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The remaining provisions of this section, which make detailed provisions as to when the decision becomes final in the event of an appeal to the Supreme Court, do not apply to Scotland: section 118(8)(b). STA |
There is no provision which tells us when the 28 day period is to start should there be an appeal against the High Courts determination of a devolution issue under the Scotland Act. STA |
The problem could perhaps be cured if the Supreme Court were to remit the case to the High Court to pronounce a final order in the event that it decides that the appeal to it should be dismissed. STA |
This would involve reading the words becomes final in section 118(2)(a) as embracing this possibility. STA |
But this solution is not without difficulty. STA |
In contrast to the situation contemplated by the remaining provisions of section 118, no specific time limit is provided either by the Scotland Act or by an Act of Adjournal for applications for leave to appeal to this court under paragraph 13 of Schedule 6. STA |
The second aspect is to be found in section 115A(1)-(4), which was inserted by the Police and Justice Act 2006, section 42 and Schedule 13, paragraph 8(13). Ratio |
Its Part 1 equivalent is to be found in section 33A, inserted by paragraph 8(5) of that Schedule. Ratio |
Subsections (1)-(4) of section 115A make provision for a person to be remanded in custody where that persons discharge has been ordered on appeal but the court is informed immediately on behalf of the category 2 territory of an intention to appeal to the Supreme Court. Ratio |
Those provisions do not apply to Scotland: section 115A(5). Ratio |
There is no equivalent provision which enables the person to be detained in custody should the Lord Advocate wish to appeal to the Supreme Court on behalf of the category 2 territory against the determination of a devolution issue in that persons favour. Ratio |
This is a significant omission. Ratio |
It puts the Lord Advocate, should he wish to appeal in that event, at a significant disadvantage in comparison with the authorities in the other parts of the United Kingdom. Ratio |
It is reasonably clear that, when the 2003 Act and the Police and Justice Act 2006 which amended it were enacted, Parliament did not contemplate that decisions of the High Court of Justiciary in an appeal under section 87(1) against the sheriffs determination of the question whether the persons extradition would be com... |
But this does not lead inevitably to the conclusion that an appeal to the Supreme Court under that Act against the determination of a devolution issue by the High Court as part of an appeal under section 103 of the 2003 Act is incompetent. Ratio |
There are powerful considerations the other way. Ratio |
First, there is the fact that the effect of the Scotland Act is that the Scottish Ministers derive their existence only from that Act. Ratio |
As has been repeatedly pointed out by the court, they have no power to act other than in a way that is consistent with section 57(2) of that Act: see, eg, R v HM Advocate [2002] UKPC D3, 2003 SC (PC) 21, [2004] 1 AC 462, paras 46, 129; McGowan v B [2011] UKSC 54, 2011 SLT 37, [2011] 1 WLR 3121, para 6. Ratio |
The functions that the 2003 Act has conferred on the Scottish Ministers must be seen in that light. Ratio |
It would perhaps have been open to Parliament to override the provisions of section 57(2) so as to confer on them more ample powers than that subsection would permit in the exercise of their functions under the 2003 Act. Ratio |
But in my opinion only an express provision to that effect could be held to lead to such a result. Ratio |
This is because of the fundamental constitutional nature of the settlement that was achieved by the Scotland Act. Ratio |
This in itself must be held to render it incapable of being altered otherwise than by an express enactment. Ratio |
Its provisions cannot be regarded as vulnerable to alteration by implication from some other enactment in which an intention to alter the Scotland Act is not set forth expressly on the face of the statute. Ratio |
In any event, the courts presume that Parliament does not intend an implied repeal: Henry Boot Construction (UK) Ltd v Malmaison Hotel (Manchester) Ltd [2001] QB 388, per Arden LJ at p 405. Ratio |
In modern times, when standards of parliamentary draftsmanship are high, the presumption against implied repeal is strong: Nwogbe v Nwogbe [2000] 2 FLR 744, para 19, per Walker LJ. Ratio |
And it is even stronger the more weighty the enactment that is said to have been impliedly repealed: Bennion on Statutory Interpretation, 5th ed (2008), p 305. Ratio |
The provisions of Schedule 6 which enable devolution issues to be brought to the Supreme Court on appeal go hand in hand with the constraints which the Scotland Act imposes on the powers of the Scottish Ministers. Ratio |
They are as much part of the constitutional settlement as the constraints themselves. Ratio |
They were included in the Scotland Act as a means of ensuring that the rule of law and the protection afforded by the Convention rights is respected across the entire range of the activities of the Scottish Government. Ratio |
It permits of no exceptions, and the right of appeal to the Supreme Court under paragraph 13 of Schedule 6 is part of that mechanism. Ratio |
The fact that this right has not been expressly excluded by the 2003 Act is a powerful reason for holding that it is unaffected by sections 34 and 116. Ratio |
Then there is the fact that it has been held, in the context of proceedings under the 2003 Act in England and Wales, that sections 34 and 116 apply only to decisions in respect of which a right of appeal lies under the 2003 Act. PRE |
