HH (Appellant) v Deputy Prosecutor of the Italian Republic, Genoa (Respondent)
PH (Appellant) v Deputy Prosecutor of the Italian Republic, Genoa (Respondent)
F-K (FC) (Appellant) v Polish Judicial Authority (Respondent)
Lord Hope, Deputy President
JUDGMENT GIVEN ON
20 June 2012
<Heard on 5, 6, 7 and 8 March 2012
Alun Jones QC
(Instructed by Wainwright & Cummins LLP)
David Perry QC
(Instructed by Crown Prosecution Service, Special Crime Division Extradition Unit)
Matthew Ryder QC
(Instructed by Wainwright & Cummins LLP)
David Perry QC
(Instructed by Crown Prosecution Service, Special Crime Division Extradition Unit)
Edward Fitzgerald QC
(Instructed by GT Stewart Solicitors)
David Perry QC
(Instructed by Crown Prosecution Service, Special Crime Division Extradition Unit)
|Intervener (X, Y and Z, by the Official Solicitor, their litigation friend)
Hugo Keith QC
(Instructed by Maxwell Gillott Solicitors)
Alex Bailin QC
(Instructed by Peters & Peters Solicitors LLP)
|Intervener (Coram Children's Legal Centre)
Manjit Gill QC
(Instructed by Coram Children's Legal Centre)
"Where, in proceedings under the Extradition Act 2003, the article 8 rights of children of the defendant or defendants are arguably engaged, how should their interests be safeguarded, and to what extent, if at all, is it necessary to modify the approach of the Supreme Court in Norris v Government of the United States of America (No 2) in light of ZH (Tanzania)?"
It is necessary, therefore, to consider what each of those cases decided.
"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." (para 56)
"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 . . ." (para 65).
"Take a case of an offence of relatively low seriousness where the effect of an extradition order would be to sever a genuine and subsisting relationship between parent and baby, or between one elderly spouse and another who was entirely dependent upon the care performed by the former" (para 109).
He too favoured balancing the "general public interest in extradition to face trial for a serious offence" against the "exceptional seriousness of the consequences which would have to flow from the anticipated interference with private and family life in the particular case" (para 114).
(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.
"In all actions concerning children, whether undertaken by public or private social welfare institutions, courts of law, administrative authorities or legislative bodies, the best interests of the child shall be a primary consideration."
"[The tribunal] was required to identify what the best interests of Mr Wan's children required with respect to the exercise of its discretion and then to assess whether the strength of any other consideration, or the cumulative weight of other considerations, outweighed the consideration of the best interests of the children understood as a primary consideration."
"In making the proportionality assessment under article 8, the best interests of the child must be a primary consideration. This means that they must be considered first. They can, of course, be outweighed by the cumulative effect of other considerations".
The countervailing considerations were the need to maintain firm and fair immigrations control, the mother's immigration history and the precariousness of her position when family life was created. But the children were not to be blamed for that (para 33).
"that, in reaching decisions that will affect a child, primacy of importance must be accorded to his or her best interests. This is not, it is agreed, a factor of limitless importance in the sense that it will prevail over all other considerations. It is a factor, however, that must rank higher than any other. It is not merely one consideration that weighs in the balance alongside other competing factors. Where the best interests of the child clearly favour a certain course, that course should be followed unless countervailing reasons of considerable force displace them" (para 46).
Should Norris be modified?
"States Parties undertake to ensure the child such protection and care as is necessary for his or her well-being, taking into account the rights and duties of his or her parents, legal guardians, or other individuals legally responsible for him or her, and, to this end, shall take all appropriate legislative and administrative measures."
F-K v Polish Judicial Authority
HH and PH v Deputy Prosecutor of the Italian Republic, Genoa
Postscript: Conviction in absentia
"1. States Parties shall assure to the child who is capable of expressing his or her own views the right to express those views freely in all matters affecting the child, the views of the child being given due weight in accordance with the age and maturity of the child.
2. For this purpose, the child shall in particular be provided the opportunity to be heard in any judicial and administrative proceedings affecting the child, either directly, or through a representative or an appropriate body, in a manner consistent with the procedural rules of national law."
