trial in the United Kingdom particularly as that is where the alleged offences and the initial police investigations took place in 2005 and 2006.

She claims that the circumstances of her case disclose “exceptional circumstances” such that her and her children’s rights under Article 8 of the Convention outweigh the legitimate aim of the fight against crime and the public interest in giving effect to the extradition request.

QUESTION TO THE PARTIES

Would the applicant’s extradition to the United States of America be a disproportionate interference with her and her children’s rights to respect for family life under Article 8 of the Convention?

 

Your Government are requested to provide the Court with:

 

i.                    further information about the care plans in place for the applicant’s six children after her proposed extradition;

 

ii.                  any information (including any assurances received from the United States’ authorities) regarding the possibility of the applicant having visits from, or contact with, her children both pending her trial and, if applicable, after her conviction;

 

iii.                any information about the likely date of, and time-scale for, the applicant’s trial in the United States of America after her extradition; and

 

iv.                any information (including any assurances from the United States’ authorities) regarding the possibility of the applicant, if convicted, being able to serve any prison sentence in the United Kingdom.