Devolution appeal in extradition case

Supreme Court

Published July 3, 2012

BH v Lord Advocate

KAS or H v Same

Before Lord Hope of Craighead, Baroness Hale of Richmond, Lord Mance, Lord Judge, Lord Chief Justice, Lord Kerr of Tonaghmore, Lord Wilson and Lord Brown of Eaton-under-Heywood

Judgment, June 20, 2012

An appeal from the High Court of Justiciary to the Supreme Court on a devolution issue raised in extradition proceedings, although excluded by the Extradition Act 2003, was available under Schedule 6 to the Scotland Act 1998.

The Supreme Court so held, when declaring competent, but dismissing, the appeals of BH and KAS (or H) from the High Court of Justiciary (Lord Osborne, Lord Reed and Lord Mackay of Drumadoon) which, on July 29, 2011, dismissed their appeals under section 103 of Part 2 of the Extradition Act 2003 from the sheriff who, on April 3, 2008:

(1) concluded that extradition, requested by the Government of the United States of America, to face charges in the Arizona District Court of conspiracy and illegal importation of chemicals used to manufacture an illicit drug, would be compatible with the appellants’ rights under the European Convention on Human Rights; and

(2) sent their cases to the Scottish Ministers for their decision whether to extradite them.

The appellants submitted that the public interest in giving effect to the request was outweighed by the consequences for the best interests of their children; that the proposed interference with their article 8 rights to family life failed to meet the test of proportionality in article 8.2, and that the Scottish Ministers had no power to order extradition which would be incompatible with those rights.

Mr Herbert Kerrigan, QC and Ms Linda Pike for BH; Mr Christopher Shead and Mr Andrew Mason for KAS; Mr W James Wolffe, QC and Mr Graeme Hawkes for the Lord Advocate; Lord Boyd of Duncansby, QC and Mr Kenny McBrearty for the Scottish Ministers, Lord Wallace of Tankerness, QC, Advocate General for Scotland, with Mr John MacGregor, intervening.

LORD HOPE, with whom Lady Hale and Lord Kerr agreed, said that there was no appeal to the Supreme Court from a decision of the High Court of Justiciary under Part 2 of the Extradition Act 2003: see sections 114(13) and 116.

The question was whether the right of appeal under paragraph 13 of Schedule 6 to the Scotland Act 1998, against the determination of a devolution issue by two or more judges of the High Court of Justiciary, could survive the clear and unequivocal exclusionary direction in section 116.

The question raised in the instant case was a devolution issue: see paragraph 1(d) of Schedule 6. Section 57(2) of the 1998 Act provided that a member of the Scottish Executive had no power to act incompatibly with any of the Convention rights.

That provision was of general application, irrespective of the source of the power being exercised. The functions conferred on the Scottish Ministers by the 2003 Act were subject to the constraints of section 57(2).

It was only by express statutory provision that Parliament could override that section. That was because of the fundamental constitutional nature of the settlement achieved by the 1998 Act.

The provisions of Schedule 6 went hand in hand with the constraints imposed by that Act on the Scottish Ministers’ powers and were included as a means of ensuring respect for the rule of law and the protection of the Convention rights across the entire range of the Scottish Government’s activities. The right of appeal to the Supreme Court under paragraph 13 was part of that mechanism.

Section 116 of the 2003 Act had no application to the system laid down by the 1998 Act for determining devolution issues. The appellants could therefore exercise their Schedule 6 right of appeal to the Supreme Court despite the fact that there was no appeal under the 2003 Act.

His Lordship concluded, on the facts, that the article 8 rights of the children were outweighed by the pressing public interest in giving effect to the extradition requests.

Lord Brown, Lord Mance, Lord Judge and Lord Wilson delivered concurring judgments.

Solicitors: Good & Stewart, Edinburgh; Thompson & Brown, Glasgow; Crown Office, Appeals Unit, Edinburgh; Scottish Government, Legal Directorate Litigation Division, Edinburgh; Office of the Solicitor to the Advocate General, Edinburgh.