The Lord Advocate (for The Government Of The Federal Republic Of Germany), Crown Office, Edinburgh, Eh7 4au Against M
| Jurisdiction | Scotland |
| Judge | Sheriff T Welsh QC |
| Neutral Citation | [2016] SC EDIN 7 |
| Court | Sheriff Court |
| Date | 21 January 2016 |
| Docket Number | E52/15 |
| Published date | 25 January 2016 |
SHERIFFDOM OF LOTHIAN AND BORDERS, AT EDINBURGH
[2016] SC EDIN 7
E52/15
JUDGMENT OF SHERIFF T WELSH QC
under the Extradition Act 2003
in the case of
THE LORD ADVOCATE (FOR THE GOVERNMENT OF THE FEDERAL REPUBLIC OF GERMANY), CROWN OFFICE, EDINBURGH, EH7 4AU
Applicant;
Against
M
Respondent:
Act: Ms Knippe; Crown Office, Edinburgh
Alt: Mr Stewart, Goode and Stewart, Solicitors, Edinburgh
Edinburgh, 21 January 2016
The issue
[1] On 22 August 2005 while travelling between Amsterdam and Cologne, M, a Gambian national, made a big mistake which has come back to haunt her. For 1000 Euros, she agreed to courier 2.9 Kilos of herbal cannabis across the international border from the Netherlands to the FRG. She was caught by frontier guards, at the border post at Kaldenkirchen, who searched her taxi and found the contraband. She was detained in custody. She confessed her guilt to the Police and at a hearing on 7 October 2005 before the District Court at Krefeld, as a first offender, M was sentenced to 40 months custody for the offence of drug trafficking contrary to section 30(1) of the German Narcotic Act which offence can attract a sentence of between 2 years and 15 years custody. That decision became effective on 15 December 2005. In early 2006 she was summoned to prison but failed to appear. She had absconded. A domestic German arrest warrant was issued on 25 April 2006 but she could not be traced. A European Arrest Warrant [EAW], was issued by the German authorities on 7 August 2006. At the point of sentence, aged 28, she was married with two children, aged 5 years and 13 months. Before the sentence was served, M with her children fled from Germany and came to the UK via France. Now, aged 38 she and her husband have five children, the second youngest of whom, J, aged 6, was diagnosed with Acute Lymphoblastic Leukaemia on 22 May 2014. He is presently in treatment for this serious illness. M was arrested on the EAW on 29 April 2015. The German Government seeks her extradition to serve her 40‑month sentence. She opposes extradition in terms of section 21 of the Extradition Act 2003 [the 2003 Act] on the basis that, if allowed, it will constitute a disproportionate interference with her right and the right of her husband and children to a family life (article 8 ECHR).
The applicant
[2] The Applicant is the Lord Advocate, acting on behalf of the Federal Republic of Germany, which is a federal parliamentary republic. Germany has been a member of the Council of Europe since 13 July 1950 and is a co‑founder of the European Union in 1993. As such the Federal Republic of Germany has been designated a category 1 territory in terms of section 1 of the 2003 Act, and Part 1 of the Act accordingly applies. See the Extradition Act 2003 (Designation of Part 1 Territories) Order 2003/3333 as amended by the Extradition Act 2003 (Amendment to Designations) Order 2005/365 (March 1, 2005).
The respondent
[3] The respondent is a Gambian national. She met her husband P, a German citizen, in The Gambia. She moved to Germany in 2000 where she married P. She came to the UK in 2006 and has lived in Scotland for 2 years now. They have five children together.
