HH v Deputy Prosecutor of the Italian Republic, Genoa
| Jurisdiction | England & Wales |
| Judge | LORD KERR,LORD MANCE,LORD BROWN,LORD HOPE,LORD JUDGE,LORD WILSON,LADY HALE |
| Judgment Date | 20 June 2012 |
| Neutral Citation | [2012] UKSC 25 |
| Date | 20 June 2012 |
| Court | Supreme Court |
[2012] UKSC 25
before
Lord Hope, Deputy President
Lady Hale
Lord Mance
Lord Judge
Lord Kerr
Lord Wilson
Lord Brown
Appellant (HH)
Alun Jones QC
John Jones
(Instructed by Wainwright & Cummins LLP)
Respondent
David Perry QC
Ben Lloyd
(Instructed by Crown Prosecution Service, Special Crime Division Extradition Unit)
Appellant (PH)
Matthew Ryder QC
Steven Powles
Michelle Butler
(Instructed by Wainwright & Cummins LLP)
Respondent
David Perry QC
Ben Lloyd
(Instructed by Crown Prosecution Service, Special Crime Division Extradition Unit)
Appellant (F–K)
Edward Fitzgerald QC
Ben Cooper
(Instructed by GT Stewart Solicitors)
Respondent
David Perry QC
Ben Lloyd
(Instructed by Crown Prosecution Service, Special Crime Division Extradition Unit)
Intervener (X, Y and Z, by the Official Solicitor, their litigation friend)
Hugo Keith QC
Caoilfhionn Gallagher
(Instructed by Maxwell Gillott Solicitors)
Intervener (JUSTICE)
Alex Bailin QC
Mark Summers
Aaron Watkins
(Instructed by Peters & Peters Solicitors LLP)
Intervener (Coram Children's Legal Centre)
Manjit Gill QC
James Dixon
(Instructed by Coram Children's Legal Centre)
JUDGEMENT
Heard on 5, 6, 7 and 8 March 2012
We have before us two cases under the Extradition Act 2003 involving the parents of young children. In one, an Italian court has issued a European Arrest Warrant (EAW) in respect of both parents of three children now aged 11, 8 and 3, the parents having been convicted of a series of drug trafficking offences. The parents are both British nationals. In the other, a Polish court has issued EAWs in respect of the mother of five children aged 21, 17, 13, 8 and 3, who is accused of offences of dishonesty. The parents are both Polish nationals who have been living here since 2002, after the alleged offences were committed. No-one seriously disputes that the impact upon the younger children of the removal of their primary carers and attachment figures will be devastating. The issue is the relevance of their interests in the extradition proceedings.
The question certified by the Administrative Court in each of the two cases before us is as follows:
"Where, in proceedings under the Extradition Act 2003, the article 8 rights of children of the defendant or defendants are arguably engaged, how should their interests be safeguarded, and to what extent, if at all, is it necessary to modify the approach of the Supreme Court in Norris v Government of the United States of America (No 2) in light of ZH (Tanzania)?"
It is necessary, therefore, to consider what each of those cases decided.
In Norris v Government of the United Sates of America (No 2) [2010] UKSC 9, [2010] 2 AC 487, the issue was the compatibility with the article 8 rights of both Mr and Mrs Norris of extraditing Mr Norris to the USA to face charges of conspiracy to obstruct justice. The couple were both in their mid-sixties and had a long and close marriage which made them highly dependent on one another. The husband had a variety of health problems, including a history of prostate cancer and other ailments. The wife was suffering from either a "major depression of moderate severity" or a "moderate depressive episode". The proceedings had caused her "severe psychological suffering and mental deterioration" which would be greatly worsened were her husband to be extradited.
