P.b. V. Her Majesty's Advocate
| Jurisdiction | Scotland |
| Judge | Lord Turnbull,Lord Drummond Young,Lady Smith |
| Judgment Date | 2013 |
| Neutral Citation | [2013] HCJAC 126 |
| Date | 30 August 2013 |
| Published date | 08 October 2013 |
| Court | High Court of Justiciary |
| Docket Number | XC420/13 |
| APPEAL COURT, HIGH COURT OF JUSTICIARY | |
| Lady Smith Lord Drummond Young Lord Turnbull | [2013] HCJAC 126 XC420/13 OPINION OF THE COURT delivered by LADY SMITH in APPEAL UNDER SECTION 26 OF THE 2003 EXTRADITION ACT by P B Appellant; against HER MAJESTY'S ADVOCATE Respondent: _____________ |
Appellant: Connelly, Bridge Litigation, Glasgow
Respondent: Niven - Smith; Crown Agent
30 August 2013
Introduction and Background
[1] On 6 June 2013, the appellant, who is aged 28, was ordered by the sheriff at Edinburgh to be extradited to Poland in terms of a European arrest warrant ("EAW") issued on 30 December 2009. The EAW seeks his return to serve the unexpired portion of a sentence of 6 years imprisonment for rape imposed on 18 May 2001. The rape occurred in February 1998. The appellant was previously remanded in custody for a period, leaving 5 years 3 months and 7 days of the sentence still to be served. The sentence was imposed following a trial during which the appellant was represented. The appellant was present throughout the trial, up to and including the stage when final submissions were made. The verdict was delivered on 18 May on which date the appellant did not appear. After the appellant's non-appearance at court, a domestic warrant was issued for his arrest. When he could not be found in Poland, the EAW was granted on 30 December 2009. The reason why the appellant did not appear at court was that he feared he would be convicted. He left Poland shortly after that and went to live and work in Spain. Some 2 or 3 years later, he went to live and work in Sweden. He met a Polish woman in Sweden and married her. She already had a daughter, who is now aged 10 years.
[2] The appellant and his wife moved to Scotland in December 2007. The appellant's wife's parents live in Scotland and have a dentistry practice here. The appellant and his wife had a son ('P') after moving to Scotland. P is now almost 5 years old. After having moved to Scotland, the appellant gave up work to be the principal carer of the children and also to look after his wife who suffers from a congenital talipes equinovarus and leg length deformity ("club foot") requiring her to walk with a stick, restricting her mobility and causing her significant pain. Whilst she is able to work, she does so on a part-time basis as a receptionist at her parents' dentistry practice. Of the appellant and his wife, it is the appellant who is best at trying to maintain discipline over P.
[3] When information was received that the appellant was in Scotland, a certificate was attached to the EAW in terms of section 2(7) of the Extradition Act 2003 on 19 September 2012. The police attended at the appellant's home in Scotland and spoke to his wife. They asked her to have him contact them. He did not do so. His reaction was, rather, to leave his wife, their home and the children and go to live in London for several months. When he returned home on 14 January 2013, he was arrested and remanded in custody. His wife's sister has, in the meantime, been assisting his wife at home in the mornings and evenings although that cannot be a permanent arrangement as she has her own family and employment responsibilities.
[4] Having heard evidence, the sheriff found that P had severe behaviour problems which required psychological intervention. He is hyperactive and aggressive. He requires extra attention and constant monitoring if in the company of other children. That said, we note from the report dated 14 May 2013 from Dr Jack Boyle, Chartered Psychologist (who gave expert evidence before the sheriff in terms of that report), that he considered that it was not possible to reach a diagnosis regarding P's behaviour, that he assessed both parents as being "clearly at a loss as to how to help him modify his behaviour", and that whilst it appeared that "P responds more positively to his father's intervention" such interventions do not have a permanent effect on him. It appears that it would, accordingly, be wrong to think that so long as his father is present, P's behaviour will be under control.
