APPEAL COURT, HIGH COURT OF JUSTICIARY
Lady Smith Lord Drummond Young Lord Turnbull	[2013] HCJAC 126 XC420/13   OPINION OF THE COURT   delivered by LADY SMITH   in   APPEAL UNDER SECTION 26 OF THE 2003 EXTRADITION ACT   by   P B   Appellant;   against   HER MAJESTY'S ADVOCATE   Respondent:   _____________

 

Appellant: Connelly, Bridge Litigation, Glasgow

Respondent: Niven - Smith; Crown Agent

 

30 August 2013

Introduction and Background

[1] On 6 June 2013, the appellant, who is aged 28, was ordered by the sheriff at Edinburgh to be extradited to Poland in terms of a European arrest warrant ("EAW") issued on 30 December 2009. The EAW seeks his return to serve the unexpired portion of a sentence of 6 years imprisonment for rape imposed on 18 May 2001. The rape occurred in February 1998. The appellant was previously remanded in custody for a period, leaving 5 years 3 months and 7 days of the sentence still to be served. The sentence was imposed following a trial during which the appellant was represented. The appellant was present throughout the trial, up to and including the stage when final submissions were made. The verdict was delivered on 18 May on which date the appellant did not appear. After the appellant's non-appearance at court, a domestic warrant was issued for his arrest. When he could not be found in Poland, the EAW was granted on 30 December 2009. The reason why the appellant did not appear at court was that he feared he would be convicted. He left Poland shortly after that and went to live and work in Spain. Some 2 or 3 years later, he went to live and work in Sweden. He met a Polish woman in Sweden and married her. She already had a daughter, who is now aged 10 years.

[2] The appellant and his wife moved to Scotland in December 2007. The appellant's wife's parents live in Scotland and have a dentistry practice here. The appellant and his wife had a son ('P') after moving to Scotland. P is now almost 5 years old. After having moved to Scotland, the appellant gave up work to be the principal carer of the children and also to look after his wife who suffers from a congenital talipes equinovarus and leg length deformity ("club foot") requiring her to walk with a stick, restricting her mobility and causing her significant pain. Whilst she is able to work, she does so on a part-time basis as a receptionist at her parents' dentistry practice. Of the appellant and his wife, it is the appellant who is best at trying to maintain discipline over P.

[3] When information was received that the appellant was in Scotland, a certificate was attached to the EAW in terms of section 2(7) of the Extradition Act 2003 on 19 September 2012. The police attended at the appellant's home in Scotland and spoke to his wife. They asked her to have him contact them. He did not do so. His reaction was, rather, to leave his wife, their home and the children and go to live in London for several months. When he returned home on 14 January 2013, he was arrested and remanded in custody. His wife's sister has, in the meantime, been assisting his wife at home in the mornings and evenings although that cannot be a permanent arrangement as she has her own family and employment responsibilities.

[4] Having heard evidence, the sheriff found that P had severe behaviour problems which required psychological intervention. He is hyperactive and aggressive. He requires extra attention and constant monitoring if in the company of other children. That said, we note from the report dated 14 May 2013 from Dr Jack Boyle, Chartered Psychologist (who gave expert evidence before the sheriff in terms of that report), that he considered that it was not possible to reach a diagnosis regarding P's behaviour, that he assessed both parents as being "clearly at a loss as to how to help him modify his behaviour", and that whilst it appeared that "P responds more positively to his father's intervention" such interventions do not have a permanent effect on him. It appears that it would, accordingly, be wrong to think that so long as his father is present, P's behaviour will be under control.

[5] P has just started primary school. When the case was before the sheriff, he had not yet started school although he was at nursery. It was anticipated that if he were to thrive in the school environment, he would need substantial support from skilled persons. There was a real risk that he would not be able to remain in mainstream school because of his behaviour problems. P has been visiting his father in prison in an appropriately child friendly environment.

