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A further hearing was fixed for 11 August 2010. FAC |
The court was then informed that, despite advice that she should avoid pregnancy because of risks to her health, Mrs H had become pregnant again. FAC |
The hearing fixed for that date was discharged. FAC |
At a procedural hearing on 24 September 2010 the court was informed that Mr H had instructed new solicitors and counsel (his fourth set of representatives). FAC |
On 7 December 2010 the court refused Mrs Hs second application under section 91. FAC |
Mrs H then again changed her representatives for the fifth time. FAC |
A continued hearing of the appeals proceeded on 10 January 2011. FAC |
It had to be adjourned again on 14 January 2011 when Mr H told the court staff that Mrs H, who was by now seven months pregnant, had been taken to hospital. FAC |
A further hearing was fixed for 19 April 2011, but it had to be adjourned to 21 April as the court was informed that Mr H had attempted suicide that morning by taking an overdose of paracetamol and had been taken to hospital. FAC |
Mr H failed to attend court on that date. FAC |
A letter was produced from a general practitioner saying that, for unspecified reasons, he was unfit to attend court. FAC |
For this and other reasons the hearing was adjourned to 26 April 2011, when the court was provided with a discharge letter prepared by a consultant psychiatrist who had examined Mr H on 20 April 2011 in Stirling Royal Infirmary. FAC |
He said that when he saw Mr H that day he had been quite explicit about the fact that he wished to attract a psychiatric diagnosis, as was his wife, to avoid extradition to America. FAC |
Mr H denied having said any such thing, but the court heard evidence from the consultant psychiatrist whom it found to be an entirely convincing witness. FAC |
In para 26 of its opinion of 29 July 2011 (see para 44, below) the court said that the evidence relating to this episode supported its conclusion that Mr H was a devious and manipulative individual whose behaviour can be unpredictable and irresponsible. FAC |
The hearing of the appeals was concluded on 28 April 2011. FAC |
Mr H, for whose arrest a warrant had been issued on 21 April 2011, was remanded in custody. FAC |
The opinion of the court was delivered by Lord Reed on 29 July 2011: [2011] HCJAC 77. FAC |
In para 99 he said that in the case of Mr H it appeared to it to be plain that his extradition could be justified under article 8(2). FAC |
He was charged with very serious offences, and his case did not come close to meriting his discharge under section 87 of the 2003 Act. FAC |
In para 101 he said that it had to be recognised that the family life of Mrs H and the children would inevitably be disrupted by her extradition. FAC |
But he said that, applying the guidance in Norris v Government of the United States of America (No 2) [2010] 2 AC 487 and having regard to the seriousness of the offences charged, the court had come to the conclusion that Mrs H also was not entitled to be discharged under section 87. FAC |
On 11 August 2011 the court gave leave to the appellants to appeal to the Supreme Court in respect of the devolution issues relating to article 8 that had arisen during its hearing of the appeal. FAC |
The reasoning of the High Court of Justiciary Ratio |
As has just been noted, Lord Reed said in para 101 of his opinion that the court had applied the guidance in Norris in coming to its conclusion in the case of Mrs H: see paras 72-78. PRE |
In para 79 he considered the decision in ZH (Tanzania) v Secretary of State for the Home Department [2011] UKSC 4, [2011] 2 AC 166. PRE |
Having done so, Lord Reed set out his understanding of the approach to be adopted in paras 80-81. PRE |
In para 81 he said that it was important to note that ZH was concerned not with extradition but with deportation, and that the approach adopted to article 8 rights in extradition cases must be radically different from that adopted in deportation or expulsion cases. PRE |
He referred to the following passage in the admissibility decision in King v United Kingdom (Application No 9742/07) (unreported) given 26 January 2010, para 29 where the Strasbourg court said: Mindful of the importance of extradition arrangements between states in the fight against crime (and in particular crime with ... |
Summing up on this point at the end of para 80 of his opinion, Lord Reed said: Since the factors which are generally of overriding importance in extradition cases are not present in deportation or expulsion cases, it follows that decisions on article 8 rights in cases of the latter kind are of no direct relevance in th... |
In para 81 he referred to passages in paras 15 and 51 of the judgment in Norris, in which Lord Phillips indicated that the distinction between extradition and deportation was fundamental to its reasoning. Ratio |
He also said that it was necessary to bear in mind that Norris was not referred to in the judgments in ZH nor was it cited in argument. Ratio |
He summarised the courts approach to ZH in these words: Against that background, we are not persuaded that anything said in ZH was intended to modify or depart from what had been said in Norris, or indeed was said with extradition in mind. Ratio |
At the same time, in a case where it is necessary to determine whether the extradition of a person with dependent children is justified under article 8(2) of the Convention, the best interests of the children are naturally a primary consideration. Ratio |
