Scottish Sheriff Court Decisions

SHERIFFDOM OF LOTHIAN AND BORDERS, AT EDINBURGH

 

[2016] SC EDIN 7

 

E52/15

JUDGMENT OF SHERIFF T WELSH QC

 

under the Extradition Act 2003

 

in the case of

 

THE LORD ADVOCATE (FOR THE GOVERNMENT OF THE FEDERAL REPUBLIC OF GERMANY), CROWN OFFICE, EDINBURGH, EH7 4AU

 

Applicant;

 

Against

 

M

 

Respondent:

 

Act:   Ms Knippe;  Crown Office, Edinburgh

Alt:   Mr Stewart, Goode and Stewart, Solicitors, Edinburgh

 

Edinburgh, 21 January 2016

The issue
[1]        On 22 August 2005 while travelling between Amsterdam and Cologne, M, a Gambian national, made a big mistake which has come back to haunt her.  For 1000 Euros, she agreed to courier 2.9 Kilos of herbal cannabis across the international border from the Netherlands to the FRG.  She was caught by frontier guards, at the border post at Kaldenkirchen, who searched her taxi and found the contraband.  She was detained in custody.  She confessed her guilt to the Police and at a hearing on 7 October 2005 before the District Court at Krefeld, as a first offender, M was sentenced to 40 months custody for the offence of drug trafficking contrary to section 30(1) of the German Narcotic Act which offence can attract a sentence of between 2 years and 15 years custody.  That decision became effective on 15 December 2005.  In early 2006 she was summoned to prison but failed to appear.  She had absconded.  A domestic German arrest warrant was issued on 25 April 2006 but she could not be traced.  A European Arrest Warrant [EAW], was issued by the German authorities on 7 August 2006. At the point of sentence, aged 28, she was married with two children, aged 5 years and 13 months.  Before the sentence was served, M with her children fled from Germany and came to the UK via France.  Now, aged 38 she and her husband have five children, the second youngest of whom, J, aged 6, was diagnosed with Acute Lymphoblastic Leukaemia on 22 May 2014.  He is presently in treatment for this serious illness.  M was arrested on the EAW on 29 April 2015.  The German Government seeks her extradition to serve her 40‑month sentence.  She opposes extradition in terms of section 21 of the Extradition Act 2003 [the 2003 Act] on the basis that, if allowed, it will constitute a disproportionate interference with her right and the right of her husband and children to a family life (article 8 ECHR).

 

The applicant
[2]        The Applicant is the Lord Advocate, acting on behalf of the Federal Republic of Germany, which is a federal parliamentary republic.  Germany has been a member of the Council of Europe since 13 July 1950 and is a co‑founder of the European Union in 1993.  As such the Federal Republic of Germany has been designated a category 1 territory in terms of section 1 of the 2003 Act, and Part 1 of the Act accordingly applies.  See the Extradition Act 2003 (Designation of Part 1 Territories) Order 2003/3333 as amended by the Extradition Act 2003 (Amendment to Designations) Order 2005/365 (March 1, 2005).

 

The respondent
[3]        The respondent is a Gambian national.  She met her husband P, a German citizen, in The Gambia.  She moved to Germany in 2000 where she married P.  She came to the UK in 2006 and has lived in Scotland for 2 years now.  They have five children together.

 

The extradition hearing
[4]        At the full hearing on 3 December 2015 and 7 January 2016, Ms Knippe, for the applicant, indicated she had no oral evidence to lead but relied on the terms of the German EAW and the supporting documents from the court at Kaldenkirchen.  Mr Stewart, for the respondent, indicated he intended to call five witnesses:

1. M
2. P
3. Dr Jack Boyle BA, BSc(Econ), Med, PhD, AFBPsC, CPsychol
4. Elaine Weir, a CLIC Sargent Social Worker, RHSC, Edinburgh
5. Dr Susan Baird MBChb, MRCPhysicians, MRCPath, Consult Paediatric Haematologist, RHSC, Edinburgh

 