The United Nations Committee on the Rights of the Child, in its General Comment No 12 on "The Right of the Child to be Heard" (CRC/C/GC/12, July 2009), points out that this is one of the fundamental values of the Convention and that "there can be no correct application of article 3 if the components of article 12 are not respected". This poses a problem in extradition cases, as there is no obvious machinery for ascertaining the child's views, save by making the child party to the case or (at least in the Administrative Court) by allowing the child to file evidence or make representations under CPR rule 52.12A. The Official Solicitor accepts that this will rarely be necessary, as Laws LJ observed in the postscript to his judgment (para 68), but the Coram Children's Legal Centre submit that this understates the strength of the obligation to hear the child. They point out that the children's views and interests do not always coincide with their parents' and that, especially in criminal cases, the parents may not be able properly to put the children's views before the court. There is the further problem, exemplified in these cases, that a loving parent may be reluctant to discuss the problem with the children, hoping to spare them the distress and anxiety involved in what may be a long drawn out process. Indeed, that problem illustrates only too well how the interests of the parents and the children diverge. The parents may wish to fight extradition for as long as and as hard as they can, thus increasing the stress and the delay which, as section 1(2) of the Children Act 1989 tells us, is bad for children whose sense of time is so different from that of adults.
"Where, in proceedings under the Extradition Act 2003, the Article 8 rights of children of the defendant or defendants are arguably engaged, how should their interests be safeguarded, and to what extent, if at all, is it necessary to modify the approach of the Supreme Court in Norris v Government of the United States of America (No 2) in light of ZH (Tanzania)?"
The same issue arose, via the devolution route, in the appeal from the High Court of Justiciary in Scotland.
"(1) If the judge is required to proceed under this section (by virtue of section 84, 85, or 86) he must decide whether the person's extradition would be compatible with the Convention rights within the meaning of the Human Rights Act 1998.
(2) If the judge decides the question in subsection (1) in the negative he must order the person's discharge.
(3) If the judge decides that question in the affirmative he must send the case to the Secretary of State for his decision whether the person is to be extradited."
"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 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 or freedoms of others."
(a) Lord Phillips of Worth Matravers speaking for the Court, made clear at para 56 that these occasions would inevitably be rare:
"The reality is that only if some quite exceptionally compelling feature, or combination of features, is present that interference with family life consequent upon extradition will be other than proportionate to the objective that extradition serves."
(b) Lord Hope of Craighead, at para 87, observed:
"Resisting extradition on this ground (respect for family life under article 8) is not easy."
He continued by expressly agreeing with the passage from the judgment of Lord Phillips referred to in the previous paragraph:
"The public interest in giving effect to a request for extradition is a constant factor, and it will always be a powerful consideration to which great weight must be attached. The more serious the offence the greater the weight that is to be attached to it" (para 91).
(c) Lord Brown of Eaton-under-Heywood, at para 95, added:
"It will be only in the rarest cases that article 8 will be capable of being successfully invoked under section 87 of the Extradition Act 2003."
(d) Lord Mance, at para 107, stated:
"Interference with private and family life is a sad, but justified, consequence of many extradition cases. Exceptionally serious aspects or consequences of such interference may however outweigh the force of the public interest in extradition in a particular case."
(e) Lord Collins of Mapesbury, at paras 127 and 128, commented:
"It hardly needs to be said that there is a strong public interest in international co-operation for the prevention and punishment of crime. Consequently, the public interest in the implementation of extradition treaties is an extremely important factor in the assessment of proportionality … As a result, in cases of extradition, interference with family life may easily be justified under article 8(2) … ."
(f) Lord Kerr of Tonaghmore, at para 136, addressed the "exceptionality" question:
"It is entirely possible to recognise that article 8 claims are only likely to overcome the imperative of extradition in the rarest of cases without articulating an exceptionality test. … The essential point is that such is the importance of preserving an effective system of extradition, it will in almost every circumstance outweigh any article 8 argument. This merely reflects the expectation of what will happen. It does not erect an exceptionality hurdle."
"Mindful of the importance of extradition arrangements between states in the fight against crime (and in particular crime with an international or cross-border dimension), the court considers that it will only be in exceptional circumstances that an applicant's private or family life in a contracting state will outweigh the legitimate aim pursued by his or her extradition... If the applicant were [eventually] sentenced to imprisonment [in Australia, with the consequent impact on the rest of his family,] his extradition cannot be said to be 'disproportionate to the legitimate aim served'."
"In making the proportionality assessment under article 8, the best interests of the child must be a primary consideration. This means that they must be considered first. They can, of course, be outweighed by the cumulative effect of other considerations."
She identified what she described as the "countervailing considerations", which, in the particular context of ZH, did not begin to displace the best interests of the children. However the best interests of the children were not the paramount nor even "the" primary consideration.
