H v United States of America [2015] EWHC 1066 (Admin)

Case No CO/2206/2014[2015] EWHC 1066 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
Venue Royal Courts of Justice, Strand, London, WC2A 2LLDate 28/04/2015
Before
LORD JUSTICE GROSSMR JUSTICE COLLINS
Between
HClaimantUNITED STATES OF AMERICADefendant
Ben Cooper (instructed by Guney, Clark and Ryan) for ClaimantPeter Caldwell (instructed by CPS) for DefendantHearing Hearing dates: 11 th December 2014; 26 th February 2015; 24 th March 2015.
Judgment

INTRODUCTION

[1]This appeal calls for application of the now familiar principles laid down in the seminal decision H(H) v Deputy Prosecutor of the Italian Republic [2012] UKSC 25; [2013] 1 AC 338, requiring a balancing of the Art. 8 rights of the Appellant (“H”) and her daughter (“M”) on the one hand, with the public interest in extradition and the need for the United Kingdom to honour its international treaty obligations on the other.[2]For ease of reference, the well-known terms of Art. 8, ECHR are, so far as relevant, as follows:
“1. Everyone has the right to respect for his private and family life ….. 2. There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society …..for the prevention of disorder or crime…. ”
[3]H’s extradition is sought by the Respondent, the United States of America (“the US”) in respect of offences concerning the manufacture, importation and distribution of steroids and human growth hormones, as well as money laundering offences relating to the proceeds of this criminal conduct.[4]On 10th March, 2014, DJ Zani sent H’s case to the Secretary of State, who, on 30th April, 2014, ordered her extradition to the US. H appeals against the decision of DJ Zani.[5]The extradition request (“the request”) from the US was dated 24th October, 2012 and was certified by the Secretary of State on 2nd November, 2012, under s.70 of the Extradition Act 2003 (“the Act”). The US is designated a Part 2 Territory under the Act. The gravamen of the matter appears from the affidavit sworn in support of the request:
“ This prosecution arose from an investigation by the United States Food and Drug Administration, Office of Criminal Investigation (‘FDA’), which revealed that beginning no later than December 2004, up to November 2009, …[H]…, a citizen of Ireland, her former husband and co-defendant, …[W]…, and others, were part of a criminal organization that conspired to import a variety of anabolic steroids, Human Growth Hormone (‘HGH’), and misbranded prescription pills into the United States. Those drugs were then distributed to purchasers in the United States who had ordered the drugs via Internet websites operated by members of the organization. [H] and others then laundered the proceeds from the sale of those drugs, including wiring the proceeds out of bank accounts in the United States to bank accounts in Austria. ”
[6]By way of a little more detail, the conduct alleged in the request appears from the helpful summary in the US skeleton argument: i) From December 2004 to November 2009, H and W and others ran a drug distribution operation through a purported laboratory named Axio Laboratories (“Axio”), which illegally imported drugs into the US from Moldova and other countries. The proceeds from this operation were deposited in various bank accounts and thereafter wired to other accounts to avoid detection. ii) W ordered the illegal drugs from manufacturers outside the US, directed where the drugs were to be shipped within the US, and directed employees to package and label the drugs so that they appeared to be from a legitimate laboratory, i.e., Axio. iii) During a period of time when W was in prison in Ireland, H took over W’s responsibilities of running the operation. Specifically, H authorised salary payments to employees in the US who were packaging and re-shipping the illegal drugs out of a ‘stash house’ in New Jersey. iv) As part of their efforts to launder money and avoid detection by law enforcement, H and W opened an account at a bank in Austria and arranged for AlertPay to transfer funds to that account. According to records seized by US agents, an Austrian bank account in H’s name received several money transfers from AlertPay, authorised by another member of the organisation. Specifically, during the period 20th July, 2006 to 9th July, 2008, at least eighteen wire transfers were made from the AlertPay accounts to H’s Austrian bank account, totalling US$766,827.49, to include a wire transfer of US$80,455 from AlertPay to H’s Austrian account on 6th March, 2008. v) The gross receipts generated as a result of the drug trafficking is said to total US$8,600,000. vi) The money laundering allegations are in principle “parasitic” on the illegal importation and supply of the controlled substances and prescription medicines; essentially, they entail allegations of transferring and realising the proceeds of criminal conduct.[7]As we understood H’s arguments, developed before us on the appeal, the central issue was that extradition would constitute a disproportionate interference with H’s family life, together with that of M, her 8 year old daughter, contrary to Art. 8, ECHR and, therefore, S.87 of the Act (“Issue (I): Art. 8”). Ultimately, a contention that extradition of H would be oppressive by reason of passage of time, contrary to s.82 of the Act was subsumed into the Art. 8 argument. Perhaps more significantly, Issue(i) (I) also generated sub-issues of a practical nature, going to (i) arrangements for the care of M should H be extradited and(ii) possible delays in the US proceedings flowing from the time it is likely to take to extradite W from South Africa.[8]A second, if very much subsidiary argument, maintained before us was that H’s extradition would be oppressive, contrary to s.91 of the Act, given her mental condition. (“Issue (II): mental condition”)

