FOURTH SECTION

DECISION

Application no. 38844/12 K.A.S. against the United Kingdom

The European Court of Human Rights (Fourth Section), sitting on 4 June 2013 as a Chamber composed of:

Ineta Ziemele, President, David Thór Björgvinsson, Päivi Hirvelä, George Nicolaou, Ledi Bianku, Zdravka Kalaydjieva, Paul Mahoney, judges, and Fatoş Aracı, Deputy Section Registrar,

Having regard to the above application lodged on 22 June 2012,

Having regard to the interim measure indicated to the respondent Government under Rule 39 of the Rules of Court, which was subsequently discontinued,

Having regard to the decision to grant the applicant anonymity under Rule 47 §3,

Having regard to the observations submitted by the respondent Government and the observations in reply submitted by the applicant,

Having deliberated, decides as follows:

FACTS AND PROCEDURE

1. The applicant, Ms K.A.S., is a British national, who was born in 1978 and lives in West Lothian. She was represented before the Court by Mr G. Brown, a lawyer practising in Glasgow with Thompson & Brown Solicitors.

2. The United Kingdom Government (“the Government”) were represented by their Agent, Ms R. Tomlinson of the Foreign and Commonwealth Office,

3. The applicant complained that her proposed extradition from the United Kingdom to the United States of America would violate her right to respect for her private and family life guaranteed by Article 8 of the Convention.

A. The circumstances of the case

4. The facts of the case, as submitted by the parties, may be summarised as follows.

1. The family history

5. The applicant is the mother of six children A, B, C, D, E, and F born between 1997 and 2011.

H (also a British national) is the father of the youngest four children – C, D, E and F. A, the eldest child has never had contact with her own father. B, the second child, lived with her mother and her father until the couple separated in 2001. It would appear that B has no ongoing relationship with her father.

In 2002, the applicant and H formed a relationship and married in 2008. They are now separated.

2. The domestic police investigation

6. In spring 2005 two searches of the applicant and H’s business and home addressed recovered documents, computers and bank records which contained information relating to the sale of chemicals, including iodine and red phosphorus, through a website. These chemicals can be used to manufacture methamphetamine, a highly addictive stimulant drug also known as “crystal meth”. These chemicals were also recovered during the second of the two searches. The recovered documents demonstrated both that the chemicals had been sold to customers around the world, including to four hundred customers in the United States, and that the applicant and H had been aware that it was illegal to sell those chemicals in that country. As a result, a police investigation was initiated into suspected offences under section 20 of the Misuse of Drugs Act 1971 (which relate to the assistance in the commission in any place outside the United Kingdom of an offence punishable under the provisions of that other State).

7. Meanwhile, a separate investigation was being conducted by authorities in the United States over the same period which led to the extradition proceedings below.

3. The extradition proceedings

a. The indictment and the extradition request

8. On 27 September 2006, an indictment against the applicant and H was filed at the United States District Court for the District of Arizona. The indictment included eighty-two counts of conspiracy, distribution and unlawful importation of iodine and red phosphorus used to manufacture methamphetamine, in the knowledge that the chemicals would be used for that purpose. The charges related to the sale of the chemicals through the applicant and H’s internet business. The indictment stated that the website offered “discreet packaging” and shipped orders to its customers with incorrect and misleading labelling as to the contents. The indictment also stated that the applicant and H had received emails informing them that the chemicals were being used to manufacture methamphetamine and that a recipe for manufacturing methamphetamine was saved on the applicant’s computer. The applicant and H were alleged to have supplied over eighty methamphetamine laboratories in the United States and to have sold two hundred and ninety-six kilograms of red phosphorus and forty-four kilograms of iodine to customers in the United States at a value of USD 132,922 (US dollars). This amount of chemicals could have allegedly produced a street value of methamphetamine of approximately USD 13.3 million.

9. On 3 November 2006, the United States sought the applicant and her husband’s extradition. On 15 January 2007, the Scottish Ministers certified that the extradition request was valid. On 16 January 2007, warrants were issued for the applicant’s and H’s arrests.

10. The applicant and H were detained pending their extradition until 31 August 2007 when they were both released on bail and returned home to continue to care for their children. On 21 April 2011, H’s bail order was revoked when he failed to attend a High Court hearing relating to his appeal. From 26 April 2011 onwards, H was remanded in custody whilst the applicant has remained on bail caring for her children. The applicant claims that she has been separated from H since that date.

b. The Edinburgh Sheriff Court’s judgment

11. In a judgment delivered on 3 April 2008, Sheriff McColl sitting at Edinburgh Sheriff Court held, inter alia, that the applicant’s extradition would be compatible with her rights under Article 8 of the Convention.

12. The sheriff did not regard either the applicant or H to be a credible or reliable witness. Contrary to the applicant’s and her husband’s submissions, the children could be cared for by the applicant’s mother, albeit with some external support from the children’s wider family or close friends. Failing that, the children could be placed in foster care. The sheriff accepted the evidence of social services that it would prove difficult to find a placement for all of the children together but that they would do everything possible to foster their relationship both with one another and with their parents. The sheriff found it highly unlikely that the applicant’s mother would not participate in any efforts by the social services to maintain those relationships.

13. The sheriff did not accept that the fact that the applicant and H were the parents of (at that time) four children could as a matter of principle bring the case within the exceptional range required to resist extradition on Article 8 grounds. What would happen to the children if the applicant and H were extradited remained uncertain. The sheriff found that the mechanisms operated by the US authorities to remain and assist in the fostering of family bonds would assist the applicant and H to maintain their bond with the children, even if such arrangements were not ideal. If the applicant and H were convicted and sentenced to a period of imprisonment, they could make an application to serve their sentence in the United Kingdom and more specifically in Scotland. Therefore, the sheriff did not accept that the Article 8 rights of either of the respondents or of their children would be completely denied or nullified in the United States.

c . The High Court of Justiciary’s judgment

14. On 29 May 2008, the Scottish Ministers ordered the applicant and H to be extradited to the United States. They appealed against the extradition order to the High Court of Justiciary relying, inter alia , on Article 8 of the Convention. On 29 July 2011, the High Court delivered a judgment dismissing their appeals against the extradition orders.

15. The High Court considered in detail the relevant case-law of this Court on Article 8 and extradition. It also considered the Supreme Court of the United Kingdom’s judgments in ZH (Tanzania) (on the weight to be given to the best interest of children in immigration removal or deportation cases) and Norris (also on Article 8 and extradition): see paragraphs 35 and 36 below.

16. Having done so, it concluded that, since there was a strong public interest in the comprehensive application of extradition treaties which was not present in immigration removal cases, the High Court considered the approach to be taken to Article 8 rights in extradition cases had to be “radically different” from that adopted in deportation or expulsion cases. The High Court therefore considered that decisions on Article 8 rights in deportation or expulsion cases were of no direct relevance in the context of extradition. It accepted that, in a case where it was necessary to determine whether the extradition of a person with dependent children was justified under Article 8 § 2 of the Convention, the best interests of the children were naturally a primary consideration. However, this consideration would be outweighed in all but exceptional circumstances by the public interest in the application of extradition arrangements.

17. In the applicants’ case, the High Court proceeded on the basis that there was a risk that the children might be taken into social services’ care and that there was a risk that they would be required to be separated from one another.

18. In the case of H, the High Court considered that, in light of the very serious offences with which he was charged and the limited contact he had with his children, it was plain that H’s extradition was justified under Article 8 § 2 of the Convention. The applicant’s case was more difficult, particularly given the serious consequences on her children. The High Court found that it had to proceed on the basis that she, equally with her husband, was charged with extremely serious drugs offences and that there would be seriously damaging consequences for the public interest in the prevention of crime if an accused person with family dependencies (such as those binding the applicant to her children) was rendered immune from being extradited to be tried for very serious wrongdoing. Indeed, if the applicant were alleged to have committed analogous offences in the United Kingdom, she would undoubtedly be prosecuted notwithstanding the possibility that, if convicted, she might be separated from her children for a prolonged period. The High Court recognised that the family life of the applicant would inevitably be disrupted by her extradition and that the disruption may be severe, with the extradition of both parents making it worse. Nevertheless, the High Court came to the conclusion that her extradition would not be an unlawful breach of her family life under Article 8 of the Convention and considered it to be unnecessary to consider the possibility of a prosecution in the United Kingdom.