As was pointed out in R (Hilali) v Governor of Whitemoor Prison [2008] UKHL 3, [2008] AC 805, para 21, one of the features of the provisions about appeals in the 2003 Act is that not every decision that the judge is required to take can be appealed under the statute: see R (Asliturk) v City of Westminster Magistrates C... |
This adds force to the point that, although sections 34 and 116 of the 2003 Act provide that a decision of a judge under the relevant Part of the Act may be questioned by means of an appeal under that Part, they have no application to the system for the determination of devolution issues that the Scotland Act lays down... |
The system under which the present appeal has been brought before this court lies outside the contemplation of those sections of the 2003 Act. PRE |
The competency of devolution minutes in extradition proceedings was considered in Goatley v HM Advocate [2006] HCJAC 55, 2008 JC 1 and La Torre v HM Advocate [2006] HCJAC 56, 2008 JC 23. PRE |
In both cases the Lord Advocate conceded that devolution minutes were competent in proceedings under the 2003 Act as the functions carried out by the Lord Advocate and the Scottish Ministers under Part 2 of the 2003 Act were acts that they were performing as members of the Scottish Executive within the meaning of secti... |
This concession was approved by the High Court: Goatley, paras 13 and 14; La Torre paras 46 and 47. PRE |
It seems to me, with respect, that it was properly made and the High Court was right to give the concession its approval. PRE |
If an extradition were to be incompatible with the Convention rights of the person to be extradited the Scottish Ministers would be carrying out an act which they had no power to do. PRE |
A challenge to their proposed exercise of that function by means of a devolution minute is a parallel remedy to that afforded by section 87(1) of the 2003 Act. PRE |
The issue which the sheriff and, in its turn the High Court, had to decide under that subsection was just as much a devolution issue as it was an issue arising under the 2003 Act. PRE |
The effect of the statutes is that the appellants are entitled to exercise the right of appeal which paragraph 13 of Schedule 6 to the Scotland Act provides for, notwithstanding the fact that there is no appeal to this Court against the determination of the High Court under the 2003 Act. PRE |
For these reasons I would hold that the appeal to this court against the determination of the devolution issue for which the High Court gave permission is not prohibited by section 116 of the 2003 Act and that it is competent. RPC |
It is to be hoped that the difficulties that the operation of sections 115A and 118 and their equivalents in Part I of the 2003 Act may give rise to will be the subject of an early legislative solution by Parliament. RPC |
The proceedings below FAC |
On 15 January 2007 the Scottish Ministers issued a certificate under section 70 of the 2003 Act to the effect that the extradition request was valid. FAC |
They sent it to the Sheriff Court, as they were required to do by subsection (9) of that section. FAC |
On 16 January 2007 warrants were granted for the arrest of the appellants. FAC |
They appeared before the sheriff on 31 January 2007 and were remanded in custody. FAC |
They remained in custody until they were released on bail in August 2007. FAC |
When they were on remand their four children (E and F had not yet been born) were looked after by Mrs Hs mother who had had regular contact with them up to that date. FAC |
Other family members and friends of the family had individual children to stay with them from time to time. FAC |
The extradition hearing before the sheriff began on 16 November 2007. FAC |
The children were not separately represented. FAC |
It was suggested in the written case for Mrs H that it would have been appropriate for submissions to have been entertained on their behalf. FAC |
But Mr Hugo Keith QC, who appeared for the Official Solicitor in HH and PH v Deputy Prosecutor of the Italian Republic, Genoa [2012] UKSC 25 which was heard together with the cases of Mr and Mrs H in this court, accepted that cases where this is needed will be rare. FAC |
The court was also shown the product of inquiries made by the Crown Offices International Co-operation Unit through the European Judicial Network as to whether children are separately represented in extradition proceedings before the national courts in other Contracting States. FAC |
The responses that were received indicate that the practice in almost every state is for the children not to be separately represented, although in Malta the parents can ask for the child to be represented. FAC |
It was not suggested before the sheriff or in the High Court of Justiciary that separate representation was necessary in this case. FAC |
The court should nevertheless be alive to the information that is needed for it to have regard to the best interests of the child as a primary consideration: HH and PH, para 86, per Lady Hale. FAC |
The sheriff took the necessary steps in this case. FAC |
The hearing continued on dates in January and March, and the sheriff issued her judgment on 3 April 2008. RLC |
In para 66 she said that she did not regard either of the appellants as credible or reliable witnesses. RLC |
She rejected a submission by Mr Hs counsel that she should disregard the judgment of Judge Bryant in the High Court in Middlesbrough. RLC |
In her view it was relevant to the appellants credibility and reliability and it was inconceivable that they were not aware of his injunction. RLC |