THE JUDGMENT UNDER APPEAL

[9]As recorded by DJ Zani, the Request for extradition is governed by the provisions of Part 2 of the Act. The Judge was satisfied as to the various procedural requirements of the Act and observed (at [32]) that H was wanted by the USA to stand trial for conduct said to amount to the offences of: i) Importing controlled drugs of Class C; ii) Supplying controlled drugs of Class C; iii) Importing Medicines; iv) Money Laundering in relation to the above (alleged) criminal conduct.[10]The Judge traced the history of the matter (as already briefly outlined) and without making any findings as to guilt, remarked (at [42]) that the allegations were “….clearly very serious”. In the event of conviction, H faced a “potentially very lengthy sentence of imprisonment”. The Judge had earlier (at [41]) said this:
“ On the face of it – if the allegations made by the prosecution are accurate – this was, by any stretch of imagination, a very professional and successful criminal operation, with W and H said to have been at the core ….and who profited substantially from it.”
[11]Turning to H’s evidence, she was born and raised in Ireland. The Judge took carefully into account H’s personal history, including allegations of sexual abuse at school and (in some detail) her description of an abusive marriage to W - abuse on the part of W said to encompass physical, sexual and psychological abuse. The Judge did, however, note that between December 2010, when H and W’s relationship was said to have broken down and H’s arrest in September 2012, W had paid some £10,000 per month to H for her and M’s maintenance and support and had done so on a voluntary basis (i.e., without a court order). The Judge recorded H’s evidence that she was “totally devoted” to her daughter (at [57]) and that she denied all allegations of criminal conduct (at [58]). H told the Court that she had recently complained to the police in Ireland as to the alleged sexual abuse at school and also to the police in England as to alleged marital rape by W.[12]H was arrested in September 2012, in connection with the present matter. It is noteworthy that H’s family, in Ireland, rallied promptly with regard to caring for M. H’s brother Bernard came to this country to collect M, who returned to Ireland with him and enrolled at a local school there. M lived with Bernard and his wife until – again notably – 12 days after H’s release (see [82] – [83]). Living where she was in Ireland, M was in close or relatively close proximity to H’s parents, her brother John and sister-in-law GHO, together with some others. It is further noteworthy that GHO and John provided the substantial £250,000 cash security, enabling H to be released on bail. That security, it may be observed, remains in place.[13]The Judge heard oral evidence from a psychologist, Dr. Grange, who dealt with both M and H. As to M, the previous period of separation from her mother had left her “…with symptoms of moderate separation anxiety” (at [65]); any further separation, in the event of the extradition of H being granted, “…would very likely lead to M’s symptoms exacerbating and potentially becoming severe.” (loc cit). So far as H was concerned, Dr. Grange expressed his concern (at [69]) that there was a high risk of suicide in the event that extradition took place; he acknowledged, however, that there was no history of self-harm or attempted suicide.[14]The Judge recorded that W was currently on bail in South Africa, challenging an extradition request by the US. As the Judge observed (at [61]), those proceedings were likely “…to take some considerable time to resolve”.[15]The Judge disposed of a number of points no longer pursued. Turning to the Art. 8 challenge to extradition, he held, at the outset (at [105]):
“ ….I am entirely satisfied that there is a strong bond between H and her daughter M. I am also satisfied that H is a very good and caring mother and that were extradition to be ordered ….this will cause considerable distress not only to H but also to M. However, I cannot ignore the seriousness of the allegations that H faces…….”
The Judge observed that this was not a case where there were no family members available to assist, in the event of extradition being ordered – as indeed they had done in September 2012 (at [106]).[16]Despite having heard a significant amount of evidence, the Court was furnished with a plethora of statements from family members very late in the day (at [108]). The Judge’s conclusion as to this additional evidence was expressed as follows (at [111]):
“ This court has to ask why it is that the family, in their statements…(some of which span several pages) appear to have either skated over or simply not mentioned the critical issue of M’s potential future in the event that extradition is ordered, preferring to dwell on a number of other often historical matters, which may – or may not – be of relevance to the issues before this court. There is no categorical statement from Bernard and his wife to state that they could not or would not be able to care for M in the event of extradition being ordered. This reinforces the opinion that I have formed…that the family could – and would – assist by taking M back into their arms and settling her down (as previously occurred in September 2012). ”
[17]Despite the difficulties and adjustments that would be required, the Judge’s view was that this was “an extended family who would not abandon M” were H to be extradited (at [113]). Such family arrangements would be appropriate in the circumstances and far preferable to having M placed in care – a proposal that had not been put before the Judge for his consideration (loc cit). The Judge was familiar with “difficult, upsetting and often heart-rending” challenges based on Art. 8 (at [114]) but, in the event, he was not persuaded that H had overcome the “very high threshold” needed to succeed (at [115]).[18]In other findings, the Judge dismissed the passage of time argument (at [103]) and was likewise not persuaded as to the submissions advanced based on H’s mental condition and an alleged suicide risk (at [116] – [122] and [154]).

