BH (AP) v Lord Advocate; KAS or H (AP) v Lord Advocate
| Jurisdiction | Scotland |
| Judge | LORD HOPE,Lady Hale,Lord Kerr,LORD BROWN,LORD MANCE,LORD JUDGE,LORD WILSON |
| Judgment Date | 20 June 2012 |
| Neutral Citation | [2012] UKSC 24 |
| Court | Supreme Court (Scotland) |
| Docket Number | No 13 |
| Date | 20 June 2012 |
[2012] UKSC 24
Lord Hope, Deputy President
Lady Hale
Lord Mance
Lord Judge
Lord Kerr
Lord Wilson
Lord Brown
Appellant (BH)
Herbert Kerrigan QC
Linda Pike
(Instructed by Good & Stewart)
Respondent
W James Wolffe QC
Graeme Hawkes
(Instructed by The Appeals Unit, Crown Office)
Respondent
Lord Boyd of Duncansby QC
Kenny McBrearty
(Instructed by Scottish Government Legal Directorate Litigation Division)
Appellant (KAS or H)
Christopher Shead
Andrew Mason
(Instructed by Thompson & Brown)
Respondent
W James Wolffe QC
Graeme Hawkes
(Instructed by The Appeals Unit, Crown Office)
Respondent
Lord Boyd of Duncansby QC
Kenny McBrearty
(Instructed by Scottish Government Legal Directorate Litigation Division)
Intervener
Manjit Gill QC
James Dixon
(Instructed by Coram Children's Legal Centre)
Intervener
Lord Wallace of
Tankerness QC Advocate General for Scotland
John MacGregor
(Instructed by Office of the Solicitor to the Advocate General for Scotland)
Heard on 5, 6, 7 and 8 March 2012
LORD HOPE (with whom Lady Hale and Lord Kerr agree)
The question in this case is whether the appellants BH ("Mr H") and his wife KAS or H ("Mrs H") should be extradited to the United States of America to face trial in Arizona. The United States has requested their extradition under the Extradition Act 2003 on charges of conspiracy and unlawful importation into the United States of chemicals used to manufacture methamphetamine, knowing or having reasonable cause to believe that they would be used for that purpose. If they were the only persons whose interests had to be taken into account, the answer to be given to this question would have been relatively straightforward. The crimes of which they are accused are very serious, and the public interest in the honouring of extradition arrangements for the prevention and punishment of crime is compelling: Norris v Government of the United States of America (No 2) [2010] UKSC 9, [2010] 2 AC 487. But the persons whose interests must be taken into account include the appellants' children too. It is obvious that the children's interests will be interfered with to at least some degree by the extradition of either parent. If both parents are to be extradited the effect on the family life of the children will be huge. The weight to be given to their best interests lies at the heart of the issue whether the extradition of both parents, or either of them, would be proportionate.
The case comes before this court as an appeal against the determination of a devolution issue by the High Court of Justiciary. The appellants had argued both before Sheriff McColl in the Sheriff Court and in the High Court of Justiciary that it would be incompatible with their Convention rights within the meaning of the Human Rights Act 1998 for them to be extradited, as this would interfere with the exercise of their right to respect for their private and family life contrary to article 8 of the European Convention on Human Rights. Mrs H is the mother of six children, of whom the eldest is aged 14 years and the youngest is just one year old. Mr H is the father of the four younger children.
In a judgment delivered on 3 April 2008 after a hearing which began on 16 November 2007 the sheriff held that the appellants' extradition would be compatible with their Convention rights. So she sent the case of each appellant to the Scottish Ministers in terms of sections 87(3) and 141(1) of the 2003 Act for their decision whether either of the appellants was to be extradited. On 29 May 2008 the Scottish Ministers ordered the appellants to be extradited to the requesting territory. The appellants appealed to the High Court of Justiciary under section 103 read with section 216(9) of the 2003 Act. On 29 July 2011, after proceedings in that court which the court itself acknowledged had been exceptionally protracted, the High Court of Justiciary (Lord Osborne, Lord Reed and Lord Mackay of Drumadoon) held that neither of the appellants was entitled to be discharged under section 87 of the 2003 Act: [2011] HCJAC 77, para 101.
There is no appeal to this court from a decision of the High Court of Justiciary under section 103 of the 2003 Act: sections 114(13) and 116. But the question whether the Scottish Ministers had no power in terms of section 57(2) of the Scotland Act 1998 to make an order for the appellants' extradition because their extradition would be incompatible with their Convention rights is a devolution issue within the meaning of paragraph 1(d) of Schedule 6 to the Scotland Act. An appeal lies to this court under paragraph 13 of the Schedule against the determination of a devolution issue by a court of two or more judges of the High Court of Justiciary. On 11 August 2011 the High Court of Justiciary granted leave to the appellants to appeal to this court in respect of the devolution issues relating to article 8 that arose during the hearing of the appeal under the 2003 Act.
The appellants submit that the public interest in giving effect to the extradition request is outweighed by the consequences that this would have for the best interests of their children. The proper conclusion, they say, is that the proposed interference fails to meet the test of proportionality required by article 8. So the Scottish Ministers had no power to order their extradition, as to extradite them would be incompatible with their rights and those of their children under article 8 of the Convention.
Mr H and Mrs H are both British citizens. They are aged 48 and 34 respectively. Mrs H is the mother of six children: A, who was born on 5 August 1997 and is 14; B, who was born on 16 March 1999 and is 13; C, who was born on 15 October 2002 and is nine; D, who was born on 16 February 2006 and is six; E, who was born on 5 May 2009 and is three; and F, who was born on 29 March 2011 and is one. Mr H is the father of C, D, E and F. The father of A never lived with Mrs H (Miss S, as she then was) and has never had contact with that child. The father of B lived in family with Miss S until they separated in 2001. Mr H who was then living in Middlesbrough and had three children by previous relationships, was Miss S's employer at the time of the separation. He helped Miss S to find accommodation for herself and her children A and B in Middlesbrough. In about 2002 they formed a relationship. They were married in 2008.