[6] The evidence before the sheriff, which he appears to have accepted, was that the appellant's stepdaughter would be able to cope with his absence from the household even if it was prolonged on account of his extradition.

 

The Sheriff's Decision

[7] We turn to the sheriff's considerations in respect of article 8 of the European Convention on Human Rights. Between paragraphs 75 and 88 of his report, the sheriff gives detailed consideration to article 8 of the convention in the circumstances of this case. Put shortly, he noticed from the authorities referred to that the proportionality test inherent in article 8 was highlighted and that a structured approach was commended. He noted that, as in all such cases, extradition would result in the interference in the article 8 rights of the family, particularly those of the appellant, his wife and his son. He had regard to the way in which both they, and the family unit as a whole, would be affected if the order were to be granted. He observed that, although the family circumstances were a matter of concern, it was possible for P to receive treatment and support and there were various family members living nearby, in addition to the sister of the appellant's wife, to provide assistance. As against that, the offence to which the EAW related was a very serious one and a sentence had been imposed which was, in Scottish terms, of High Court gravity. The context was that the appellant was a deliberate fugitive from justice and he had chosen to flee Scotland for several months, leaving his family behind immediately prior to his arrest. It was understandable that the Polish authorities would be concerned about the appellant absconding again if the application was not granted. The balance favoured the granting of the extradition sought.

[8] The sheriff had regard to what was said about the potential difficulties that P would encounter on starting school. He, accordingly, had enquires made to see whether or not the Polish authorities would agree to postponing implementation of the EAW until January 2014 so as to allow P's first term at school to be completed before his father was extradited. That would have had to have been on the basis that the appellant was not, during that period, remanded in custody. The Polish authorities did not however agree to that request which was, of course, their prerogative.

 

Grounds of Appeal

[9] Turning to the grounds of appeal, there is a single ground of appeal but it has two distinct parts. First, it is submitted that the sheriff erred in deciding that extradition would be compatible with article 8 of the convention in respect that he failed to attach sufficient weight to the evidence led for the appellant. Reference is made to the evidence from the appellant's wife, her sister and Dr Boyle to the effect that the appellant's extradition will have a detrimental effect on the appellant and his family, particularly P. Secondly, as presented, it is stated that the sheriff failed to consider whether the aims of extradition could be met in Scotland by the application of Council Framework Decision 2008/ 909/ JHA on the application of the principle of mutual recognition of judgements in criminal matters.

 

Submissions for the Appellant

[10] We turn to the submissions on behalf of the appellant. Before us today, Miss Connelly submitted that extradition would result in a disproportionate interference in the appellant's family life and therefore it would not be compatible with his article 8 rights. The appeal should therefore be allowed. Failing that, the court should allow for full consideration of all the issues that should have been considered by the sheriff in terms of section 21 of the Extradition Act. That argument was advanced under reference to the case of HH v The Deputy Prosecutor of the Italian Republic Genoa [2012] UKSC 24 and explained by Miss Connelly as being, in this case, that if the evidence was not sufficient to demonstrate that extradition would be incompatible with article 8, then the sheriff could not be said to have had the full facts before him. At no time, however, did she point to any fact that obtained at the time of the hearing before the sheriff that was relevant to article 8 and of which he was not made aware. The point of this submission seemed to be rather so as to introduce a theme to which she returned on more than one occasion, namely that there was, she said, a possibility of the appellant serving his sentence here in Scotland. The sheriff did not have the full information about that possibility before him. Not, she ultimately accepted, that he was to be criticised for that.

[11] As a broad general submission, Ms Connelly said that the extradition ought not to be upheld on appeal where relevant information was absent. She did not however refer to any new fact albeit that she said, without any reference to any documentation, that the appellant has now made a request of the authorities in Poland and in Scotland that he be permitted to serve his sentence in this jurisdiction. There is, we should add, no indication as to what the outcome of that application might be or indeed, whether the competent authority in Poland will accept that the Council Framework Decision referred to applies about which there must be some doubt, given the express derogation afforded to it for a period of 5 years from 5 December 2011 that is stated within that decision document itself.