THE SUBSEQUENT HISTORY

[19](1) Applications to adjourn: The procedural history subsequent to the decision of DJ Zani may properly be described as somewhat chequered. H prevailed in obtaining an adjournment of the extradition appeal hearing originally fixed for 15th October, 2014. Subsequently, an application was advanced to adjourn the hearing re-fixed for 11th December, 2014. That application was refused by Master Giddens and, when renewed, on a wide-ranging array of grounds, was dismissed on the 4th December, 2014 (“the 4th December ruling”) by a constitution of this Court comprised of Gross LJ and Ouseley J: see, [2014] EWHC 4193.[20](2) Further evidence: Plainly, proceedings before this Court constituted an appeal from the decision of DJ Zani. Nonetheless, in advance of what turned out to be the first hearing before this Court on 11th December, 2014, we were supplied with a further tranche of statements from H’s family members. We did not take time to determine whether they were strictly admissible and instead considered them de bene esse. It is unnecessary to say more than that they sought to address the gap in the evidence upon which the Judge had focused. These statements now asserted that family members – including those who had assisted in September 2012 - either could not or would not assist in taking care of M in the event that H was extradited to the USA.[21](3) The position of M: Whatever view was taken of these latest statements from H’s family members, it was clearly of importance to establish what arrangements would be made for the care of M while H was absent (if extradited): see, A & B v Central District Court of Pest Hungary [2013] EWHC 3132. By its nature, this was not information which could have been obtained by the USA; regrettably, nothing had been done in this regard by or on behalf of H. Accordingly, prompted by this Court, inquiries were made of the relevant local authority, Essex County Council (“ECC”). Necessarily, in the light of these inquiries, no final decision could be reached at the 11th December hearing.[22]The Court is grateful to ECC for the assistance provided. In summary, it is now clear from an assessment and decision dated 20th February, 2015, that should H be extradited and no family members come forward to care for M, then ECC will implement a care plan, pursuant to s.20 of the Children Act 1989, including the following elements:
“ * Ensure that M remains within a safe and secure environment, with an approved Local Authority foster carer, where she is protected from risk of significant harm. * Ensure that M’s emotional and physical need are met in a stable and nurturing environment. Parallel planning will proceed for the long term care of M including: 1. Returning to H’s care, ….[subject]…to H’s release from prison. 2. Reside with extended family members, subject to positive assessments. 3. Remain in a long term Local Authority foster placement.”

Parallel planning will proceed for the long term care of M including:

