Scottish Sheriff Court Decisions

SHERIFFDOM OF LOTHIAN AND BORDERS AT EDINBURGH

 

NOTE

by

FRANK RICHARD CROWE,

Sheriff of Lothian and Borders at Edinburgh

in

EXTRADITION REQUEST

by

THE KINGDOM OF SPAIN

in causa

CORINNA EMMA REID (d.o.b 10.12.75), residing at 5 Gilmore Street, Edinburgh.

against

 

HER MAJESTY'S ADVOCATE

 

 

Act: - Mr. R Mackay, Crown Office International Co-operation Unit

Alt: - Mr. E Roy, Solicitor, Messrs Adams Whyte, Edinburgh

 

Edinburgh 29^th January 2009

 

 

Introduction

[1] This case involves proceedings under the Extradition Act 2003 (hereinafter referred to as the Act) arising from a warrant in terms of Part 1 of the Act issued on 19 September 2008 by Examining Court Number 4 in Arona, Tenerife, Kingdom of Spain for the arrest of Corinna Emma Reid (hereinafter referred to as the Accused) for the crime of murder or manslaughter according to Article 384 of the Criminal Prosecution Act of the Kingdom of Spain.

 

[2] The warrant narrates "A supposed manslaughter crime due to the death of 16-month-old Aiden Peter Reid Cormack about 08 50AM on January 12, 2007 in Paraiso Floral Hotel in Adeje.

The autopsy was performed on the same day and samples were collected for toxicological analysis. In the new post mortem report informs about a violent death but its medical etiology depends on the police investigation. The mechanism of death was acute respiratory insufficiency with acute pulmonary edema. The cause of death cause is an adverse reaction to the administration of methadone and diazepam."

 

[3] The warrant goes on to specify the legal classification of the offences of murder or manslaughter and the applicable statutory provision. The warrant alleges that the Accused and her partner Peter Gunn Cormack are both responsible for the death of the child:-

" From the criminal investigation, the report made by the Guarda Civil Police Department, the statements made by the charged persons before the competent Judicial Authority, where they did not give any explanation about administering any medicine or substance to the child about his care during the night previous to his death, as also from the Post Mortem reports and toxicological analysis, it appears to exist enough admissible evidence and relevant facts and law to consider Robert Gunn Cormack and Corrina Emma Reid as principal offenders for this crime. By virtue of Section 384 of the Criminal Prosecution Act they are accused of this crime."

 

Procedural History

[4] The request for the accused's extradition first came before my colleague at Edinburgh Sheriff Court on 7 January 2009. At that time Mr. Roy advised the court that his client did not consent to the extradition and dates were fixed for a Preliminary Hearing and an Extradition Hearing. Mr. Cormack appeared on the same day in parallel proceedings. In both cases bail was refused by the presiding sheriff.

 

[5] On 16 January, at the Preliminary Hearing the case was continued to the Extradition Hearing previously assigned and both the Accused and Mr. Cormack were remanded in custody.

 

[6] On 23 January 2009 the cases called before me. Robert Cormack consented to extradition and was remanded in custody in order that he can be extradited to Spain within the 10-day limit set down in section 47(3) of the Act.

 

The Hearing

[7] By contrast the accused did not consent to extradition and a hearing took place. At the outset Mr. Roy helpfully indicated that his client's opposition was centered upon the contention in terms of section 21 of the Act that the Accused's extradition would be incompatible with her Convention rights under the European Convention on Human Rights and in particular under Article 8 right to family life.

 

[8] On behalf of the Lord Advocate Mr. Mackay referred me initially to section 10 of the Act. He pointed out that the Accused did not dispute she was the person mentioned in the warrant, indeed this was her position at the initial calling of the case on 7^th January 2009.

 

[9] Equally in terms of section 10(2) there seemed no dispute between parties that the offences specified in the warrant, namely murder or manslaughter were extradition offences. To that end I was referred to the offences listed in Article 2.2 of the Council Framework Decision of 13 June 2002 on the European arrest warrant and the surrender procedures between Member States (2002/584/JHA). The fourteenth item on that list is "murder, grievous bodily injury".

Article 2.2 specifies that the offences in the list will give rise to surrender pursuant to a European arrest warrant if they are punishable in the issuing Member State by a custodial sentence for a maximum period of at least three years. The warrant indicates that murder is punishable in Spain with a sentence of up to twenty years' imprisonment and manslaughter is punishable with up to fifteen years' imprisonment. The Framework Decision was implemented by section 215(1) of and Schedule 2 to the Act, the latter specifying the "European Framework List" of offences.

 

[10] Mr. Mackay next directed me to section 64(2) of the Act as these proceedings involve offences for which the Accused has not been convicted or sentenced in Spain.

Before the conduct complained of in the warrant could constitute an extradition offence the court would have to be satisfied that the conduct occurred in Spain and no part of it occurs in the United Kingdom.

 

[11] The arrest warrant required to have a certificate issued by the issuing country showing that the conduct complained of falls within the list of offences contained in the Council Framework Decision and the offence was punishable with imprisonment for a term of at least 3 years. I was directed to such a certificate which had been enclosed with the warrant papers by the Spanish authorities. This certificate indicated that the maximum sentence for the incident would be much greater than the three year maximum specified in the framework Decision.

 

[12] Mr. Mackay submitted that the locus of the offences was at the Paraiso Floral Hotel in Adeje, Tenerife which is located in the Kingdom of Spain and no part of the conduct had occurred in the United Kingdom. It was submitted that the warrant followed the appropriate style, the relevant offence had been indicated by the Spanish authorities and the maximum punishments were well in excess of the 3-year maximum.

 

[13] I was then directed to the bars to extradition specified in section 11 of the Act.

Mr. Mackay suggested that none of the bars listed in subsection (1) applied and directed me to section 21 of the Act which is the next stage the court had to consider.

 

[14] Under section 21 the court is required to decide whether the extradition would be compatible with ECHR. Mr. Mackay suggested I hear evidence from the Accused before he made submissions on this point.

 

The Evidence

[15] The Accused, who is aged 33, said that normally she lived at the address in the instance with her daughter Layla who is 6 months old. He son Aiden had been born on 3 August 2005. Her partner, Mr. Cormack, she and Aiden had gone on holiday to Tenerife for a holiday in January 2008. While they had been on holiday Aiden died suddenly on 12 January 2008. An autopsy was performed but it had suggested that Aiden had died of natural causes and she and her partner had returned home with Aiden's body for burial.

 

[16] The Accused said that she had been devastated by Aiden's death. In April 2008 she learned of the toxicology results from the police. Subsequently she and Mr. Cormack were cited to attend Edinburgh Sheriff Court in connection with a Letter of request from the Spanish courts. She and Mr. Cormack had been represented by the same solicitor who had advised them to make no comment to the various questions. She had now instructed a new solicitor.

 

[17] Regarding the toxicology report, the Accused said she had felt sick, disgusted, horrified and angry when she found out Aiden's death had occurred through ingestion of methadone and diazepam.

 

[18] The Accused explained that Mr. Cormack had been prescribed methadone during 2008 but this had been kept safely in a medicine cabinet at home. The Accused said she suffered from a condition that affected her joints and required her to take pain-killers from time to time but she had been scrupulous about keeping them safely in the medicine cabinet. When she and Mr. Cormack went on holiday they were careful to put away their medicines but had had to change hotel rooms the night before Aiden died. They had been a bit disorganised after moving rooms and she had concluded, after speaking to Mr. Cormack sometime after they had been made aware of the results of the toxicology report, that somehow Aiden had been able to find Mr. Cormack's prescription and consumed some of it.

[19] When the Accused became pregnant after Aiden's death the Social Work Department held a pre-birth case conference in light of the cause of Aiden's death and Mr. Cormack's continued need for a methadone prescription. Initially social workers wished to take Layla into care when she was born but eventually they allowed the Accused to keep Layla at home provided she was supervised by Mr. Cormack's mother, Margo.

 

[20] These arrangements subsisted for some months and involved her mother-in-law virtually staying with them full-time. Eventually a problem arose over the supervision of the Accused and Layla and this role was taken over by her father, Brian Reid.

 

[21] As a result Mr. Reid required to live with the Accused and Layla. Mr. Cormack mostly lived elsewhere but stayed with the Accused occasionally. Mr. Reid was allowed some free-time however he stayed elsewhere overnight on 5/6 January when his elderly mother travelled to Edinburgh to visit him on her birthday. When police attended at the Accused's home to execute the arrest warrants they found the Accused and Mr. Cormack together with their daughter Layla in contravention of the arrangements agreed with social workers that the Accused should be supervised at all times when at home with Layla.

 

[22] The Accused said that by January 2009 Mr. Cormack was no longer in receipt of methadone and had been prescribed subuten which apparently works in the same fashion as antabuse operates in relation to alcohol namely that one become sick if drugs are abused while taking subuten.

 

[23] The Accused said that as a result of arrangements that social workers had made she had been able to breast-feed Layla from her birth in August 2008 up until her arrest on 7 January 2009. Since she had been on remand in prison she had only seen Layla at two short visits when she felt under pressure.

 

[24] The prison authorities had said when she was first remanded that they would make arrangements to enable her to express milk and store it for consumption by Layla. In the event the Accused found these arrangements did not materialise as promised and regarded the facilities offered as unsatisfactory and unhygienic. When Layla visited she would not latch on to her breast and would not look her mother in the eye. On the second visit the child soiled her nappy and wet her clothes and the visit had to be ended early. The Accused said that she felt Layla needed her at this stage of her life. She was willing to work with social workers but now her circumstances had changed in that Mr. Cormack had consented to extradition and would not be able to live with Layla and her for the foreseeable future. Earlier concerns about methadone being in the house would not be a factor.

 

[25] The Accused was concerned that the bond she had with her daughter would be broken if she was extradited and there was a risk her daughter would be taken into care and her relationship with her daughter irreparably damaged.

 

[26] The Accused's father also gave evidence and said that the conditions of supervision had been such that he had required to live with his daughter continuously from September 2008 to January 2009. During that time he thought his daughter had been faultless in her care of Layla and he had complete faith in her as a mother.

 

[27] Neither witness was cross-examined.

 

Defence Submissions

 

[28] Mr. Roy referred me to section 21 of the Act and said that in the circumstances of the present case extradition would be incompatible with the Accused's right to family life as a nursing mother of a baby daughter. Mr. Roy conceded that Article 8 afforded a qualified not an absolute right and that it was necessary to balance the Accused's and her daughter's rights under Article 8 against the circumstances of the case and the public's right to have the allegations judicially determined. He accepted that there had to be wholly exceptional circumstances to justify the court upholding the right conferred by Article 8.

 

[28] Mr. Roy said that if the Accused was to be extradited this would amount to a gross violation of her right to family life. I was referred to the decision of my colleague, Sheriff McColl in Howes and Shanks Edinburgh Sheriff Court 3 April 2008; 2008 WL 2033440; 2008 G.W.D. 14-263 and the cases referred to therein. At the conclusion of proceedings the sheriff sent the case to Scottish Ministers with a recommendation for extradition although I understand the matter remains at appeal. Article 8 of ECHR is one of the grounds challenging extradition which has been advanced. Ms. Shanks has 4 children aged between 2 and 11. Mr. Howes has one dependent child.

 

[29] It had been argued in Howes and Shanks that the effect of the proceedings would be to separate the parents from the children and this would have an effect on their development. In the present case Mr. Roy argued the needs of the child were greater due to Layla being an infant and dependent on her mother.

 

[30] Mr. Roy said that it was not possible to say how long it would take for proceedings to come to trial in Spain. If the Accused was remanded in custody and extradited she might be separated from her child for many months or even years at a critical stage of her daughter's development. The close maternal bond that had developed over the last 6 months would be broken and there was the potential of psychological damage to the child.

 

[31] Mr. Roy said that the temporary separation of the Accused from her daughter due to the refusal of bail when the proceedings first called in court had had a serious effect on the mother/daughter relationship. Now that Mr. Cormack had consented to extradition his case might be dealt with more quickly by the Spanish authorities and if resolved the arrest warrant for the Accused could be withdrawn.

 

[32] In conclusion I was urged that Article 8 afforded an important and fundamental right and that the present circumstances amounted to what the court might consider a wholly exceptional case since extradition would involve separating a nursing mother from her infant child. Mr. Roy suggested that if the right to family life under Article 8 had any meaning it should apply in the present case.

 

Submissions by the Crown

 

[33] Mr. Mackay replied by stating that extradition would not be incompatible with the Accused's Human Rights; the circumstances were insufficient to hold that her Article 8 rights would be infringed. I was referred to Wright v Scottish Ministers 2005 SC 453, Lord Osborne delivering the opinion of the Court at paragraph [53]:-

"Before us, counsel for the respondents drew our attention to certain recent decisions of the House of Lords, which were not available to the Lord Ordinary. The first of these was R v Special Adjudicator, ex p Ullah [2004] 2 AC 323. It was concerned with, among other things, the application of Art 8 of the Convention on Human Rights to the position of an individual, in respect of whom a direction had been made for removal to a country where the right to practise religion was restricted. It was decided that, in a context such as existed in that case, reliance on, inter alia, Art 8 of the Convention required the presentation of an exceptionally strong case such that the actual or threatened treatment would amount to a flagrant denial or gross violation of the relevant right. In that case, Lord Bingham of Cornhill drew a distinction between what he called 'domestic cases' and 'foreign cases' (paras 7-9). The latter category were cases in which it was claimed that the conduct of a state in removing a person from its territory, whether by expulsion or extradition, to another territory would lead to a violation of a person's Convention rights in that other territory. Lord Bingham said this (para 24):

'While the Strasbourg jurisprudence does not preclude reliance on articles other than Article 3 as a ground for resisting extradition or expulsion, it makes it quite clear that successful reliance demands presentation of a very strong case ... The lack of success of applicants relying on Articles 2, 5 and 6 before the Strasbourg court highlights the difficulty of meeting the stringent test which that court imposes. This difficulty will not be less where reliance is placed on Articles such as 8 or 9, which provide for the striking of a balance between the right of the individual and the wider interests of the community even in a case where a serious interference is shown ... On the other hand, the removing state will always have what will usually be strong grounds for justifying its own conduct: the great importance of operating firm and orderly immigration control in an expulsion case; the great desirability of honouring extradition treaties made with other states. The correct approach in cases involving qualified rights such as those under Articles 8 and 9 is in my opinion that indicated by the Immigration Appeal Tribunal ... in Devaseelan v. Secretary of State for the Home Department [2003] Imm. A.R. 1 , para. 111: "The reason why flagrant denial or gross violation is to be taken into account is that it is only in such a case - where the right will be completely denied or nullified in the destination country - that it can be said that removal will breach the treaty obligations of the signatory state however those obligations might be interpreted or whatever might be said by or on behalf of the destination state".'

Similar views were expressed by Lord Steyn (para50) and Lord Carswell (paras 68, 69). In the present case, we recognise that potentially there are both domestic and foreign aspects to the alleged interference with the Art 8 rights. As regards the domestic interference, that has been acknowledged by the Lord Ordinary. So far as the foreign aspect is concerned, in our opinion the observations which we have just quoted make it necessary for the reclaimer to overcome the high threshold described."

 

[34] Mr. Mackay said that there had been no evidence why the Accused's Article 8 rights would be denied other than by separation. If convicted the Accused could be transferred back to the United Kingdom to serve any sentence and no doubt there would be opportunities for prison visits in Spain. There was no suggestion that the Spanish authorities had delayed matters since evidence contained in the toxicology report had emerged. Spain was a friendly European country and there was no reason to believe that court and prison procedures would be substantially different to those in Scotland. While suggestions had been made that the proceedings in Spain would be protracted and prison conditions would be poor, no evidence had been produced to back up these contentions. In that context I was referred to Baksys v Lithuania [2007] EWHC 2838 (Admin), the judgment of the Court by Moses LJ at paragraph 11:-

 

"Mr. Fidler seeks to resist that conclusion by suggesting that since it is the Government of Lithuania seeking the extradition of his client, it was up to them to produce evidence to explain the nature of the hearing on 10th May 2004. I do not accept that there was any such obligation on the part of the Government of Lithuania. The whole purpose, as Ms Lindfield made clear in her submissions, of the procedures under the Extradition Act 2003 is to give force to the comity of nations identified in Part 1 of the Order, to which I have already referred, who are enabled to take the benefit of a speedy and, it was hoped, comparatively inexpensive procedure under the new Act. It would run wholly counter to the scheme of that process, which allows extradition on the basis of a European Arrest Warrant, provided it complies with the statutory conditions, to require the requesting state to request evidence relating to an issue raised by the other side. Of course there may come a time when it has to produce such evidence if it wishes to resist the implications of evidence advanced and proffered by an appellant or one who seeks to resist the effect of the warrant. But unless and until such evidence is produced, no such obligation arises."

 

[35] Article 8 considerations had been raised in a number of recent extradition cases. I was referred to R (on the application of Bermingham & Others) v Director of the Serious Fraud Office [2007] QB 727 where the family circumstances of the three accused were considered at paragraph 113:-

 

"Each of the defendants was born in 1962 and has a family with young children. There are I think no special features relating to the family life of any of them save that one of the defendant Darby's daughters unhappily suffers from a learning disability which requires her to attend a special school."

I was also referred to Lord Justice Laws' decision of the Court at paragraph 130:-

 

"Nor, in my judgment, is there anything exceptional about the personal circumstances of these defendants to make a case on proportionality under article 8(2) of the ECHR. I am afraid that the plight of the defendant Darby's child cannot make the difference."

 

[36] The next case I was referred to was La Torre v HM Advocate 2008 JC 23. Article 8 considerations are dealt with by the Lord Justice Clerk at paragraph [97]:-

 

"Grounds 9 and 10 have in common the proposition that, for one reason or another, execution of the European arrest warrant would involve a disproportionate interference with the appellant's right to respect for his private and family life under Art 8 of the European Convention on Human Rights. It is not disputed that the possibility of the execution of the warrant potentially engages Art 8. As counsel for the Lord Advocate pointed out, the warrant is in that regard no different from other forms of extradition. That extradition may engage Art 8 has been recognised in Wright (para 65) and Bermingham (para 121). However, in Launder v UK (1997) 25 EHRR CD67 (p 74, para 3) the Commission expressed the opinion that it would only be in exceptional circumstances that extradition in respect of serious criminal offences would be held to be an unjustified or disproportionate interference with Art 8 rights. In Ullah, although it was not an extradition case, Lord Bingham (para 24) recognised that in extradition cases the extraditing state would usually have strong grounds for justifying extradition on the ground of the desirability of honouring extradition treaties. In Wright (para 59) it was recognised that the task undertaken by the reclaimer of demonstrating that the operation of salutary international arrangements should be inhibited on account of the limited interference which their operation would involve with the reclaimer's Art 8 rights was a 'formidable' one. In Bermingham , Laws LJ, after referring to Ullah and Launder v UK , said (para 118):

'In my judgment this statement [the passage from Launder v UK referred to above] and the authorities in their Lordships' House are, with respect, entirely in line. If a person's proposed extradition for a serious offence will separate him from his family, Article 8(1) is likely to be engaged on the ground that his family life will be interfered with. The question then will be whether the extradition is nevertheless justified pursuant to Article 8(2). Assuming compliance with all the relevant requirements of domestic law the issue is likely to be one of proportionality: is the interference with family life proportionate to the legitimate aim of the proposed extradition? Now, there is a strong public interest in "honouring extradition treaties made with other states" (Ullah, para 24). It rests in the value of international co-operation pursuant to formal agreed arrangements entered into between sovereign States for the promotion of the administration of criminal justice. Where a proposed extradition is properly constituted according to the domestic law of the sending State and the relevant bilateral treaty, and its execution is resisted on Article 8 grounds, a wholly exceptional case would in my judgment have to be shown to justify a finding that the extradition would on the particular facts be disproportionate to its legitimate aim.'

There is thus strong authority to the effect that where Art 8 is engaged in a properly made extradition application, exceptional circumstances will be required to justify a conclusion that the execution of the extradition would involve disproportionate interference with Art 8 rights.

 

98 Counsel for the appellant sought, however, to submit that in relation to interference with Art 8 rights, a European arrest warrant fell to be treated differently from other forms of extradition. There is one respect in which we accept his submission. In Wright (paras 72-74) reference is made to according a wide margin of appreciation to the ministerial decision-maker. As counsel correctly pointed out, the primary decision-maker in relation to an individual European arrest warrant is the sheriff, and this court on appeal. No question of allowing a margin of appreciation therefore arises. We accept that that is correct. It is not, however, central to the main submission, which is that it is wrong, in the context of a European arrest warrant, to say that wholly exceptional circumstances are required to make a case of disproportionality. We do not accept that the fact that Ullah was not an extradition case detracts from the force of Lord Bingham's observations in that case which, while obiter , were made with express reference to extradition cases. The fact that Launder v UK was not a case of concurrent jurisdictions does not, in our view, affect the force of the passage referred to. We therefore do not accept that the courts in Wright and Bermingham were wrong to place the reliance they did on Ullah and Launder v UK. The existence of Art 4(7)(a) of the Framework Decision , recognising a discretion to refuse extradition where there is concurrent jurisdiction in the executing Member State, does not, in our view, alter the importance of giving effect to international arrangements. We therefore do not accept that in approaching a claim under Art 8 to resist execution of a European arrest warrant, the standard to be attained to make out a case of disproportionality is more relaxed. "

 

[37] As to the question of proportionality, Mr. Mackay submitted that the charge of manslaughter of a child was a very serious one, a matter of great public importance in Spain and the United Kingdom and surely outweighed the right of the Accused to be with her child.

 

[38] I was referred again to the case of Dirsyte v Lithuania where the Accused was a young woman and her circumstances were described at paragraph 12:-

 

" As to her pregnancy, the position is that no evidence has been put before us as to the way in which that matter would be dealt with by the authorities in Lithuania, were the appellant to receive a custodial sentence. In my judgment, the mere fact that she is pregnant and, in that regard, is receiving treatment from her general practitioner does not constitute either a striking or an unusual fact."

