APPEAL COURT, HIGH COURT OF JUSTICIARY
Lady Paton Lord Mackay of Drumadoon Lady Cosgrove	[2013] HCJAC 50 Appeal No: XC653/12   OPINION OF THE COURT   delivered by LADY PATON   in   appeal   by   SL   Appellant;   against   THE LORD ADVOCATE on behalf of the District Court of Michalovce, Republic of Slovakia   Respondent:   _______

 

Appellant: Pike; Good & Stewart

Respondent: Drummond, QC, AD; the Crown Agent

 

1 May 2013

Introduction

[1] On 11 October 2012 the appellant, a Slovakian national then aged 38, was ordered to be extradited to Slovakia in terms of a European Arrest Warrant (EAW) dated 22 March 2012. She faces a charge of failing properly to care for her baby daughter resulting in her death at the age of 8 months. If found guilty, the appellant could be sentenced to a maximum of 15 years imprisonment.

[2] The appellant had in fact been arrested in Scotland on a previous occasion on 5 April 2011 under an earlier EAW. However the Slovakian authorities noticed flaws in their procedures which resulted in the need for a fresh warrant.

[3] The appellant now appeals. She contends that extradition would result in a disproportionate interference with her rights to private and family life, (article 8 of the European Convention on Human Rights). She submits that the sheriff erred in concluding otherwise.

[4] Details of the appellant's private and family life are set out in paragraphs [6] to [16] of Sheriff Crowe's report. During the appeal hearing, we were advised that the appellant is the mother of twelve (not ten) children, seven being under the age of sixteen.

 

Court proceedings in Slovakia and European Arrest Warrants
[5] The appellant was living in Slovakia when her child died on 25 January 2007. She was then charged with an offence equivalent to that contained in section 12 of the Children and Young Persons (Scotland) Act 1937 (which carries a maximum sentence of 10 years imprisonment). As is recorded at pages 5 and 6 of the EAW dated 22 March 2012, an indictment was issued in late 2007. On 11 February 2008, the appellant failed to attend a public preliminary hearing of the indictment, despite having received a summons to that hearing. On 15 April 2008 the appellant was brought to a public hearing by police officers. By agreement between the appellant and the prosecutor, the case was returned to the District Prosecutor's Office in Michalovce for the purpose of concluding a plea agreement. However no plea could be agreed. On 27 January 2009, the appellant again failed to attend a public preliminary hearing of the indictment. For a period, the appellant's whereabouts were unknown. The police then ascertained that she was staying at an unknown address in Great Britain. The first EAW was issued in 2009. The appellant was arrested in Scotland on 5 April 2011. She was remanded in custody until 10 June 2011 when she was released on bail subject to conditions. As explained in paragraph [3] of Sheriff Crowe's report, Sheriff Noble ordered her extradition. The appellant marked an appeal. Prior to the appeal hearing, the Slovakian authorities noticed an error in their procedures. They issued a new EAW dated 22 March 2012 (the current warrant). The appellant was discharged in respect of the first warrant on 6 July 2012 but appeared in Edinburgh Sheriff Court on the same day in terms of the current EAW. She was granted bail, and has remained on bail ever since.

[6] On 1, 3 and 4 October 2012, evidence was led before Sheriff Crowe. Submissions were made. On 11 October 2012 the sheriff gave written reasons and ordered the appellant's extradition. In particular he concluded at page 3 of his report:

"(8) It is necessary, would be proportionate and would not be incompatible with the appellant's convention rights, given the gravity of the charge and the arrangements made to support her family, to order her extradition to Slovakia to face trial on the serious charge which she faced."

 

The appellant lodged the current appeal.

 

The appellant's personal circumstances since her arrest on 5 April 2011
[7] The appellant is the primary carer of the seven younger children aged 7, 8, 9, 10, 12, 13 and 15 (paragraph [9] of the sheriff's report). Her husband has had little to do with the children's upbringing. He was in prison from 2005 to 2010, and saw little of the children during that period. He is unable to cook, and has health problems.

[8] For the first few months following her arrest on 5 April 2011, the appellant was held in custody on remand. Her seven younger children were adversely affected by her absence. Their behaviour and development improved when she was released on bail subject to conditions on 10 June 2011, and even more so when she was permitted to resume her role as their principal carer from March 2012 onwards. The current bail conditions require that the appellant lives with her sister in A Street, Glasgow, while the seven younger children live nearby with their father at a separate address. The appellant is permitted contact with the children in the presence of a third party from 6 am until 10 pm every day, although she is not allowed to stay overnight. The children attend local schools. There is intensive social work support for the children.