As appears from King v United Kingdom, however, that consideration will be outweighed, in all but exceptional circumstances, by the public interest in the application of extradition arrangements. Ratio |
We in this court have the great advantage of being able to develop our own thinking on the issues raised by these two cases, and I would not wish to be too critical of the way the High Court of Justiciary sought to reconcile them. Ratio |
Their task was not made easier by the fact that the focus in Norris was on the state of health of Mr and Mrs Norris and not on Mr Norriss relationship with his two sons, who were grown up, or with his three grandchildren. Ratio |
It was acknowledged that the impact of extradition on family life did not fall to be considered simply from the viewpoint of the extraditee, that the family unit had to be considered as a whole and that each family member had to be regarded as a victim: para 64, per Lord Phillips. Ratio |
But, on the facts of that case, it was only Mr and Mrs Norris who were seen as the victims. Ratio |
The conclusions that can be drawn from Norris are set out by Lady Hale in HH and PH v Deputy Prosecutor of the Italian Republic, Genoa, para 8. Ratio |
ZH on the other hand was entirely different case on its own facts and, as it was concerned with immigration control and not extradition, nothing that was said in Norris was relevant to how it should be decided. Ratio |
So Norris was not referred to in the judgments, nor was it cited in argument. Ratio |
That does not mean, however, that nothing that was said in ZH is relevant to how issues about the rights of children should be dealt with in the context of extradition. Ratio |
On the contrary, the reasoning in that case can have a very real and important part to play in the extradition context too where those affected by a request for extradition include the children of the persons sought to be extradited. Ratio |
The error in the courts reasoning was to see these two cases as dealing with entirely different things. Ratio |
While that was true when the facts in ZHs case were being considered, it would not have been true if ZH had come first and the family unit to which it was necessary to have regard in Norris had included children, as it does in the present case. Ratio |
As I said in Norris, para 89, I do not think that there are any grounds for treating extradition cases as falling into a special category which diminishes the need to examine carefully the way the process will interfere with the individuals right to respect for his family life. Ratio |
The need to do this here is just as great as it was in ZH, although the conclusion that is likely to be reached may not be the same. Ratio |
I cannot agree therefore with the proposition that the approach adopted to article 8 rights in extradition cases must be radically different from that adopted in deportation or expulsion cases. Ratio |
The public interest in giving effect to a request for extradition is a constant factor in cases of that kind. Ratio |
Great weight will always have to be given to it, and the more serious the offence the greater will be that weight. Ratio |
The public interest in immigration control lacks the treaty base which is at the heart of the extradition process. Ratio |
But, the question, so far as the article 8 right is concerned, is the same in both cases. Ratio |
How is one to balance two powerful and competing interests? In Norris, para 91, I said that the question was whether the article 8 right carries enough weight to overcome the public interest in giving effect to the request or in maintaining a proper and efficient system of extradition. Ratio |
I agree with Lord Wilson that the significance of the way one puts the question may be more theoretical than practical: R (HH and PH) v Deputy Prosecutor of the Italian Republic, Genoa [2012] UKSC 25, para 152. Ratio |
But I think that it would be more accurate where the family life of children is involved, as the best interests of children are a primary consideration, to put the question the other way round as I did in ZH, para 44: is the article 8 right outweighed by the strength of any other considerations? Ratio |
The article 8 rights in this case Ratio |
As Ross D Parke and K Alison Clarke-Stewart declared in the opening sentence of their paper Effects of Parental Incarceration on Young Children (December 2001), for imprisoned mothers one of the greatest punishments that incarceration carries with it is separation from their children. Ratio |
The same point can be put the other way round. Ratio |
One of its greatest effects is to punish the children too. Ratio |
For those members of the family who were living together before the incarceration, their patterns of contact with each other will be severely disrupted. Ratio |
This may happen at a crucial stage of the childrens development, when the damage done to their well-being and development may be irreparable. Ratio |
These effects are likely to be even greater where the parent is to be extradited for trial and likely incarceration in another country. Ratio |
As Lady Hale said in ZH, paras 25-26, article 9 of the UNCRC draws a distinction between separation of children from their parents for reasons connected with their upbringing and separation of parents from their children for deportation, detention or imprisonment. Ratio |
But even in decisions of the latter kind, the best interests of the child must be a primary consideration. Ratio |
The intellectual exercise which this principle requires is not to be seen as dictated to in a mechanistic way without regard to the context. Ratio |