The evidence of M, (this note is not intended to be comprehensive)
[5]        M said she is 38 years old.  She lives in Edinburgh with her children and sometimes P.  They all live together in cramped accommodation.  She and her husband are physically estranged.  She met her husband in The Gambia.  He is German.  They returned to live in Germany in 2000.  They married in 2001.  She moved to the UK and stayed in Birmingham in 2006 then moved to Milton Keynes.  P had a job there.  The family moved to Scotland in 2013.  P has a job here in IT.  He works Monday to Friday from 6am to 3pm.  He stays with M sometimes and also with friends.  There are five children A, B, C, J, and E aged 17, 15, 12, 6 and 3, years respectively.  M and P have separated in the past.  For a time P had care of the boys B and C aged 15 and 12, in separate accommodation.  Even then, M cared for all the children and provided cooking and cleaning for P.  However, that did not work out.  M now has all the children staying with her in a two bedroom flat and P has also moved in again.  The second youngest, J, aged 6 years, was diagnosed with Acute Lymphoblastic Leukaemia on 22 May 2014.  The oldest child A, aged 17 years, has difficulties relating to P.  She has self-harmed.  P cannot cope with her.  J is in treatment.  He goes very regularly to the Royal Hospital for Sick Children for chemotherapy.  He also has chemotherapy at home.  M administers some treatment.  J’s condition must be closely monitored at all times.  His present course of treatment will last until October 2017.  His temperature must be checked throughout the day.  His immune system is supressed by the treatment.  If he catches an infection, it could be fatal.  At 6 years of age he has no understanding of his condition.  He is wholly dependent upon M.  She has received training from the hospital on how to deliver J’s medications and injections.  If his temperature goes above a certain level she must contact the hospital for advice.  J must have bloods taken twice per week for testing.  He is off school just now (Dec 2015) getting his chemo.  On one occasion 3 or 4 months ago P forgot to take J’s temperature.  The medical staff at the hospital called a meeting and it was decided P was not allowed to look after J alone.  P does not seem to understand or appreciate the significance of the condition.  J must take steroids as part of his medication.  This affects his moods and makes him difficult to handle.  Twice when P has been alone with J, once in the garden at home and once on a bus en route to hospital, J has acted up because of the medicine.  Members of the public phoned the Police because they thought P was harming J on account of the way he was behaving.  The Police became involved on both occasions and had to be satisfied the child was on medication and not being abused.  M does J’s home treatment twice a day, morning and evening.  She does injections twice a day.  It is always her.  P could not do this, nor A.  M looks after her 3‑year‑old daughter E as well.  She could not trust P to do this on his own.  Elaine Weir the social worker from the hospital comes every Wednesday to see M to provide support.

[6]        M was tried in her presence in Germany.  While in custody awaiting a hearing she was bullied.  She admitted her offence and confessed to the Police.  She did it for money because the family were living in poverty in Germany.  When sentenced she had a 1‑year‑old child and a 5‑year‑old.  She could not face prison.  She fled to stay with her sister in Paris for a few months.  Then she moved to Birmingham.  P followed and he got a job in Milton Keynes labouring in a warehouse.  She appealed the 40‑month sentence but this was refused.  The social workers do not trust P.  He cannot look after the children.  If returned to serve her sentence the children will be taken into care and very likely split up.  M has a deep vein thrombosis.  The family lives in private rented accommodation.  P works.  The rent is paid from that.  M claims child benefits but gets nothing for herself from the UK state.  In cross‑examination it was established M has no kinship network around her in Scotland.  P’s parents are in Germany.  They are in their 70s.  They cannot help

The evidence of P (this note is not intended to be comprehensive)
[7]        P is 50 years of age.  He is a German national.  He married M in Germany in 2001.  He is father of the five children.  In Edinburgh the family lived in local authority accommodation but were evicted for rent arrears.  They now live in a private let.  P separated from M 2 years ago but they are back together now, in a two‑bedroom apartment.  The three oldest children A,B and C sleep in P’s room.  The two youngest J and E sleep with M in the other bedroom.  The accommodation is cramped.  P works in a call centre.  He earns £250 per week to pay the rent and support the family.  If there is an emergency, he cannot leave his post or he would lose the job.  He works 7am to 3pm.  He is not involved with the care of the children.  M looks after them.  J was diagnosed with cancer in May 2014.  His treatment is complicated.  He gets moody because of the steroids and all the injections.  He is afraid of needles.  Sometimes J needs four people to hold him down to administer the injections.  He does not understand why he cannot have the medicine with a spoon.  J is totally dependent on his mother.  She deals with all his needs.  She can calm him down.  Sometimes the steroids affect his mood.  P said J will tell me to stay away and say he hates me.  Twice on the bus his behaviour has been such that people have called the Police because they think P is harming the boy.  P thought that maybe they think because P and J are a different colour he is harming the boy.  J is unpredictable he can be aggressive.  P’s oldest child A has self‑harmed.  She does not respect him.  M can handle her.  P cannot engage with her emotionally.  P last saw his own parents 3 years ago.  They do not approve of the relationship he has with M.  They take little to do with the children.  They do not speak English.  P has no other relatives who can provide kinship support.  M committed the crime because of financial problems.  P had problems with the mortgage in Germany.  The finances were bad.  He had problems at work.  She was young and the crime was not planned.  M was stupid to bring the drugs back over the border.  In cross‑examination P said he had borrowed from his parents in Germany to pay the mortgage there.  After M was released from detention she left to stay with her sister in Paris.  P joined her in Birmingham.  He got a job as a labourer.  Again things were bad financially.  County Court judgments were passed against them.  The family moved to Edinburgh.  P’s job pays £250 per week.  The rent is £650 per month.  He gets tax credits and child benefit.  He acknowledged if M is returned to Germany the children will probably be taken into care.  The family just survive.  P’s income largely goes to pay the rent.  There are no extras.