[9] An extended family network has developed in Scotland. The appellant's mother lives nearby in Glasgow. Of the appellant's twelve children, five are adult. One has remained in Slovakia, but four live in Scotland. Two are married, with their own children. One adult unmarried son often acts as the third party supervising the appellant's contact with her children, although her husband also fulfils that role on occasions. The appellant's adult daughters are less able to help, because of the demands of their own families. The appellant's husband is currently unemployed, but he hopes ultimately to obtain work. He has indicated his intention to remain in the UK with the children even if the appellant is extradited to Slovakia. The sheriff notes at paragraph [41] of his report:

"... If the appellant is extradited, the social work department plan is to support the children and their father in the home to ensure they get to school in time and in good order and are well fed and cared for. If these arrangements break down the children will be accommodated. In the worst case scenario, this may involve all children in secure accommodation or the older ones in such accommodation and the younger ones fostered singly or in twos."

 

 

Grounds of appeal
[10] The Grounds of Appeal are in the following terms:

"The presiding sheriff erred in deciding that the appellant's extradition would be compatible with the convention rights within the meaning of the Human Rights Act 1998 and section 21 of the Act. He therefore erred in ordering the appellant's extradition.

Had the sheriff decided differently he would have been required to order the appellant's discharge. Reference is made to sections 21(2) and 27(3) of the Act.

The appellant had contended that extradition would be incompatible with her and her family's rights under article 8 of the European Convention for the Protection of Human Rights and Fundamental Freedoms.

The presiding sheriff failed to attach sufficient weight to evidence led by the appellant, the appellant's husband, the acting head teacher of the primary school attended by the appellant's younger children, a social worker involved with the appellant's family and Dr Boyle (a psychologist). The said evidence focused on the likely impact upon the appellant's children in the event of her being extradited to the Slovak Republic. The said evidence was to the effect that the extradition will have a detrimental effect on the [appellant] and her family. The appellant hitherto has had primary responsibility for the upbringing of her children and the extradition will have a profoundly detrimental effect upon them.

The interference with the private and family life enjoyed by the appellant involved in the extradition of the appellant is disproportionate to the aim of the interference. The separation involved in the extradition of the appellant will severely damage the family life of the appellant's family. Therefore the interference in the appellant's family life is disproportionate to the admittedly legitimate aim in extraditing her.

The presiding sheriff therefore erred in finding that the extradition of the appellant to the Slovak Republic was not contrary to article 8 of the Convention for the Protection of Human Rights and Fundamental Freedoms."

 

 

Submissions for the appellant

[11] Counsel for the appellant referred to Norris v Government of the United States of America (No 2) [2010] 2 AC 487, at paragraph [56]; H(H) v Deputy Prosecutor of the Italian Republic, Genoa, F-K v Polish Judicial Authority [2012] 3 WLR 90; and BH v Lord Advocate 2012 SC (UKSC) 308. In the latter two cases, the Supreme Court held that, in extradition cases, the best interests of the children were a primary consideration when making an assessment of proportionality. In BH cit sup, the court acknowledged that it was in the best interests of the children to remain with their mother. However in view of the serious nature of the charges (providing chemicals for the manufacture of illegal drugs), the public interest in prosecuting serious crime outweighed the best interests of the children. In H(H) and F-K, the court again carried out the necessary balancing exercise. In H(H) both parents were facing serious charges (a major drug-smuggling operation). Lady Hale, bearing in mind the best interests of the children and the particular needs of one child Z, dissented and concluded that the extradition of one parent only (the mother, who had played a greater role and received a longer sentence) was proportionate, but extradition of the father (the primary carer) was disproportionate. In F-K the crime concerned the theft of clothing worth about £4,300, and in the particular circumstances of that case the court concluded that the public interest in prosecuting that crime did not outweigh the best interests of the children.

[12] In the present case, the sheriff had not set out what he deemed to be in the best interests of the children. He had not properly followed through the necessary exercise, weighing up the best interests of the children against the gravity of the offence for which extradition was required, and any other relevant factors. The sheriff required to carry out that exercise in respect of each child individually. The sheriff had failed to attach sufficient weight to factors contra-indicating extradition, including the best interests of the children, and what might happen to the children if the appellant were to be extradited. It was not disputed that extradition of the appellant would have a drastic effect on no fewer than seven dependent children. The detrimental effect on the children had been well-illustrated when the appellant had been in custody on remand. It was clearly in the best interests of the children that they should remain with their primary carer. Their current circumstances were settled. The extradition would cause major disruption. It was not in their best interests to be left in the care of their father (who had had limited contact with them in the past); nor to have their bond with their mother broken; nor to have to go into care if other arrangements did not work. All of these consequences would have a devastating effect on all seven children. While the alleged offence was serious, if the sheriff had treated the children's best interests as a primary consideration, and if he had given appropriate weight to factors contra-indicating extradition, he would not have ordered extradition: cf H(H) v Deputy Prosecutor of the Italian Republic, Genoa cit sup. The appeal should be allowed, and the appellant discharged: section 21(2) and 27(3) of the Extradition Act 2003.

