QUEEN'S BENCH DIVISION
Strand, London, WC2A 2LL
B e f o r e :
MR JUSTICE COLLINS
|- and -
|UNITED STATES OF AMERICA
Peter Caldwell (instructed by CPS ) for the Defendant
Hearing dates: 11th December 2014; 26th February 2015; 24th March 2015.
Crown Copyright ©
Lord Justice Gross:
"1. Everyone has the right to respect for his private and family life …..
2. There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society …..for the prevention of disorder or crime…. "
" This prosecution arose from an investigation by the United States Food and Drug Administration, Office of Criminal Investigation ('FDA'), which revealed that beginning no later than December 2004, up to November 2009, …[H]…, a citizen of Ireland, her former husband and co-defendant, …[W]…, and others, were part of a criminal organization that conspired to import a variety of anabolic steroids, Human Growth Hormone ('HGH'), and misbranded prescription pills into the United States. Those drugs were then distributed to purchasers in the United States who had ordered the drugs via Internet websites operated by members of the organization. [H] and others then laundered the proceeds from the sale of those drugs, including wiring the proceeds out of bank accounts in the United States to bank accounts in Austria. "
i) From December 2004 to November 2009, H and W and others ran a drug distribution operation through a purported laboratory named Axio Laboratories ("Axio"), which illegally imported drugs into the US from Moldova and other countries. The proceeds from this operation were deposited in various bank accounts and thereafter wired to other accounts to avoid detection.
ii) W ordered the illegal drugs from manufacturers outside the US, directed where the drugs were to be shipped within the US, and directed employees to package and label the drugs so that they appeared to be from a legitimate laboratory, i.e., Axio.
iii) During a period of time when W was in prison in Ireland, H took over W's responsibilities of running the operation. Specifically, H authorised salary payments to employees in the US who were packaging and re-shipping the illegal drugs out of a 'stash house' in New Jersey.
iv) As part of their efforts to launder money and avoid detection by law enforcement, H and W opened an account at a bank in Austria and arranged for AlertPay to transfer funds to that account. According to records seized by US agents, an Austrian bank account in H's name received several money transfers from AlertPay, authorised by another member of the organisation. Specifically, during the period 20th July, 2006 to 9th July, 2008, at least eighteen wire transfers were made from the AlertPay accounts to H's Austrian bank account, totalling US$766,827.49, to include a wire transfer of US$80,455 from AlertPay to H's Austrian account on 6th March, 2008.
v) The gross receipts generated as a result of the drug trafficking is said to total US$8,600,000.
vi) The money laundering allegations are in principle "parasitic" on the illegal importation and supply of the controlled substances and prescription medicines; essentially, they entail allegations of transferring and realising the proceeds of criminal conduct.
THE JUDGMENT UNDER APPEAL
i) Importing controlled drugs of Class C;
ii) Supplying controlled drugs of Class C;
iii) Importing Medicines;
iv) Money Laundering in relation to the above (alleged) criminal conduct.
" On the face of it – if the allegations made by the prosecution are accurate – this was, by any stretch of imagination, a very professional and successful criminal operation, with W and H said to have been at the core ….and who profited substantially from it."
" ….I am entirely satisfied that there is a strong bond between H and her daughter M. I am also satisfied that H is a very good and caring mother and that were extradition to be ordered ….this will cause considerable distress not only to H but also to M. However, I cannot ignore the seriousness of the allegations that H faces……."
The Judge observed that this was not a case where there were no family members available to assist, in the event of extradition being ordered – as indeed they had done in September 2012 (at ).
" This court has to ask why it is that the family, in their statements…(some of which span several pages) appear to have either skated over or simply not mentioned the critical issue of M's potential future in the event that extradition is ordered, preferring to dwell on a number of other often historical matters, which may – or may not – be of relevance to the issues before this court. There is no categorical statement from Bernard and his wife to state that they could not or would not be able to care for M in the event of extradition being ordered. This reinforces the opinion that I have formed…that the family could – and would – assist by taking M back into their arms and settling her down (as previously occurred in September 2012). "
THE SUBSEQUENT HISTORY
" * Ensure that M remains within a safe and secure environment, with an approved Local Authority foster carer, where she is protected from risk of significant harm.
* Ensure that M's emotional and physical need are met in a stable and nurturing environment.
