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She accepted Judge Bryants findings, and on 6 September 2004 he made an order against Mr H that he was to have no contact whatsoever with Miss Ss children A, B and C. Regrettably, his order was ignored entirely by both Mr H and Miss section FAC |
On 23 March 2005 search warrants were granted by Teesside Magistrates Court under the Firearms Act 1968 in connection with an investigation into Mr H ordering a handgun through the internet. FAC |
They were executed at a business address in Stockton-on-Tees and at residential addresses in Middlesbrough. FAC |
Two handguns were recovered as well as documents, computers and bank records which contained information relating to the sale of chemicals through a website whose address was kno3.com. FAC |
The chemicals included red phosphorus and iodine. FAC |
The information showed that red phosphorus and iodine had been sold to customers around the world including about 400 customers in the United States and that the appellants were aware that it was illegal to sell these substances in that country. FAC |
In April 2005 the appellants left Middlesbrough and moved with the three children to Scotland where they have remained ever since. FAC |
Mrs H has relatives in the Bonnybridge area. FAC |
On 21 June 2006 further search warrants were granted by Teesside Magistrates Court. FAC |
On 23 June 2006 they were backed by a sheriff at Falkirk Sheriff Court. FAC |
They were executed on the same day at a business address in Grangemouth and at a residential address nearby. FAC |
A quantity of red phosphorus and iodine was recovered, as well as documents, computers and bank records indicating that the appellants were still trading in these substances. FAC |
They were arrested but not at that stage detained in custody. FAC |
Following a separate investigation which had been conducted by authorities in the United States over the same period, an indictment was filed in the United States District Court for the District of Arizona on 27 September 2006 charging the appellants with various offences relating to the importation into that country a... |
This led to the request that they be extradited to the United States so that they could face trial in that court. FAC |
Warrants for the appellants arrest were issued in the United States on 28 September 2006. FAC |
On 31 January 2007 the proceedings for the appellants extradition first came before the sheriff and the appellants were remanded in custody. FAC |
They both were released on bail after seven months in custody on 31 August 2007. FAC |
Mr Hs bail order was revoked on 21 April 2011 following his failure to attend a hearing of his appeal in the High Court of Justiciary. FAC |
A warrant was issued for his arrest and he was returned to custody on 26 April 2011. FAC |
Mrs H was again remanded in custody on 29 July 2011 when the High Court of Justiciary refused the appellants appeals. FAC |
She was released on bail on 12 August 2011, but Mr H remains in custody. FAC |
Initially, following her release, Mrs H visited Mr H in prison with all six children. FAC |
The number of visits then diminished and only the four younger children regularly go to the prison with her. FAC |
The two elder children are reluctant to take part in these visits. FAC |
Within a few weeks of her release from custody Mrs H decided that she did not want her relationship with Mr H to continue, and their relationship has broken down. FAC |
The children were placed on the child protection register in July 2009 as a result of allegations of sexual abuse against Mr H by the nine year old daughter of a neighbour. FAC |
They were removed from the register after a case hearing on 13 December 2011. FAC |
But this was on the basis that they would be restored to it if Mr H were to be released from custody and to resume contact with the family. FAC |
The extradition request FAC |
On 3 November 2006, by Diplomatic Note No 078, the United States requested the extradition of the appellants in accordance with article VIII of the Extradition Treaty between the Government of the United Kingdom of Great Britain and Northern Ireland and the Government of the United States of America of 8 June 1972 (Cmn... |
A new treaty, the Extradition Treaty of 2003 (Cm 5821) came into force on 26 April 2007. FAC |
But as the extradition documents in this case were submitted before that date the new treaty does not apply to it. FAC |
As is well known, the 1972 Treaty imposed mutual obligations on each party to extradite in respect of offences which carry a sentence of at least 12 months imprisonment in each jurisdiction. Ratio |
These obligations are however subject to specified exceptions. Ratio |
Among them is article V(2), which provides that extradition may be refused on any ground which is specified by the law of the requested party. Ratio |
It follows that the United Kingdom will not be in breach of its treaty obligations if, by reason of section 87 of the 2003 Act or section 57(2) of the Scotland Act 1998, extradition is refused on the ground that to extradite the person whose extradition is requested would be incompatible with any of the Convention righ... |
The documents submitted in support of the request included a copy of the indictment of the Grand Jury of the United States District Court for the District of Arizona dated 27 September 2006 and warrants for the arrest of the appellants. FAC |
82 counts are specified in the indictment. FAC |
The first is a count of conspiracy in the following terms: Beginning on a date unknown to the Grand Jury but no later than August of 2004, continuing through at least September of 2006, in the District of Arizona, and elsewhere, defendants [the appellants] did knowingly and intentionally conspire and agree with each ot... |
