Wed, 20 Jun 2012
The Supreme Court handed down judgment today in the three linked extradition appeals of R (on the application of HH and PH) v Deputy Prosecutor of the Italian Republic Genoa; F-K v Polish Judicial Authority UKSC 25 and BH v The Lord Advocate and another (Scotland) and KAS or H v The Lord Advocate and another (Scotland) UKSC 24
The judgment gives guidance on how courts hearing extradition appeals ought to address the interests of the children of persons facing potential extradition. The Coram Children’s Legal Centre was given permission to intervene to make submissions on the general legal arguments, in particular the weight and importance to be given to the interests of children in such situations. It made no submissions on the individual facts.
The case is important in that it gave the Supreme Court the opportunity to consider its earlier judgments in Norris v Govt of USA (No 2) and ZH (Tanzania). In Norris  UKSC 9,  2 AC 487 the court had held that the consequences of interference with article 8 rights must be exceptionally serious before they can outweigh the importance of extradition.
A year later, in ZH (Tanzania)  UKSC 4,  2 AC 166, where Manjit S. Gill QC represented the successful appellant, the Supreme Court gave a seminal decision in which it considered for the first time the duties flowing from the UN Convention on the Rights of the Child 1989 to treat the best interests of children as a primary consideration. ZH has had a huge impact on all areas of the law, including on issues to do with the need to hear the voice of the child.
In HH and others, the Supreme Court has now made clear that the approach in ZH to the best interests of children applies also in an extradition context, even though there is a greater public interest in extraditing someone to face criminal justice abroad than in deporting an immigrant.
The judgment makes it clear that requested states must do much more, and at a much earlier stage, to understand the impact on the lives of children affected by such requests, to consider alternatives to extradition, to seek to minimise the damage to children wherever possible and, in particular, to ensure that children’s best interests are a primary consideration when making a decision which is likely to have a serious and fundamental impact on a child’s family life. This ruling does not, as these cases show, prevent extradition where the seriousness of the offences requires it in the public interest (on the individual facts, only FK’s appeal succeeded), but confirms that the high standards laid down by the Supreme Court in ZH (Tanzania) on the importance attached to children’s interests must not be ignored or taken for granted. The court confirmed that there is also a wider public interest and benefit to society in promoting the best interests of its children. It also held that, as a starting point “no factor must be given greater weight than the interests of the child”. It also confirms that under European Union law, children’s interests must inform how the UK implements EU Framework Decision. This judgment should now require a review of practices in issuing and agreeing to extradition requests, especially European Arrest Warrants, particularly where warrants are issued for what might be considered less serious offences.
The judgment should also be of interest to criminal practitioners generally as there is comment in relation to the children’s interests in the sentencing process, as well as to practitioners in related areas such as prison law.