[23]Somewhat disconcertingly in the light of the family’s stance subsequent to proceedings before DJ Zani, the ECC assessment disclosed contact with a Ms TB, said to be the “best friend” of H, who indicated that she was in a position to provide care for M but that she had been asked by H to say otherwise. For her part, H vigorously disputes that she said anything of the kind to TB and, in any event, avers that TB’s circumstances are not such that she could offer a suitable placement for M. It is unnecessary to resolve this dispute and I make no findings with regard to it. The bottom line is straightforward: if H is extradited and H’s family do not provide care for M, then ECC will do so.[24]Matters with regard to M do not quite end there. With a resumed hearing fixed for 26th February, 2015, on the 10th February, 2015, M, by GHO, her Litigation Friend, launched a claim for Judicial Review of the work thus far undertaken by ECC; that claim was subsequently withdrawn on the 8th March, 2015, following a Consent Order. However, the claimant (i.e., M by GHO her Litigation Friend) now also sought to intervene in the appeal scheduled for 26th February, pursuant to CPR 52. A further psychologist’s report, from a Dr. Bennett, was adduced in support of this claim, broadly reinforcing Dr. Grange’s evidence certainly as regards M. Legal aid to cover separate representation for M had been refused as far back as 12th June, 2014 and, on 10th July, 2014, a review of that decision proved unsuccessful. Funding was again refused on the 20th February, 2015. However, on 24th February, 2015, Holgate J, on an application for urgent relief, with obvious (and expressed) hesitation ordered the Legal Aid Agency to provide exceptional funding to M (and her Litigation Friend). That funding was limited to £1,000 and further limited to making an urgent written application to this Court, seeking permission to make submissions and file evidence in the extradition appeal and addressing any issue as to whether the 26th February hearing should be adjourned.[25]In the event, on the 26th February, we refused the application to intervene on the part of M and refused to adjourn the hearing. Our reasons may be shortly summarised as follows: i) The application came very late in the day. As Ouseley J observed, when giving the 4th December ruling, at [21], the time for providing evidence as to M’s needs had already long passed. Realistically, intervention at the 11th hour would have been bound to necessitate an adjournment, very likely of considerably greater length than the adjournment which ultimately was required (see below). ii) Wholly undesirable though it would have been for all concerned for this matter to drag out still further, even more importantly, this Court has throughout dealt with the proceedings on the basis that M’s best interests were a primary consideration. As already recorded, this Court initiated the inquiries with ECC as to the care of M, should H be extradited. Moreover, the arguments before us throughout emphasised M’s interests, relying (inter alia) on the reports of both Dr. Grange and Dr. Bennett. iii) Furthermore, the prospects of the intervention adding anything of value can, at best, be described as no more than speculative. For my part, I approach the matter on the basis that separation from H would indeed bear heavily on M. I see no realistic scope for any intervention to have produced more favourable conclusions for M. Finally, by the 26th February, the Court was already in possession of ECC’s revised assessment of 20th February (summarised above).[26](4) Possible delays in the US: From an early stage in the proceedings before this Court it became clear that there was likely to be a considerable time lag before W was extradited from South Africa to the USA, even assuming that the USA was successful in obtaining his extradition; in due course, the evidence suggested that the time period in question could well be as much as 2 to 4 years. For obvious reasons, we were concerned that if H was extradited she should not languish in pre-trial custody in the US for a period of years, to her own and M’s detriment, simply awaiting W’s extradition from South Africa.[27]Accordingly, this Court posed further questions as to trial arrangements in Tennessee and how the likely extended delay awaiting W’s arrival in the USA could best be dealt with – consistent not only with M’s and H’s Art. 8 rights but also with the public interest in extradition, together with US – UK treaty arrangements. In the event, matters of this nature occupied this Court both at the hearing on 26th February, 2015 and the third and final hearing on 24th March, 2015.[28]Based on the evidence helpfully supplied by the US Department of Justice (“DoJ”) and Mr. James Price, the (US) court appointed Public Defender assigned to protect H’s interests before the US District Court in Tennessee, the following broad and largely undisputed summary may be distilled: i) As soon as practicable following her arrival in Nashville, H would be brought before United States District Court for the Middle District of Tennessee. Typically, this would be on the day of her arrival or on the next day. At that hearing, H could apply for bail and the prosecutor would indicate his stance in respect of any such application. As is to be expected, the question of the grant or refusal of bail and any conditions to be imposed is one for judicial decision. That said, according to Mr. Price (affidavit of 16th March, 2015), “…it is practically unheard of for the court to order detention if the government does not make a motion to detain”. ii) Pursuant to the Speedy Trial Act (Title 18, U.S.C. 3161 (c) (1)), H’s trial must commence within 70 days from the date of her first appearance before the Court for the Middle District of Tennessee. It is to be underlined that H has a right to a speedy trial within this time frame. On the facts, such a trial would be of H alone; plainly, a speedy joint trial of H and W could not be achieved within any such timescale. iii) The prosecution’s preference has been for a joint trial, involving W, H and any other defendants (as to one co-defendant, see further below). After an apparent initial reluctance on H’s part to be tried together with W, because of the abusive nature of their relationship, more recently H’s position has hardened in favour of a joint trial. iv) H is entitled to waive her right to a speedy trial and opt for a joint trial with H but that would be a matter of her choosing. If H exercises her right to a speedy trial, the prosecution must proceed accordingly, regardless of any prosecution preference for a joint trial. On the material before us (DoJ letter dated 12th January, 2015), the prosecution will not object to H being tried alone, should she request it. v) It may be noted that a co-defendant, a Mr. Patel, has been granted bail on posting a bond of US$35,000 and allowed to return to Canada.[29]There was some argument before us as to the case management and tactical advantages of a joint trial as opposed to separate trials. In my judgment, that is not a matter into which this Court can or should delve. The essence of the position is clear: if H exercises her right to a speedy trial, concerns as to an extended pre-trial custody period effectively disappear. If, on the other hand, H waives her right to a speedy trial, then the question of bail will undoubtedly arise and is one for consideration by a US Judge.[30]Various other related strands were explored before us. In advance of the 26th February hearing, a “pragmatic solution”, whereby H voluntarily surrendered to the US District Court in Tennessee, began to assume prominence amongst the submissions advanced by Mr Cooper, representing H. The proffered explanation for this proposal was, as Mr. Cooper put it, “…to preserve the public interest in extradition whilst protecting and upholding the Article 8 rights of a vulnerable child”. If combined with an undertaking from the US not to oppose bail, H would voluntarily surrender to the US Court; she would then be bailed to return to the United Kingdom and could continue caring for M, pending the arrival of W in the US from South Africa. As part of that proposal, H would offer to surrender her passport to the United Kingdom authorities on her return from the US and would also offer a “proffer interview” to the US authorities, explaining her own position and seeking to assist the US in its prosecution of W. It is fair to record that a very recent statement from H (dated 10th April, 2015) speaks to her long-standing interest in such a solution and in assisting the US authorities.[31]It is plain that the “voluntary surrender” proposal would require the cooperation of the US authorities. At least judged by the DoJ’s reaction (DoJ letters dated 11th and 22nd March, 2015), the proposal has (at best) fallen on stony ground. The proposal was “not contemplated” by the bilateral treaty and would be “novel and untested”. The DoJ did, however, summarise the requisite practicalities were this proposal to be pursued. With regard to Mr. Cooper’s submission that similar arrangements had in fact been implemented in at least two other cases, namely, Crook (US reference 3:04-cr-02605-W) and O’Dwyer, the DoJ has emphasised the distinction between those cases and this; thus, Mr. Crook had already consented to extradition and Mr. O’Dwyer had agreed to enter into a Deferred Prosecution Agreement (“DPA”).[32]The DoJ has proved equally unreceptive to the idea of giving an indication that the prosecutor would not oppose bail, on provision of appropriate security, at a hearing before a US Judge. According to the DoJ (letter dated 22nd March, 2015), “Litigation about bail during extradition proceedings is premature and not contemplated under our treaty”.[33]For completeness, various other matters flowing from apprehended delay to the US trial proceedings were touched upon before us, including facilities for H to have contact with M while in custody in the US and travel by M to the US. Suffice to say that these go no further than emphasising the point already made, namely, that separation from her mother will bear heavily on M. A separate point as to the possibility of H serving any prison sentence – imposed on conviction – in Ireland, does not, in my view, advance the argument.