The indictment then gives details of the manner and means of the conspiracy. FAC |
It alleges that the appellants are the owners and founders of an internet business which operated under various names but is referred to in the indictment as KN03. FAC |
At all relevant times they operated a website through which their business solicited customers around the world, including customers in the United States, who were seeking to purchase chemicals. FAC |
Among the chemicals that they sold were red phosphorus and iodine. FAC |
It is alleged that the appellants knew that these chemicals could be used to manufacture methamphetamine. FAC |
This is a central nervous system stimulant drug which has a high potential for abuse. FAC |
At the relevant time it was listed in the United Kingdom under the name methylamphetamine as a class B drug for the purposes of the Misuse of Drugs Act 1971. FAC |
It was re-classified as a class A drug by the Misuse of Drugs Act 1971 (Amendment) Order 2006 (SI 2006/3331). FAC |
The indictment states that the website advertised that it offered discreet delivery and that customers often asked for discreet packaging in the comments which they submitted along with their orders for chemicals. FAC |
It also states that KN03 shipped orders to its customers with incorrect and misleading labelling as to the contents being sent. FAC |
This included labelling on red phosphorus indicating that it was red metal for iron works and labelling on iodine indicating that it was for medical use. FAC |
The indictment states that in addition to requests for discreet packaging KN03 received other emails alerting the appellants to the fact that the chemicals sold were being used to manufacture methamphetamine. FAC |
A website giving a recipe for manufacturing methamphetamine from red phosphorus and iodine was found saved on a KN03 computer. FAC |
Between August 2004 and August 2006 KN03 sold 296 kg of red phosphorus and 44 kg of iodine to customers in the United States, including customers in Arizona. FAC |
Numerous examples are given of persons who manufactured methamphetamine in Arizona and ordered chemicals from KN03. FAC |
At least 70 methamphetamine manufacturing locations are said to have been found in the United States which were supplied with chemicals by KN03. FAC |
KN03 is said to have received approximately $132,922 between August 2004 and August 2006 from customers in the United States purchasing red phosphorus and iodine. FAC |
Counts 2 to 17 allege the unlawful distribution by the appellants of red phosphorus knowing and having reasonable cause to believe that it would be used to manufacture a controlled substance in violation of specified provisions of the United States Code. FAC |
Details are given of 16 specific supplies to customers in Arizona. FAC |
Counts 18 to 33 allege the unlawful distribution and importation of red phosphorus knowing and having reasonable cause to believe that it would be used to manufacture a controlled substance in violation of another group of specified provisions of the United States Code, in relation to which details are given of the sam... |
Counts 34 to 49 are counts of the distribution of red phosphorus without the required registration. FAC |
Counts 50 to 65 allege the unlawful use of a communication facility, specifically the internet and United States mail, in committing the felony constituted by the unlawful distribution of red phosphorus to the same 16 customers in Arizona. FAC |
Counts 66 to 81 are counts of importing red phosphorus into the United States without the required registration. FAC |
Count 82 is a count of conspiracy to import red phosphorus into the United States without the required registration in violation of the relevant provisions of the United States Code. FAC |
In an affidavit sworn on 30 October 2006 which was submitted in support of the extradition request Mary Beth Pfister, Assistant US Attorney for the District of Arizona, gave this explanation of the general nature of the evidence to be relied on by the prosecutor: The evidence the government will use to prove all of the... |
The sheriff held that all the counts in the indictment were extradition offences. RLC |
The High Court of Justiciary held that the conduct alleged in relation to paragraph 12(c) of count 1 and counts 34 to 82 would not constitute an offence under the law of Scotland. RLC |
It allowed the appellants appeal against the sheriffs decision to that extent, and in relation to these offences only ordered the appellants discharge and quashed the orders for their extradition with respect to them. RLC |
The appeal against the remaining charges was refused. RLC |
The number of counts listed in the indictment might suggest, at first sight, that the allegation is of a course of wrongful conduct on a grand scale. FAC |
As the foregoing summary indicates, its length is attributable to the separate listing of each of the various provisions of the United States Code said to have been violated in relation to each of the specific transactions that have been identified. FAC |
Nevertheless the allegation is of a sustained and deliberate course of unlawful conduct, during which the appellants are said have sold 296 kg of red phosphorus and 44 kg of iodine to about 400 customers in the United States between August 2004 and August 2006 in return for which they are said to have received approxim... |