Parallel planning will proceed for the long term care of M including:
1. Returning to H's care, ….[subject]…to H's release from prison.
2. Reside with extended family members, subject to positive assessments.
3. Remain in a long term Local Authority foster placement."
i) The application came very late in the day. As Ouseley J observed, when giving the 4th December ruling, at , the time for providing evidence as to M's needs had already long passed. Realistically, intervention at the 11th hour would have been bound to necessitate an adjournment, very likely of considerably greater length than the adjournment which ultimately was required (see below).
ii) Wholly undesirable though it would have been for all concerned for this matter to drag out still further, even more importantly, this Court has throughout dealt with the proceedings on the basis that M's best interests were a primary consideration. As already recorded, this Court initiated the inquiries with ECC as to the care of M, should H be extradited. Moreover, the arguments before us throughout emphasised M's interests, relying (inter alia) on the reports of both Dr. Grange and Dr. Bennett.
iii) Furthermore, the prospects of the intervention adding anything of value can, at best, be described as no more than speculative. For my part, I approach the matter on the basis that separation from H would indeed bear heavily on M. I see no realistic scope for any intervention to have produced more favourable conclusions for M. Finally, by the 26th February, the Court was already in possession of ECC's revised assessment of 20th February (summarised above).
i) As soon as practicable following her arrival in Nashville, H would be brought before United States District Court for the Middle District of Tennessee. Typically, this would be on the day of her arrival or on the next day. At that hearing, H could apply for bail and the prosecutor would indicate his stance in respect of any such application. As is to be expected, the question of the grant or refusal of bail and any conditions to be imposed is one for judicial decision. That said, according to Mr. Price (affidavit of 16th March, 2015), "…it is practically unheard of for the court to order detention if the government does not make a motion to detain".
ii) Pursuant to the Speedy Trial Act (Title 18, U.S.C. 3161 (c) (1)), H's trial must commence within 70 days from the date of her first appearance before the Court for the Middle District of Tennessee. It is to be underlined that H has a right to a speedy trial within this time frame. On the facts, such a trial would be of H alone; plainly, a speedy joint trial of H and W could not be achieved within any such timescale.
iii) The prosecution's preference has been for a joint trial, involving W, H and any other defendants (as to one co-defendant, see further below). After an apparent initial reluctance on H's part to be tried together with W, because of the abusive nature of their relationship, more recently H's position has hardened in favour of a joint trial.
iv) H is entitled to waive her right to a speedy trial and opt for a joint trial with H but that would be a matter of her choosing. If H exercises her right to a speedy trial, the prosecution must proceed accordingly, regardless of any prosecution preference for a joint trial. On the material before us (DoJ letter dated 12th January, 2015), the prosecution will not object to H being tried alone, should she request it.
v) It may be noted that a co-defendant, a Mr. Patel, has been granted bail on posting a bond of US$35,000 and allowed to return to Canada.
ISSUE (I): Art. 8
" We can, therefore, draw the following conclusions from Norris: (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 extradite and other members of the 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. "
" 33. ….. The family rights of children are of a different order from those of adults.…. In the first place….article 8 has to be interpreted in such a way that their best interests are a primary consideration, although not always the only primary consideration and not necessarily the paramount consideration….Fourthly, …..as the effect upon the child's interests is always likely to be more severe than the effect upon an adult's, the court may have to consider whether there is any way in which the public interest in extradition can be met without doing such harm to the child.
34. One thing is clear. It is not enough to dismiss these cases in a simple way – by accepting that the children's interests will always be harmed by separation from their sole or primary carer but also accepting that the public interest in extradition is almost always strong enough to outweigh it. There is no substitute for the careful examination envisaged by Lord Hope DPSC in Norris….. "
" …everyone, the parties and their representatives, but also the courts, is alive to the need to obtain the information necessary in order to have regard to the best interests of the children as a primary consideration, and to take steps accordingly. "
" ….extradition is concerned with international co-operation in the prevention and prosecution of crime. The objectives served by the process require international co-operation for the prosecution of crimes and the removal of sanctuaries or safe havens for those who have committed or are suspected of having committed criminal offences abroad. The private and family rights of the victims of criminal offences committed abroad will themselves have been damaged by offences like….drug-trafficking… That consideration is absent from the immigration context."