In ZH, para 44, I said that the starting point was to assess whether the childrens best interests were outweighed by the strength of any other considerations. Ratio |
But I agree with Lord Judge that this does not require the decision-taker always to examine the interests of the children at the very beginning of the exercise: R (HH and PH) v Deputy Prosecutor of the Italian Republic, Genoa [2012] UKSC 25, para 124. Ratio |
It does not, as Mr Gill QC pointed out in his helpful note for the Coram Childrens Legal Centre, impose a straitjacket. Ratio |
What it does do, by encouraging a temporal approach, of the kind described by Lady Hale in her judgment in that case at para 33, is ensure that the best interests principle will not be seen as having a reduced importance when there are other important compelling considerations which, on the particular facts of the case... |
The place where the best interests and well-being of any children takes in the list of factors which the Strasbourg court set out in AA v United Kingdom (Application No 8000/08) (unreported) given 20 September 2011, para 56, supports this approach. Ratio |
As Lady Hale said in ZH, para 26, the strength of those other considerations may outweigh the best interests of the children, provided that those other considerations are not treated as inherently more significant than they are. Ratio |
So it is important to have a clear idea of their circumstances and of what is in their best interests before one asks oneself whether those interests are outweighed by the force of any other consideration. Ratio |
But to begin with the whole exercise must be placed into its proper context. Ratio |
The court was shown an affidavit by William Bryan III, an assistant United States Attorney for the District of Arizona, in which he stated that it is impossible to state with precision how long it would take to bring the appellants to trial following their extradition. Ratio |
While they are awaiting trial the appellants may be released on conditions, but a more realistic assessment is that they will be detained in custody until and throughout the trial. Ratio |
Mail and telephone calls would be permitted during this period, provided those imprisoned have sufficient funds for this. Ratio |
But direct face-to-face contact with visitors would not be possible. Ratio |
The trial itself can be expected to last about two to four weeks. Ratio |
In view of the dangers involved in the manufacture of methamphetamine and the harm that its use can give rise to, the appellants conviction would be likely to attract very long sentences. Ratio |
The effect of those sentences may be mitigated by the fact that arrangements exist under which the appellants might thereafter be permitted to serve part of their sentences in Scotland under the European Convention on the Transfer of Sentenced Prisoners of 21 March 1983: see para 39, above. Ratio |
But there is no certainty that permission would be given in this case, and is not possible to predict when any such arrangements would be likely to be made even if they are agreed to. Ratio |
The prospect has to be faced that the appellants are likely to be kept apart from their children, and their children apart from them and perhaps from each other, for a very long time. Ratio |
Where do the best interests of the children stand in relation to Mr H? He has been in custody since 26 April 2011. Ratio |
Contact has been maintained by means of prison visits, but the two elder children have made it clear that they no longer wish these visits to continue. Ratio |
Mrs H regards her relationship with Mr H as at an end, so the prospect of his ever living together with her and the children as a family seems remote. Ratio |
Although no regard was paid to it by either of them, one cannot ignore the fact that on 6 September 2004 Judge Bryant ordered that, in the light of his abuse of his daughter J, Mr H was to have no contact whatsoever with Mrs Hs three elder children who are all girls. Ratio |
D and E are also girls, and all six children were placed on the child protection register in July 2009 as a result of another allegation of sexual abuse by Mr H, this time of a neighbours daughter. Ratio |
They were removed from it on 13 December 2011, but they would all be placed on it again if Mr H were to resume contact with the family on his release from custody. Ratio |
The childrens family relationship with Mr H has effectively been brought to an end by these events, at least for the time being. Ratio |
The prospect of their ever resuming family life together is remote. Ratio |
The argument that it would be contrary to their best interests for him to be extradited is, at best, very weak. Ratio |
As against that, the offences of which he is accused are very serious and the treaty obligation that requires effect to be given to the request is compelling. Ratio |
Lord Reed said in para 99 that Mr Hs case did not come close to meriting his discharge under section 87(2). Ratio |
I agree with that assessment, and the devolution issue that Mr H has raised falls to be answered in the same way. Ratio |
I would refuse his appeal. Ratio |
Mrs Hs case is, as Lord Reed said in para 100 of his opinion, more difficult. Ratio |
But, as he explained in para 101, the court based its decision in her case exclusively upon the law as laid down in Norris. Ratio |
The guidance that was to be derived from ZH was ignored. Ratio |
For the reasons already given (see paras 47-49, above), I consider that this was a misdirection. Ratio |
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