 

The evidence of Dr Jack Boyle BA, BSc(Econ), Med, PhD, AFBPsC, CPsychol. (this note is not intended to be comprehensive)

[8]        Dr Boyle gave evidence and spoke to his report dated 17 November 2015.  He interviewed both parents, the three older children A,B and C, school teachers and social work supporters.  He did not interview J.  He was present in the family home when nurses arrived to take blood samples from J.  He was hysterical for a considerable period of time.  It was quite distressing for the other siblings.  He explained his remit was to consider the psychological effect the removal of M to serve her sentence in Germany would have on the children in this case.  In his report and evidence he gave general background evidence about the implications for the family dynamic when a child is diagnosed with cancer or a life threatening disease that endures for a prolonged period.  He said naturally parents will become particularly supportive of the ill child.  Siblings can be helpful but showing resentment and anger at all the attention the patient is receiving is not uncommon, the longer the condition lasts.  He came to a number of salient conclusions in his report that he discussed in his evidence.  I briefly summarise here what I take to be his main conclusions:

1. M is responsible for all the parenting of the children in the family. Since J’s illness she has concentrated her attention on him. M and P have separated because of the stress caused by J’s condition. M has been responsible for all the parenting activities associated with J, feeding, caring cleaning, comforting him at night, taking him to hospital, monitoring his temperature, administering medicines. Since diagnosis she has accompanied him to the family doctor and hospital on numerous occasions. She estimated over 100 hospital visits. She has stayed overnight in hospital with him for over three months though not over a continuous period. J often asks M each day if he is going to die. M has been involved with J to the detriment of the other children. Because of his illness and the integral part M has played in his treatment and care an intense physical and emotional bond has developed between J and M. J is heavily dependent on M who is overwhelmingly his principal carer and attachment figure. There are no external kinship supports available. J’s 17‑year‑old sister A who has a history of self-harming cannot reasonably be expected to parent J, given his condition, in the absence of M. Dr Boyle said, in his opinion, M is, in the mind of J, exclusively, his principal carer. Any separation from M will be incomprehensible to the child. There is no person who can competently take her place.
2. In Dr Boyle’s opinion P has difficulties with fulfilling the parenting role. He works most of the time and even if not working he may be incapable of providing the support, understanding and tolerance which a parent of a child with cancer requires to have. P has limited involvement with the children. He leaves this to M. He has a good relationship with B and C but cannot relate to A. He takes limited responsibility for E.
3. J has missed out in his first year in primary school. In P1 he only completed 3 weeks of school because of his treatment. In the opinion of Dr Boyle, J is an extremely difficult child to parent because of the nature of his leukaemia. J’s condition involves numerous consultations with doctors and other specialists and frequent stays in hospital. M has developed a very close bond with J. She is overwhelmingly his principal carer. From the information available to him and after his investigations he concluded P is not heavily involved in the treatment and daily management of J. Dr Boyle described the mother child relationship in this case as “irreplaceable”. So far as J’s parental support for living and attending hospital is concerned M is almost exclusively his attachment figure. If she were not there, J will not have a substitute parent available to meet his unique needs. Any severance of the relationship will have a profound and negative effect on the child. In his opinion no other family member can be an adequate support for J, if M is removed. Any separation from M will cause J bewilderment, will be incomprehensible to him and be exceptionally distressing. It is beneficial to the child for a caregiver to be there during medical treatment. Separating an extremely ill child from a principal carer will have significant psychological consequences for the child especially when there is no substitute carer. This will have significant damaging psychological consequences for J, who would probably regress back to an early developmental stage of infancy, in the absence of M. Even on M’s return from Germany the damage caused may prove to be irreparable.
4. A has dyslexia. Since J was diagnosed she has started to self-harm. She does not get on with her father. She is at college now. Dr Boyle considered her a vulnerable adolescent who has a problematic relationship with her father. She needs a safe predictable and secure relationship with at least one parent. Any separation from her mother will be distressing for her. It may result in further episodes of self-harming.
5. B according to Dr Boyle is clever and well adjusted. He is very helpful to his mother in parenting J. He would cope best if his mother were returned to Germany.
6. C according to Dr Boyle’s report is an able boy. M is his principal attachment figure. He has a difficult relationship with J that involves jealousy and anger. He will feel the loss of his mother deeply and there may be serious repercussions.
7. E is in her infancy. The loss of M for a significant period of time, at this child’s stage of development, will impact on her seriously. She will not understand why her mother has been taken from her. Reconciliation with the mother may be problematic in future. The adverse effect of separation may be irreparable.

 

The evidence of Dr Susan Baird MBChb, MRCPhysicians, MRCPath, Consult Paediatric Haematologist, RHSC, Edinburgh (this note is not intended to be comprehensive)

