UPDATE: The UKSC handed down judgment in these cases today (20 June 2012). The press summary is available here and the judgment is available here. BAILII judgment available here. The Court unanimously allowed the appeal in the case of FK. The appeal in respect of HH was unanimously dismissed. By a majority, the Court also dismisses PH’s appeal, Lady Hale dissenting.
Lady Hale gives the lead judgment. The application of article 8 of the ECHR in the context of extradition was considered by the Supreme Court in Norris v Government of the United States of America (No 2)  UKSC 9,  2 AC 487. The case concerned the effect on Mrs Norris of her husband of many years being extradited to face charges of conspiracy. Whilst not involving the rights of children, the following principles can nonetheless usefully be drawn from that case. First, there may be a closer analogy between extradition and the domestic criminal process than between extradition and deportation, but the court must still carefully examine the way in which it will interfere with family life. Secondly, there is no test of exceptionality. Third, the question is whether the interference with private and family life is outweighed by the public interest in extradition. Fourthly, there is a constant and weighty public interest in extradition: people should stand trial and serve appropriate sentences for their crimes, the United Kingdom should honour its treaty obligations towards other States, and there should be no “safe haven” for fugitive offenders. Fifthly, the public interest will always carry great weight but the weight does vary according to the nature and seriousness of the crimes involved. Sixthly, delay in seeking extradition may diminish the public interest element and increase the impact on family life. Lastly, as a result of the above it is likely that the public interest will outweigh the article 8 rights of the family unless the interference is exceptionally severe.
Original post continues: Filipek-Kwasny (FC) (Appellant) v Polish Judicial Authority (Respondent) is scheduled for a hearing in the United Kingdom Supreme Court. The hearing, which starts on Monday 5 March 2012, will last for three-and-a-half days. UKSC case details available here. Watch live here. The matter is being heard jointly with R (on the application of HH) v Deputy Prosecutor of the Italian Republic, R (on the application of PH) v Deputy Prosecutor of the Italian Republic, Genoa, BH (AP) and another v The Lord Advocate and another (Scotland), KAS or H (AP) v The Lord Advocate and another (Scotland) which raise similar questions. See summary on the UKSC Blog here and details below.
Lady Hale and Lords Hope, Brown, Mance, Judge, Kerr and Wilson are hearing these Supremely important appeals.
Filipek-Kwasny (“FK”) was granted permission to appeal on 14 February 2012 by Lady Hale, Lord Hope and Lord Kerr. In the High Court (QBD Administrative Court) – see judgment in Scribd below – Mr Justice Ouseley upheld an extradition order in relation to FK who, along with her three children and husband, arrived in the UK in 2002 shortly after (19 days) discovering that she had to attend court in criminal proceedings in Poland. Rather than facing charges, FK decided to come to the UK.
In April 2008, following domestic Polish warrants in 2003, a European Arrest Warrant (EAW) was certified because FK falsified documents to avoid import duty on a car and also defrauded people for sums totaling £1,160. Moreover, in September 2008, following a domestic warrant in 2004, a second EAW was certified because FK and her husband stole clothes, entrusted to her, worth £4,300 from a workplace for the disabled.
Since her arrival in the UK, FK and her husband have produced two more children and they have refrained from criminal activity. The couple’s five children are aged 20, 16, 12, 7 and 3 years. FK’s husband is unwell and unable to look after them.
For Ouseley J, who upheld an earlier order for extradition, the District Judge was “wholly justified” (at para. 34) to find that FK was a fugitive from justice who had prevaricated due criminal process in Poland by arriving in the UK.
FK submitted that (1) it would be oppressive to extradite her because of the passage of time since the commission of the offences alleged, the judge should not have found that she was a fugitive from justice to prevent the section 14 bar to extradition, under the Extradition Act 2003 (“the 2003 Act”), from operating in her favour; and (2) if she were extradited, the infringement of her and her family’s rights under Article 8 of the European Convention on Human Rights would be disproportionate.
But the case against FK was that her conduct was aimed at delaying criminal proceedings against her which meant that she was not entitled to rely upon section 14 of the 2003 Act as a bar to being extradited to Poland. At para. 35, Ouseley J said:
The deliberate departure of the Appellant abroad, with no known address, is clearly very largely responsible for delaying criminal proceedings beyond the date when they would otherwise have occurred in Poland.
In contrast FK maintains that given her children – who have no ties to Poland – are young and the fact that her alleged crimes were not grave, in conducting the balancing exercise for the purpose of deciding whether extradition is proportionate under Article 8 ECHR , the interests of the children should prevail. According to Dr Ruth Armstrong, a clinical psychologist, the younger two children would be “likely to be devastated” and the “prolonged loss of their mother would be very likely to have severe detrimental consequences psychologically and for their developmental trajectories” (at para. 12).
