BH v Lord Advocate

The Supreme Court considered whether the extradition to the United States of Mr H and Mrs H would be incompatible with their Convention rights under article 8 ECHR, taking particular account of the best interests of the children as a primary consideration. The court held that an appeal under paragraph 13 of Schedule 6 to the Scotland Act 1998 against a determination of a devolution issue by the High Court of Justiciary was competent notwithstanding provisions of the Extradition Act 2003 that confine appeal routes under that Act.

The court applied the balancing exercise required by article 8 and concluded that, although the children’s best interests are of primary importance, they did not outweigh the strong public interest and treaty obligation in favour of extradition in these particular circumstances. The court considered and rejected the argument that prosecution in the United Kingdom was the preferable or required alternative forum, noting the strength of the United States forum and practical considerations (including the locus of witnesses and the nature and effect of the alleged offending).

Relevant statutory provisions considered included sections of the Extradition Act 2003 (notably section 87) and section 57(2) of the Scotland Act 1998; established Strasbourg and domestic authorities (for example Norris and ZH) informed the proportionality assessment.

Background and parties. Mr H and Mrs H, British citizens living in Scotland, faced extradition requests from the United States on multiple counts alleging distribution and importation of chemicals used to manufacture methamphetamine. Mrs H is mother of six children (aged between one and 14 at the time) and Mr H is the father of four younger children. The appellants argued extradition would violate article 8 ECHR because it would unjustifiably interfere with their family life, and that the Scottish Ministers therefore lacked power under section 57(2) of the Scotland Act 1998 to order extradition.

Procedural history. The sheriff found extradition to be compatible with Convention rights and referred the cases to the Scottish Ministers under the Extradition Act 2003; the Ministers ordered extradition on 29 May 2008. The appellants appealed to the High Court of Justiciary under the 2003 Act. The High Court (Lord Osborne, Lord Reed and Lord Mackay of Drumadoon) refused discharge under section 87 for both appellants (opinion dated 29 July 2011) but did quash certain counts that would not constitute offences under Scots law. The High Court granted leave to appeal to the Supreme Court in respect of devolution issues under Schedule 6 to the Scotland Act 1998.

(i) Nature of the application. The appellants sought to prevent extradition on article 8 grounds and to establish that the Scottish Ministers had no power to order extradition because extradition would be incompatible with Convention rights.

(ii) Issues framed by the court.

• Whether the Supreme Court had jurisdiction to entertain an appeal on a devolution issue against the High Court’s determination in extradition proceedings given the appeal provisions of the Extradition Act 2003.
• How article 8 rights, and in particular the best interests of the children, should be weighed against the public interest and treaty obligations to extradite.
• Whether prosecution in the United Kingdom was a viable or preferable alternative forum to extradition.

(iii) Reasoning and outcome. The court held the appeal was competent under paragraph 13 of Schedule 6 to the Scotland Act 1998 because that appeals mechanism and the constraints of the Scotland Act are part of the constitutional settlement and had not been expressly excluded by the 2003 Act. On the merits, the court undertook a proportionality balance. It emphasised that the best interests of children are a primary consideration but concluded that in this case the children’s interests did not outweigh the compelling public interest in extradition, given the seriousness and international character of the alleged offending, the connections of the alleged conduct to the United States, and practical considerations about witnesses and legal process. The court considered prosecution in the United Kingdom but concluded it was not an adequate or preferable alternative forum on the facts. The appeals were dismissed.

Subsidiary findings and context. The sheriff had found both appellants not credible and the High Court had excised certain counts that would not be offences under Scots law. The court noted the exceptional hardship for the children but observed that Strasbourg authorities have required exceptional circumstances to defeat extradition in similar contexts; the factual combination here did not meet that threshold. The court suggested that some legislative difficulties created by interaction of the Extradition Act and Scotland Act might warrant parliamentary attention.

Appeal dismissed. The Supreme Court held that (1) an appeal under paragraph 13 of Schedule 6 to the Scotland Act 1998 against a High Court determination of a devolution issue is competent notwithstanding the appeal scheme in the Extradition Act 2003; and (2) on the facts the article 8 rights of the appellants and the best interests of their children did not outweigh the strong public interest and treaty obligation in favour of extradition to the United States, and prosecution in the United Kingdom was not an appropriate alternative forum.

Sheriff's extradition determination (judgment 3 April 2008) sent cases to Scottish Ministers; Scottish Ministers ordered extradition on 29 May 2008. Appeals to the High Court of Justiciary under the Extradition Act 2003; High Court refused discharge under section 87 (opinion [2011] HCJAC 77, 29 July 2011) but quashed certain counts as not constituting Scottish offences. High Court granted leave on devolution issues to the Supreme Court (leave 11 August 2011). The present appeal to the Supreme Court raised competency under the Scotland Act and the article 8 proportionality issues.