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APPEAL COURT, HIGH COURT OF JUSTICIARY
[2024] HCJAC 46
HCA/2024/9/XM
Lord Doherty
Lord Matthews
Lady Wise
OPINION OF THE COURT
delivered by LORD DOHERTY
in
the application for leave to appeal
by
RF
Applicant
against
THE LORD ADVOCATE, REPRESENTING THE KINGDOM OF NORWAY
Respondent
Applicant: Loosemore; Good and Stewart
Respondent: C Edward KC; Crown Agent
25 October 2024
Introduction
[1]
The applicant was born in Pakistan. He married his first wife, X, in Pakistan in 1992
and they moved to Norway, where she was a national. They lived together there until they
separated in 2015. The applicant became, and he remains, a Norwegian national. He
married his current wife, Y, a national of Pakistan, in Norway in March 2017. In
October 2018 he moved to live in London where he obtained part-time employment. Y lived
2
in Pakistan, where the applicant visited her regularly. In about 2020 she joined him in
London.
[2]
In 2020 X complained to the police in Oslo that the applicant had raped her
repeatedly between 1992 and 2015; that he used physical violence towards her and abused
her verbally and in other ways; and that he had been violent and abusive towards their four
children. On a visit to Oslo not long after the complaint was made the applicant discovered
a letter to him from the police informing him of the allegations. He was interviewed by the
police about them. He instructed a Norwegian lawyer.
[3]
In May 2023 the applicant and Y moved from London to a town in the central belt
of Scotland. The applicant obtained full-time employment in a responsible job.
[4]
Meanwhile criminal proceedings against the applicant were proceeding in Oslo.
His lawyer made several statements to the press on his behalf about them. A hearing
at Oslo District Court was assigned to take place on 21 November 2023. The applicant
failed to attend the hearing. The court declared that he was a fugitive from prosecution.
[5]
An Interpol Red Notice was published by the Norwegian authorities on
29 November 2023. It set out the charges which the applicant faces. Charge I is that
between 1993 and 2015 he repeatedly forced X to have vaginal intercourse with him against
her will, physically assaulting her and otherwise abusing her. The maximum sentence that
could be imposed on conviction of that charge is 21 years' imprisonment. Charge II(a) is
that during the same period he repeatedly physically assaulted her, abused her, threatened
her and maltreated her. Both charges narrate that the applicant's conduct damaged X's
health and caused her to develop post-traumatic stress disorder. Charge II(b) is that
between 1993 and 2015 he abused his daughter M by means of physical violence, threats
and abusive behaviour, as a result of which she developed post-traumatic stress disorder.
3
Charge II(c) is that between 1993 and 2015 he abused his son J by means of physical violence,
threats and abusive behaviour, as a result of which J developed recurrent depression.
Charge II(d) is that between 2000 and 2015 he abused his daughter S by means of physical
violence and abusive behaviour, as a result of which she has developed post-traumatic stress
syndrome. Charge II(e) is that between 2004 and 2015 he abused his son W by means of
physical violence and abusive behaviour as a result of which he has developed recurring
depressions, resulting in significant and enduring reduction in his general ability to
function. The maximum sentence for each of charges II(a) to II(e) is 6 years' imprisonment.
The Red Notice was duly followed by a valid request for extradition, which was in turn
duly followed by certification of the request in terms of section 70 of the 2003 Act.
[6]
Police in Scotland sought to locate and arrest the applicant. Initially, those attempts
were unsuccessful. In about December 2023 the applicant left his job. He told his employers
that he was returning to Pakistan. In fact, he and Y moved to another town not far away.
He was aware before he moved that the police had been looking for him. When the police
discovered his new home and attended there he hid under a bed to try and avoid detection.
The police found him and he was arrested. On 31 January 2024 he appeared before the
sheriff at Edinburgh. He did not consent to extradition. He was remanded in custody.