[9]        Dr Baird explained she has been a consultant since 2011 and has treated J since his diagnosis in 2014.  J was diagnosed with Acute Lymphoblastic Leukaemia on 22 May 2014.  He is being treated on the UKALL 2011 Trial regimen C and this treatment is scheduled to continue until October 2017.  This trial regimen is more intense and aggressive than usual.  J receives a six‑month intensive treatment phase followed by a maintenance phase that he is in at present.  This requires home treatment and hospital visits.  He has chemo at home and periodic lumbar punctures in hospital.  He is also on intensive steroid treatment.  He is in remission at present.  There is no cancer in the bone marrow.  It is important his home medication is carefully and accurately administered.  He must not get too little or too much of the medication.  His condition requires to be monitored constantly.  There is a real risk of death and a small number of child patients do die if not properly monitored and treated appropriately.  M has coped throughout the process and attended all clinical appointments.  M has had training from the hospital and works with the hospital in treating J.  M needs to know how and when to take J’s temperature.  She needs to know what to look for, how to respond and must be committed to monitoring J closely, 24/7.  She needs to know what foods to give and how to administer J’s medications.  J has an aversion to the insertion of needles into his body.  This is necessary to administer some of the treatments.  He has a cannula under his skin on his arm and a box under the chest wall that give access to veins.  The hospital has limited contact with P.  There are concerns about him not always feeling the treatment for J is necessary.  J needs a competent person to administer his treatment and support and manage him during his illness.  M does this. J has a life threatening illness.  If M were not there some other solution would need to be found by way of social work intervention or compulsory powers being taken in respect of the child.  The risk of infection does not get less with the passage of time.  J’s immune system is compromised by the treatment.  If he gets an infection, he could die.  J receives both steroids and chemotherapy. The steroids can affect his mood.

 

The evidence of Elaine Weir, CLIC Sargent Social Worker, RHSC, Edinburgh
[10]      Ms Weir explained she is a CLIC Sargent social worker attached to the RHSC in Edinburgh.  She is 43 years of age and an expert working in the care of children with cancer.  She is employed by Edinburgh District Council and funded by the CLIC Sargent charity for children and young people diagnosed with cancer.  She has been involved with J since his diagnosis.  J’s treatment on Regimen C of the UKALL 2011 trial is a more aggressive form of treatment and involves multiple chemotherapy drugs, steroids, anti-sickness and antibiotic drugs as a baseline with other drugs added/changed regularly to address the many side effects children experience whilst on this treatment.  J attends hospital regularly for planned reviews and planned treatments.  He attends clinic every two weeks for Vincristine chemotherapy.  He has weekly blood tests taken either at home or in hospital.  He must attend hospital if he shows any change in symptoms that indicate the presence of possible infection or raises concern that needs medical review, or if his temperature is abnormally raised, which could be life threatening.  His immune‑suppressed state means he lacks the ability to fight off infection.  M understands the serious nature of his condition and will bring him promptly for medical review when required.  She did this most recently on 28 September 2015 when J was admitted for antibiotic therapy and inpatient hospital monitoring until 1 October 2015.  He then attended daily for IV antibiotics as an outpatient.  Planning J’s treatment is difficult as infection can set him back and he also needs recovery time to recover his blood count from the treatment administered.  These are variable factors.  J lives with his mother M who is the sole contact for the hospital.  M brings J for his appointments and any emergency care needed.  Mrs Weir said she was aware of P but the hospital had limited contact with him.  Her impression was he was not comfortable dealing with hospital professionals.  There have been occasions when J has been unwell in his father’s care during the day and he has not sought help.  This has occurred twice.  J can become unwell very quickly and if not given immediate assistance his life will be at risk and more aggressive intervention required than would otherwise be necessary if the lapse in his condition was spotted and acted upon promptly.  If M were removed to Germany, the witness indicated she would give immediate consideration to a Child Protection Order for J.  Both parents are aware of that.  The family are living in a damp apartment.  The risk to health is obvious.  Both parents are aware of this.  There are no extended family or kinship options.  In cross examination the witness was asked if P would be suitable as a full time carer for J in M’s absence.  Mrs Weir indicated that on past performance it was, in her opinion, unlikely that P would be suitable.  She did not consider that was a risk she would take, as based on his previous behaviour, the hospital has no confidence in P’s insight into J’s condition or his ability to provide sustained support for such a sick child.  If the other children were taken into care it is likely the family will be split as J needs specialist care.  That would have to be looked into.

 

The facts established from the evidence produced
[11]      Having heard the proof and considered the EAW and other documents produced I held the following facts established:

 

1. On 7 October 2005 before the District Court at Krefeld Germany M was convicted of the Framework offence of drug trafficking, carrying 2.9 Kilos of herbal cannabis across the Dutch-German border, for personal gain, on 22 August 2005. She was sentenced to 40 months custody. She was a first offender married to her husband P with two children aged 5 years and 13 months at the point of sentence.
2. M fled Germany in early 2006 to avoid serving her sentence. She is a fugitive from justice. She went to stay with her sister in Paris and then moved to Birmingham later in 2006. Her husband P joined her in the UK and the family moved to Milton Keynes where P found a job. The couple now have five children aged 17, 15, 12, 6 and 3 years. The family moved to Edinburgh in 2013.
3. On 22 May 2014, M’s second youngest child J, now aged 6, was diagnosed with Acute Lymphoblastic Leukaemia. He is treated for this at the Sick Children’s Hospital in Edinburgh.He is being treated on the UKALL 2011 Trial regimen C and this treatment will continue until October 2017.
4. J’s treatment is complicated and involves taking multiple chemotherapy drugs, steroids, anti-sickness and antibiotic drugs as a baseline with other drugs added/changed regularly to address the many side effects children like him experience whilst on this treatment. He needs constant monitoring of his general condition and temperature for signs of infection. He requires intensive help and support. He has no insight into his condition given his age.
5. Because of the cancer he suffers from and the aggressive treatment administered, an intense physical dependency and emotional bond has developed between J and M. Any severance of this relationship will have a profound and negative effect on the child.
6. J requires constant vigilant monitoring and support during his treatment. That is provided by M. J’s father P has been assessed by hospital social work as unable to provide and incapable of providing the high level of support and care needed by J. No other family or kinship support is available. If M were absent J would very likely be taken into local authority care.

