BH and another v The Lord Advocate and another (Scotland)

In extradition proceedings affecting dependent children, their best interests are a primary consideration. The court must ascertain those interests clearly and give them proper weight within the article 8 proportionality balance. Extradition is not subject to a radically different article 8 approach from deportation, although treaty obligations and the prevention of serious cross-border crime ordinarily carry great weight.

Where both parents of young children face extradition, the consequences may exceptionally require careful consideration of a domestic prosecution. That possibility will affect the result only where the proportionality balance is finely drawn. A statutory restriction on extradition appeals does not impliedly exclude the separate constitutional jurisdiction governing devolution issues under the Scotland Act 1998.

The United States requested the extradition of a married couple to Arizona to face charges arising from the alleged sale and importation of chemicals used to manufacture methamphetamine. The couple had six children. Extraditing both parents risked prolonged separation and the possible dispersal of the children into care.

The sheriff found extradition compatible with article 8 and sent both cases to the Scottish Ministers, who ordered extradition. The High Court of Justiciary partly discharged the appellants in respect of counts which did not satisfy the dual-criminality requirement, but otherwise refused their appeals: [2011] HCJAC 77.

The Supreme Court considered whether the statutory exclusion of an extradition appeal prevented a separate appeal on a devolution issue. On the merits, it considered how the children’s best interests should enter the article 8 proportionality balance and whether prosecution in the United Kingdom was a realistic alternative.

1. The appeals were competent but dismissed. Lord Hope, with whom Lady Hale and Lord Kerr agreed, held that the statutory restrictions on extradition appeals did not exclude the separate right of appeal concerning a devolution issue under paragraph 13 of Schedule 6 to the Scotland Act 1998. The constraints in section 57(2), and the appellate mechanism which enforces them, form part of the constitutional settlement. They could not be altered by implication through the Extradition Act 2003. Lord Brown, Lord Mance, Lord Judge and Lord Wilson agreed that the court had jurisdiction.

2. The High Court of Justiciary had misdirected itself by treating the article 8 approach in extradition cases as radically different from that in deportation cases. The legal question remains how competing interests should be balanced. Extradition treaties and the prevention of serious cross-border crime carry great weight, with greater weight attaching to more serious offending. Where children are affected, however, their best interests remain a primary consideration and must be assessed clearly before deciding whether other considerations outweigh them.

3. The principle does not impose a rigid order of analysis. The decision-maker need not examine the children’s interests first in a mechanical sense. It must nevertheless avoid treating competing considerations as inherently more important and must understand the children’s circumstances and best interests before completing the balance.

4. Mr H’s extradition was proportionate. His family relationship with the children had effectively ended, the prospect of renewed family life was remote, and the case against extradition based on their interests was weak. That interest was outweighed by the seriousness of the alleged offences and the compelling treaty obligation.

5. Mrs H’s case required closer examination. The children’s interests lay in continuing to live with their mother, and prolonged separation risked profound effects, entry into care and separation from one another. Those interests nevertheless did not overcome the overwhelming public interest in extradition for sustained and serious alleged cross-border offending.

6. Cases in which both parents of young children face extradition may exceptionally require consideration of domestic prosecution. Such an inquiry remains part of proportionality and ordinarily arises only where the balance is finely drawn. Here the United States was the proper forum: the harmful effects occurred there, most witnesses were there, and its courts were best placed to assess the alleged criminality. The Scottish Ministers’ extradition orders were compatible with article 8.

1. United Kingdom Supreme Court: Held that the devolution appeals were competent, but dismissed both appeals and upheld the compatibility of the extradition orders with article 8: [2012] UKSC 24 .
2. High Court of Justiciary: Allowed the statutory appeals only in respect of counts which did not constitute offences under Scots law, but otherwise refused the appeals and held that neither appellant was entitled to discharge: [2011] HCJAC 77.
3. Sheriff Court: Held that extradition was compatible with the appellants’ Convention rights and sent both cases to the Scottish Ministers under the Extradition Act 2003. The Scottish Ministers subsequently ordered extradition.