APPEAL COURT, HIGH COURT OF JUSTICIARY
	[2013] HCJAC 138
Lady Smith Lord Drummond Young Lord Turnbull	OPINION OF THE COURT   delivered by LADY SMITH   in   Application for Leave to Appeal   by   PB   Applicant;   against   HER MAJESTY'S ADVOCATE   Respondent:   _______

 

Applicant: Connelly, Bridge Litigation, Glasgow

Respondent: Niven- Smith, Crown Agent

 

 

15 October 2013

 

Introduction

[1] This is an application for leave to appeal to the Supreme Court of the United Kingdom which is made following the refusal of this court, for the reasons given in its opinion of 30 August 2013
[1], of the applicant's appeal under section 26 of the Extradition Act 2003 ("the 2003 Act") against the order of the sheriff at Edinburgh that he be extradited to Poland. The application is contained in a document which was lodged on 19 September 2013 and bears to be an application for permission to appeal to the Supreme Court under section 288ZAA(5) of the Criminal Procedure (Scotland) Act 1995 ("the 1995 Act"). The solicitors for the applicant lodged an opinion of counsel, dated 25 September 2013, in support of the application. The respondent lodged written submissions in response, on 8 October 2013. Parties have agreed to the application being determined on the basis of written submissions as set out in that application, opinion and response.

 

Submissions for the applicant

[2] In the application, it is asserted that a compatibility issue arises and it is said that there requires to be an appeal to the Supreme Court:

"....to obtain clarification on what factors a court is obliged to consider and its obligations if information is not placed before it, to ensure that it is acting compatibly with the Convention rights of children affected by extradition."

 

Thus put, the purpose of the application would appear to be to seek to have the Supreme Court determine a list of factors which the court must always consider in relation to a child's interests and also to specify what the court is obliged to do if inadequate information is provided.

[3] The incompatibility is said to be in relation to the investigation of facts and circumstances relating to the welfare of children likely to be affected by the extradition of a parent or parents. The application relies, in that regard, on what was said about the investigation of children's interests in extradition cases by Lady Hale in the case of HH v Deputy Prosecutor of the Italian Republic, Genoa; PH v Deputy Prosecutor of the Italian Republic; F -K v Polish Judicial Authority
[2] In her opinion, counsel puts the matter this way:

"The issue to be determined is whether a court should decide if extradition is compatible with the Article 8 rights of children who risk the loss of the sole or primary carer by reference only to the information placed before it by parties or whether the Court should seek other relevant information when determining the issue of proportionality."

 

[4] She submits that the relevant test is whether or not the proposed appeal raises an arguable point of law of general public importance which ought to be considered by the Supreme Court, under reference to the case of Uprichard v Scottish Ministers and Another
[3]. She makes no reference to section 32 of the 2003 Act
[4], which is the relevant statutory provision, but it may be considered that that is not material since the test articulated by the Supreme Court, in Uprichard is in the same terms.

[5] The point which the applicant seeks to advance seems to be that the sheriff should have made his own investigations to find out whether or not the appellant could serve his sentence here in Scotland and that this court should also have done so. We note that there is also reference in counsel's opinion - though not in the application - to the court requiring to make investigations regarding what contact the child would be able to have with the applicant whilst serving his sentence in Poland. That accords with a submission which was made to us at the hearing on 30 August. It has, however, at no time been suggested on behalf of the applicant that appropriate, convention compliant, arrangements for contact between prisoners and their families are not afforded to prisoners by the relevant Polish authorities or that they would not be afforded to the applicant.

 

Submissions for the Crown

[6] There are two principal submissions for the Crown. The first is that the application is incompetent. It is an application under section 288ZA of the 1995 Act; the terms of that section confirm that a compatibility issue can only arise in criminal proceedings. Extradition proceedings are not, however, criminal proceedings: Kapri v Lord Advocate
[5]. Nor, it is said, are these proceedings in a devolution appeal to which section 36A of the 2003 Act could apply, no devolution issue having been raised or determined.

[7] The second submission for the Crown is that, in any event, the issue raised by the applicant is not an identified devolution issue and is not one of general public importance. It would not be right to grant leave. That submission is made under reference to the court's decision in the application for leave to appeal to the Supreme Court in the case of Wlodarczyk v The Lord Advocate
[6]. Whether not to seek additional information is for the court's discretion ; it is not obliged to do so. As for the factors that the court requires to consider, they are already adequately set out by Lady Hale in the case of HH.

 

Discussion and Decision

[8] We consider that the Crown's submission that this application is incompetent is well founded. These are not criminal proceedings, for the reasons explained in Kapri. No incompatibility issue has been raised or determined; it is not open to the applicant to seek leave to appeal under section 288AA of the 1995 Act. Nor has a devolution issue been raised or determined so section 36A of the 2003 does not apply either. Were the application to be granted, it could not be on the basis that appeal to the Supreme Court was proceeding under either of those statutory provisions.

[9] We have considered, separately, whether, assuming that the application was a competent one, we could conclude that leave ought to be granted. We could not reach that conclusion for the following reasons.

[10] The applicant seeks to address the issue of what procedure ought to be adopted by the court hearing an extradition case when considering the interests of any relevant child. The law is, however, clear. It is for the individual court in its discretion, according to the particular facts and circumstances of the individual case, to determine what information is relevant to the issues that arise in the particular case and whether the information available regarding the interests of any children is insufficient. As was observed by Lady Hale in HH, at paragraph 82, in most cases, the court will be able to proceed on the basis of the information provided by the parties for the hearing. Whilst she identifies cases where the extradition of both parents or of the primary carer is sought as being the category where it is most likely that the court will require more information than that which is provided initially, that too will be a matter for the discretion of the court. The present case did not, we would add, involve the potential extradition of both parents or of the child's primary carer.

[11] The application seeks clarification on what factors the court is obliged to consider but the law is already clear; the court must examine carefully the nature and extent of any interference in family life which will result from the proposed extradition
[7]. To do so, it requires to have information about any relevant children but what particular information will, in an individual case, be required is a matter for the court's discretion. Hence, for instance, the sheriff in the present case having asked for it to be ascertained whether the Polish authorities would agree to delay extradition in terms of section 35(4) of the 2003 Act until P had started school. The case of HH does not specify any list of factors about which information must be sought. On the contrary, the discussion of the possible approaches which a court might adopt clearly proceeds on the unsurprising basis that the court's decision on the matter will, ultimately, be a discretionary one.

[12] In these circumstances the decision in respect of which leave to appeal was sought cannot, we consider, be categorised as one which raises a point of law of general public importance. That being so, no question arises as to whether the point is one which ought to be considered by the Supreme Court.