B.h.+k.s.h. V. Her Majesty's Advocate
| Jurisdiction | Scotland |
| Judge | Lord Reed,Lord Osborne,Lord Mackay of Drumadoon |
| Neutral Citation | [2011] HCJAC 77 |
| Docket Number | XC411/08, |
| Date | 29 July 2011 |
| Court | High Court of Justiciary |
| Published date | 28 July 2011 |
| APPEAL COURT, HIGH COURT OF JUSTICIARY | |
| Lord Osborne Lord Reed Lord Mackay of Drumadoon | [2011] HCJAC 77 Appeal No: XC411/08, XC412/08 AND XC420/08 OPINION OF THE COURT delivered by LORD REED in Appeals of by B H First Appellant; and K A S or H Second Appellant; against THE LORD ADVOCATE First Respondent: and THE SCOTTISH MINISTERS Second Respondent _______ |
For first appellant: Kerrigan, Q.C., Pike; Good & Stewart
For second appellant: Lamb, Q.C., Prais; Livingstone Brown
For first respondent: Dewar Q.C., Hawkes; Crown Agent
For second respondent: McBrearty; Scottish Government Legal Directorate
Amicus curiae: Duncan
29 July 2011
Introduction
[1] These proceedings are concerned with three appeals under the Extradition Act 2003 (as amended). First, Mr H has appealed under section 103 of the Act against the decision taken by Sheriff McColl on 3 April 2008, under section 87(3) of the Act, to send his case to the Scottish Ministers for their decision whether he is to be extradited. Secondly, Mrs H (formerly Miss S) has also appealed under section 103 of the Act against the similar decision taken by Sheriff McColl on the same date to send her case to the Scottish Ministers. Thirdly, Mr H has appealed under section 108 of the Act against the extradition order made by the Scottish Ministers on 29 May 2008.
[2] The proceedings arise from a request by the United States of America for the extradition of Mr and Mrs H to face trial in Arizona in relation to charges which can be broadly described as charges of conspiracy and unlawful importation into the United States of chemicals which are used to manufacture methamphetamine, knowing or having reasonable cause to believe that the chemicals would be used for that purpose. The appeals raise a number of issues in relation to the law of extradition, including the question whether the extradition of Mr and Mrs H would be compatible with their Convention rights under Article 8 of the European Convention for the Protection of Human Rights and Fundamental Freedoms, as given effect by the 2003 Act and the Scotland Act 1998.
The background circumstances
[3] The following summary of the background circumstances is derived primarily from the findings in fact made by Sheriff McColl on the basis of the evidence which she heard, supplemented by matters which were the subject of evidence before this court or were not in dispute.
[4] Mr and Mrs H are UK citizens. When at liberty, they currently reside in Scotland. They are aged 47 and 33 respectively. Mrs H is the mother of six children: child A, born on 5 August 1997; child B, born on 16 March 1999; child C, born on 15 October 2002; child D, born on 16 February 2006; child E, born on 5 May 2009; and child F, born on 29 March 2011. Child A's father is D C. He has never lived in family with Mrs H and has never had contact with child A. Child B's father is J W. He lived in family with Mrs H and children A and B until he and Mrs H separated in 2001. Mr H is the father of children C, D, E and F. He was the employer of Miss S (as she then was) at the time of her separation from J W. He assisted her in finding accommodation in Middlesbrough for herself and children A and B. He and Miss S formed a relationship in about 2002. They married in April 2008.
[5] Mr H has three children from previous relationships. He spent a period from about 1989 to 1994 or 1995 living and working in the United States. He and his then partner had a daughter, J, who was born in 1986. While Mr H, his partner and J were living in Arkansas, J, then aged 6, was thought to be displaying disturbed behaviour, and was said to have made disclosures to a school teacher in relation to sexual abuse of her by Mr H. This was followed by police investigations which were carried out in that state and which included an interview of J. She was removed from the family home and taken into care there. Mr H left Arkansas and went to live in Oklahoma, where he could not be prosecuted for offences said to have occurred in Arkansas. He remained in contact with J's mother, and a plan was formed whereby the mother of the child would seek to have J returned to her sole care on the basis that she was no longer living with Mr H. Thereafter, she too would leave Arkansas with J and join Mr H in Oklahoma. This plan was carried out. Mr H, the child's mother and J left the United States and returned to the United Kingdom in 1994 or 1995.
[6] That relationship came to an end and Mr H formed a relationship with someone else with whom he had a son. While living in that family he learned that J had once again been taken into care, this time in England. He took no steps to offer her a home at that time.