In para 67 she said that she did not accept the picture that the appellants had sought to present of themselves and their children as totally united and alone without any support being available if the extradition request were to be granted. RLC |
In para 68 she said that the bleak scenario of the four children of necessity being taken into care and housed separately and without being able to sustain their relationship with their parents to the extent that it would be extinguished or irreparably damaged was not made out. RLC |
The sheriff provided her explanation for this assessment in the next two paragraphs. RLC |
In para 69 she said that she accepted that Mrs Hs mother was at times overwhelmed with the care of the children, who were naturally upset by the removal of their parents. RLC |
The mother said that she would not be able to cope with caring for them again. RLC |
But she did not say that she was not prepared to play any part in the childrens care should the need arise, and in her past conduct she had shown great care and support for them. RLC |
In para 70 the sheriff said that if Mrs Hs mother did not feel able to care for them the local authority might require to accommodate them. RLC |
In that situation it would look to find accommodation in the first instance within the childrens wider family or close friends. RLC |
If, as the evidence indicated, there were no friends or family willing or able to take care of the children the local authority would require to place the children in foster care. RLC |
She accepted evidence from a social services resource team manager that it might prove difficult to find a placement for all the children in one family. RLC |
But no permanent placement would be considered until the final outcome of any proceedings in the United States was known. RLC |
She accepted the social workers evidence that however the children were to be placed everything possible would be done to foster their relationship with one another and their parents. RLC |
In para 76 she said that it seemed to her highly unlikely that Mrs Hs mother would not participate in any efforts by the local authority to maintain those relationships. RLC |
The sheriff was referred to declarations by two witnesses from the United States which indicated that the United States authorities are committed to encouraging family visits in appropriate circumstances, to allowing visits beyond the confines and security of the prison and to allow family groups to visit where those m... |
She was also referred to the Council of Europe Convention on the Transfer of Sentenced Prisoners of 21 March 1983, Council of Europe Treaty Series No 112, which entered into force in the United States on 1 July 1985 and in the United Kingdom on 1 August 1985. RLC |
She was told that in evaluating a request that a sentenced person should serve a sentence of imprisonment in the home country the United States authorities include consideration of the presence of close family members in the home country, the strength of their family ties and the likelihood of family reunification. RLC |
In para 76 she said that the mechanisms operated by the United States authorities to maintain and assist in the fostering of family bonds would assist the appellants to maintain their bond with the children and the children to maintain their bonds with them, even if any such arrangements could not be regarded as ideal.... |
The sheriffs conclusion was, as she said in para 82 of her judgment, that the appellants extradition would be compatible with their Convention rights. RLC |
She answered the question in section 87(1) of the 2003 Act in the affirmative and sent the case of each appellant to the Scottish Ministers for their decision under section 93 whether the appellants were to be extradited. RLC |
On 29 May 2008 the Scottish Ministers ordered the appellants to be extradited to the requesting territory. RLC |
Mr H appealed to the High Court of Justiciary under section 103 of the 2003 Act against the sheriffs decision and under section 108 against the order for his extradition by the Scottish Ministers. RLC |
Mrs H appealed under section 103 against the sheriffs decision to send her case to the Scottish Ministers. RLC |
The appeals were set down for hearing on 4 to 6 March 2009. FAC |
On 4 March 2009 the court was informed that those instructed for Mrs H had withdrawn from acting, and the hearing of her appeal was adjourned to a later date. FAC |
The hearing of Mr Hs appeal proceeded but it was not completed on 6 March so it was continued for hearing for four more days in May 2009. FAC |
Mrs Hs appeal was set down for that date also, but it had to be adjourned again having regard to the imminent birth of E, who was born on 5 May 2009. FAC |
Investigations then had to be made into Mrs Hs mental health. FAC |
Following the completion of those investigations an application was made on Mrs Hs behalf for her to be discharged under section 91 of the 2003 Act. FAC |
The Lord Advocate submitted that the court had no jurisdiction to consider that matter so the case had to be continued again for a hearing on jurisdiction. FAC |
Having held that it did have jurisdiction, the court heard evidence about Mrs Hs mental condition and concluded that her contention that her mental condition was such that it would be unjust or oppressive for her to be extradited had not been established. FAC |
After various other procedural hearings a further application was made on Mrs Hs behalf in June 2010 in which it was maintained that there had been a material deterioration in her health since the previous application had been considered. FAC |
She had again become pregnant and had suffered a miscarriage in February 2010. FAC |
This had been found to be a molar pregnancy which had required monitoring. FAC |
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