Lord Judge continued (at ):
" For these reasons….assuming for the sake of argument that the child or children are in identical family situations, it follows that an extradition order for one or both parents may be appropriate when deportation or removal would not. In other words, because distinct issues are involved, the same facts, involving the same interests of and the same potential or likely damage to the child or children, may produce a different outcome when the court is deciding whether to remove foreign citizens from this country or extraditing convicted or suspected criminals …to serve their sentences or stand trial for crimes committed abroad. "
" ….it should not obscure the reality that in the overwhelming majority of cases when the criminal is convicted and sentenced for offences which merit a custodial sentence, the innocent members of his family suffer as a result of his crimes…..As Hughes LJ …explained in R v Boakye  1 Cr App R (S) 6, para. 32
' The position of children in a defendant's family may indeed be relevant, but it will be rare that their interests can prevail against society's plain interest in the proper enforcement of the criminal law. The more serious the offence, generally the less likely it is that they can possibly do so.' "
" ….for the reasons explained in Norris the fulfilment of our international obligations remains an imperative. ZH (Tanzania) did not diminish that imperative. When resistance to extradition is advanced ….on the basis of the article 8 entitlements of dependent children and the interests of society in their welfare, it should only be in very rare cases that extradition may properly be avoided if, given the same broadly similar facts, and after making proportionate allowance ….for the interests of dependent children, the sentencing courts here would nevertheless be likely to impose an immediate custodial sentence: any other approach would be inconsistent with the principles of international comity …… "
i) A value judgment is required in determining the weight to be attached, necessarily on a fact specific basis, to the two powerful and conflicting interests, namely the Art. 8 rights of the potential extraditee ("the extraditee") and any dependent children on the one hand and the legitimate public interest in extradition, together with compliance with the United Kingdom's treaty obligations, on the other hand.
ii) The best interests of a dependent child constitute a primary consideration in undertaking this balancing exercise.
iii) Separate legal representation for a dependent child will rarely be necessary. However, whether the child is separately represented or not, all concerned must be alive to the need to have regard to the best interests of the child as a primary consideration.
iv) The Art. 8 rights of the extraditee and any dependent children cannot be simplistically dismissed on the basis that a child's interests will always be harmed by separation from his/her primary or sole carer and that such considerations will always be "trumped" by the public interest in extradition. A careful examination of the facts of the individual case is required.
v) The context of extradition, with its international dimension, is markedly different from that of domestic immigration control. Considerations affecting extradition of a primary or sole carer for a dependent child, are, however, similar in substance to those governing the sentencing of defendants with dependents, in criminal proceedings in this jurisdiction. In that regard the seriousness of the criminal conduct alleged against the extraditee is likely to be a consideration of the first importance. Delay, if substantial, may serve to weaken the public interest in extradition.
vi) The Art. 8 rights of the extraditee and any dependent children do not need to satisfy an "exceptionality" test in order to prevail over the public interest in extradition. That said, when Art. 8 rights are properly examined in an extradition context, the proportionality assessment is overwhelmingly likely to be resolved in favour of extradition. In cases where sentencing courts here would be likely to impose an immediate custodial sentence, it is likely to be very rare that Art. 8 rights will result in extradition being avoided.
i) First, I keep well in mind the seriousness of the conduct alleged in the present case. Shlesinger (supra) was a very different case on its facts; the criminality there alleged was of no great gravity. The proportionality assessment was necessarily different.
ii) Secondly, H has a right to a speedy trial; as already clarified, if she insists on a speedy trial, the US will not oppose it and the prosecution must proceed accordingly, whatever its preference for a joint trial. It follows that H has it in her power to eliminate any risk of lengthy pre-trial detention in the US. But I do not leave matters there, in the event that proper forensic calculations should point to a joint trial.
iii) Thirdly, this Court should and does, respectfully, place confidence in the US Judge who will be dealing with the matter in Tennessee. For my part, the seriousness of the conduct alleged against H requires her extradition to the US; however, were the matter before this Court, I cannot think it would be right to remand her in custody for a period of years awaiting the arrival of W from South Africa for a joint trial – provided only that satisfactory security was made available for the purpose of bail. In expressing this view, I am most emphatically not seeking to trespass on the preserve of the US Judge in Tennessee – but, in a spirit of comity, would wish these observations to be conveyed to him for his consideration when doing justice in the present case. It is of course apparent that if H is on bail, whether in the US or still more so if permitted to return to the United Kingdom pending a joint trial, satisfactory contact arrangements with M will doubtless be assisted.
ISSUE (II): MENTAL CONDITION
" (1) The court has to form an overall judgment on the facts of the particular case…..
(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….
(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…..
(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….
(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? ….
(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? ….
(7) There is a public interest in giving effect to treaty obligations and this is an important factor to have in mind…."
Mr Justice Collins: