Extradition hearing - European Arrest Warrant - Defendants' extradition sought by relevant judicial authority pursuant to European Arrest Warrant

HH v Deputy Prosecutor of the Italian Republic, Genoa; PH v Deputy Prosecutor of the Italian Republic, Genoa; F-K (FC) v Polish Judicial Authority: SC (Justices of the Supreme Court, Lords Hope (deputy president), Mance, Judge, Kerr, Wilson, Brown, Lady Hale): 20 June 2012

The two joined cases under the Extradition Act 2003 involved the defendant parents of young children.In the first case, the appellants were arrested in Italy and prosecuted on eight charges relating to the importation of cannabis into that country from Morocco on various dates earlier that year. After a month, the mother (HH) was released under house arrest.

She fled the country in breach of her conditions of bail. The father (PH) spent a year in custody before being conditionally discharged, whereupon he also fled in breach of his bail. They were later convicted in their absence of all charges. the Italian judicial authority issued European Arrest Warrants (warrants) in respect of both HH and PH. HH's warrant stated that she had about nine and a half years of her prison sentence to serve. PH's warrant stated that he had about eight years to serve, although there was evidence that, as he had become primary carer for the children because of HH's health problems, if the family were living in Italy he would be allowed to serve all but a few months of that at home. HH and PH were arrested in the UK and appeared at an extradition hearing. There was expert evidence of the serious harm which would be suffered by the children if both parents were extradited. The district judge ordered extradition of both parents.

Their appeals were dismissed by the Divisional Court and they appealed to the Supreme Court. In the second case, the Polish judicial authority issued two warrants in respect of the appellant (FK), a mother of five children aged 21, 17, 13, 8 and 3, who was accused of offences of dishonesty. The parents were both Polish nationals who had been living in the UK since 2002, after the alleged offences were committed, and who had been granted permanent residency before the instant proceedings were begun. The first warrant was issued in 2006 in respect of an offence allegedly committed in 2001. The second warrant was issued in 2007 in respect of three offences allegedly committed between 1997 and 2000. The total sums involved were less than £7,000. FK was arrested in the UK and appeared before an extradition hearing. There was expert evidence of the serious harm which would be suffered, in particular by the two youngest children, if FK was extradited. The children had reacted badly to her arrest in 2010. The district judge found, inter alia, that she had fled Poland to avoid prosecution. The father was physically impaired and was found to display signs of psychological disturbance. The senior district judge ordered her extradition. Her appeal was dismissed by the Administrative Court; she appealed to the Supreme Court.

All the appellants submitted that insufficient consideration had been given to the interests of the children's rights pursuant to article 8 of the European Convention on Human Rights. The issue for determination was, in proceedings under the Extradition Act 2003, where the rights of children of appellants were engaged pursuant to article 8 of the convention, how to safeguard those interests and to what extent, if at all, it was necessary to modify the approach of the Supreme Court as stated in Norris v Government of the United States of America (No 2) [2010] All ER (D) 256 (Feb) in light of ZH (Tanzania) v Secretary of State for the Home Department [2011] All ER (D) 02 (Feb). It was suggested that ZH had the effect of requiring that the rights of the child be the primary consideration for the court. Consideration was given to the UN Convention on the Rights of the Child and article 6 of the Treaty on the European Union.

The court ruled: (1) Under Norris, the question was whether the interference with the private and family lives of the extraditee and other members of his family was outweighed by the public interests in extradition. ZH emphasised the importance of any relevant child's interests as a primary consideration. However, those authorities did not state that the interests of the child were the only consideration. It could be outweighed by the cumulative effect of other considerations. When rights under article 8 of the convention were properly examined in the extradition context, the proportionality assessment would be overwhelmingly likely to be resolved in favour of extradition (see [8], [90], [101], [103], [111], [116], [117], [132], [142], [143], [145] and [155] of the judgment).

(2) (Lady Hale dissenting in part) In the first case, the extradition of both parents would have a severe impact on the children. However, having regard to the limited role of the HH in the children's lives and the central part she had played in the very serious offences committed, the interference with the rights of the children was outweighed by the public interest in her extradition. Given the nature of the crimes committed by PH and his having broken his bail conditions almost immediately, the public interest in extradition outweighed the interference with the rights of his children. It followed that the appeals in the first case would be dismissed (see [94]-[96], [103], [135]-[138], [149], [150], [170]-[172] of the judgment).

(3) In the second case, the delay in prosecuting the offences and seeking the warrants had been considerable. There had been delay between the offences themselves and the bringing of the Polish prosecutions; even further delay between the issue of the domestic arrest warrants and the requests for the warrants; and again between the issue of the warrants and FK's arrest. While the district judge had found that FK had fled Poland to avoid prosecution, and thus was not entitled to rely upon passage of time as a bar for the purpose of section 14 of the 2003 act, the overall length of the delay was relevant to the question under article 8 of the convention. During that lapse of time she and her family had made a new, useful and blameless life for themselves in the UK. Two more children had been born.

The parents had not had any reason to believe that the Polish authorities were seeking the mother's return. The public interest importance of maintaining a comprehensive system of extradition would not suffer a significant impairment if FK's surrender to the Polish authorities was not ordered. By contrast, the adverse impact on her family and, particularly its younger members, was likely to be profound and irretrievable. In all the circumstances, the public interest in returning FK to face trial and sentence upon the charges in the two warrants was not such as to justify the inevitable severe harm to the interests of the two youngest children in doing so. Accordingly, the appeal would be allowed (see [46]-[48], [91], [102], [133], [147], [150] of the judgment).

