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United Kingdom Supreme Court
You are here: BAILII >> Databases >> United Kingdom Supreme Court >> BH & Anor v The Lord Advocate & Anor (Scotland)  UKSC 24 (20 June 2012)
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 UKSC 24
On appeal from:  HCJAC 77
BH (AP) (Appellant) and another v The Lord Advocate and another (Respondents) (Scotland)
KAS or H (AP) (Appellant) v The Lord Advocate and another (Respondents) (Scotland)
Lord Hope, Deputy President
JUDGMENT GIVEN ON
20 June 2012
Heard on 5, 6, 7 and 8 March 2012
Herbert Kerrigan QC
(Instructed by Good & Stewart)
W James Wolffe QC
(Instructed by The Appeals Unit, Crown Office)
|Lord Boyd of Duncansby QC|
|(Instructed by Scottish Government Legal Directorate Litigation Division)|
|Appellant (KAS or H)
(Instructed by Thompson & Brown)
W James Wolffe QC
(Instructed by The Appeals Unit, Crown Office)
Lord Boyd of Duncansby QC
(Instructed by Scottish Government Legal Directorate Litigation Division)
Manjit Gill QC
(Instructed by Coram Children's Legal Centre)
Lord Wallace of Tankerness QC Advocate General for Scotland
(Instructed by Office of the Solicitor to the Advocate General for Scotland)
LORD HOPE (with whom Lady Hale and Lord Kerr agree)
The extradition request
"Beginning on a date unknown to the Grand Jury but no later than August of 2004, continuing through at least September of 2006, in the District of Arizona, and elsewhere, defendants [the appellants] did knowingly and intentionally conspire and agree with each other and with others known and unknown to the Grand Jury, to commit offenses against the United States including the following:
a. to knowingly and intentionally distribute a listed chemical, specifically Red Phosphorus, knowing and having reasonable cause to believe it will be used to manufacture a controlled substance, in violation of Title 21 United States Code, Sections 841(c) (2);
b. to knowingly and intentionally import and distribute a chemical, specifically Red Phosphorus, which may be used to manufacture a controlled substance, knowing and having reasonable cause to believe that it will be used to manufacture a controlled substance in violation of the Controlled Substances Act and the Controlled Substances Import and Export Act, in violation of Title 21 United States Code, Sections 843(a)(7); and
c. to knowingly and intentionally distribute a List I chemical, specifically Red Phosphorus, without the registration required by the Controlled Substances Act, in violation of Title 21 United States Code, Section 843(a)(9)."
"The evidence the government will use to prove all of the allegations contained in the indictment against [Mr H] and [Mrs H] will include the incriminating computer records recovered from KN03 including emails, the admissions by [Mr H] and [Mrs H] regarding their involvement in the operation, the false and misleading statements made on packaging of KN03 products sent to the United States, the undercover sales made to the United States authorities, the fact that KN03 continued to sell red phosphorus to customers in the United States even after being advised that the sales were illegal and after being advised that the products were being used for the manufacture of methamphetamine, and the evidence that KN03 customers were operating clandestine methamphetamine laboratories."
Is the appeal competent?
"before the end of the required period, which is 28 days starting with –
the day on which the decision of the relevant court on the appeal becomes final, or
the day on which the proceedings on the appeal are discontinued."
The relevant court in the application of this provision to Scotland is the High Court of Justiciary: section 118(8)(a). The remaining provisions of this section, which make detailed provisions as to when the decision becomes final in the event of an appeal to the Supreme Court, do not apply to Scotland: section 118(8)(b). There is no provision which tells us when the 28 day period is to start should there be an appeal against the High Court's determination of a devolution issue under the Scotland Act. The problem could perhaps be cured if the Supreme Court were to remit the case to the High Court to pronounce a final order in the event that it decides that the appeal to it should be dismissed. This would involve reading the words "becomes final" in section 118(2)(a) as embracing this possibility. But this solution is not without difficulty. In contrast to the situation contemplated by the remaining provisions of section 118, no specific time limit is provided either by the Scotland Act or by an Act of Adjournal for applications for leave to appeal to this court under paragraph 13 of Schedule 6.
The proceedings below
The reasoning of the High Court of Justiciary
"Mindful of the importance of extradition arrangements between states in the fight against crime (and in particular crime with an international or cross-border dimension), the court considers that it will only be in exceptional circumstances than an applicant's private or family life in a contracting state will outweigh the legitimate aim pursued by his or her extradition."
"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."
In para 81 he referred to passages in paras 15 and 51 of the judgment in Norris, in which Lord Phillips indicated that the distinction between extradition and deportation was fundamental to its reasoning. He also said that it was necessary to bear in mind that Norris was not referred to in the judgments in ZH nor was it cited in argument. He summarised the court's approach to ZH in these words:
"Against that background, we are not persuaded that anything said in ZH was intended to modify or depart from what had been said in Norris, or indeed was said with extradition in mind. At the same time, in a case where it is necessary to determine whether the extradition of a person with dependent children is justified under article 8(2) of the Convention, the best interests of the children are naturally a primary consideration. As appears from King v United Kingdom, however, that consideration will be outweighed, in all but exceptional circumstances, by the public interest in the application of extradition arrangements."
The article 8 rights in this case
Prosecution in this country
"Extradition does not and should not depend upon the ability or otherwise of the requested state to undertake its own investigations with a view to prosecuting the case within its own jurisdiction. Such an approach would involve unnecessary duplication of effort, would result in additional delays in the prosecution of suspected criminals and would have an adverse effect upon international relations and international co-operation in the prosecution of serious crime."
"Extradition proceedings should not become the occasion for a debate about the most convenient forum for criminal proceedings. Rarely, if ever, on an issue of proportionality, could the possibility of bringing criminal proceedings in this jurisdiction be capable of tipping the scales against extradition in accordance with this country's treaty obligations. Unless the judge reaches the conclusion that the scales are finely balanced he should not enter into an inquiry as to the possibility of prosecution in this country."
In a postscript to his judgment which he wrote in the light of the admissibility decision in King he said that he remained of the view that rarely, if ever, was the possibility of prosecution as an alternative to extradition likely in practice to tilt the scales against extradition: para 86. These remarks had the unanimous support of all the other members of the court.