[7] After he formed a relationship with Miss S, and after the birth of child C in 2002, the local authority in Middlesbrough were made aware of the allegations by J relating to the sexual abuse said to have been perpetrated upon her by Mr H in the United States. Proceedings were raised in the Family Division of the High Court under the Children Act 1989. In response to this Mr H mounted a denial of service attack on the local authority's email system, which resulted in their obtaining an injunction against him in November 2003.
[8] In a judgment dated 30 January 2004 His Honour Judge Bryant (sitting as a judge of the High Court), who had granted the injunction in November 2003, found that Mr H had sexually abused J on a number of different occasions in Arkansas and Texas in 1993 and 1994. He was satisfied that Mr H remained a real and continuing danger to young girls. Judge Bryant continued the proceedings for the purpose of ascertaining Miss S's position in relation to his findings. She accepted the findings. On 6 September 2004 Judge Bryant granted an injunction against Mr H from having contact with children A, B and C. This injunction was not complied with.
[9] On 23 March 2005 search warrants were granted by Teeside Magistrates' Court under the Firearms Act 1968, in connection with an investigation into Mr H ordering a handgun through the internet. The warrants were executed at a business address in Stockton-on-Tees and at residential addresses in Middlesbrough. Two handguns were recovered, and also computers containing information relating to the sale of chemicals through a website, www.kno3.com. The chemicals included red phosphorus and iodine, which are used to manufacture methamphetamine. The information showed that these chemicals had been sold to a large number of customers in the United States.
[10] In April 2005 Mr H, Miss S and children A, B and C left Middlesbrough and moved to Scotland, where Miss S had (and continues to have) relatives living. They have resided in Scotland with their children since then.
[11] On 21 June 2006 further search warrants were granted by Teeside Magistrates' Court. On 23 June 2006 they were backed by Sheriff Miller at Falkirk Sheriff Court. They were subsequently executed at a business address in Grangemouth and at a residential address.
[12] Following an investigation by authorities in the United States, on 27 September 2006 an indictment was filed in the United States District Court for the District of Arizona, charging Mr H and Miss S with the offences described below. Warrants for their arrest were issued by that court the following day. On 3 November 2006 the United States requested their extradition in accordance with the Extradition Treaty, Protocol of Signature and Exchange of Notes between the United States and the United Kingdom of 8 June 1972 ("the 1972 Treaty"), as amended by the Supplementary Treaty of 25 June 1985.
The history of the present proceedings
[13] These proceedings have been exceptionally protracted, both in the Sheriff Court and, to an even greater extent, in this court. It is appropriate to explain why this has occurred. We again rely on Sheriff McColl's judgment in relation to the proceedings in the Sheriff Court.
The proceedings in the Sheriff Court
[14] The requests first came before the sheriff on 31 January 2007. In accordance with section 75 of the 2003 Act, the sheriff fixed 19 March 2007 as the date on which the extradition hearing was to begin. Mr H and Miss S were remanded in custody. On 12 March 2007 the diet fixed for 19 March 2007 was discharged and a new diet fixed for 26 April 2007, as Mr H's solicitor had withdrawn from acting for him and he wished to obtain new representation. The extradition hearing did not proceed on 26 April 2007. It appears that a motion was made by counsel then acting on behalf of Mr H and Miss S that the sheriff, Sheriff Maciver, should recuse himself. That motion having been refused, an appeal was brought to this court. Pending the hearing of that appeal (which was subsequently refused), an issue was raised in the Sheriff Court as to whether Mr H and Miss S should be discharged under section 72 of the 2003 Act, on the basis that there had been a failure to comply with section 72(2) (which requires that a copy of the warrant issued under section 71 must be given to the person arrested under such a warrant as soon as practicable after his arrest). At a hearing on 31 July 2007 Sheriff Stoddart heard evidence on that issue and concluded that section 72(2) had been complied with. We return to that issue below.
[15] Applications for bail by Mr H and Miss S had been refused by the sheriff. On 31 August 2007 however their appeals against the refusal of bail were allowed. They had been in custody for seven months. The next date for which the extradition hearing was fixed was 10 October 2007. That diet was however discharged on 26 September 2007, after Miss S instructed a new firm of solicitors. The extradition hearing was then fixed for 14 November 2007. On that date, counsel appearing on behalf of Miss S sought an adjournment to enable her to be psychiatrically examined. The hearing was adjourned until 16 November 2007, when medical reports were produced to the effect that...
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