 

Submissions
Respondent
[12]      Mr Stewart indicated that he relied on the principles identified in the cases lodged by Ms Knippe.  These were Norris v Government of the United States of America (No.2) [2010] 2 AC 487;  HH v Deputy Prosecutor of the Italian Republic, Genoa [2012] UKSC 25 and Polish Judicial Authorities v Adam Celinski & others [2015] EWHC 1274 (Admin).  He argued that this was a strong case for discharge of the EAW given the condition of the child and his dependence on M.  There was no other way to care for the child adequately.

 

Applicant
[13]      Ms Knippe informed me that I required to perform a balancing exercise taking into account all the factors in the case.  She referred to the judgment of Lord Judge in HH and stated the matter was for the court to decide.

 

Discussion
The Test
[14]      I require, firstly, to identify the appropriate test which must be satisfied before I can lawfully hold, in an extradition matter, that an individual’s Convention rights are likely to be breached and her extradition can be blocked.  It is not easy to resist extradition on the basis of Articles 8 which is, in the following terms:

“1. Everyone has the right to respect for his private and family life, his home and his

correspondence.

 

2. There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.”

 

The law is settled.  The test when considering article 8 was articulated in Norris v Government of the United States of America (No.2) [2010] 2 AC 487 in which, at [56], Lord Phillips said:

“The reality is that it is 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 ”.

 

In HH v Deputy Prosecutor of the Italian Republic, Genoa [2012] UKSC 25 a case dealing with the specific consequences to children caused by extradition of parents Baroness Hale said at paras [8] and [30]:

“(1) There may be a closer analogy between extradition and the domestic criminal process than between extradition and deportation or expulsion, but the court has still to examine carefully the way in which it will interfere with family life. 

 

(2) There is no test of exceptionality in either context.

 

(3) The question is always whether the interference with the private and family lives of the extraditee and other members of his family is outweighed by the public interest in extradition.

 

(4) There is a constant and weighty public interest in extradition: that people accused of crimes should be brought to trial; that people convicted of crimes should serve their sentences; that the United Kingdom should honour its treaty obligations to other countries; and that there should be no “safe havens” to which either can flee in the belief that they will not be sent back.

 

(5) That public interest will always carry great weight, but the weight to be attached to it in the particular case does vary according to the nature and seriousness of the crime or crimes involved.

 

(6) The delay since the crimes were committed may both diminish the weight to be attached to the public interest and increase the impact upon private and family life.

 

(7) Hence it is likely that the public interest in extradition will outweigh the article 8 rights of the family unless the consequences of the interference with family life will be exceptionally severe….… the court would be well advised to adopt the same structured approach to an article 8 case as would be applied by the Strasbourg Court. First, it asks whether there is or will be an interference with the right to respect for private and family life. Second, it asks whether that interference is in accordance with the law and pursues one or more of the legitimate aims within those listed in article 8.2. Third, it asks whether the interference is “necessary in a democratic society” in the sense of being a proportionate response to that legitimate aim. In answering that all-important question it will weigh the nature and gravity of the interference against the importance of the aims pursued. In other words, the balancing exercise is the same in each context: what may differ are the nature and weight of the interests to be put into each side of the scale.”

 

Further, highly authoritative guidance was given by the Lord Chief Justice in Polish Judicial Authorities v Adam Celinski & others [2015] EWHC 1274 (Admin) as to how first instance judges in England and Wales should proceed in principle when article 8 issues are raised in extradition proceedings under Part 1 of the 2003 Act.  The court ruled:

“(1) The general principles in relation to the application of Article 8 in the context of extradition proceedings are set out in Norris (above) and HH (above). In future, absent further guidance from a specially constituted Divisional Court or the Supreme Court, it would not be necessary to cite any other authorities. In the latter case at [8] (above) Baroness Hale JSC made clear, at subparagraphs (3), (4) and (5), that the question raised under Article 8 was whether the interference with private and family life of the person whose extradition was sought was outweighed by the public interest in extradition; that there was a constant and weighty public interest in extradition that those accused of crimes should be brought to trial; that the UK should honour its international obligations; that the UK should not become a safe haven; and that the public interest would always carry great weight, but that the weight varied according to the nature and seriousness of the crime involved (emphasised again by Baroness Hale JSC, and also by Lord Judge LCJ, Lord Kerr JSC and Lord Wilson JSC).

 

(2) It was important that the judge bore in mind, amongst other things, that:

 

(i) HH was concerned with cases that involved the interests of children, and the judgments must be read in that context.

 

(ii) The public interest in ensuring that extradition arrangements are honoured is very high, as is the public interest in discouraging persons seeing the UK as a state willing to accept fugitives from justice (both of which factors would be expected to be addressed in the judgment).