The High Court of Justiciary noted in para 96 of its judgment that the conduct was said to have persisted even after the execution of the search warrants in England and an undertaking to desist. FAC |
The appellants are said to have been well aware that these products were being used for the clandestine manufacture of methamphetamine and for this reason to have gone to some lengths to conceal the nature of their activities. FAC |
The potential for harm to which their alleged conduct is said to have contributed is very great, due to the addictive nature of that drug and its potential for abuse. FAC |
There is no doubt, even after the subtraction from the indictment of counts 12(c) and 34 to 82 by the High Court of Justiciary, that the offences that have been alleged against the appellants are very serious. FAC |
All the offences are punishable in the United States, the lowest penalty being four years imprisonment and the maximum 20 years. FAC |
Conduct of this kind would attract a term of imprisonment well in excess of the minimum period 12 months referred to in section 137(2)(b) of the 2003 Act were the appellants to be prosecuted in Scotland. FAC |
Is the appeal competent? FAC |
As has already been noted in para 4 above, there is no appeal to this court from a decision of the High Court of Justiciary under section 103 of the 2003 Act. Ratio |
Section 114(13) provides that the provisions of section 114 relating to appeals to this court from a decision of the High Court do not apply to Scotland. STA |
Section 116, read together with section 141(1), provides that a decision of the sheriff or the Scottish Ministers under Part 2 may be questioned in legal proceedings only by means of an appeal under that Part. STA |
Section 34 makes similar provision in relation to a decision of the sheriff under Part 1 of the 2003 Act. STA |
On the other hand, paragraph 13 of Schedule 6 to the Scotland Act 1998 provides a right of appeal to this court against the determination of a devolution issue by a court of two or more judges of the High Court of Justiciary, with the leave of the court from which the appeal lies or, failing such permission, with leave... |
This is a right of appeal which is separate and distinct from that provided by the 2003 Act. STA |
The question is whether the right of appeal to this court under paragraph 13 of Schedule 6 to the Scotland Act can survive the clear and unequivocal direction in section 116 of the 2003 Act that a decision of the sheriff may be questioned only by means of an appeal under Part 2 of that Act and the equivalent direction ... |
Although no-one in these proceedings submits that it cannot and that the Supreme Court does not have jurisdiction to determine this appeal, the question whether it does have jurisdiction is obviously a matter of general public importance. Ratio |
We were invited to consider it as a preliminary issue in the light of written submissions provided by counsel for the Scottish Ministers and the Lord Advocate. Ratio |
Among the issues which the sheriff must consider in his capacity as a judge under Part 2 of the 2003 Act is whether the persons extradition would be compatible with the Convention rights within the meaning of the Human Rights Act 1998: section 87(1). Ratio |
The question whether for the Scottish Ministers to order the person to be extradited to the territory to which his extradition is requested under section 93 of the 2003 Act would be incompatible with his Convention rights for the purposes of the Scotland Act 1998 is just another way of putting the same question. Ratio |
Section 57(2) of the Scotland Act provides that a member of the Scottish Executive has no power to do any act so far as the act is incompatible with any of the Convention rights. Ratio |
That provision is of general application, irrespective of the source of the power that is being exercised. Ratio |
The functions which sections 93 and 141(1) of the 2003 Act confer on the Scottish Ministers are subject to the constraints of section 57(2) of the Scotland Act in just the same way as any other function which they may be called upon to exercise. Ratio |
There can be no doubt that the question whether an order for a persons extradition by the Scottish Ministers would be incompatible with any of the Convention rights falls within the definition of a devolution issue in paragraph 1(d) of Schedule 6 to the Scotland Act and that, as such, it is open to determination by the... |
But under the system that the 2003 Act lays down the question whether the persons extradition would be compatible with the Convention rights must be determined by the court before the question whether an order for the persons extradition should be made can come before the Scottish Ministers. Ratio |
There are two aspects of the system that Part 2 of the 2003 Act lays down that might be taken as suggesting that the right of appeal in relation to a devolution issue under the Scotland Act has been excluded. STA |
The first is to be found in section 118(2), which applies where the effect of the decision of the relevant court on an appeal is that the person is to be extradited to a category 2 territory. STA |
A similar provision relating to the system in Part 1 is to be found in section 35. STA |
Section 118(2) provides that the person must be extradited to the category 2 territory before the end of the required period, which is 28 days starting with the day on which the decision of the relevant court on the appeal becomes final, or the day on which the proceedings on the appeal are discontinued. STA |
The relevant court in the application of this provision to Scotland is the High Court of Justiciary: section 118(8)(a). STA |
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