"… a distinct consideration to which full weight must be given. It has long been recognised that the plight of children, particularly very young children, and the impact on them if the person best able to care for them (and in particular if that person is the only person able to do so) is a major feature for consideration in any sentencing decision."
"The position of children and a defendant's family may indeed be relevant, but it will be rare that their interests can prevail against society's plain interest in the proper enforcement of the criminal law. The more serious the offence, generally the less likely it is that they can possibly do so."
This observation mirrors observations to the same effect in Norris in the context of extradition.
F-K (FC) v Polish Judicial Authority
R (HH) and R (PH) v Deputy Prosecutor of the Italian Republic Genoa.
"Provided that the Tribunal did not treat any other consideration as inherently more significant than the best interests of Mr Wan's children, it was entitled to conclude, after a proper consideration of the evidence and other material before it, that the strength of other considerations outweighed the best interests of the children. However, it was required to identify what the best interests of Mr Wan's children required with respect to the exercise of its discretion and then to assess whether the strength of any other consideration, or the cumulative effect of other considerations, outweighed the consideration of the best interests of the children understood as a primary consideration." (Emphasis added).
"(1) If the judge is required to proceed under this section (by virtue of section 11 or 20) he must decide whether the person's extradition would be compatible with the Convention rights within the meaning of the Human Rights Act 1998 (c 42)."
The reference to sections 11 and 20 is a reference to subsections (4) of each of the sections, which relate to warrants prior to, and following, conviction respectively. What section 21(1) adds to the overarching obligation of the court under section 6 of the Human Rights Act 1998 not to act in a way which is incompatible with Convention rights is to identify the stage in its sequential consideration of an application for an extradition order under Part 1 of the 2003 Act at which it must turn to that question. It follows that the nature of the offence of which the person stands convicted or accused will already have been considered at an earlier stage or stages, in particular at that of considering pursuant to section 10(2) whether the offence specified in the warrant is an extradition offence.
"it will only be in exceptional circumstances that an applicant's private or family life in a contracting state will outweigh the legitimate aim pursued by his or her extradition."
As it happens, however, I agree with the submission on behalf of the Coram Children's Legal Centre, reflective of an observation by Lord Kerr in the Norris case, at para 137, that the structure of article 8, which requires the state to justify interference, is such as to cast the question in the opposite way: does the aim outweigh the interference? In ZH (Tanzania) v Secretary of State for the Home Department,  UKSC 4,  2 AC 166, Lady Hale said, at para 33:
"In making the proportionality assessment under article 8, the best interests of the child must be a primary consideration. This means that they must be considered first."
With great respect, I do not consider that Lady Hale's second sentence follows logically from her first. Nor do I discern any greater logic in a conclusion that, in answering a question "does A outweigh B?", attention must first be given to B rather than to A. In my view a judge is entitled to decide for himself how to approach his task.
"There are also utilitarian arguments in favour of prioritizing children's interests. Thus, it may be thought that giving greater weight to children's interests maximises the welfare of society as a whole. Barton and Douglas have even argued that children are important for the continuity of order in society. Putting children first is a way of building for the future. It is significant that countries reconstructing after nightmares of rightlessness have put children's interests in the foreground."
"Attachment between babies and their mothers or primary caregivers starts in the early stages of life and babies become attached by around six months. Severe psychological damage may occur to babies if the bond or attachment with the primary caregiver is severed between the age of six months and four years...."
Z will not attain the age of four until a year from now; and so the Official Solicitor suggests that consideration of PH's extradition might at least be delayed until next year.
"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."
He added in para 62:
"If... the nature or extent of the interference with article 8 rights is exceptionally serious, careful consideration must be given to whether such interference is justified. In such a situation the gravity, or lack of gravity, of the offence may be material."
He gave an example at para 65:
"[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...."
No one suggests a need to dilute the strength of these remarks just because in the present appeal, unlike in the Norris case, the rights in play under article 8 are those of children, whose interests are a primary consideration. Nevertheless my view of the evidence in the present appeal supports a conclusion that the consequences of extradition upon the rights of the three children under article 8 would be interference with them of an exceptionally serious character. The importance of PH's extradition might therefore fail to outweigh consequences of such seriousness. But does it?