 

(iii) The decisions of the judicial authority of a Member State making a request should be accorded a proper degree of mutual confidence and respect – particularly since the UK has been subject to the CJEU (which has stressed the importance of mutual confidence and respect) since 1 December 2014.

 

(iv) The independence of prosecutorial decisions must also be borne in mind.

 

(v) It is also important for the judge to bear in mind that factors that mitigate the gravity of the offence or culpability will ordinarily be matters that the court in the requesting state will take into account; and the judge must also take into account that personal factors relating to family life, which will need to be brought into the balance under Article 8, will also form part of the matters considered by the court in the requesting state in the event of conviction.

 

(vi) A structured approach to Article 8 cases is essential, given that each case will turn on the facts found by the judge and the balancing of the considerations set out in Norris and HH.

 

(vii) The approach should be one in which the judge, after finding the facts, sets out a list of the ‘pros’ (militating for extradition) and ‘cons’ (militating against extradition) in ‘balance sheet’ fashion, and then sets out his reasoned conclusion as to the result of the balancing exercise and why extradition should be ordered or the defendant discharged.”

 

The “Pros” and “Cons”
[15]      Although not binding on me so to do, I agree the structured approach has advantages and I list below the various factors I have taken into account in the balancing exercise that applies in this case.

 

Pros

Cons

1. The gravity of the offence. 2. The length of the sentence. 3. Respect for the German Court’s sentence. 4. The status of M as a fugitive from justice. 5. The strong public interest in extradition from the UK. 6. The policy against ‘safe haven’ in the UK for fugitive criminals.

1. The medical condition of J. 2. M’s role in the treatment of J. 3. J’s attachment to M. 4. The impact of M’s extradition on J. 5. The availability of an appropriate surrogate for J. 6. The interest of J. 7. The presence of exceptional features affecting P,A,B,C and E. 8. E’s attachment to M. 9. The impact of M’s extradition on P,A,B,C and E. 10. The interests of P. 11. The interests of A,B,C and E. 12. The passage of time since the sentence was imposed and the material change in M’s personal family circumstances.

 

The Balancing Exercise
[16]      I begin by recognising that any conclusion reached by me to the effect that the consequence of extradition in this case will be so exceptionally serious or severe that it justifies discharge of the EAW can only result from the exercise of a judgment, as opposed to the application of a test.  I accept that there is no test of exceptionality and if it exists it can only emerge from the facts established in the instant case.  So far as comparators go I have looked at the general jurisprudence in this area but the cases all seem to be fact specific and of no assistance.  I also recognise that it is not for me to question the sentence of 40 months imposed on a first offender with two dependent children by the German Court.  The assessment of the mitigation advanced, the gravity of the offence and the nature and level of sentence imposed was entirely a matter for the German court and that must be respected in accordance with EU Council Framework Decision of 13 June 2002.  In addition, I endeavour to exorcise from my judgment any sympathy or compassion I may have for the plight of M and the dependent children in this case recognising, as I must do, that there is a very strong UK public interest in extraditing a fugitive from justice back to a requesting state, so that she will serve her lawfully imposed sentence.  I also recognise that the offence involved is far from trivial involving as it does, cross‑border drug trafficking, for personal profit, within the EU.  However, in the balancing exercise I do take into account that M was what is commonly referred to as, “a mule” or courier, in the affair and not a prime mover and that her involvement in drug running was limited to one unsuccessful occasion.  She did not have a criminal record when sentenced and has also led a blameless life since her arrival here in the UK.  I do not consider I can take into account in any way the passage of time, because M is a fugitive from justice.  I detect no fault attributable to the German state’s handling of the inquiry into M’s whereabouts and in issuing a domestic arrest warrant and the EAW not long after M fled to France.  I also take into account the fact that the offence which carries a maximum sentence of 15 years, was prosecuted in the German District Court, which has a sentencing limit of 4 years custody.

[17]      I derived some important guidance as to how to approach the issue in this case from the decision of the appeal court in H v Lord Advocate [2011] HCJAC 77; 2011 SCL 978 which was subsequently affirmed in the UK Supreme Court in H v Lord Advocate (Advocate General for Scotland intervening);  S or H v Same (Same intervening) [2012] UKSC 24 [2013] 1 AC 413.  The Scottish appeal court in interpreting the approach of the UK Supreme Court in Norris indicated that the default position is that in furtherance of the legitimate social aim of suppressing and prosecuting crime the stark reality is that extradition will virtually always constitute a proportionate interference with the article 8 right to a family life, unless some exceptionally compelling factor is present in the specific factual mix under consideration.  The appeal court identified two further aspects of the analysis of Norris that in my opinion are relevant to the present case.  The appeal court refers to these as subsidiary issues of principle.  I need to quote only two of these for the purposes of the present case.  The appeal court stated:

“[73]…..Lord Phillips accordingly concluded, at pp.510–511, para.56, that it was only if some quite exceptionally compelling feature, or combination of features, was present that interference with family life consequent upon extradition would be other than proportionate to the objective that extradition serves. In the absence of such features, a judge's consideration of whether extradition would be compatible with Convention rights, pursuant to s.87 of the 2003 Act, was likely to be relatively brief. If, however, the nature or the extent of the interference with art.8 rights was exceptionally serious, careful consideration must be given to whether such interference was justified (p.512, para.62).