[12] The sheriff failed, she submitted, to attach sufficient weight to the article 8 rights of the appellant's family in deciding that extradition would be compatible with those rights and thus erred in ordering his extradition. She then embarked upon a rehearsal of much of the evidence that was before the sheriff. He had, she submitted, failed to give due consideration to how the appellant's wife and children would be cared for, or supported, in his absence. He was not, she submitted, given the opportunity to consider the views of the older child. But she was not suggesting that the sheriff did not have evidence on which he was entitled to base his conclusion at paragraph 81 that the older child would be able to cope with the appellant's absence from the household including if it were as a result of his extradition, a concession which seemed wholly to undermine her principal proposition regarding the interests of the older child.

[13] Regarding the means by which the children would be supported in the absence of the appellant, when her attention was drawn to paragraph 93 of the sheriff's report where he notes that, although the family circumstances are a matter of concern, it would be possible for P to receive treatment and support and there would also be other family members, who live close by, able to help out, she did not seek to take that submission any further.

[14] Separately, Miss Connelly appeared to suggest that the sheriff had an obligation to find out more about what means of contact would be available between the appellant and both children if the appellant was extradited although she had accepted that he had not, for instance, proceeded on the basis of any assumption regarding the availability of such contact. The interference with the appellant's family life was, she submitted, disproportionate because the separation involved would severely damage that family life. She accepted that it was likely that the public interest in extradition would outweigh the article 8 interests involved in most cases but where the impact on family life was, as here, serious, it did so. She referred to the case of Beoku- Betts v The Secretary of State for the Home Department [2009] AC 115 as authority for the proposition that it was necessary to look at the article 8 rights of the family as a whole. She accepted, however, that the sheriff did consider the interests of the whole of this family. Her submission was that he did not attach sufficient weight to the likely impact on P if the appellant were to be extradited and he did not consider how the father/ son relationship would be continued if that occurred. The latter appeared to come close to saying, again, that it was always incumbent on a judge in the position of the sheriff in this case, to ascertain what arrangements for continuing contact would be put in place in the requesting state. She referred to HH at paragraphs 30, 31, 32, 33 and 82. She submitted that the complexities faced in that case were at least on a par with the present case. She also referred to paragraph 69 of the sheriff's report and the authorities discussed there by him.

[15] Regarding that part of her ground of appeal which stated that the sheriff required to consider Council Framework Decision 2008/ 909/ JHA, Miss Connelly appeared to recognise that it was difficult, if not impossible, for her to criticise the sheriff for not having done so when it was not founded on. His attention was not drawn to it and no evidence was put before him which was relevant to its application. However, she still submitted that when the sheriff applied the proportionality test, in the absence of any information about whether or not the appellant might be able to serve his sentence in Scotland, the decision to extradite was disproportionate. Although she recognised that the adverse consequences for the family in terms of the loss of the appellant's daily input would, in that event, subsist, they would, she said, be ameliorated if weekly prison visits could take place. The interests of justice may, she submitted, be able to be served by the sentence being served here.

 

Submissions for the Respondent

[16] Turning to the submissions for the respondent, counsel for the respondent submitted that the sheriff applied, as a matter of law, the appropriate test in the circumstances. He referred in that regard to Lady Hale at paragraph 30 in HH. The sheriff not having misdirected himself in law, this court should be slow to interfere. It would have to be that the sheriff had reached a decision which no reasonable sheriff could have reached in the circumstances and that could not in this case be said. The sheriff clearly had had regard to the appropriate test and to the matters that required to be weighed in the balance. Counsel submitted that having regard to findings in fact at paragraphs 8, 9, 10 and 13, it was clear that the sheriff had considered all the material matters now prayed in aid on behalf of the appellant.