 

Submissions for the Lord Advocate

[13] Senior counsel referred to Norris v Government of the United States of America (No 2) [2010] 2 AC 487, Lord Phillips at paragraphs 51 to 56; Lord Hope at paragraphs 89 to 91. Although it was wrong to apply an "exceptionality" test, there would have to be unusual and striking facts in order to lead to the conclusion that extradition was disproportionate and resulted in an interference with article 8 rights. The consequences of extradition would have to be exceptionally serious before they could outweigh the public interest in enforcing extradition. It was of critical importance in the prevention of crime and disorder that those reasonably suspected of crime were prosecuted, and if found guilty, were duly sentenced. Extradition was part of the process of ensuring that that occurred, on the basis of international reciprocity. The public interest in giving effect to extradition treaties was a powerful consideration to which great weight was attached.

[14] The case of Norris did not involve children. The significance of H(H) and F-K cit sup was that it gave authoritative guidance on the application of the proportionality test where children were involved. The majority decision of the Supreme Court in H(H) was that both parents should be extradited. Senior counsel referred to paragraphs 45 to 46 and 90 to 95. The case recognised that it is a question of judgment where the balance must lie between the public interest in prosecuting serious crime, and the effect of extradition on the children.

[15] In BH v Lord Advocate cit sup the couple had six children aged from 1 to 14 years. The Supreme Court nevertheless affirmed the extradition of both parents given the gravity of the offence (importing chemicals over a 2-year period). Reference was made to the observations of Lord Hope at paragraphs 57 to 58.

[16] The sheriff in the present case had set out all the evidence. He closely examined the facts and circumstances. He dealt with each child individually. He referred to all the relevant authorities. A letter of comfort had been received from the authorities in Slovakia confirming that the trial would take place within two months of the appellant's being extradited. The Crown accepted that the children would be unavoidably adversely affected by their mother's extradition: but the sheriff had properly carried out the necessary balancing exercise; carefully considered the evidence of Dr Boyle, the head teacher, the social worker, the appellant and her husband; had regard to the interests of the children as a primary consideration; given clear reasoning; and ultimately concluded that the strong public interest in prosecuting an offence of such a serious nature outweighed the private rights of the children.

[17] Counsel invited the court to have regard to the following factors:

1. There was no dispute that the loss of the children's mother (if extradited) would have a significant effect on the children; however -

2. The children were not as young as the children in F-K.

3. There were features in F-K's case which were not present here.

4. The appellant's alleged crime was a serious one: it could not be described as "of no great gravity": Lady Hale at paragraph 45 of H(H).

5. In F-K's case, the father was mentally ill and could not help with the children's care. By contrast in the present case the father was well, and had on occasions taken the children to school when the appellant was on remand.

6. Although the effect on the children would be significant, the social work department were prepared to provide support by ensuring that the children went to school, and that they were looked after in the evenings.

7. The appellant's husband had chosen to remain in the UK even if the appellant was extradited, as he had better work prospects in the UK.

8. It was accepted that regard was to be had to the best interests of the children: but that had to be assessed in the context of the UK's treaty obligations. It was not in the interests of justice that the appellant should evade prosecution for the alleged offence.

9. The appellant knew that she was accused of the alleged offence when she left Slovakia. In contrast with Mrs F-K (who had no reason to believe that the authorities were looking for her) the appellant knew that she should be attending a court hearing, and simply failed to attend.

10. There was a public interest in ascertaining if there was any truth in the alleged charge: there might be a direct impact upon the appellant's family circumstances.

11. The court could take into account the Slovakian authority's letter of comfort, indicating that the trial would take place within 2 months of extradition; that an application could be made for bail; and that, if bail was refused, the appellant would be allowed to contact her family by telephone and by writing.

12. Any request to serve the sentence abroad (i.e. in Scotland) would be assessed.

13. The authorities were clear: great weight was to be given to honouring the country's extradition duties, particularly where a serious offence (such as causing the death of a child by neglect) was concerned.

[18] In all the circumstances, the appeal should be refused.

 

Discussion and decision

[19] The importance of extradition in the context of the administration of justice world-wide was emphasised by Lord Phillips of Worth Matravers at paragraphs 52 and 56 of Norris v Government of United States of America (No 2) [2010] 2 AC 487 when he said:

"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 ... Normally it is treated as axiomatic that the interference with article 8 rights consequent upon detention is proportionate ...

56 The reality is that only if some quite exceptionally compelling feature, or combination of features, is present that interference with family life consequent upon extradition will be other than proportionate to the objective that extradition serves ... Instead of saying that interference with article 8 rights can only outweigh the importance of extradition in exceptional circumstances it is more accurate and more helpful to say that the consequences of interference with article 8 rights must be exceptionally serious before this can outweigh the importance of extradition ..."