 

[74] In relation to situations where such consideration is necessary, Lord Phillips addressed three subsidiary issues of principle. First, the gravity, or lack of gravity, of the offence may be material: “The importance of giving effect to extradition arrangements will always be a significant factor, regardless of the details of the particular offence. Usually the nature of the offence will have no bearing on the extradition decision. If, however, the particular offence is at the bottom of the scale of gravity, this is capable of being one of a combination of features that may render extradition a disproportionate interference with human rights. Rejecting an extradition request may mean that a criminal never stands trial for his crime. The significance of this will depend upon the gravity of the offence” (p.512,para.63). Secondly, when considering the impact of extradition on family life, this question does not fall to be considered simply from the viewpoint of the extraditee:

 

‘64 … This issue was considered by the House of Lords in the immigration context in Beoku-Betts v Secretary of State for the Home Department [2009] AC 115 After considering the Strasbourg jurisprudence the House concluded that, when considering interference with article 8, the family unit had to be considered as a whole, and each family member had to be regarded as a victim. I consider that this is equally the position in the context of extradition (p.512).’

 

‘65. Indeed, in trying to envisage a situation in which interference with article 8 might prevent extradition, I have concluded that the effect of extradition on innocent members of the extraditee's family might well be a particularly cogent consideration. If extradition for an offence of no great gravity were sought in relation to someone who had sole responsibility for an incapacitated family member, this combination of circumstances might well lead a judge to discharge the extraditee under section 87 of the 2003 Act’ (p.512).”

 

[18]      Accordingly, I consider I can only discharge the EAW in a Part 1 case based on article 8 and a s 21 defence if I am satisfied that the facts disclose a quite exceptionally compelling feature which on balance renders extradition of the respondent to serve the sentence imposed for the offence committed an unjustified or disproportionate interference with her or her families individual or collective right to enjoy a family life.

 

Conclusion
[19]      With respect to P, in so far as I require to consider his right to a family life including M, I do not find in the facts established any exceptionally compelling feature which would justify me holding his right to a family life either taken alone or in conjunction with the rights of M,A,B,C and E is capable of out-weighing the very strong public interest in returning a convicted criminal to serve a lawful sentence in Germany.  I have no doubt the absence of M for 40 months would be an inconvenience and a burden for him but with normal social work intervention and support I have no doubt he could manage.  The necessary interference with his article 8 right which extradition of M will cause is proportionate given the strong public interest engaged.

[20]      With respect to A in so far as I require to consider her right to a family life including M, I do not find in the facts established any exceptionally compelling feature which would justify me holding her right to a family life either taken alone or in conjunction with the rights of M,A,B,C and E is capable of out-weighing the very strong public interest in returning a convicted criminal to serve a lawful sentence in Germany.  Albeit she is a vulnerable adolescent who would be very distressed by the removal of M to serve her sentence, this distress is no more than the normal consequence of extradition.  With support from P and if necessary normal social work intervention she in my opinion will manage.  The necessary interference with her article 8 right which extradition of M will cause is proportionate given the strong public interest engaged.

[21]      With respect to B and C I accept the opinion evidence of Dr Boyle that they are well adjusted and robust for their developmental age.  However, in so far as I require to consider their right to a family life including M, I do not find in the facts established any exceptionally compelling feature which would justify me holding their right to a family life either taken alone or in conjunction with the rights of M,P,A and E is capable of out‑weighing the very strong public interest in returning a convicted criminal to serve a lawful sentence in Germany.  Albeit they will be very distressed should their mother be removed to serve her sentence I am again of the opinion that their interests, which must be taken into account, do not out‑weigh the compelling public interest in returning M to serve her sentence.  I consider they will manage with support from P and if necessary social work intervention in the absence of their mother for 40 months.  The necessary interference with their article 8 rights which extradition of M will cause is proportionate given the strong public interest engaged.

[22]      With respect to E I accept the evidence of both M and Dr Boyle that P is incapable of caring and nurturing her on his own.  However, in so far as I require to consider her right to a family life including M, I do not find in the facts established any exceptionally compelling feature which would justify me holding her right to a family life either taken alone or in conjunction with the rights of M,P,A,B and C is capable of out-weighing the very strong public interest in returning a convicted criminal to serve a lawful sentence in Germany.  I consider E would likely have to be taken into foster care during M’s absence. Again I consider that may be very confusing and distressing for the infant but normal care and support from social work would be available along with arranged family contact with P,A,B,C and J (if appropriate).  Normal healthy children are resilient and although trying for the infant I am of the opinion she will manage.  I do not consider the interests of E to be sufficient, as weighty as they are given her tender age and having considered the evidence of Dr Boyle with particular care, to overcome the balance in favour of the public interest in the extradition of a convicted criminal from the UK as envisaged by EU Council Framework Decision of 13 June 2002.  The necessary interference with her article 8 right which extradition of M will cause is proportionate given the strong public interest engaged.