The extradition hearing
[7]
A full extradition hearing took place on 9 May and 27 June 2024. Extradition was
opposed on the grounds (i) that the applicant could not receive an article 6 ECHR compliant
trial in Norway; (ii) that extradition would breach the applicant and Y's article 8 rights to
family life. The sheriff was required to proceed under section 87 of the 2003 Act, which
provides:
4
"87 Human rights
(1)
If the judge is required to proceed under this section (by virtue of
section 84, 85 or 86) he must decide whether the person's extradition would
be compatible with the Convention rights within the meaning of the Human
Rights Act 1998 (c. 42).
(2)
If the judge decides the question in subsection (1) in the negative he must
order the person's discharge.
(3)
If the judge decides that question in the affirmative he must send the case to
the Secretary of State for his decision whether the person is to be extradited."
[8]
It is unnecessary to elaborate upon the article 6 ground, because it forms no part of
the proposed appeal to this court. While the article 8 rights of both the applicant and Y
were founded upon before the sheriff, the applicant's focus at the hearing was on Y's
circumstances. It was maintained that Y suffered from physical and mental ill-health as
a result of which she was extremely vulnerable and was dependent upon the applicant to
care for her.
[9]
The applicant, Y, and Dr Simon Petrie, a chartered clinical psychologist, gave
evidence.
[10]
The applicant said that when he discovered that the police were investigating X's
complaints he attended for interview. After he had spoken to the police he instructed a
Norwegian lawyer. He claimed to be unaware of the hearing of 21 November 2023 in
advance of it taking place. He also claimed he was unaware that his lawyer had made
several media statements on his behalf. Y suffered from poor physical and mental health,
so much so that he gave up his work to look after her. The timing of his leaving his job and
moving home had nothing to do with the police looking for him - it was just a coincidence.
When the police came he had been ready to answer the door to them. However, at Y's
behest he hid under a bed.
5
[11]
The sheriff described Y's demeanour, physical presentation and general manner in
answering questions:
"17. [Y] used a cane to make her way to the witness box. She had a pronounced
tremor with one arm. She began shaking badly when explaining that she had
difficulties and pain in her leg and arm. She gradually became more upset as
her examination-in-chief continued, wailing and sobbing at one point.
18. [Y]'s answers would occasionally digress into her addressing pleas directed
at me not to `punish' her husband for her `mistakes' and not to `leave me by
myself'. Her cross-examination was conducted in a circumspect manner. When it
was concluded, she volunteered an emotional statement as to what occurred when
the police came to their home on two occasions, which was difficult to follow and
which had no connection to anything asked of her in cross-examination. Dr Petrie,
when he interviewed her, found her to be `highly anxious, ... tremulous, tearful
and upset throughout ... in terms of her general demeanour, body language and
communication style' (report, para. 5.13), comments that could apply equally to
her presentation in court."
[12]
Y indicated that she had never been in employment. She suffered from depression,
anxiety attacks and joint pain. She had an appointment in respect of her heart. Her health
had got worse since she came to Scotland. She had not made friends here. Since the
applicant's imprisonment her sister had been helping her; but her sister's home was in
London and she suffered from ill-health. Y was scared at the prospect of the applicant
being extradited. She did not know what she would do if that happened.
[13]
Dr Petrie had prepared a report dated 1 May 2024 which he spoke to in evidence.
When he saw Y at home on 22 March 2024 her niece and brother-in-law were residing with
her and were looking after her. They had travelled from their home in Spain. Dr Petrie
interviewed Y and her niece. Y presented as being in a very fragile emotional state. She
appeared highly anxious, tearful and upset. He opined that Y had very poor mental health,
with clinically significant levels of anxiety and depression, which appeared to be chronic.
If the applicant were to be extradited it was highly likely that Y's health would deteriorate.
He was very concerned as to her psychological condition and capacity to support herself.
6
The outlook for Y would be negative, uncertain and bleak. She would need urgent medical
assessment and, if possible, close family support; but he was concerned that there did not
appear to be a plan in place.
