P.b. V. Her Majesty's Advocate
| Jurisdiction | Scotland |
| Judge | Lord Drummond Young,Lord Turnbull,Lady Smith |
| Neutral Citation | [2013] HCJAC 139 |
| Published date | 25 October 2013 |
| Year | 2013 |
| Court | High Court of Justiciary |
| Date | 15 October 2013 |
| APPEAL COURT, HIGH COURT OF JUSTICIARY | |
| [2013] HCJAC 139 | |
| Lady Smith Lord Drummond Young Lord Turnbull | OPINION OF THE COURT delivered by LADY SMITH in Application for Leave to Appeal by PB Applicant; against HER MAJESTY'S ADVOCATE Respondent: _______ |
Applicant: Connelly, Bridge Litigation, Glasgow
Respondent: Niven- Smith, Crown Agent
15 October 2013
Introduction
[1] This is an application for leave to appeal to the Supreme Court of the United Kingdom which is made following the refusal of this court, for the reasons given in its opinion of 30 August 2013[1], of the applicant's appeal under section 26 of the Extradition Act 2003 ("the 2003 Act") against the order of the sheriff at Edinburgh that he be extradited to Poland. The application is contained in a document which was lodged on 19 September 2013 and bears to be an application for permission to appeal to the Supreme Court under section 288ZAA(5) of the Criminal Procedure (Scotland) Act 1995 ("the 1995 Act"). The solicitors for the applicant lodged an opinion of counsel, dated 25 September 2013, in support of the application. The respondent lodged written submissions in response, on 8 October 2013. Parties have agreed to the application being determined on the basis of written submissions as set out in that application, opinion and response.
Submissions for the applicant
[2] In the application, it is asserted that a compatibility issue arises and it is said that there requires to be an appeal to the Supreme Court:
"....to obtain clarification on what factors a court is obliged to consider and its obligations if information is not placed before it, to ensure that it is acting compatibly with the Convention rights of children affected by extradition."
Thus put, the purpose of the application would appear to be to seek to have the Supreme Court determine a list of factors which the court must always consider in relation to a child's interests and also to specify what the court is obliged to do if inadequate information is provided.
[3] The incompatibility is said to be in relation to the investigation of facts and circumstances relating to the welfare of children likely to be affected by the extradition of a parent or parents. The application relies, in that regard, on what was said about the investigation of children's interests in extradition cases by Lady Hale in the case of HH v Deputy Prosecutor of the Italian Republic, Genoa; PH v Deputy Prosecutor of the Italian Republic; F -K v Polish Judicial Authority[2] In her opinion, counsel puts the matter this way:
"The issue to be determined is whether a court should decide if extradition is compatible with the Article 8 rights of children who risk the loss of the sole or primary carer by reference only to the information placed before it by parties or whether the Court should seek other relevant information when determining the issue of proportionality."
[4] She submits that the relevant test is whether or not the proposed appeal raises an arguable point of law of general public importance which ought to be considered by the Supreme Court, under reference to the case of Uprichard v Scottish Ministers and Another[3]. She makes no reference to section 32 of the 2003 Act[4], which is the relevant statutory provision, but it may be considered that that is not material since the test articulated by the Supreme Court, in Uprichard is in the same terms.
[5] The point which the applicant seeks to advance seems to be that the sheriff should have made his own investigations to find out whether or not the appellant could serve his sentence here in Scotland and that this court should also have done so. We note that there is also reference in counsel's opinion - though not in the application - to the court requiring to make investigations regarding what contact the child would be able to have with the applicant whilst serving...
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