ISSUE (I): Art. 8

[34](1) The rival cases: For H, Mr Cooper’s core submission was that, absent an agreement as to voluntary surrender (or some like agreement), the risk as to the duration of pre-trial remand in custody, coupled with the impact of an extended separation on M – for whom H was the sole carer - meant that extradition would not be compliant with M’s or H’s Art. 8 rights. Mr Cooper emphasised that, as the Judge had himself found, H was a good mother and a close bond existed between her and M. There was no good reason for the failure on the part of the US to respond either to the “voluntary surrender” overture or, at least, to offer an assurance as to not opposing bail. On the facts of this unusual case, the Court should order H’s discharge.[35]Mr. Cooper sought, to buttress these submissions with arguments as to the underlying “merits” – going to the suggested weakness of the case against H, her denial of any criminal conduct and the abusive nature of her relationship with W (if indeed that was his real name). With respect, these arguments, whatever their true strength, were irrelevant to the issues before us and are properly to be deployed if or when there is a trial before the US Court. They added nothing to Mr. Cooper’s substantive argument before us as to the relevant balance between the public interest in extradition and M’s and H’s Art. 8 rights.[36]For the US, Mr. Caldwell submitted that we should uphold the decision of the Judge who had, as he put it, “fairly and accurately summarised the evidence…in a careful and lengthy judgment”. In the present case, given the criminality alleged, there was indeed a strong public interest in extradition. It was H’s choice as to whether or not there would be a speedy trial in the US. Furthermore, it was necessary to consider carefully and realistically the extent to which any pre-trial separation would add to the separation likely to result if H was convicted and sentenced to prison in the US. As to the stance adopted by the DoJ, it was not the approach of the US to give an advance indication as to bail, in any event a matter for judicial decision. Unlike the Crook and O’Dwyer cases, there had been no formal approach to the US to assist the prosecution or to travel voluntarily. In any event, this Court should place confidence in the US Court and could indicate its views in giving judgment – views which would no doubt be carefully weighed by the US Court.[37](2) The legal framework: I turn at once to the statements of principle laid down in H(H) (supra). Early on in her judgment, Baroness Hale of Rochmond JSC furnished this helpful summary of the decision in Norris v Government of the United States of America (No 2) [2010] UKSC 9; [2010] 2 AC 487 (at [8]):
“ We can, therefore, draw the following conclusions from Norris: (1) There may be a closer analogy between extradition and the domestic criminal process than between extradition and deportation or expulsion, but the court has still to examine carefully the way in which it will interfere with family life. (2) There is no test of exceptionality in either context. (3) the question is always whether the interference with the private and family lives of the extradite and other members of the family is outweighed by the public interest in extradition. (4) There is a constant and weighty public interest in extradition: that people accused of crimes should be brought to trial; that people convicted of crimes should serve their sentences; that the United Kingdom should honour its treaty obligations to other countries; and that there should be no ‘safe havens’ to which either can flee in the belief that they will not be sent back. (5) That public interest will always carry great weight, but the weight to be attached to it in the particular case does vary according to the nature and seriousness of the crime or crimes involved. (6) The delay since the crimes were committed may both diminish the weight to be attached to the public interest and increase the impact upon private and family life. (7) Hence it is likely that the public interest in extradition will outweigh the article 8 rights of the family unless the consequences of the interference with family life will be exceptionally severe. ”
[38]On its facts, Norris concerned an adult couple; no children were involved. As to the position of children, Baroness Hale said this (at [33] – [34]):
“ 33. ….. The family rights of children are of a different order from those of adults.…. In the first place….article 8 has to be interpreted in such a way that their best interests are a primary consideration, although not always the only primary consideration and not necessarily the paramount consideration….Fourthly, …..as the effect upon the child’s interests is always likely to be more severe than the effect upon an adult’s, the court may have to consider whether there is any way in which the public interest in extradition can be met without doing such harm to the child. 34. One thing is clear. It is not enough to dismiss these cases in a simple way – by accepting that the children’s interests will always be harmed by separation from their sole or primary carer but also accepting that the public interest in extradition is almost always strong enough to outweigh it. There is no substitute for the careful examination envisaged by Lord Hope DPSC in Norris….. ”
[39]So far as concerned ascertaining the child’s views in accordance with the United Nations Convention on the Rights of the Child (“UNCRC”), Baroness Hale concluded (at [86]) that separate legal representation of the children “will rarely be necessary” because it was only in a comparatively rare class of case where the proposed extradition was likely to be seriously damaging to their best interests. The “important thing…” (loc cit) was that:
“ …everyone, the parties and their representatives, but also the courts, is alive to the need to obtain the information necessary in order to have regard to the best interests of the children as a primary consideration, and to take steps accordingly. ”
[40]In, with respect, his valuable analysis, Lord Judge CJ distinguished between the immigration and extradition contexts while drawing close parallels between extradition and domestic sentencing decisions. Lord Judge further clarified the approach taken in Norris.[41]Dealing with the Supreme Court decision (subsequent to Norris), in ZH (Tanzania) v Secretary of State for the Home Department [2011] UKSC 4; [2011] 2 AC 166, which emphasised the Art. 8 rights of children, Lord Judge observed that it had been concerned with immigration control and did not address extradition (at [119] – [120]). The right to family life involved a “proportionality assessment” and the public interest considerations arising from immigration control and extradition arose in different contexts (ibid). Immigration control entailed a “purely domestic decision” made subject to domestic considerations. By contrast (at [121]):
“ ….extradition is concerned with international co-operation in the prevention and prosecution of crime. The objectives served by the process require international co-operation for the prosecution of crimes and the removal of sanctuaries or safe havens for those who have committed or are suspected of having committed criminal offences abroad. The private and family rights of the victims of criminal offences committed abroad will themselves have been damaged by offences like….drug-trafficking… That consideration is absent from the immigration context.”