Per curiam: 'We can, therefore, draw the following conclusions from Norris: (1) There may be a closer analogy between extradition and the domestic criminal process than between extradition and deportation or expulsion, but the court has still to examine carefully the way in which it will interfere with family life. (2) There is no test of exceptionality in either context. (3) The question is always whether the interference with the private and family lives of the extraditee and other members of his family is outweighed by the public interest in extradition. (4) There is a constant and weighty public interest in extradition: that people accused of crimes should be brought to trial; that people convicted of crimes should serve their sentences; that the UK should honour its treaty obligations to other countries; and there should be no "safe havens" to which either can flee in the belief that they will not be sent back.

(5) That public interest will always carry great weight, but the weight to be attached to it in the particular case does vary according to the nature and seriousness of the crime or crimes involved. (6) The delay since the crimes were committed may both diminish the weight to be attached to the public interest and increase the impact upon private and family life. (7) Hence it is likely that the public interest in extradition will outweigh the article 8 rights of the family unless the consequences of the interference with family life will be exceptionally severe' (per Lady Hale at [8] of the judgment).

Per curiam: '[In ZH] I pointed out that "despite the looseness with which these terms are sometimes used, 'a primary consideration' is not the same as 'the primary consideration', still less as 'the paramount consideration'"… Where the decision directly affects the child's upbringing, such as the decision to separate a child from her parents, then the child's best interests are the paramount, or determinative, consideration. Where the decision affects the child more indirectly, such as the decision to separate one of the parents from the child, for example by detention or deportation, then the child's interests are a primary, but not the paramount, consideration' (per Lady Hale, at [11] of the judgment).

Per curiam: 'In the field of extradition, as in every other context, therefore, the importance of the rights of the particular children affected falls to be considered first. This does not impair or reduce the weight that will be accorded to the need to preserve and uphold a comprehensive charter for extradition' (per Lord Kerr at [146] of the judgment).

Per curiam: 'In answering that question [whether the person's extradition would be compatible with the convention rights], the court would be well advised to adopt the same structured approach to an article 8 case as would be applied by the Strasbourg court. First, it asks whether there is or will be an interference with the right to respect for private and family life. Second, it asks whether that interference is in accordance with the law and pursues one or more of the legitimate aims within those listed in article 8.2. Third, it asks whether the interference is "necessary in a democratic society" in the sense of being a proportionate response to that legitimate aim. In answering that all-important question it will weigh the nature and gravity of the interference against the importance of the aims pursued' (per Lady Hale at [30] of the judgment).

Per curiam: 'Under article 8 of the European Convention on Human Rights, the ultimate substantive issue, where a right to respect for family life is engaged, is whether there exist factor(s) within article 8(2) outweighing that right. It is likely to be helpful at some point to address the issue specifically in those terms. But I do not think that any particular starting point or order can or should be imposed in the way in which courts address such an issue in the context of extradition' (per Lord Mance at [100] of the judgment).

Per curiam: 'ZH (Tanzania) was not concerned with and did not address extradition. Neither the decision in Norris, nor the judgment of Lord Phillips, nor those of any other ­members of the court, nor the ­decisions relating to extradition from the European Court of Human Rights, nor indeed the structure of the act itself, were cited or addressed, nor was it suggested that in the context of extradition proceedings the principles identified in Norris were subject to any further amplification or modification. It seems improbable that, without doing so expressly and unequivocally, the court in ZH (Tanzania) intended to or would have modified the way in which Norris had stated that the article 8 rights of the family of a proposed extraditee should be approached (per Lord Judge at [119] of the judgment).

Per curiam: 'It follows that an extradition order for one or both parents may be appropriate when deportation or removal would not. In other words, because distinct issues are involved, the same facts, involving the same interest of and the same potential or likely damage to the child or children, may produce a different outcome when the court is deciding whether to remove foreign citizens from this country or extraditing convicted or suspected criminals (including citizens of this country) to serve their sentences or stand trial for crimes committed abroad' (per Lord Mance at [123] of the judgment). Decision of the Divisional Court [2011] All ER (D) 86 (May) affirmed. Decision of Ouseley J [2012] All ER (D) 81 (Jan) reversed.

Alun Jones QC and John Jones (instructed by Wainwright & Cummins) for HH; Matthew Ryder QC, Steven Powles and
Michelle Butler (instructed by Wainwright & Cummins) for PH; Edward Fitzgerald QC and Ben Cooper (instructed by GT Stewart Solicitors) for FK; David Perry QC and Ben Lloyd (instructed by the Crown Prosecution Service) for the judicial authorities; Hugo Keith QC and Caoilfhionn Gallagher (instructed by Maxwell Gillott Solicitors) for the children in the first case, intervening parties by the Official Solicitor, their litigation friend; Alex Bailin QC, Mark Summers and Aaron Watkins (instructed by Peters & Peters Solicitors) for Justice as intervening party; Manjit Gill QC and James Dixon (instructed by Coram Children's Legal Centre) for the Coram Children's Legal Centre as intervening party.