 

[39] Finally Mr. Mackay referred to Howes and Shanks (supra) where Sheriff McColl dealt with the Accuseds' Article 8 objections to extradition at paragraph 73:-

 

"The fact that the respondents are the parents of four children cannot, in my opinion, as a matter of prinicipal or law bring the case within the exceptional range. It cannot be correct that parties who are alleged to have taken part in criminal conduct in another state and who have no children or a lesser number of children can be assessed as having lesser and non-exceptional interference of their rights in extradition than those said to have been involved in similar conduct who happen to have more children."

 

Mr. Mackay said that he had been unable to find a reported case that having a child was a bar to extradition. Albeit that the Accused was a nursing mother that did not meet the "exceptional circumstances" test set down in the authorities sufficient to displace the "strong public interest" in extradition in serious cases to ensure justice could take its course. It seemed that there were plans in place for the Accused's daughter if she was not in a position to look after her-the child was currently being looked after by her mother-in-law and the circumstances were to be reviewed again by the Social Work Department at a case conference on 29^th January 2009.

 

[40] Mr. Roy indicated that he had nothing further to say in response to the submissions made on behalf of the Lord Advocate.

 

Discussion

[41] There are certainly some unusual features in this case to least the fact that the co-accused Mr. Cormack appeared to suddenly change his position and consented to extradition where previously it appeared a joint hearing would be necessary.

 

[42] It is not my function at this stage to look into the evidence-see the remarks of Moses LJ in Baksys v Lithuania that I have quoted at paragraph [34] above about the philosophy behind Part 1 extradition warrants as being essentially "a speedy...comparatively inexpensive procedure" without the need "to require the requesting state to request evidence relating to an issue raised by the other side." By consenting to extradition that does not necessarily mean that an accused intends to admit the offence or a substantial part of it. It may merely mean that an accused wishes to have his case dealt with as soon as possible and may be the precursor to a vigorous defence of the charge when proceedings are raised in the Requesting State; certainly there is no parallel to the position where an accused in this jurisdiction admits the offence at the petition stage and is remanded "in terms of his own confession."

 

[43] I cannot look into the mind of Mr. Cormack and predict his attitude to the proceedings when they are raised against him in Spain. Similarly I cannot consider what the attitude of the Spanish authorities might be if one of the accused were to offer to plead guilty on the basis that the other was discharged from the case. I do not know if the prosecution authorities in Spain operate on the same basis as the Crown does in this jurisdiction with a wide discretion or whether all serious cases are prosecuted on an "opportunity basis" leaving the decisions to the court on the basis of the evidence placed before it. On the other hand where a prosecuting authority considers it has evidence against more than one person it will wish in most cases to bring proceedings against all accused at the same time, not just for reasons of convenience and economy but to avoid absent accused being blamed by those tried separately.

 

[44] While the Accused gave some evidence about the background to the charge and did not admit being culpable, she did not deny being in the vicinity at the time of her son's death and one can see how the Spanish authorities might wish to consider proceedings against her.

 

[45] It was however clear from the evidence that the last few weeks since the Accused's arrest on the warrant and her consequent separation from her daughter have been traumatic and stressful for both parties. Clearly the Accused's daughter is at a very early stage of her development and if there were to be a sudden separation for a number of years this would have an adverse affect on the mother/daughter bond. Sadly many families of accused persons are affected by the fall-out from criminal proceedings particularly if it involves a substantial period on remand or a lengthy sentence of imprisonment.

 

[46] Since the case against the Accused and Mr. Cormack had taken an unexpected turn and in light of the anxious and unusual circumstances raised in evidence, I decided to continue the case for one week to consider the evidence and the authorities that had been supplied to me. It was apparent to me also that whatever decision I reached in the case it might become the subject of an appeal.

 

Decision

 

[47] It is necessary to adopt a stage-by-stage approach in these proceedings and consider various questions before tackling the main issue in this case.

 

[48] At the initial stage of the extradition hearing the court has to be satisfied on a number of matters arising from section 10 of the Act:-

1. It was accepted at the outset by the Accused that she was the person referred to in the arrest warrant. This was further elaborated upon when she gave evidence on oath and accordingly in terms of section 10(1) I am satisfied the Accused is the person in respect of whom the warrant has been issued by the Spanish authorities.

