Howes & Howes against the Lord Advocate & The Scottish Ministers

Appeals against extradition orders made by the Scottish Ministers ordering the extradition of the appellants to the United States of America.

These three appeals relate to extradition orders made by the Scottish Ministers in terms of the Extradition Act 2003 (as amended), ordering the extradition of the two appellants to the United States of America in order that they face trial in Arizona on charges of conspiring to import chemicals into the United States in the knowledge, or having reasonable cause to believe, that the chemicals would be used to manufacture methamphetamine, a controlled drug.

In the first two appeals, the appellants, Mr. H and Mrs. H (formerly Miss S), have appealed against decisions taken by Sheriff McColl dated 3 April 2008  to send their respective cases to the Scottish Ministers for the Scottish Ministers’ decision as to whether Mr. H and Mrs. H are to be extradited.

The third appeal is at the instance of Mr. H, who has appealed against the extradition order made in respect of him by the Scottish Ministers on 29 May 2008. 

The Appeal Court, constituted by Lord Osborne, Lord Reed and Lord Mackay of Drumadoon, has found that certain of the offences of which both appellants stand charged in the United States of America are extradition offences, and that the appellants have failed to establish that their extradition on those offences would violate their rights under the European Convention on Human Rights.

The court has, however, allowed the appeals at the instance of Mr. H and Mrs. H against the decisions of Sheriff McColl, in relation to certain other offences in the indictment they face in the United States of America, on the ground that those particular offences do not constitute extradition offences.  In respect of those offences only, the court has allowed the appeals of Mr. and Mrs. H and has ordered their discharge and quashed the orders for their extradition. Otherwise the court has dismissed the appeals of Mr. and Mrs. H against the decisions of Sheriff McColl.

The court has also dismissed the appeal at the instance of Mr. H against the decision of the Scottish Ministers.

As a consequence, the extradition orders made by the Scottish Ministers on 29 May 2008 in respect of both Mr. and Mrs. H stand, subject to the deletion from those orders of any reference to the particular offences which are not extradition offences.


The proceedings arise from a request by the United States of America for the extradition of Mr. and Mrs. H to face trial on an indictment in a Federal Court in Arizona. The indictment against both of them libels charges of conspiracy and unlawful importation into the United States of chemicals knowing or having reasonable cause to believe that the chemicals would be used to manufacture methamphetamine, a controlled drug.

The appeals raise a number of issues in relation to the law of extradition, including the question whether the extradition of Mr. and Mrs. H would be incompatible with their Convention rights under Article 8 of the European Convention for the Protection of Human Rights and Fundamental Freedoms, as given effect by the Extradition Act 2003 and the Scotland Act 1998.

The proceedings, both in the Sheriff Court and before the High Court of Justiciary have been protracted. On 3 April 2008 Sheriff McColl issued her decision to send the appellants’ cases to the Scottish Ministers for their decision on whether the appellants should be extradited. On 29 May 2008 the Scottish Ministers made extradition orders in respect of each appellant.  Notes of appeal were subsequently lodged  in the High Court of Justiciary on 11 June 2008. Numerous delays followed, due in part to frequent changes of counsel by the appellants, and the illness and pregnancies of Mrs. H. On 28 April 2011 the hearing of the appeals was finally concluded.

The court has taken the view that the offences to which the extradition requests relate are of an extremely serious nature.  Mr. and Mrs. H are alleged to have sold chemicals to clandestine laboratories in the United States, knowing that the chemicals would be used to manufacture methamphetamine, a controlled drug; soliciting business of that kind; and deliberately mislabelling the chemicals they sent to the United States in order to avoid detection. This conduct is alleged to have been persisted in over a period of years, despite searches of the appellants’ premises, the seizure of evidence, and a warning to desist by the United State authorities. The highly dangerous nature of methamphetamine is reflected in the fact that it has, since 2007, been classified in the United Kingdom as a Class A drug in terms of the Misuse of Drugs Act 1971.  