Mr H spent a period from about 1989 to 1994 or 1995 living in the United States. He and his then partner had a daughter J, who was born in about 1986. When she was aged 6 and they were living in Arkansas she made disclosures to a school teacher which indicated that she had been a victim of sexual abuse by Mr H. This led to a police investigation and she was taken into care. Mr H left Arkansas and moved to Oklahoma where he could not be prosecuted for offences said to have occurred in Arkansas. But he remained in contact with J's mother, with whom he devised a plan for J to be returned to live with them. She persuaded the authorities to return J to her sole care, and then took the child with her to Oklahoma so that she could resume her relationship with Mr H. Following their return to the United Kingdom that relationship came to an end. Mr H formed a relationship with someone else by whom he had a son. While he was living in that family he learned that J had again been taken into care. But he took no steps to offer her a home with him in this new relationship.
After the birth of C, who was his first child with Mrs H, J's allegation that she had been sexually abused by Mr H when they were living in Arkansas came to the notice of the local authority in Middlesbrough. It brought proceedings against him under the Children Act 1989 in the Family Division of the High Court for his contact with Miss S's children to be terminated. Mr H responded by mounting an attack on the local authority's email system which led to the taking out of an injunction against him. In a judgment which was delivered on 30 January 2004 His Honour Judge Bryant, sitting as a judge of the High Court, found that Mr H had sexually abused J on a number of occasions in Arkansas and Texas in 1993 and 1994. He said that he was satisfied that Mr H remained a real and continuing danger to young girls, and continued the proceedings so that Miss S's position in relation to his findings could be ascertained. She accepted Judge Bryant's findings, and on 6 September 2004 he made an order against Mr H that he was to have no contact whatsoever with Miss S's children A, B and C. Regrettably, his order was ignored entirely by both Mr H and Miss S.
On 23 March 2005 search warrants were granted by Teesside Magistrates' Court under the Firearms Act 1968 in connection with an investigation into Mr H ordering a handgun through the internet. They were executed at a business address in Stockton-on-Tees and at residential addresses in Middlesbrough. Two handguns were recovered as well as documents, computers and bank records which contained information relating to the sale of chemicals through a website whose address was "kno3. com". The chemicals included red phosphorus and iodine. The information showed that red phosphorus and iodine had been sold to customers around the world including about 400 customers in the United States and that the appellants were aware that it was illegal to sell these substances in that country.
In April 2005 the appellants left Middlesbrough and moved with the three children to Scotland where they have remained ever since. Mrs H has relatives in the Bonnybridge area. On 21 June 2006 further search warrants were granted by Teesside...
To continue reading
Request your trial
-
M.M. v. Canada (Minister of Justice), [2015] N.R. TBEd. DE.014
...which provides that "[e]veryone has the right to respect for his private and family life". Similarly, in H. v. Lord Advocate , [2012] UKSC 24, [2013] 1 A.C. 413, the demands of the interests of criminal justice and of treaty obligations that favoured extradition ultimately outweig......
-
M.M. v. United States of America, 2015 SCC 62
...v. Pakulski, 2015 ONCA 539; H. (H.) v. Deputy Prosecutor of the Italian Republic, [2012] UKSC 25, [2013] 1 A.C. 338; H. v. Lord Advocate, [2012] UKSC 24, [2013] 1 A.C. 413; Adam v. United States of America (2003), 64 O.R. (3d) 268; United States v. Pakulski, 2014 ONCA 81; United States of A......
-
M.M. v. Canada (Minister of Justice), (2015) 480 N.R. 1 (SCC)
...the Italian Republic, [2013] 1 A.C. 338; [2012] UKSC 25, refd to. [para. 153]. B.H. et al. v. United Kingdom (Lord Advocate) et al., [2012] N.R. Uned. 96; [2013] 1 A.C. 413; [2012] UKSC 24, refd to. [para. United States of America et al. v. Adam (2003), 170 O.A.C. 222; 64 O.R.(3d) 268 (C.A.......
-
McBride v Scottish Police Services Authority
...Ahmad v UK (24027/07) (2013) 56 EHRR 1 Al-Skeini v UK (55721/07) (2011) 53 EHRR 18; 30 BHRC 561; [2011] Inquest LR 73 BH v Lord Advocate [2012] UKSC 24; 2012 SC (UKSC) 308; 2012 SLT 799; 2012 SCCR 562; 2012 SCL 635; [2013] 1 AC 413; [2012] 3 WLR 151; [2012] 4 All ER 600; [2012] HRLR 24; 109......
-
Can The Scots Secede? Lessons Learned From Canada
...Scotland Act in the past because of its fundamental constitutional significance: e.g. BH & Anor v The Lord Advocate & Anor (Scotland), [2012] UKSC 24, at para To view the original article click here The content of this article is intended to provide a general guide to the subject matter. Sp......
-
Table of Cases
...4), 2005 BCHRT 541 .......................................................................................57 BH & Anor v Lord Advocate, [2012] UKSC 24 .......................146, 171, 174, 192 Bhadauria v Seneca College of Applied Arts and Technology. See Seneca College of Applied Arts and ......
-
The Forum Bar in UK Extradition Law: An Unnecessary Failure
...proportionality and so forth, very generally thosesame considerations will also come into play in determining an Article 8 claim.6761. (2012) UKSC 24. See as to the case generally, P Arnell, ‘Extradition and the Best Interests of Children’ (2012) 27 SLT 157.62. Ibid para 60 per Lord Hope.63......