Extradition and Article 8
Supreme Court Rulings: Children's rights
On the 20th June 2012, the Supreme Court ruled on a number of appeals against extradition where it had been argued that the extradition of a parent is incompatible with their child’s right to respect for private or family life, in accordance with Article 8 of the European Convention on Human Rights (ECHR).
The Supreme Court concluded that it is likely that the public interest to extradite will outweigh the article 8 rights of the family, unless the interference is exceptionally severe. The following considerations were identified:
- The court must carefully examine the way in which extradition will interfere with family life and the approach should not be “radically different” to that taken in a deportation or expulsion case, even though there may be a closer analogy between extradition and the domestic criminal process.
- There is no test of what is exceptional.
- There is a constant and weighty public interest in extradition: people should stand trial and serve appropriate sentences for their crimes, the United Kingdom should honour its treaty obligations towards other States, and there should be no “safe haven” for fugitive offenders.
- The public interest will always carry great weight but the weight does vary according to the nature and seriousness of the crimes involved.
- Delay in seeking extradition may diminish the public interest element and increase the impact on family life.
- The best interests of the children are a primary consideration but not the only one.
The key determining feature on the face of these cases is the seriousness of the offending.
BH (AP) (Appellant) and another v The Lord Advocate and another (Respondents)(Scotland)
(AKA) KAS or H (AP) (Appellant) v The Lord Advocate and another (Respondents) (Scotland) UKSC 24
The Facts in Brief
Mr and Mrs H appealed against extradition to the United States under the Extradition Act 2003 to face trial on charges of conspiracy and unlawful importation of chemicals used to manufacture methamphetamine. Mr H was effectively estranged from the family and faced allegations of sexual abuse of minors. His appeal altogether fell on sharply stony ground.
Mrs H’s appeal also failed, despite being the mother of six children aged 1 to 14 years. The following factors were taken into consideration in her case:
In the event of conviction Mrs H was likely to be kept apart from her children, and the children perhaps apart from each other, for a very long time. The children’s best interests clearly lay in continuing to live with their mother.
They risked being taken into care and no longer living together.
Mrs H ignored a court order prohibiting contact between Mr H and her eldest children, despite his history of sexual abuse.
Mrs H had spent periods of time in custody during the proceedings during which the children were looked after by Mrs H’s mother, as well as by other friends and family.
The crimes alleged were persisted in over a substantial period and were very serious. Any grounds for leniency or mitigation of sentence on the grounds of family circumstances were for the US authorities to assess.
It would not be appropriate for Mrs H to be tried here when most of the witnesses reside in the USA and the degree of criminality involved is best assessed there.
HH (Appellant) v Deputy Prosecutor of the Italian Republic, Genoa (Respondent); PH (Appellant) v Deputy Prosecutor of the Italian Republic, Genoa (Respondent)
The Supreme Court allowed the appeal of FK, a Polish mother of 5 children, against extradition to Poland to face trial. The public interest did not justify the inevitable harm that it would cause to the lives of her children given the following combination of factors:
- Her offence of dishonesty, worth about £6000, was not trivial but was of no great gravity.
- There is no prosecutorial discretion in Poland and there had been considerable delay which was taken as an indication of the importance of her offending to the Polish authorities.
- Her extradition would have a severe effect on her two youngest children (aged 3 and 8 and born in the UK), who would lose their primary attachment figure. This had been demonstrated on FK’s initial arrest. There was expert evidence of the serious harm which would be suffered and the loss could have a lasting impact on their development.
- Their father, though well-intentioned, has physical impairment as well as signs of psychological disturbance, and would be unlikely to be able to fill the gap.
The appeals of HH and PH, the mother and father of three children aged 3 to 11 years against extradition to Italy to serve sentences for importation of cannabis failed. PH was the primary carer and had the lesser role in the criminal offending, however his appeal failed by a majority because:
- There was expert evidence of the serious harm which would be suffered by the children if both their parents were extradited, in particular by the 3 year old who would be separated from her primary attachment figure.
- However, the primary carer for the children would be allowed to serve all but a few months of his sentence at home were the family living in Italy.
- Unfortunately, commission of serious offences often means that innocent members of the offender’s family will suffer as a result of their crimes, as has been noted by judges in the domestic sentencing context.
Lady Hale, dissenting, would have found that the current effect on the children and in particular the youngest is such that the extradition of their father in addition to their mother was not justified at present.
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