[17] Counsel also submitted that an important factor was that, in this case, the EAW was in relation to a very serious crime of which the appellant had been convicted and sentenced. The crime in question involved three men raping a woman to her severe injury where the victim was penetrated on more than one occasion with severe violence. It was a very serious example of crimes of its type. He observed that in the case of Norris v The Government of the Unites States of America (No. 2) [ 2010] UKSC 9, BH and KAS or H v The Lord Advocate 2012 UK SC 24 and HH, there was repeated acceptance of the fact that the gravity of the offence requires to weigh in the balancing exercise. The sheriff did not misdirect himself. He heard all the evidence. He was experienced in extradition cases, being a sheriff who had been specially nominated for that purpose.

[18] Regarding the second ground of appeal, counsel submitted that the sheriff was not obliged to have regard to a matter not brought to his attention and it was not for him to make any decision on the matter not, himself, being the competent authority.

 

Discussion and Decision

[19] We now turn to our discussion of the issues in this case. We begin by observing that criminals can flee justice with increasing ease. Borders can be crossed without difficulty in a way which was inconceivable by previous generations. There is a strong public interest in steps being taken to secure that such persons are promptly returned to the jurisdiction from which they have fled. Bilateral treaties have accordingly been entered into and have given rise to obligations to extradite which are implemented by means of judicial co-operation between the relevant signatory nations. Extradition is a valuable international tool for dealing with crime. Put simply, it enables effective application of the principle that no one should escape justice simply by crossing a national border. It is also self-evident that the requirements of international reciprocity demand that the extradition process should be expeditious. It is against that background that any application for extradition must be approached.

[20] The court to which the application is made also, of course, requires to have regard to the relevant convention rights, to consider whether they are engaged, to consider whether extradition will interfere with them and whether, in the case of article 8, that interference would be proportionate. In the case of Norris, Lord Phillips of Worth Matravers when considering article 8 in the context of an application for extradition, emphasised the importance of extradition as an aspect of the global administration of justice, and said this:

"[51] I agree that there can be no absolute rule that any interference with article 8 rights as a consequence of extradition will be proportionate. The public interest in extradition nonetheless weighs very heavily indeed. In Wellington 2009 AC 335 the majority of the House of Lords held that the public interest in extradition carried special weight where article 3 is engaged in a foreign case. I am in no doubt that the same is true when considering the interference that extradition will cause in a domestic case to article 8 rights enjoyed within the jurisdiction of the requested state. It is certainly not right to equate extradition with expulsion or deportation in this context.

 

[52] It is of critical importance in the prevention of disorder and crime that those reasonably suspected of crime are prosecuted and if found guilty duly sentenced. Extradition is part of the process for ensuring that this occurs on a basis of international reciprocity. It is instructive to consider the approach of the Convention to dealing with criminals or suspected criminals in the domestic context. Article 5 includes in the exceptions to the right to liberty (1) the arrest of a suspect, (2) his detention where necessary pending trial and (3) his detention while serving his sentence if convicted. Such detention will necessarily interfere drastically with family and private life. In theory a question of proportionality could arise under article 8(2). In practice it is only in the most exceptional circumstances that a defendant would consider even asserting his article 8 rights by way of challenge to remand in custody or imprisonment: (see RP v Secretary of State for the Home Department 2001 1 WLR 2002 para 79 for discussion of such circumstances). Normally it is treated as axiomatic that the interference with article 8 rights consequent upon detention is proportionate."

 

 

[21] We also refer to paragraph 56 of Lord Phillips' discussion where he said this:

"The reality is that only if some quite exceptionally compelling feature of combination of features is present that interference with family life consequent upon extradition will be other than proportionate to the objective that extradition serves."

 

[22] In similar vein, Lord Hope of Craighead, in BH, where extradition was sought of persons who were alleged to have committed serious crimes involving the importation of chemicals into the United Stated of America, at paragraph [1] said this:

"The crimes of which they are accused are very serious and the public interest in the honouring of extradition arrangements for the prevention and punishment and crime is compelling."