At least 70 methamphetamine laboratories in the United States are alleged to have been supplied by the appellants.   Documents lodged in support of the requests for extradition indicate that approximately 1330lb of methamphetamine, with a street value of $13.3m, could have been produced using the chemicals supplied by the appellants. Mr. and Mrs. H are said to have received approximately $132,922 for the sale of such chemicals. 

The appeal court was satisfied that the charges set out in paragraph 12(c) of Count 1 and Counts 34 to 82 on the United States indictment, which Mr. and Mrs. H face, were constituted by conduct which would not amount to any offence under the law of Scotland. It followed that those particular offences are not extradition offences.  On that ground the appeals against the decisions of Sheriff McColl required to be allowed, in respect of those particular offences and to the extent of ordering the discharge of Mr. and Mrs. H and quashing the orders for their extradition in respect of those offences.
    
In deciding whether the extradition orders made by the Scottish Ministers were incompatible with the appellants’ rights under the Convention, the court gave careful consideration to Article 8 of the European Convention: the right to respect for private and family life. It noted that the appellants’ extradition might have serious consequences for their children. When doing so, the court followed the guidance given by the Supreme Court in the case of Norris v Government of the United States of America (No 2) in 2010, in which the Supreme Court held that the interference with private and family life consequent upon extradition would be proportionate in all but quite exceptional circumstances. In the opinion of the Supreme Court such interference was warranted because extradition is part of the process for ensuring that those reasonably suspected of crime are prosecuted and, if found guilty, sentenced.

The offences with which Mr. and Mrs. H are charged are very serious. The offences involve criminal conduct with an international dimension,  The court also noted that it had to proceed on the basis that Mr. and Mrs. H are accused equally of having committed these offences.  It was not suggested on behalf of the appellants that there was any basis upon which the court could properly treat one of them as having been involved to any lesser extent than the other.

The court noted that the effect of the appellants’ extradition on the children is difficult to predict, in so far as it depends on the outcome of the proceedings in the United States.  It is also difficult to predict what arrangements may be made for the care of the children, partly as a result of the unwillingness of Mr. and Mrs. H to co-operate in identifying potential carers, although they both have extended families.   The court proceeded on the basis that there is a risk that the children may require to be taken into care and that there is a risk, in that eventuality, that they may require to be separated.  The court observed that it is a sad, but unavoidable, fact of life that the consequences of criminal proceedings often affect the family of the wrongdoer more severely than the wrongdoer themself.

Applying the clear and authoritative guidance given by the Supreme Court in the case of Norris, and having regard to the seriousness of the offences charged, the court came to the conclusion that the interference with private and family life which would result from Mr. and Mrs. H’s extradition was proportionate and that neither of the appellants was entitled to be discharged from the extradition orders made by the Scottish Ministers. In these circumstances the court dismissed the appeals against the decisions of Sheriff McColl.

The court has also dismissed the appeal at the instance of Mr. H against the decision of the Scottish Ministers. It held that the Scottish Ministers had not erred by making an extradition order in respect of Mr. H in the absence of any arrangements that Mr. H would not be prosecuted in the United States for any offences additional to those specified in the extradition order of 29 May 2008.  The court reached that decision having been provided with a written assurance on behalf of the Government of the United States, dated 26 May 2009, that Mr. H would not be prosecuted for any charges other than those set forth in the indictment.


As a consequence the court has ruled that the extradition orders made by the Scottish Ministers on 29 May 2008 in respect of each appellant should stand, subject to the deletion from those orders of any reference to the non - extraditable offences in paragraph 12(c) of Count 1 and Counts 34 to 82 of the indictment in the Federal Court in Arizona.
 

This summary is provided to assist in understanding the Court’s decision.  It does not form part of the reasons for that decision.  The full report of the Court is the only authoritative document.

The full opinion is available on the Scottish Courts website at this location: 
http://www.scotcourts.gov.uk/opinions/2011HCJAC77.html

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