19. On 11 August 2011, the High Court granted leave to appeal to the Supreme Court in respect of the devolution issues relating to Article 8 of the Convention.

d. The Supreme Court’s judgment

20. On 20 June 2012, the Supreme Court unanimously dismissed the applicant’s and H’s appeals. In the lead judgment, Lord Hope (with whom the other Justices agreed) stated at the outset that, if the applicant and her husband were the only persons whose interests had to be taken into account, the answer to the question of the proportionality of their extradition would have been relatively straightforward. The crimes of which they were accused were very serious, and the public interest in the honouring of extradition arrangements for the prevention and punishment of crime was compelling. However, the complicating factor was that the applicant’s children’s interests also had to be taken into account and it was quite obvious that the children’s interests would be interfered with by the extradition of either parent. Lord Hope therefore observed that the weight to be given to the best interests of the children lay at the heart of the issue whether the extradition of both parents, or either of them, would be proportionate.

i. The approach to Article 8 in extradition cases

21. Lord Hope respectfully disagreed with the High Court’s reasoning that the approach to Article 8 rights in extradition cases had to be radically different from that adopted in deportation or expulsion cases. The Supreme Court’s reasoning in ZH (Tanzania) could have a very real and important part to play where those affected by extradition included the children of the persons to be extradited. Great weight would always have to be given to the public interest in giving effect to a request for extradition, and the more serious the offence, the greater would be that weight. Moreover, the public interest in immigration control lacked the treaty base which was at the heart of the extradition process. But the question, so far as the Article 8 right was concerned, was the same in both cases. Given that the best interests of children were a primary consideration, it was appropriate to ask whether the Article 8 right was outweighed by the strength of any other considerations.

ii. The individual facts of the case

22. Lord Hope observed, upon extradition, there would only be limited contact between the children and the applicant and H before trial. Any conviction would be likely to attract very long sentences. He noted that the effect of those sentences may be mitigated by the fact that arrangements exist under which the applicant and H might thereafter be permitted to serve part of their sentences in Scotland. Nevertheless, there was no certainty that permission would be given and it was not possible to predict when any such arrangements would be likely to be made even if they were agreed to. The prospect was that the applicant and H were likely to be kept apart from their children, and perhaps the children from each other, for a very long time.

iii. The decision regarding the applicant

23. Lord Hope agreed with the High Court’s conclusion in respect of H’s case but he also agreed that the applicant’s case was more difficult. There was no doubt that the children’s best interests would be to continue to live with their mother. They would be deprived of her care and guidance if she were to be taken away from them and it seemed likely that the long term effects upon the children of a prolonged separation of the magnitude that was in prospect would be profound.

24. On the other hand, the crimes alleged were very serious and the United Kingdom’s extradition obligations favoured extradition to the United States, the forum in which the allegation would be tried. If there were any grounds for leniency or mitigation of sentence on the grounds of family circumstances, it would be for the United States authorities, not the United Kingdom courts to make that assessment. This Court (that is, the Strasbourg Court) had “repeatedly said that it will only be in exceptional circumstances that an applicant’s private or family life in a contracting state would outweigh the legitimate aim pursued by his or her extradition”.

25. Lord Hope considered that the fact that this Court had not yet decided any extradition in favour of the applicant, even where those to be extradited were the parents of young children, indicated how high the bar against refusing a request for extradition had been set.

iv. The relevance of considering the forum of prosecution

26. Considering what was in the best interests of the children also made it necessary to consider the possibility of a prosecution in the United Kingdom. In particular, the court had to be satisfied that the interests of justice could not be served equally well by prosecuting the parents in the United Kingdom.

27. In King v. the United Kingdom (dec) , no. 9742/07, § 29, 26 January 2010, this Court had observed that considerations as to whether prosecution existed as an alternative may have a bearing on whether the extradition would be in violation of one of the rights guaranteed by the Convention. However, he also noted that in Babar Ahmad and others v. the United Kingdom (dec.) , nos. 24027/07, 11949/08, 36742/08, 66911/09 and 67354/09, § 175, 6 July 2010, this Court had stated that there was no right not to be extradited and that, by implication, there was no right to be prosecuted in a particular jurisdiction and thus that it was not for the Court to adjudicate on the natural forum for prosecution.

28. It was considered that rarely, if ever, was the possibility of prosecution as an alternative likely in practice to tilt the scales against extradition. The issue remained one of proportionality and the more compelling the interests of the children, the more important it would be for the alternatives to extradition, if there were any, to be carefully examined and brought into the balance to see if they carried any weight. This was not to diminish the importance to be given to treaty obligations but rather to recognise that, in cases involving the separation of parents from young children, there would be another powerful factor, which was likely to make the scales more finely balanced than they would be if the children were not there.

29. Although it was accepted that prosecution of the applicant in the United Kingdom would be possible, there were strong practical reasons for prosecution in the United States and this was the proper place for forum for prosecution.

30. Whilst acknowledging that the balance was not easy to strike, Lord Hope came to the conclusion that the best interests of the children, even when weighed together with the applicant’s own Article 8 rights, were not strong enough to overcome the overwhelming public interest in giving effect to the extradition request. Thus the applicant’s extradition would be compatible with Article 8.

B. Relevant domestic law and practice

1. The Extradition Act 2003

31. Part II of the Extradition Act 2003 regulates the extradition of individuals to “category 2” territories which, by designation of the Secretary of State, includes the United States.

32. Section 87 requires the judge at the extradition hearing to decide whether a person’s extradition would be compatible with Convention rights within the meaning of the Human Rights Act 1998. In Scotland, if the extradition would be compatible, the judge (a sheriff of Lothian and Borders) must send the case to the Scottish Minister for their decision whether the person is to be extradited (sections 87(3) and 141(1)).

33. Sections 103 and 141(1) provide for the right of appeal to the High Court of Justiciary against the decisions of the judge and against an order for extradition made by the Secretary of State.

34. In the present case, the Supreme Court found that, where an extradition case raised a “devolution issue”, an appeal to the Supreme Court would be competent. (A devolution issue is a dispute as to whether the Scottish authorities, have acted ultra vires . This includes whether they have acted incompatibly with their obligations under the Convention.).

2. ZH (Tanzania)

35 . As a matter of United Kingdom and international law, in all actions concerning children, national authorities are required to treat the best interests of the child as a primary consideration. In ZH (Tanzania) v. Secretary of State for the Home Department [2011] 2 AC 166 the Supreme Court found that this obligation applied in immigration cases where the parent was to be removed from the United Kingdom and he or she had children who were United Kingdom nationals (and who thus could not be removed from the United Kingdom). Baroness Hale, giving the lead judgment, found that, in any proportionality assessment (including that under Article 8), the fact that the best interests of a child were a primary consideration meant they had to be considered first. They could, of course be outweighed by the cumulative effect of other considerations, such as immigration control and the immigration history of the parent.

3. Norris

36 . The United States sought the extradition of Mr Norris, a British citizen, to stand trial on charges of price-fixing and perverting the course of justice. On appeal to the Supreme Court ( Norris v. Government of the United States of America (No 2) [2010] 2 AC 487), the court was asked to consider the appropriate test for determining whether extradition would be compatible with a requested person’s Article 8 rights. The court found that, instead of saying that interference with Article 8 rights can only outweigh the importance of extradition in exceptional circumstances (as this Court had found in, inter alia , King v. the United Kingdom , cited above), it was more accurate and more helpful to say that the consequences of interference with Article 8 rights must be exceptionally serious before this could outweigh the importance of extradition. When considering the proportionality of a particular extradition, the court could take account of the importance of giving effect to extradition arrangements (which would always be significant) but also, where appropriate, the relative gravity of the offence and the effect of extradition on members of the requested person’s family. Rarely, if ever, on an issue proportionality, could the possibility of bringing criminal proceedings in the United Kingdom be capable of tipping the scales against extradition. Unless a court reached the conclusion that the scales were finely balanced, it should not enter into an enquiry as to the possibility of prosecution in the United Kingdom.

COMPLAINTS

37. The applicant complained that her extradition would completely nullify her and her six children’s rights to family life under Article 8 of the Convention. She claimed that, if extradited, there would be no arrangements in place to ensure that her children would be looked after by friends or family and that the children would have to be placed into the care of social services. She claimed that social services had confirmed that they would not be able to find a foster placement for all six children together and that they would be separated. If convicted, she faced between four and twenty years in prison; by the time of her release, her children would be adults and her family unit would have been wholly destroyed in the interim. She claimed that the domestic authorities had not given sufficient consideration to the possibility that she could face trial in the United Kingdom, particularly when the alleged offences and the initial police investigations had taken place there. For these reasons, the circumstances of her case disclosed “exceptional circumstances” such that her and her children’s rights under Article 8 of the Convention outweighed the legitimate aim pursued by honouring the extradition request.

THE LAW

A. Events subsequent to the Supreme Court’s judgment

38. Following the dismissal of their appeals by the Supreme Court, the applicant and her husband lodged separate applications with this Court under Article 34 of the Convention. They both made accompanying requests for interim measures under Rule 39 of the Rules of Court to prevent their extradition.

39. The applicant lodged her application on 22 June 2012. Her request for an interim measure under Rule 39 was granted on 3 July 2012 and notice of the application was given to the respondent Government on the same date.

40. The applicant’s husband lodged his application on 3 July 2012. His request for an interim measure was refused on 5 July 2012 and he was extradited on 13 July 2012. The file in his case was subsequently destroyed when no further communication was received from him.

41 . In the applicant’s case, by letters dated 24 March and 3 April 2013 (that is, after the parties written observations on the admissibility and merits of the application had been received), the applicant’s representative informed the Court that the applicant wished to withdraw her application. A plea agreement had been struck with the United States prosecuting authorities under which she would travel to the United States, plead guilty and be sentenced to time served (reflecting the five and a half months which she had spent in detention in Scotland awaiting extradition).

42. On 5 April 2013, as a result of the information contained in the letters from the applicant’s representatives of 24 March and 3 April 2013, the Court decided to lift the interim measure previously indicated under Rule 39 of the Rules of Court. The applicant was formally extradited the same day.

B. Article 37 of the Convention

43. Article 37 of the Convention provides:

“1. The Court may at any stage of the proceedings decide to strike an application out of its list of cases where the circumstances lead to the conclusion that

(a) the applicant does not intend to pursue his application; or

(b) the matter has been resolved; or

(c) for any other reason established by the Court, it is no longer justified to continue the examination of the application.

However, the Court shall continue the examination of the application if respect for human rights as defined in the Convention and the Protocols thereto so requires.

2. The Court may decide to restore an application to its list of cases if it considers that the circumstances justify such a course.”

44. The Court considers that, in view of the applicant’s letters of 24 March and 3 April 2013 (see paragraph 41 above) she may be regarded as no longer wishing to pursue her application, within the meaning of Article 37 § 1 (a) of the Convention.

46. Nonetheless, the Court considers that it should be slow to find that such circumstances exist where a case, even one raising an issue of general importance, has been the subject of careful and detailed examination by the domestic courts. This is the case here. As can be seen from the summary of the domestic proceedings set out above, the applicant’s case was examined by three instances, including the Supreme Court, and all three instances gave careful consideration, not just to her case, but to the general approach to be taken to Article 8 in extradition cases. Therefore, notwithstanding the general importance of the issue which was initially presented to it in this case, the Court is satisfied that there are no circumstances which would justify its continued examination of it.

47. In view of the above, it is appropriate to strike the case out of the list.

For these reasons, the Court by a majority

Decides to strike the application out of its list of cases.

Fatoş Aracı Ineta Ziemele Deputy Registrar President