As set out above, Ouseley J decided that since FK was a fugitive from justice she could not rely upon the bar to extradition – by reason of the passage of time since she allegedly committed the offences – under section 14 of the 2003 Act.
Ouseley J dismissed FK’s appeal because in his view the District Judge was empowered to find that FK knew that the Polish Prosecutor had told her to attend court and that the attendance was in connection with criminal proceedings. Equally, the District Judge was entitled to conclude that FK’s hasty exit from Poland exhibited that it was instigated by her desire to avoid potential criminal proceedings. It was clarified, no particular stage or event in criminal proceedings needed to occur before a departure might prevent reliance on the subsequent passage of time under section 14. At paras. 29–33, applying United States v Tollman  EWHC 184 (Admin), it was also explained that, save in the most exceptional circumstances, an accused person could not sensibly assert that the passage of time made extradition oppressive where the person was responsible for the passage of time.
Although there might have been delay in certifying the EAWs, FK’s deliberate departure abroad, with no known address, had nevertheless clearly been responsible for delaying the criminal proceedings. She was a fugitive from justice, whose conduct had caused the delay in her trial. Imperatively, she could rely on section 14 of the 2003 Act only in most exceptional circumstances – which did not exist in her case.
FK’s alleged offences might not have been especially grave. But they were more than trivial and had aggravating features: she also had a record of dishonesty. The passage of time point did not help her because she had not altered the fact that she had young children, since she had had further children since leaving Poland; that was not so much a change of circumstances as the repetition of a problem which promptness would still have posed.
At para. 44 the Court said:
The interests of the children are a, but not the primary consideration. That said, I accept without reservation that the impact on the two younger children would be very severe.
The Court accepted that FK’s husband was not well placed to cope with the young children in his wife’s absence but, as a consequence of the passage of time, the older children could be of some help to him. Importantly, for Ouseley J, the public interest outweighed FK’s family circumstances. At para. 45, applying Norris v United States  UKSC 9 and R (HH) v Westminster City Magistrates’ Court  EWHC 1145 (Admin), the Court concluded that:
[I]t would be proportionate to extradite the Appellant to Poland. These circumstances, though quite strong, are not close to being strong enough to satisfy the levels those cases require. The public interest in upholding extradition treaties, the European Framework Decision, and in avoiding the creation of a safe haven for fugitives from justice in the UK, outweigh this Appellant’s family circumstances. As with section 14, the outcome could well have been different if the District Judge had not concluded, rightly in my view, that the Appellant left Poland when she did to avoid the criminal proceedings she knew were being seriously contemplated, and which, with her record and sentences were likely to have serious consequences for her.
Before Ouseley J, FK was represented by the eminent Edward Fitzgerald Q.C. who is perhaps best known for representing Abu Hamza and Abu Qatada. Watching UKSC proceedings (the judges, Ed and all the other barristers) in the present case should serve as an asset to anyone who studies the law, works in it or would like to become an advocate anywhere in the world.
Yet again the question is whether young children ought to be separated or deprived of their mother? Given the large number of cases which have arisen on this theme in immigration, the proportionality of extradition where the rights of young children under Article 8 are at stake makes very interesting reading.
HH and PH
In HH and PH’s cases – who were convicted in absentia in Italy of drug trafficking offences and awarded long custodial sentences and are parents to three children under the age of 10 – the certified question for the UKSC is:
Where in proceedings under the Extradition Act 2003 the Article 8 rights of the children of the defendant are arguably engaged, how should their interests be safeguarded and to what extent, if at all, is it necessary to modify the Supreme Court’s approach in Norris v Government of USA (No 2) in light of ZH (Tanzania)?
Moreover, PH and HH are resisting extradition under section 21 of the 2003 Act because they say that their simultaneous deportation will constitute a disproportionate interference with the rights of their children and their rights under Article 8. Furthermore, HH resists extradition because she says that it would be oppressive to extradite her in light of her mental health within the meaning of section 25(2) of the 2003 Act. HH and PH’s case in the Divisional Court is available here. The children concerned X, Y and Z have the Official Solicitor as their litigation friend who is the intervenor in these proceedings.
BH and KAS
In the other two appeals, BH and KAS (husband and wife) are UK citizens. Of the six children in the family, four are the biological children of BH who also has children from previous relationships. BH and KAS are wanted in the United States and have been indicted in Arizona on charges of conspiracy and importing chemicals used to manufacture methamphetamine. Following the issue of warrants for their arrest on 3 November 2006 the United States requested their extradition but they maintain that if they are both extradited, there won’t be anyone suitable to take care of and bring up the children and this would therefore be a violation of their rights under Article 8. It is also argued that in previous proceedings the Court erred by failing to take due account of the interests and rights of their children in assessing whether extradition would be incompatible with Article 8 and thus issues under section 6(1) of the Human Rights Act 1998 are also raised. BH and KAS’s case in the High Court of Justiciary is available here.
FK’s case in the High Court is set out below.