Lord Phillips gave the leading judgment, with which all other members of the court agreed, including those who added short judgments of their own. He agreed that there could be "no absolute rule that any interference with article 8 rights as a consequence of extradition will be proportionate". On the other hand, it was "certainly not right to equate extradition with expulsion or deportation in this context" (para 51). It was "instructive to consider the approach of the Convention to dealing with criminals or suspected criminals in the domestic context.…Normally it is treated as axiomatic that the interference with article 8 rights consequent upon detention is proportionate" (para 52). He rejected counsel's submission that it was wrong to apply a "categorical assumption" about the importance of extradition in general. Such an assumption was an essential element in the task of weighing the public interest against the rights of the individual. It did not mean that the latter could never prevail, but "the interference with human rights will have to be extremely serious if the public interest is to be outweighed" (para 55). Thus:
"The reality is that it is only if some quite exceptionally compelling feature, or combination of features, is present that interference with family life consequent upon extradition will be other than proportionate to the objective that extradition serves.…Instead of saying that interference with article 8 rights can only outweigh the importance of extradition in exceptional circumstances it is more accurate and more helpful, to say that the consequences of interference with article 8 rights must be exceptionally serious before this can outweigh the importance of extradition." (para 56)
However, he also rejected the submission that the gravity of the offence could never be relevant. Usually it would not be. "If, however, the particular offence is at the bottom of the scale of gravity, this is capable of being one of a combination of features that may render extradition…disproportionate…" (para 63). Furthermore, the impact upon family life was not to be considered only from the point of view of the person facing expulsion. In Beoku-Betts v Secretary of State for the Home Department [2009] AC 115, the House of Lords "concluded that, when considering interference with article 8, the family unit had to be considered as a whole, and each family member had to be treated as a victim". This also applied to extradition (para 64). Finally,
"Indeed, in trying to envisage a situation in which interference with article 8 might prevent extradition, I have concluded that the effect of extradition on innocent members of the extraditee's family might well be a particularly cogent consideration. If extradition for an offence of no great gravity were sought in relation to someone who had sole responsibility for an incapacitated family member, this combination of circumstances might well lead a judge to discharge the extraditee…" (para 65).
Agreeing with Lord Phillips, Lord Hope also stressed that "exceptionality is not a legal test" and that extradition was "not a special category which diminishes the need to examine carefully the way the process will interfere with the individual's right to respect for his family life" (para 89). The public interest in extradition is a "constant factor" and will always be a "powerful consideration to which great weight must be attached". Against this, "those aspects of the article 8 right which must necessarily be interfered with in every case where criminal proceedings will be brought will carry very little, if any, weight". "What is the extra compelling element that marks the given case out from the generality?" (para 91). The only feature of this case which was not inherent in every extradition case was the delay (para 93).
Lord Mance cautioned against formulations such as a "high threshold", "striking and unusual facts" or "exceptional circumstances". They could be read as suggesting that the public interest in extradition is the same in every case, when it is not, and also that the extraditee has some sort of legal onus to overcome the threshold, when in fact the competing public and private interests have to be weighed against each other (para 108). Further, such formulations "may tend to divert attention from consideration of the potential impact of extradition on the particular persons involved…towards a search for factors (particularly external factors) which can be regarded as out of the run of the mill". Some circumstances which might influence a court to find that the interference was unjustified could hardly be described as "exceptional" or "striking and unusual":
"Take a case of an offence of relatively low seriousness where the effect of an extradition order would be to sever a genuine and subsisting relationship between parent and baby, or between one elderly spouse and another who was entirely dependent upon the care performed by the former" (para 109).
He too favoured balancing the "general public interest in extradition to face trial for a serious offence" against the "exceptional seriousness of the consequences which would have to flow from the anticipated interference with private and family life in the particular case" (para 114).
We can, therefore, draw the following conclusions from Norris:
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(1) There may be a closer analogy between extradition and the domestic criminal process than between extradition and deportation or expulsion, but the court has still to examine carefully the way in which it will interfere with family life.
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(2) There is no test of exceptionality in either context.
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(3) The question is always whether the interference with the private and family lives of the extraditee and other members of his family is outweighed by the public interest in extradition.
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(4) There is a constant and weighty public interest in extradition: that people accused of crimes should be brought to trial; that people convicted of crimes should serve their sentences; that the United Kingdom should honour its treaty obligations to other countries; and that there should be no "safe havens" to which either can flee in the belief that they will not be sent back.
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(5) That...
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