[5] P has just started primary school. When the case was before the sheriff, he had not yet started school although he was at nursery. It was anticipated that if he were to thrive in the school environment, he would need substantial support from skilled persons. There was a real risk that he would not be able to remain in mainstream school because of his behaviour problems. P has been visiting his father in prison in an appropriately child friendly environment.
[6] The evidence before the sheriff, which he appears to have accepted, was that the appellant's stepdaughter would be able to cope with his absence from the household even if it was prolonged on account of his extradition.
The Sheriff's Decision
[7] We turn to the sheriff's considerations in respect of article 8 of the European Convention on Human Rights. Between paragraphs 75 and 88 of his report, the sheriff gives detailed consideration to article 8 of the convention in the circumstances of this case. Put shortly, he noticed from the authorities referred to that the proportionality test inherent in article 8 was highlighted and that a structured approach was commended. He noted that, as in all such cases, extradition would result in the interference in the article 8 rights of the family, particularly those of the appellant, his wife and his son. He had regard to the way in which both they, and the family unit as a whole, would be affected if the order were to be granted. He observed that, although the family circumstances were a matter of concern, it was possible for P to receive treatment and support and there were various family members living nearby, in addition to the sister of the appellant's wife, to provide assistance. As against that, the offence to which the EAW related was a very serious one and a sentence had been imposed which was, in Scottish terms, of High Court gravity. The context was that the appellant was a deliberate fugitive from justice and he had chosen to flee Scotland for several months, leaving his family behind immediately prior to his arrest. It was understandable that the Polish authorities would be concerned about the appellant absconding again if the application was not granted. The balance favoured the granting of the extradition sought.
[8] The sheriff had regard to what was said about the potential difficulties that P would encounter on starting school. He, accordingly, had enquires made to see whether or not the Polish authorities would agree to postponing implementation of the EAW until January 2014 so as to allow P's first term at school to be completed before his father was extradited. That would have had to have been on the basis that the appellant was not, during that period, remanded in custody. The Polish authorities did not however agree to that request which was, of course, their prerogative.
Grounds of Appeal
[9] Turning to the grounds of appeal, there is a single ground of appeal but it has two distinct parts. First, it is submitted that the sheriff erred in deciding that extradition would be compatible with article 8 of the convention in respect that he failed to attach sufficient weight to the evidence led for the appellant. Reference is made to the evidence from the appellant's wife, her sister and Dr Boyle to the effect that the appellant's extradition will have a detrimental effect on the appellant and his family, particularly P. Secondly, as presented, it is stated that the sheriff failed to consider whether the aims of extradition could be met in Scotland by the application of Council Framework Decision 2008/ 909/ JHA on the application of the principle of mutual recognition of judgements in criminal matters.
Submissions for the Appellant
[10] We turn to the submissions on behalf of the appellant. Before us today, Miss Connelly submitted that extradition would result in a disproportionate interference in the appellant's family life and therefore it would not be compatible with his article 8 rights. The appeal should therefore be allowed. Failing that, the court should allow for full consideration of all the issues that should have been considered by the sheriff in terms of section 21 of the Extradition Act. That argument was advanced under reference to the case of HH v The Deputy Prosecutor of the Italian Republic Genoa [2012] UKSC 24 and explained by Miss Connelly as being, in this case, that if the evidence was not sufficient to demonstrate that extradition would be incompatible with article 8, then the sheriff could not be said to have had the full facts before him. At no time, however, did she point to any fact that obtained at the time of the hearing before the sheriff that was relevant to article 8 and of which he was not made aware. The point of this submission seemed to be rather so as to introduce a theme to which she returned on more than one occasion, namely that there was, she said, a possibility of the appellant...
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P.b. V. Her Majesty's Advocate
...importance. That being so, no question arises as to whether the point is one which ought to be considered by the Supreme Court. [1] [2013] HCJAC 126 [2] [2012] UKSC 25. [3] [2013] UKSC 21 [4] "32 Appeal to Supreme Court (1) An appeal lies to the Supreme Court from a decision of the High Cou......