Lord Judge continued (at [123]):

“ For these reasons….assuming for the sake of argument that the child or children are in identical family situations, it follows that an extradition order for one or both parents may be appropriate when deportation or removal would not. In other words, because distinct issues are involved, the same facts, involving the same interests of and the same potential or likely damage to the child or children, may produce a different outcome when the court is deciding whether to remove foreign citizens from this country or extraditing convicted or suspected criminals …to serve their sentences or stand trial for crimes committed abroad. ”
[42]With regard to extradition, Norris had not decided that the Art. 8 rights of the family of the proposed extraditee could never “prevail” unless an “exceptionality” test was satisfied; instead, when Art. 8 rights were properly examined in the extradition context, “the proportionality assessment would be overwhelmingly likely to be resolved in favour of extradition” (at [124]).[43]As with sentencing decisions following conviction, extradition arose in the context of alleged or proven criminal conduct (at [126]). In sentencing matters, the principle was well established that the interests of dependent children were taken into account by way of potential mitigation (at [129]). However, as

Lord Judge went on to observe (at [130]):

“ ….it should not obscure the reality that in the overwhelming majority of cases when the criminal is convicted and sentenced for offences which merit a custodial sentence, the innocent members of his family suffer as a result of his crimes…..As Hughes LJ …explained in R v Boakye [2013] 1 Cr App R (S) 6, para. 32 ‘ The position of children in a defendant’s family may indeed be relevant, but it will be rare that their interests can prevail against society’s plain interest in the proper enforcement of the criminal law. The more serious the offence, generally the less likely it is that they can possibly do so.’ ” ‘ The position of children in a defendant’s family may indeed be relevant, but it will be rare that their interests can prevail against society’s plain interest in the proper enforcement of the criminal law. The more serious the offence, generally the less likely it is that they can possibly do so.’ ”
[44]There was, as Lord Judge explained (at [132]) a difference between extradition, involving the removal of a parent or parents abroad and domestic sentences of imprisonment, where family links can be taken into account in deciding upon the prison where the sentence should be served. Nevertheless (ibid):
“ ….for the reasons explained in Norris the fulfilment of our international obligations remains an imperative. ZH (Tanzania) did not diminish that imperative. When resistance to extradition is advanced ….on the basis of the article 8 entitlements of dependent children and the interests of society in their welfare, it should only be in very rare cases that extradition may properly be avoided if, given the same broadly similar facts, and after making proportionate allowance ….for the interests of dependent children, the sentencing courts here would nevertheless be likely to impose an immediate custodial sentence: any other approach would be inconsistent with the principles of international comity …… ”
[45]Lord Wilson JSC underlined (at [150]) that a “value judgment” was involved upon the weight to be attached to “two powerful and conflicting interests”. A Judge was entitled to decide for himself the order in which he approached the question of whether the legitimate aim of extradition outweighed the gravity of the interference with the family life of the extraditee or his/her dependents (at [153]). Later in his judgment, Lord Wilson commented upon the high degree of importance attached “….throughout (and no doubt beyond) Europe to the extradition of persons so that they may answer for serious crime” (at [169]”.[46]In the event, in H(H), on the facts – which require no further exploration here – the Supreme Court unanimously allowed the appeal of one appellant, unanimously dismissed the appeal of the wife in another case and, by a majority (Baroness Hale dissenting) dismissed the appeal of the husband in that case.[47]Pulling the threads together from this review of the aspects of the decision in H(H) of particular relevance here, I would venture the following summary: i) A value judgment is required in determining the weight to be attached, necessarily on a fact specific basis, to the two powerful and conflicting interests, namely the Art. 8 rights of the potential extraditee (“the extraditee”) and any dependent children on the one hand and the legitimate public interest in extradition, together with compliance with the United Kingdom’s treaty obligations, on the other hand. ii) The best interests of a dependent child constitute a primary consideration in undertaking this balancing exercise. iii) Separate legal representation for a dependent child will rarely be necessary. However, whether the child is separately represented or not, all concerned must be alive to the need to have regard to the best interests of the child as a primary consideration. iv) The Art. 8 rights of the extraditee and any dependent children cannot be simplistically dismissed on the basis that a child’s interests will always be harmed by separation from his/her primary or sole carer and that such considerations will always be “trumped” by the public interest in extradition. A careful examination of the facts of the individual case is required. v) The context of extradition, with its international dimension, is markedly different from that of domestic immigration control. Considerations affecting extradition of a primary or sole carer for a dependent child, are, however, similar in substance to those governing the sentencing of defendants with dependents, in criminal proceedings in this jurisdiction. In that regard the seriousness of the criminal conduct alleged against the extraditee is likely to be a consideration of the first importance. Delay, if substantial, may serve to weaken the public interest in extradition. vi) The Art. 8 rights of the extraditee and any dependent children do not need to satisfy an “exceptionality” test in order to prevail over the public interest in extradition. That said, when Art. 8 rights are properly examined in an extradition context, the proportionality assessment is overwhelmingly likely to be resolved in favour of extradition. In cases where sentencing courts here would be likely to impose an immediate custodial sentence, it is likely to be very rare that Art. 8 rights will result in extradition being avoided.[48]Further citation of authority on the principles governing the present Issue is unnecessary. I turn to apply those principles to the facts.[49](3) Discussion: At the forefront of H’s case before this Court were the undisputed facts that H is M’s sole carer and a good mother. Moreover and as must be likely, M’s “separation anxiety” may well be exacerbated by a further and potentially prolonged separation from her mother. The risk of H facing an extended period of pre-trial detention in the US, simply to await W’s arrival from South Africa should the US succeed in extraditing him, is itself a matter of obvious concern. Whether or not this case is properly described as “unusual”, it is not the label which matters; it is the combination of these facts which calls for anxious scrutiny of the US case for extradition.