2. In terms of section 10(2) the court has to decide whether the offence specified in the warrant is an extradition offence. In that context I refer back to paragraphs [9] to [12] above. It was clear from the description of the offence and the circumstances which the Accused explained in evidence that this was potentially a case of culpable homicide under the law of Scotland, otherwise known as manslaughter in England and Wales. The Spanish authorities described the circumstances as "murder or manslaughter" albeit later in the warrant papers they seem to focus upon the latter offence. In any event the European Framework Document as incorporated into our law by section 215(1) of the Act refers in turn to Schedule 2 to the Act and numbered 14 in the European Framework List in that schedule is "Murder, grievous bodily harm". This category is wide enough to include manslaughter.

3. The Accused has not been convicted or sentence in Spain for the incident and therefore I have to consider the terms pf section 64(2) of the Act:-

(a) A locus in Spain is provided in the arrest warrant papers for the child's death and this was confirmed by the accused in evidence. It would appear that no part of the conduct complained of occurred in the United Kingdom. I note in passing that the Scottish court would have jurisdiction under section 11 of the Criminal Procedure (Scotland) Act 1995. However this issue was not raised by the accused. I can only assume from the actions of the Lord Advocate in allowing the child to be buried, dealing with the Letter of Request and taking action on behalf of the Spanish authorities on the arrest warrant that no proceedings against the Accused and Mr. Cormack on this matter are contemplated in Scotland.

(b) and (c) the arrest warrant papers contain a certificate signed by an examining judge in Examining Court Number 4 in Arona on 29 September 2008 that the offences of murder and manslaughter falling under Section 384 of the Spanish Criminal Prosecution Act come within the category of "murder, grievous bodily injury within the European Framework List. The list of offences in the warrant is identical to the list found in Schedule 2 to the Act. Murder and manslaughter are punishable in Spain with sentences of imprisonment of up to 20 and 15 years respectively.

Accordingly I answer the question posed by section 10(2) of the Act in the affirmative that the charge or charges before me are extradition offences.

 

[49] In terms of section 10(4) having answered the above question I now move on to consider the Bars to Extradition set out in section 11 of the Act. I shall deal with the various bars as set out in the section:-

(a) There was no issue of double jeopardy arising. The Spanish authorities had interviewed the Accused at the time of her son's death and had sought at a later stage to interview the Accused and Mr. Cormack by virtue of a Letter of Request following upon receipt of a toxicology report. Thereafter in September 2008 they had prepared the arrest warrant with a view to putting the Accused and Mr. Cormack on trial for the offence. There had been no previous acquittal or trial or circumstances of the type set out in section 12 of the Act.

(b) There were no issues raised relating to "extraneous considerations" of the type specified in section 13 of the Act.

(c) No challenge was raised in regard to the passage of time. Aiden Cormack died on 12 January 2007 and it appears that Letter of Request proceedings took place at Edinburgh Sheriff Court on 26 March 2008 when the Accused and Mr. Cormack were questioned following receipt of the toxicology report. The arrest warrant was signed by the Examining Judge in Tenerife on 29 September 2008 and the Accused was arrested and brought to court on 7 January 2009. This timescale is comparable to the length of time taken in a case of similar type in this jurisdiction. Accordingly the time taken to reach this stage of proceedings did not appear to give rise to injustice or oppression of the type described in section 14 of the Act.

(d) There were no questions relating to the Accused's age arising from the proceedings. Section 15 governing this issue principally relates to persons who may be below the age of criminal responsibility.

(e) The case does not involve hostage-taking considerations as defined in section 16 of the Act.

(f) No special arrangements with the Requesting Country were raised of the nature covered by section 17 of the Act.

(g) and (h) There were no issues arising regarding any earlier extradition as defined in sections 18 and 19 of the Act.

Similarly the Accused had not been convicted of the offence concerned and accordingly I was able to answer the questions posed at section 11(5) in the negative and move on to section 21 of the Act.

 

[50] The sole issue raised before me at the Extradition Hearing was whether the Accused's extradition would be compatible with her Article 8 rights as the nursing mother of a 6-month old daughter. In that context I must decide the matter raised by section 21(1) of the Act.

 

[51] It was matter of agreement that the test was a high one if the Accused's rights were to displace the underlying purpose of the European Framework Decision as incorporated into our law by Part 1 of the Act. As is indicated above at paragraph [33] in the reference to the speech of Lord Bingham I R v Special Adjudicator, ex parte Ullah:-

"successful reliance [on rights contained in ECHR] demands presentation of a very strong case....The lack of success of applicants relying on Articles 2, 5 and 6 before the Strasbourg court highlights the difficulty of meeting the stringent test which that court imposes, This difficulty will be no less where reliance is placed on [Article 8], which provide[s] for the striking of a balance between the community even in a case where a serious interference is shown."