 

[23] We recognise that the interests of children in the family of a person whose extradition is sought require particular consideration; they may, we accept, be particularly vulnerable. In applying article 8 their best interests are a primary consideration although they are not always the only primary consideration. We bear in mind also what was said, in particular, in the cases of HH and ZH (Tanzania) v Secretary of State for the Home Department 2011 AC 166. The need to consider children's interests with care in an extradition case and to avoid the public interest in the honouring of extradition requests being treated as inherently more significant than those of any children who are likely to be adversely affected, was also, we note, referred to by Lord Hope in BH. It is, however, equally of note that in that case, where the gravity of the circumstances of the six children of the family, four of whom were still under 10 years of age was compounded by the fact that they had already been rendered for all practical purposes fatherless (the Supreme Court having already concluded that he should be extradited), they nonetheless went on and upheld the order to extradite their mother as well. They did so notwithstanding that children had been in her sole care for almost 5 years by that stage, that it was plain that their best interests lay in continuing to live in family with their mother and that their decision would result in the children being deprived of all parental care. At paragraph [71] Lord Hope said:

"For obvious reasons the balance is not so easy to strike in the case of Mrs H but I have come to the conclusion that the best interests of the children even when weighed together with her own article 8 right to the respect for her family life with them are not strong enough to overcome the overwhelming public interest in giving effect to the request. I would hold that it was not incompatible with her Convention rights for the Scottish ministers to order her extradition and I would refuse her appeal also."

 

[24] In the present case, when carrying out the requisite balancing exercise, the sheriff had to take account of what would be the interference in the life of the appellant's family. He did so putting those interests at their highest acknowledging the difficulties that would be experienced by the appellant's wife on account of her own health difficulties and assuming, for instance, that notwithstanding the limitations of the appellant's input so far as P's behaviour was concerned (as explained in Dr Boyle's report), his presence within the family unit might be of material benefit particularly as P begins school - hence the sheriff's efforts to see whether it might be possible to postpone implementation of the EAW. As against that, the sheriff had to weigh in the balance the fact that it had not only been alleged that the appellant had committed a crime which, in both jurisdictions, was regarded as a very serious crime indeed, but it was a crime of which the appellant had been convicted and a substantial sentence of imprisonment had been imposed.

[25] Further, the sheriff, correctly in our opinion, considered that it was also relevant that the appellant had quite deliberately fled from justice and remained on the run for years persisting in knowingly seeking to evade the authorities for several months immediately prior to arrest even although that meant leaving his family behind in Scotland to cope without him. As the sheriff observed, the appellant was the perpetrator of a serious, violent crime, certainly of High Court severity in Scottish terms, who had fled from justice and the public interest in him being detected, traced and returned to serve the sentence imposed on him after conviction was strong.

[26] In so far as it was submitted to us that the sheriff's decision was flawed either because he did not consider the Council Framework Decision 2008/ 909/ JHA or because he did not, in any event, consider whether or not the appellant's sentence could be served in Scotland the submission was, we consider, wholly without merit. First, it was not an issue before the sheriff. Secondly, it was not a matter which was so obviously relevant that he was obliged to have regard to it. Thirdly, even yet, it is not known whether or not such an arrangement is possible. There are plainly difficulties inherent in the request as have been discussed at previous hearings before this court. Fourthly, in any event, incarceration in any prison whether here or in Poland will involve substantial and unavoidable interference with the appellant's family life. The desirable paternal daily input which was focused on at the hearing before the sheriff and by Miss Connelly before us will not be achievable at all.

[27] The sheriff considered that it would be proportionate and not incompatible with the relevant article 8 rights for the extradition order to be granted. We agree. The sheriff has carefully weighed all relevant factors and reached a conclusion which we do not find at all surprising in all the circumstances. It was plainly one which it was open to a reasonable sheriff on the facts of this case.

[28] In the result we will refuse this appeal and adhere to the interlocutor of the sheriff dated 6 June 2013.