[50]Conversely, there can be no gainsaying the seriousness of the conduct alleged, as well described by DJ Zani. On the assumption that the allegations are made good, that conduct involved sophisticated planning and organisation, substantial sums of money and spanned a number of years. It is unreal to suppose that anyone convicted in this jurisdiction of the conduct alleged would face anything other than an immediate and substantial custodial sentence. The harm done by drug trafficking and money laundering should not be downplayed.[51]I turn to perform the requisite balancing exercise, involving the value judgment explained by Lord Wilson in H(H) (supra). Concerning as must be any case involving a sole carer – a fortiori, a good parent – subject to only one matter (dealt with below), I entertain no real doubt that M’s and H’s Art. 8 rights ought not to prevail over the public interest in extradition. Notwithstanding the interests of M, were this a domestic sentencing exercise, then, as already emphasised, the only realistic outcome would be an immediate and substantial custodial sentence. Respectfully applying the approach of Lord Judge in H(H), that is a most powerful pointer in favour of extradition. It cannot be overlooked that the conduct alleged involved, in DJ Zani’s words, “a very professional and successful criminal operation, with W and H said to have been at the core…”. H’s denial of any wrongdoing, any question of duress and any issues arising from her relationship with W, are all matters to be explored within the framework of trial proceedings before the Court in Tennessee; they do not tell against extradition proceeding. Similarly, if H is minded to offer assistance to the US authorities in their prosecution of W, that is a matter between H and the US and not a factor weighing in the balance against extradition before this Court.[52]With regard to the best interests of M, this Court has throughout treated these as a primary consideration. For my part and notwithstanding the further statements supplied to this Court, I entertain real scepticism that when the reality of H’s extradition can no longer be ignored, her family will not rally round to support M. Family members offered striking and praiseworthy support for H and M in September 2012, both as to care for M and furnishing the very substantial security to obtain H’s release on bail. In agreement with the Judge, who had the benefit of the evidence he had heard, I very much doubt that they will abandon M now. Let it, however, be assumed that I am wrong and that family members are indeed unable or unwilling to assist M, upon H’s extradition to the US. On that footing – and though second best when compared with a family based solution – it is clear from the inquiries initiated by this Court, that ECC will make all proper arrangements for M’s care.[53]I return to the only matter which has caused me any hesitation: namely, the stance of the DoJ. I put to one side the DoJ’s reluctance to negotiate through the vehicle of court proceedings a tailor-made voluntary arrangement. Though such a solution has an undoubted pragmatic attraction, the practicalities are far from straightforward. At all events, given the DoJ’s reluctance in this regard, it would not be right for this Court to take over the management – and assume the risks – of any such arrangement.[54]Where I do confess regret is the resolute unwillingness of the DoJ to indicate its position with regard to bail, in the event of there being a delay of some years for a joint trial of W and H to take place; see the pertinent observations of Sir John Thomas P (as he then was) in Government of the United States v Shlesinger [2013] EWHC 2671 (Admin), at [42]. Mr. Cooper appeared to submit that the DoJ’s position was that bail would be opposed; I do not think so but, certainly, no undertaking or assurance has been given that it would not. Granted that bail is a matter for judicial decision in the US, as it is here, this Court’s inquiry of the DoJ involved no blurring of roles or responsibility. All that it entailed was seeking an indication from the prosecution as to its stance. Realism and a commitment to justice in the individual case are hallmarks of strength not weakness and, far from undermining it, would serve to facilitate the operation of the US – UK treaty. The DoJ’s responses to this Court are all the more surprising given the bail arrangements already made in respect of the co-defendant Patel.[55]Should the DoJ’s stance tip the scales against extradition, as it did in the case of Shlesinger? After anxious reflection, I do not think so. My reasons are these: i) First, I keep well in mind the seriousness of the conduct alleged in the present case. Shlesinger (supra) was a very different case on its facts; the criminality there alleged was of no great gravity. The proportionality assessment was necessarily different. ii) Secondly, H has a right to a speedy trial; as already clarified, if she insists on a speedy trial, the US will not oppose it and the prosecution must proceed accordingly, whatever its preference for a joint trial. It follows that H has it in her power to eliminate any risk of lengthy pre-trial detention in the US. But I do not leave matters there, in the event that proper forensic calculations should point to a joint trial. iii) Thirdly, this Court should and does, respectfully, place confidence in the US Judge who will be dealing with the matter in Tennessee. For my part, the seriousness of the conduct alleged against H requires her extradition to the US; however, were the matter before this Court, I cannot think it would be right to remand her in custody for a period of years awaiting the arrival of W from South Africa for a joint trial – provided only that satisfactory security was made available for the purpose of bail. In expressing this view, I am most emphatically not seeking to trespass on the preserve of the US Judge in Tennessee – but, in a spirit of comity, would wish these observations to be conveyed to him for his consideration when doing justice in the present case. It is of course apparent that if H is on bail, whether in the US or still more so if permitted to return to the United Kingdom pending a joint trial, satisfactory contact arrangements with M will doubtless be assisted.[56]For completeness, I am not at all persuaded that there has been delay in this case, let alone delay of an order as to be germane to the arguments on extradition. The criminal conduct in issue is alleged to have spanned the years 2004 – 2009; no question of delay could conceivably arise before 2009. By 2012, the US was seeking H’s extradition. In a case with international dimensions, that timescale does not come anywhere near disclosing delay that would make it “unjust or oppressive” within s.82 of the Act to extradite H. Likewise, that timescale neither diminishes the weighty public interest in extradition nor materially increases its impact on M’s or H’s Art. 8 rights.[57]It follows that I would dismiss H’s appeal on Issue (I).