In Wright v Scottish Ministers (supra) at the end of paragraph [53] the test is described as requiring to overcome "the high threshold".

 

[52] In the Bermingham case (supra) the court at paragraph 130 refers to the need for there to be something "exceptional about the personal circumstances...to make a case on proportionality under ECHR Article 8(2)."

 

[53] In La Torre v HM Advocate (supra) at paragraph [97] the court considered the proposition that "execution of the European arrest warrant would involve a disproportionate interference with the appellant's" Article 8 rights.

 

[54] In this context it is necessary to carry out a balancing exercise to ascertain whether the Accused's right to respect for her private and family life outweigh the aims and purposes of the European arrest warrant procedure under Part 1 of the Act.

 

[55] Unlike the cases of Bermingham and Howes and Shanks only one child is involved. While sheer numbers of children do not necessarily make the case stronger-the Article 8 argument in Bermingham for all three accused was rejected in two short sentences at paragraph 130 of the court's decision. In Howes and Shanks one of the children was aged two but nevertheless extradition was recommended.

 

[56] There is no doubt in the present case the circumstances are stronger than Bermingham, Howes and Shanks or indeed Baksys v Lithuania where the accused was pregnant. Clearly the Accused's daughter is at a very dependent stage of her life and separation would have an adverse affect on parties. In Howes and Shanks the court had the benefit of hearing evidence from a number of family and professional witnesses listed at paragraph 56 of the judgment. They include a consultant clinical psychologist who spoke to how separation might affect the younger and older children. No such evidence was led in the present case but this is not a criticism of the way in which Mr. Roy presented his case. It does not require the leading of expert evidence to appreciate that where a baby is being breast fed sudden and prolonged separation from its mother will have adverse consequences. It is common knowledge that the medical profession espouse the virtues of breast feeding and that such feeds may last up to and beyond the first year of a child's growth and development.

 

[57] There was unchallenged evidence from the Accused that her daughter was affected by the sudden separation and change of feeding. The child will be at a stage where solid foods will be beginning to be introduced into her diet and of course there are alternatives to breast feeding albeit that medical opinion regards this as second best. Many other children are not or cannot be breast fed for a variety of reasons.

 

[58] More significant is the fact that extradition would lead to separation and the breakdown of the mother/child bond. The expert evidence in Howes and Shanks showed the different problems separation can cause to younger and older children. Obviously older children will sense an immediate loss and may have difficulty coming to terms with the return of a parent after a lengthy separation. For younger children they will have no memories but similarly may present with behavioural problems following separation and may have difficulty re-engaging depending upon the length of separation. One cannot speculate but it could be that any period of separation that there might be could end before the Accused's daughter has any lasting memories of day-to-day life without her mother being part of the household.

 

[59] Having considered the evidence and Mr. Roy's very full submission I am left with a very high test which requires to be overcome before I could answer the question posed by section 21(2) of the Act in the negative and discharge the Accused. Article 8 rights are not absolute ones, since most persons can point to features in their private and family lives which could be affected by extradition and prolonged remand or sentence. The test of "exceptional circumstances" is clearly a very high one. Rather unhelpfully but unsurprisingly none of the authorities suggest a set of family circumstances that would result in extradition under Part 1 of the Act being incompatible.

 

[60] Accordingly I do not consider that the Accused's Article 8 rights as the nursing mother of a 6-month old daughter are exceptional circumstances that would enable me to discharge her from the proceedings. I am of the view that the charge involved relating to the death of the Accused's infant son is of such a serious nature and obviously a matter of wide public interest that I should answer the question posed by section 21(3) of the Act in the affirmative. In my opinion the Accused's extradition would be compatible with her Convention Rights within the meaning of the Human Rights Act 1998.

 

[61] It follows from answering these questions in the affirmative; I order that the Accused be extradited to the Kingdom of Spain, being a Category 1 territory in which the said European Arrest Warrant was issued. This will allow her to face the charge along with her co-accused Robert Gunn Cormack who on 23 January 2008 consented to extradition and awaits transfer to Spain.

 

[62] Since I required time to consider the submissions made and authorities supplied I decided at the last calling on 23 January to admit the Accused to bail. Standing any further representations to me today I am prepared to continue the Accused's bail until a time when she is required to transfer to Spain. In this way I consider that I am endeavouring as far as is possible to respect the Accused's Article 8 rights and allow her time, if necessary to wean her child and make suitable arrangements for her care prior to extradition.