The extradition hearing
[4] At the full hearing on 3 December 2015 and 7 January 2016, Ms Knippe, for the applicant, indicated she had no oral evidence to lead but relied on the terms of the German EAW and the supporting documents from the court at Kaldenkirchen. Mr Stewart, for the respondent, indicated he intended to call five witnesses:
- M
- P
- Dr Jack Boyle BA, BSc(Econ), Med, PhD, AFBPsC, CPsychol
- Elaine Weir, a CLIC Sargent Social Worker, RHSC, Edinburgh
- Dr Susan Baird MBChb, MRCPhysicians, MRCPath, Consult Paediatric Haematologist, RHSC, Edinburgh
The evidence of M, (this note is not intended to be comprehensive)
[5] M said she is 38 years old. She lives in Edinburgh with her children and sometimes P. They all live together in cramped accommodation. She and her husband are physically estranged. She met her husband in The Gambia. He is German. They returned to live in Germany in 2000. They married in 2001. She moved to the UK and stayed in Birmingham in 2006 then moved to Milton Keynes. P had a job there. The family moved to Scotland in 2013. P has a job here in IT. He works Monday to Friday from 6am to 3pm. He stays with M sometimes and also with friends. There are five children A, B, C, J, and E aged 17, 15, 12, 6 and 3, years respectively. M and P have separated in the past. For a time P had care of the boys B and C aged 15 and 12, in separate accommodation. Even then, M cared for all the children and provided cooking and cleaning for P. However, that did not work out. M now has all the children staying with her in a two bedroom flat and P has also moved in again. The second youngest, J, aged 6 years, was diagnosed with Acute Lymphoblastic Leukaemia on 22 May 2014. The oldest child A, aged 17 years, has difficulties relating to P. She has self-harmed. P cannot cope with her. J is in treatment. He goes very regularly to the Royal Hospital for Sick Children for chemotherapy. He also has chemotherapy at home. M administers some treatment. J’s condition must be closely monitored at all times. His present course of treatment will last until October 2017. His temperature must be checked throughout the day. His immune system is supressed by the treatment. If he catches an infection, it could be fatal. At 6 years of age he has no understanding of his condition. He is wholly dependent upon M. She has received training from the hospital on how to deliver J’s medications and injections. If his temperature goes above a certain level she must contact the hospital for advice. J must have bloods taken twice per week for testing. He is off school just now (Dec 2015) getting his chemo. On one occasion 3 or 4 months ago P forgot to take J’s temperature. The medical staff at the hospital called a meeting and it was decided P was not allowed to look after J alone. P does not seem to understand or appreciate the significance of the condition. J must take steroids as part of his medication. This affects his moods and makes him difficult to handle. Twice when P has been alone with J, once in the garden at home and once on a bus en route to hospital, J has acted up because of the medicine. Members of the public phoned the Police because they thought P was harming J on account of the way he was behaving. The Police became involved on both occasions and had to be satisfied the child was on medication and not being abused. M does J’s home treatment twice a day, morning and evening. She does injections twice a day. It is always her. P could not do this, nor A. M looks after her 3‑year‑old daughter E as well. She could not trust P to do this on his own. Elaine Weir the social worker from the hospital comes every Wednesday to see M to provide support.
[6] M was tried in her presence in Germany. While in custody awaiting a hearing she was bullied. She admitted her offence and confessed to the Police. She did it for money because the family were living in poverty in Germany. When sentenced she had a 1‑year‑old child and a 5‑year‑old. She could not face prison. She fled to stay with her sister in Paris for a few months. Then she moved to Birmingham. P followed and he got a job in Milton Keynes labouring in a warehouse. She appealed the 40‑month sentence but this was refused. The social workers do not trust P. He cannot look after the children. If returned to serve her sentence the children will be taken into care and very likely split up. M has a deep vein thrombosis. The family lives in private rented accommodation. P works. The rent is paid from that. M claims child benefits but gets nothing for herself from the UK state. In cross‑examination it was established M has no kinship network around her in Scotland. P’s parents are in Germany. They are in their 70s. They cannot help
The evidence of P (this note is not intended to be comprehensive)
[7] P is 50 years of age. He is a German national. He married M in Germany in 2001. He is father of the five children. In Edinburgh the family lived in local authority accommodation but were evicted for rent arrears. They now live in a private let. P separated from M 2 years ago but they are back together now, in a two‑bedroom apartment. The three oldest children A,B and C sleep in P’s room. The two youngest J and E sleep with M in the other bedroom. The accommodation is cramped. P works in a call centre. He earns £250 per week to pay the rent and support the family. If there is an emergency, he cannot leave his post or he would lose the job. He works 7am to 3pm. He is not involved with the care of the children. M looks after them. J was diagnosed with cancer in May 2014. His treatment is complicated. He gets moody because of the steroids and all the injections. He is afraid of needles. Sometimes J needs four people to hold him down to administer the injections. He does not understand why he cannot have the medicine with a spoon. J is totally dependent on his mother. She deals with all his needs. She can calm him down. Sometimes the steroids affect his mood. P said J will tell me to stay away and say he hates me. Twice on the bus his behaviour has been such that people have called the Police because they think P is harming the boy. P thought that maybe they think because P and J are a different colour he is harming the boy. J is unpredictable he can be aggressive. P’s oldest child A has self‑harmed. She does not respect him. M can handle her. P cannot engage with her emotionally. P last saw his own parents 3 years ago. They do not approve of the relationship he has with M. They take little to do with the children. They do not speak English. P has no other relatives who can provide kinship support. M committed the crime because of financial problems. P had problems with the mortgage in Germany. The finances were bad. He had...
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