(a) 25 April 2003 350 kg
(b) 11 June 2003 94.2 kg
(c) 19 July 2003 120 kg
(d) 6 August 2003 310 kg
(e) 29 August 2003 334.6 kg
(f) 13 September 2003 200 kg
(g) 23 September 2003 205.7 kg
Total 1614.5 kg
"The extradition process, it must be remembered, is only available for returning suspects to friendly foreign states with whom this country has entered into multilateral or bilateral treaty obligations involving mutually agreed and reciprocal commitments. The arrangements are founded on mutual trust and respect. There is a strong public interest in respecting such treaty obligations. As has repeatedly been stated, international co-operation in this field is ever more important to bring to justice those accused of serious cross-border crimes and to ensure that fugitives cannot find safe havens abroad."
Rolled up in Lord Brown's observations are several overlapping considerations which combine to confer upon the UK's extradition arrangements their profound importance:
(a) perpetrators of crimes should be punished;
(b) crime is deterred by the likelihood of punishment;
(c) cross-border crime is increasing;
(d) the movement of criminals across borders has become easier;
(e) inter-state co-operation is increasingly necessary in order to combat crime and to bring criminals to justice;
(f) states which offer sanctuary to criminals substantially undermine the efforts of the others to eliminate any advantage in remaining in, or indeed escaping to, a jurisdiction other than that of the prosecuting court; and
(g) the UK should adhere to its bilateral (or multilateral) treaty obligations and its breaches or perceived breaches may generate a more widespread unravelling of them on both (or all) sides.
The especial importance of adherence to arrangements for extradition is written across all the judgments in the Norris case, and one could well argue that it transcends even the importance of immigration control. Of course I accept that an effective system of removal, or deportation, from the UK of a foreign citizen who has had no right, or has forfeited his right, to remain here carries an importance which extends well beyond his particular circumstances; but the destructive effects on societies of crime are far less plainly and directly countered by immigration control than by adherence to arrangements for extradition.
"Dealing with it generally, where the only person available to care for children commits serious offences, even allowing fully for the interests of the children, it does not follow that a custodial sentence, of appropriate length to reflect the culpability of the offender and the harm consequent on the offence, is inappropriate."
There are a number of reported examples of sentences of immediate imprisonment, almost all measured in months, which, even before article 8 acquired the force of law, the Court of Appeal set aside in the interests of children of whom the defendant was the sole or primary carer: see, for example, R v Whitehead  1 Cr App R(S)111; and now see also R v Bishop cited above. But, on behalf of the Deputy Prosecutor of the Italian Republic, Genoa, Mr Perry made an unchallenged submission that, were PH to have been sentenced in England and Wales for offences of drug-trafficking of gravity equivalent to those of which he has been convicted in Italy, he would be likely to have received a very substantial sentence of imprisonment which, in that they would have been outweighed, the rights of his children under article 8 would not have displaced. Indeed Lord Judge predicts, at para 136 above, that the sentence would be likely to have been at least ten years; and there can be no more authoritative prediction than his.
"When considering whether to impose imprisonment on the primary caregiver of young children, did the courts below pay sufficient attention to the constitutional provision that in all matters concerning children, the children's interests shall be paramount?"
Sachs J thereupon offered an analysis of the relevant principles; and with that part of his judgment all the other members of the court agreed. He referred, at para 10, to the classic approach to sentencing, articulated in S v Zinn 1969 (2) SA 537 (A) at 540G-H, that "what has to be considered is the triad consisting of the crime, the offender and the interests of society". He explained, at para 26, that, when used in s 28(2) of the Constitution, the word "paramount" does not mean that the interests of the children necessarily dictate the result. He proceeded as follows:
"33... Specific and well-informed attention will always have to be given to ensuring that the form of punishment imposed is the one that is least damaging to the interests of the children, given the legitimate range of choices in the circumstances available to the sentencing court.
34 In this respect it is important to be mindful that the issue is not whether parents should be allowed to use their children as a pretext for escaping the otherwise just consequences of their own misconduct. This would be a mischaracterisation of the interests at stake...
35... Rather, it is to protect the innocent children as much as is reasonably possible in the circumstances from avoidable harm.
(c) If on the Zinn triad approach the appropriate sentence is clearly custodial and the convicted person is a primary caregiver, the court must apply its mind to whether it is necessary to take steps to ensure that the children will be adequately cared for while the caregiver is incarcerated.
(e) Finally, if there is a range of appropriate sentences on the Zinn approach, then the court must use the paramountcy principle concerning the interests of the child as an important guide in deciding which sentence to impose."