 

[20] The vulnerability of young children who would lose the care of their parent or parents (if extradited) has been recognised as a major factor, which may, in certain circumstances, affect the balance in a particular case. As Lady Hale acknowledged at paragraph 33 of H(H) v Deputy Prosecutor of the Italian Republic, Genoa, F-K v Polish Judicial Authority [2012] 3 WLR 90:

"... (33) The family rights of children are of a different order from those of adults, for several reasons. In the first place, as Neulinger and ZH (Tanzania) have explained, 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. This gives them an importance which the family rights of other people (and in particular the extraditee) may not have. Secondly, children need a family life in a way that adults do not. They have to be fed, clothed, washed, supervised, taught and above all loved if they are to grow up to be the properly functioning members of society which we all need them to be. Their physical and educational needs may be met outside the family, although usually not as well as they are met within it, but their emotional needs can only be fully met within a functioning family. Depriving a child of her family life is altogether more serious than depriving an adult of his. Careful attention will therefore have to be paid to what will happen to the child if her sole or primary carer is extradited. Extradition is different from other forms of expulsion in that it is unlikely that the child will be able to accompany the extraditee. Thirdly, ... although the child has a right to her family life and to all that goes with it, there is also a strong public interest in ensuring that children are properly brought up. This can of course cut both ways: sometimes a parent may do a child more harm than good and it is in the child's best interests to find an alternative home for her. But sometimes the parents' past criminality may say nothing at all about their capacity to bring up their children properly. Fourthly, therefore, 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."

 

[21] Lord Hope also recognised the problem at paragraph [57] of BH v Lord Advocate 2012 SC (UKSC) 308 in the following passage:

"There is no doubt where the children's best interests lie. Their best interests must be to continue to live with their mother. They will be deprived of her care and guidance if she is taken away from them, and it seems likely that the long term effects of a prolonged separation of the magnitude that is in prospect in this case will be profound."

 

[22] Nevertheless, as he had noted at paragraph 22, the alleged offence (the unlawful importation of chemicals to manufacture an illegal drug) was " ... a sustained and deliberate course of unlawful conduct". Having considered and rejected the possibility of a prosecution of the parents in the United Kingdom (paragraph 60 et seq), he concluded that the father must be extradited, and in relation to the mother, noted at paragraph 71:

"... 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 respect for her family life with them, are not strong enough to overcome the overwhelming public interest in giving effect to the [extradition] request. I would hold that it was not incompatible with her Convention rights for the Scottish Ministers to order her extradition ..."

 

[23] The same balancing exercise, or assessment of the proportionality of the interference with the right to respect for private and family life in the pursuit of the prevention of disorder and crime in a democratic society, had to be carried out by the sheriff in the present case. We are not persuaded that he erred in so doing. The sheriff carefully took into account all the evidence in the case, including the evidence of Dr Boyle, psychologist; the acting head teacher; the social worker; and the appellant and her husband. He considered all the relevant circumstances, including the prejudicial effect on the children of the appellant's period in custody on remand, and the predictably and unavoidably adverse effect of a further separation from the appellant if extradited. He narrates evidence particular to each individual child (paragraphs [9] to [13] of the report). Having considered all the evidence, and the circumstances and impact of extradition on each particular child, his report read as a whole clearly indicates that it would be in the best interests of each of the seven children to remain in the care of the appellant. However as against that, the sheriff considered, as he had to, the nature and gravity of the crime alleged, and the arrangements which could be made for the children were the appellant to be extradited, including the continued presence in Scotland of the children's father and their extended family, and the intensive social work support. He concluded inter alia that:

"(8) It is necessary, would be proportionate and would not be incompatible with the appellant's Convention rights, given the gravity of the charge and the arrangements made to support her family, to order her extradition to Slovakia to face trial on the serious charge which she faced ...

[46]... the gravity of the offence alleged and its relevance to the care of the other children, in my view, are such that it is necessary and proportionate to interfere with the appellant's private and family life in Scotland in order that she may face trial on the allegation."

 

[24] We agree with the sheriff. The alleged offence cannot be categorised as "of no great gravity" (per Lady Hale at paragraph 45 of H(H) v Deputy Prosecutor of the Italian Republic, Genoa, F-K v Polish Judicial Authority [2012] 3 WLR 90). Bearing in mind the nature and gravity of the offence alleged against the appellant (i.e. the neglect of her young child such that the child died) and the arrangements which can be made for the children were the appellant to be extradited, it is our opinion that the sheriff's reasoning cannot be criticised.

[25] In the result, therefore, we shall refuse the appeal, and adhere to the interlocutor of the sheriff dated 11 October 2012.