In BH and another v Lord Advocate [2012] UKSC 24, the Supreme Court heard a case brought from Scotland by virtue of the Scotland Act 1998 which enables the Supreme Court to rule on the question whether a decision of Scotland's High Court of Justiciary is compatible with the European Convention on Human Rights. Mr and Mrs H are British citizens wanted by the USA
on charges of conspiracy and unlawful importation into the USA of chemicals used to manufacture methamphetamine. Mrs H is the mother of 6 children ranging in age from 1 to 14. Mr H is father of the 4 younger children. They claimed that the public interest in their extradition was outweighed by the consequences this would have for the best interests of their children. Their appeals were unanimously dismissed by a 7 member court. there was no escape from the fact that the crimes alleged, which were persisted in over a substantial period, are very serious. The interests of justice had to be given effect to.
Read - Press Summary and the judgment is also available. A full reading of, at least the summary, is needed to understand the full factual background.
The cases of HH and PH v Deputy Prosecutor of the Italian Republic and F-K v Polish Judicial Authority [2012] UKSC 25 were concerned with European Arrest Warrants.
HH and PH - (mother and father respectively) - were wanted by Italy for importation of cannabis into Italy. They have three children ranging in age from 3 to 11. The Supreme Court unanimously dismissed HH's appeal and, by a 6 to 1 majority, dismissed PH's appeal.
F-K and her husband have 5 children ranging in age from 3 to 21. FK was charged in Poland with dishonesty offences with a total equivalent value of £6000. FK's husband is physically impaired. F-K's appeal was allowed given that her extradition would have a severe effect on her two youngest children and, whilst the offences were not trivial, there were of no great gravity.
Read - Press Summary and the judgment is also available. Again, a full reading of, at least the summary, is needed to understand the full factual background.
These cases turn on their precise facts and the court's assessment of how the right to family life is to be balanced against the weighty public interest in extradition given that people should stand trial and serve appropriate sentences for their crimes.
The court relied on its earlier decision in Norris v Government of the USA (No 2) [2010] UKSC 9 which set out principles in a case where the court had to consider the effect on Mrs Norris of her husband of many years being extradited to the USA. Also considered was ZH (Tanzania) c Home Secretary [2011] UKSC 4 where the Supreme Court considered the potential impact of deportation on the article 8 rights of the two children. The best interests of children were a primary consideration but not the primary consideration nor the paramount consideration.
It was in ZH (Tanzania) that the Supreme Court considered for the first time the duties - (flowing from the UN Convention on the Rights of the Child 1989) - to treat the best interests of children as a primary consideration.
ZH has had a huge impact on all areas of the law, including on issues to do with the need to hear the voice of the child and also on the need to guard against punishing children for the sins of their parents.
In HH and others, the Supreme Court has now made clear that the approach in ZH to the best interests of children applies also in an extradition context, even though there is a greater public interest in extraditing someone to face criminal justice abroad than in deporting an immigrant.
The judgment in HH makes it clear that requested states must do much more, and at a much earlier stage, to understand the impact on the lives of children affected by such requests, to consider alternatives to extradition, to seek to minimise the damage to children wherever possible and, in particular, to ensure that children’s best interests are a primary consideration when making a decision which is likely to have a serious and fundamental impact on a child’s family life. This ruling does not, as these cases show, prevent extradition where the seriousness of the offences requires it in the public interest (on the individual facts, only FK’s appeal succeeded), but confirms that the high standards laid down by the Supreme Court in ZH (Tanzania) on the importance attached to children’s interests must not be ignored or taken for granted. The court confirmed that there is also a wider public interest and benefit to society in promoting the best interests of its children. It also held that, as a starting point “no factor must be given greater weight than the interests of the child”. It also confirms that under European Union law, children’s interests must inform how the UK implements EU Framework Decision. This judgment should now require a review of practices in issuing and agreeing to extradition requests, especially European Arrest Warrants, particularly where warrants are issued for what might be considered less serious offences.
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