The case was heard by the UK Supreme Court on 5th to 8th March 2012, together with another case from Scotland BH and KAS v The Lord Advocate. Judgment was given to both cases on 20th June 2012.
This case concerned extradition and the rights of children: whether extradition would be incompatible with the rights of the appellants’ children to respect for private and family life under Article 8 and whether the test of how to consider article 8 ECHR in extradition cases as set out by the Supreme Court in Norris needs modification in light of its treatment by the Court in ZH (Tanzania), an immigration case.
The Court asserted that the test in Norris did not need modification, rather that it has been misapplied in subsequent cases. The approach in the immigration context gave an opportunity to re-focus on article 8 in extradition proceedings, and the value of article 8 rights was relevant, but the context in extradition proceedings, in giving effect to international obligations was quite distinct. The UN Convention on the Rights of the Child requires the best interests of the child to be a primary consideration, as does the EU Charter on Fundamental Rights. Both the CFR and ECHR must be adhered to in accordance with the EU framework decision which creates the EAW scheme. Competing interests must be weighed. The Justices had different ideas about how these should be approached but the general consensus was that the Extradition Act sets out the necessary stages in assessing a request and once the question of human rights is arrived at, the Strasbourg test should be followed.
Importantly Norris did not require a test of exceptionality which could create artificial and impossible standards. Whether article 8 rights prevail will be a question of assessing the proportionality of the interference.
In the final analysis, the court unanimously held that the surrender of FK to Poland should be refused. Whilst the alleged offences of theft and fraud were not trivial, they were of no great gravity. Over a decade had passed and there was delay in seeking the EAW. The severe impact surrender would have upon the youngest children outweighed the public interest in extradition.
However, the court unanimously held that HH should be returned. The committed crime was drug importation, carrying a lengthy custodial sentence. HH was not the primary carer of the children given her own health concerns and the seriousness of the offence outweighed the impact upon the children. The Justices found the decision regarding PH particularly difficult to reach. Lady Hale would have refused his extradition because of the bond he has with his children and the lesser culpability he held in the offence. She placed weight on the possibility that Italy could issue a new EAW when the children were older. The other Justices did not think this approach was appropriate and despite the devastating impact losing both parents would have concluded that the public interest favoured extradition for such a serious crime. Some expressed the hope that leniency would be given in Italy as in domestic cases there for parents in length of sentence to be served, and also that the new EU framework decision on transfer of sentenced persons could mean that the parents could serve their sentences in the UK.
Justice was represented pro bono by Alex Bailin QC, Mark Summers and Aaron Watkins of Matrix Chambers and Peters and Peters LLP.
The judgment available here