ISSUE (II): MENTAL CONDITION

[58]I propose to deal almost summarily with this Issue, which was pursued on behalf of H, though very much as a subsidiary argument. The contention here was that H’s mental condition and, specifically, a risk of suicide rendered it oppressive, contrary to s.91 of the Act, to extradite her.[59]The relevant principles appear from Wolkowicz v Regional Court, Poland [2013] EWHC 102 (Admin); [2013] 1 WLR 2402. Giving the judgment of the Court, Sir John Thomas P (as he then was) observed (at [7]) that there had been a large number of cases in which the question had arisen as to whether the mental condition of a requested person who posed a substantial risk of suicide meant that his/her extradition would be unjust or oppressive contrary to s.91 of the Act. The Court went on to approve (at [8] – [9]) the propositions summarised by Aikens LJ in Turner v Government of the United States of America [2012] EWHC 2426 (Admin), at [28], as a “succinct and useful summary” of the approach to be adopted:
“ (1) The court has to form an overall judgment on the facts of the particular case….. (2) A high threshold has to be reached in order to satisfy the court that a requested person’s physical or mental condition is such that it would be unjust or oppressive to extradite him…. (3) The court must assess the mental condition of the person threatened with extradition and determine if it is linked to a risk of a suicide attempt if the extradition order were to be made. There has to be a ‘substantial risk that [the appellant] will commit suicide’. The question is whether, on the evidence the risk of the appellant succeeding in committing suicide, whatever steps are taken is sufficiently great to result in a finding of oppression….. (4) The mental condition of the person must be such that it removes his capacity to resist the impulse to commit suicide, otherwise it will not be his mental condition but his own voluntary act which puts him at risk of dying and if that is the case there is no oppression in ordering extradition…. (5) On the evidence, is the risk that the person will succeed in committing suicide, whatever steps are taken, sufficiently great to result in a finding of oppression? …. (6) Are there appropriate arrangements in place in the prison system of the country to which extradition is sought so that those authorities can cope properly with the person’s mental condition and the risk of suicide? …. (7) There is a public interest in giving effect to treaty obligations and this is an important factor to have in mind….”
[60]At [10], the Court in Wolkowicz emphasised that the “key issue” in almost every case went to the measures in place to prevent any suicide attempt being successful. It was helpful to examine these measures in relation to three stages:(1) While the requested person was held in custody in the United Kingdom;(2) The transfer of the requested person to the requesting state;(3) Receipt of the requested person into custody in the requesting state.[61]For my part, I would dismiss this ground of appeal essentially for the reasons given by the Judge at the paragraph numbers previously indicated, namely, [116] – [122] and [154] of his judgment. So far as stage(1) is concerned, the position is clear; just as a person would not escape a sentence of imprisonment in the United Kingdom because of a risk of suicide, so the Court in the extradition context would look to the Executive to take appropriate care of H. So far as stage(2) concerns the United Kingdom, there is no lack of measures in place to safeguard H. As to stages (2) and(3) and the position of the US authorities, there was ample evidence before the Judge addressing the care and support available to H.[62]I add only this. First, the only evidence of suicide risk comes from Dr. Grange but he acknowledged that there was no history of self-harm or attempted suicide. Secondly, the suggested suicide risk is difficult to reconcile with the cogent evidence that H is a devoted parent.[63]It follows that I would dismiss H’s appeal on Issue (II) and, accordingly, her appeal against the judgment of DJ Zani.[64]I agree.