On 5 March the Supreme Court hears KAS or H v The Lord Advocate & Anor, BH v The Lord Advocate & Anor. The cases involve Article 8 challenges to extradition proceedings brought against the appellants, a married couple sought by the United States authorities on charges relating to the importation into the US of ingredients for the manufacture of methamphetamine.

The background to the appeal

The appellants are UK citizens resident in Scotland. Mrs H (formerly Ms S) has six children aged between 14 and 1. Mr H is father to the younger four children. Mr H’s older daughter (J) by another woman accused him of sexual abuse when he was resident in the United States after which he and the child’s mother took the child to the UK. J ended up living in care in the UK after Mr H’s relationship with her mother ended. Mr H had another child with another woman before having four children by Ms S. Between the birth of his first and second child by Ms S, Mr H was found in the English family courts to have sexually abused his daughter J and was injuncted from having any contact with Ms S’s three children. This injunction was not complied with and Mr H and Ms S moved to Scotland with the three children and a further three children were born to them there, the youngest two having been conceived after extradition proceedings were begun against Mr H and Ms S.

Extradition orders were made against Mr H and Ms S in May 2008. They appealed on a number of grounds including, so far as relevant here, on the ground that extradition would breach their Article 8 rights. Numerous delays occurred during the appeal process, some of them the result of claims by Mr H and Ms S to be psychiatrically unwell and others the result of Ms S’s pregnancies, a miscarriage and childbirths. The Appeal Court accepted in July 2011 that the extradition of the Appellants would interfere with their Article 8. Extradition in the public interest would, however, generally be proportionate under Article 8(2) (Norris v Government of the United States of America (No.2) [2010] 2 AC 487). This remained the case notwithstanding the decision of the Supreme Court in ZH (Tanzania) v SSHD [2011] 2 WLR 148, in which that Court ruled that the best interests of the child must be a primary consideration in a deportation decision the effect of which would be that the children of the deportee would leave the UK. The Appeal Court ruled [80] that “Since the factors which are generally of overriding importance in extradition cases are not present in deportation or expulsion cases, it follows that decisions on Article 8 rights in cases of the latter kind are of no direct relevance in the context of extradition”. The Court went on to state that the recent births, with the final pregnancy being contrary to medical advice, “may lead to a suspicion that [the Appellants] saw this as a way of strengthening their arguments against extradition” [87] and “might … be regarded as irresponsible” in light of the extradition proceedings.

The Court took into account the fact that the result of the extraditions might be the separation and fostering of the Appellants’ children, given the refusal of the Appellants to cooperate with attempts to identify possible placements within the Appellants’ broader families; the possibly damaging impacts of separation from the Appellants (particularly Ms S) on the children; the public interest in extradition; the seriousness of the crimes of which the Appellants were accused; the apparently shared culpability of the Appellants; the fact that all the children were on the child protection register and (in Mr H’s case) the fact that his contact with the older children was in breach of an injunction issued by the English courts. In the case of Mr H the Court concluded that that it was “plain that his extradition can be justified under Article 8(2)”. The case of Ms S was “more difficult” given the possible impact on her children but it was a “sad, but unavoidable, fact of life that the consequences of criminal proceedings often affect most severely the family of the wrongdoer rather than the wrongdoer herself” [100] and “extradition was, in the view of the Court, justified.

The issue for the Supreme Court

The question to be decided by the Supreme Court is whether the lower Court erred in failing to take due account of the interests and rights of the Appellants’ children, as distinct from those of the Appellants themselves, in assessing whether their extradition would be incompatible with Article 8.