[23]      With respect to J and M it seems to me their interests are so inextricably entwined that it is impossible to consider them separately.  They constitute for the purposes of this case two sides of the same coin.  This is consistent with the opinion of Dr Boyle who indicated that J is deeply emotionally and psychologically bonded with M who is his primary carer, in fact, really his sole carer in this case and principal attachment figure.  I proceed upon the basis there is an exceptionally compelling feature which is established from the facts, in respect of J.  J is gravely ill.  He suffers from an aggressive form of childhood leukaemia diagnosed on 22 May 2014.  He is being treated on the UKALL 2011 Trial regimen C and this treatment will continue until October 2017.  That being the case I consider I am entitled to scrutinise the facts more closely to ascertain if extradition, which would normally follow as a matter of course, in a case such as this, will constitute an unjustified and disproportionate interference with J and M’s right to enjoy a family life together.  Integral to the concept of family life I consider to be the right of a parent to nurture and succour a child, especially when the child is gravely ill.  The child has a right to expect this.  M is completely immersed in the support and treatment offered to J.  His present need and best interests whilst not, in a matter such as this, paramount, are factors I must take into account.  In my judgment they weigh significantly in the balance against the public interest the UK has in being seen to honour its reciprocal treaty obligations.  I accept the evidence of Dr Boyle that J does not understand his condition. He is only 6 years old.  His illness is life threatening.  Very importantly, it is not a transient or trivial medical condition nor one that can adequately and competently be treated, in my judgment, in the absence of M.  I accept the evidence of Dr Boyle that if M were to be suddenly removed from J’s world for 40 months, the psychological consequences for him would be devastating.  When asked, Dr Baird said she was not a psychologist and could not express an opinion on what the effects of removal of M would be on J’s treatment and prognosis.  I considered whether surrogate care could be provided.  I accept the evidence of M and Dr Boyle that P could not care for J in the way that is necessary.  I considered P to be feckless and incapable of either appreciating the seriousness of the condition or committing sufficiently to manage the treatment delivery, temperature monitoring and immediate hospitalisation J needs, if the circumstances demand that.  Nor do I consider A could provide the degree and level of care required to such a sick child.  There is no suitable wider kinship care network available.  I accept the evidence of Elaine Weir, the CLIC Sargent social worker assigned to J that P cannot not be trusted to care for P and that if M is extradited, a Child Protection Order is highly likely and J will be taken into local authority care and specialist foster care will be required until M returns.  I consider this would amount to a very significant interference with J’s article 8 rights to respect for his family life.  This interference would not just be at a physical level dealing with his needs for shelter, nourishment, sleep, being medicated, monitored and transported to hospital.  I think the sudden removal of a key figure in the delivery and maintenance of his treatment who is described as “essential” and “irreplaceable” would constitute in my judgment a radical and serious alteration of J’s treatment plan by the removal of a significant care provider and emotional support to whom he is deeply bonded.  I accept Dr Boyle’s evidence that the bond is intensified by J’s serious illness and his precarious situation. I also accept Dr Boyle’s opinion that such a removal would likely have profound and deeply damaging psychological consequences for J.  It would likely lead to infantile regression and the damage may be irreparable.  The applicant led no evidence that adequate alternative surrogacy could be found by the local authority.  Given J’s condition and Dr Boyle’s opinion that his condition is difficult to manage I would need to hear evidence before I would be prepared to accept that an appropriate local authority specialist surrogacy alternative is viable in this case.

[24]      Turning to the other side of the assay, while M’s criminality was not insignificant, in my judgment on a scale of gravity, it comes nowhere near the level of seriousness reached by the prolonged professional and highly profitable industrial drug trafficking considered in Norris and HH.  M’s involvement in drug trafficking was, in my judgment, at the amateur end of the scale.  She was not a prime mover or organiser.  She was a foot soldier or “mule”.  It was drug smuggling on one occasion for 1000 Euros.

[25]      J’s right to a family life with M cannot be considered in a vacuum. I must take account of the context of his actual Sitz im Lebem which is, at this time, wholly and inextricably bound up with his serious life threatening illness; his age; his lack of any true comprehension of his condition, its management or possible consequences; his unique needs;  and the significant role M plays in supporting him during the currency of his grave illness.  Because of these factors M is, at this time, core to, if not entirely, J’s family life.  On balance I consider the evidence led and the facts established reveal one of those genuinely rare and exceptional cases where M’s extradition to Germany would very likely, if ordered, have such a severe impact on J as to constitute an unjustified and disproportionate interference with J and M’s right to a family life together and would accordingly be incompatible with their article 8 rights within the meaning of the Human Rights Act 1998.  For that reason I answered the question in article 21(2) of the 2003 Act in the negative and discharged the EAW.

[26]      By way of postscript I want to emphasise this case is not intended to represent any change in the Zeitgeist that operates in the extradition court.  The case was decided in application of the principles and approach set down in Norris, HH and H v Lord Advocate.  It is not intended to depart from them.  All children get sick from time to time.  Extraditees with ill children and those representing them should be mindful of the rare and exceptional circumstances uniquely demonstrated by this case.

 

 

 

Sheriff T Welsh QC

Sheriff Court

Edinburgh.

21 January 2016