[14]
The sheriff had reservations about the credibility of both the applicant and Y. In
particular, he was not prepared to accept the applicant's evidence that he had not sought
to evade arrest. He found it difficult to accept that Y would have been prepared to answer
the door to speak to the police if she was as frail as she suggested she was. He also had
some reservations as to Dr Petrie's evidence, in particular because of his willingness to
offer an unqualified opinion that the applicant and Y were credible and that there was no
reason to doubt their authenticity. However, since Dr Petrie had not been challenged on
this point in cross-examination, and because Y's credibility was not squarely challenged by
the respondent during her evidence (perhaps, the sheriff thought, because of her distressed
presentation), the sheriff decided to proceed on the basis of Dr Petrie's assessment of Y's
condition. It followed that the impact of the applicant's extradition on Y would be negative
and bleak. He accepted that it would be likely to exacerbate the distress which she was
suffering. However, the sheriff did not accept it had been proven that Y's health problems
could not be managed or substantially mitigated by appropriate treatment from NHS health
services. The interference with her article 8 rights which would result from extradition did
not outweigh the strong public interest in extraditing the applicant to stand trial on the
grave charges which he faced. He exercised the power conferred on him by section 87(3)
of the 2003 Act to send the applicant's case to the Scottish Ministers for their decision
(section 93 of the 2003 Act) whether he should be extradited to Norway to face trial there.
[15]
The sheriff notes that Y was present in court when he delivered his decision, and that
she immediately fell to the ground, apparently unconscious.
7
The Scottish Ministers' decision
[16]
On 13 August 2024 the Scottish Ministers decided that the applicant should be
extradited.
The proposed appeal
[17]
This is an application for leave to appeal in terms of section 103(4)(b) of the 2003 Act
against the sheriff's decision. The court heard arguments in relation to leave and in relation
to the merits of the appeal.
[18]
The relevant appeal provisions of the 2003 Act are sections 103 and 104, which
provide:
"103 Appeal where case sent to Secretary of State
(1)
If the judge sends a case to the Secretary of State under this Part for his
decision whether a person is to be extradited, the person may appeal to the
High Court against the relevant decision.
...
(3)
The relevant decision is the decision that resulted in the case being sent to
the Secretary of State.
(4)
An appeal under this section--
(a)
may be brought on a question of law or fact, but
(b) lies only with the leave of the High Court.
...
104 Court's powers on appeal under section 103
(1)
On an appeal under section 103 the High Court may--
(a)
allow the appeal;
(b) direct the judge to decide again a question (or questions) which he
decided at the extradition hearing;
(c)
dismiss the appeal.
(2)
The court may allow the appeal only if the conditions in subsection (3) or the
conditions in subsection (4) are satisfied.
8
(3)
The conditions are that--
(a)
the judge ought to have decided a question before him at the extradition
hearing differently;
(b) if he had decided the question in the way he ought to have done, he
would have been required to order the person's discharge.
(4)
The conditions are that--
(a)
an issue is raised that was not raised at the extradition hearing or
evidence is available that was not available at the extradition hearing;
(b) the issue or evidence would have resulted in the judge deciding a
question before him at the extradition hearing differently;
(c)
if he had decided the question in that way, he would have been required
to order the person's discharge.
..."
[19]
In support of the application the applicant lodged Y's recent GP records, an undated
statement from Y, and a supplementary report from Dr Petrie dated 21 October 2024. These
were not intimated to the respondent until the day before the hearing.
[20]
The GP records included entries recording that Y had recently been referred to social
services, and that on 18 October 2024 social services had called the GP seeking further
information about her. On the same date Y advised her GP that she proposed to go to her
sister in London. The court was also taken to entries about a self-harming incident on
17 July 2024. The relevant notes state that Y had several lateral cuts to her left forearm,
that there was no active bleeding, and that the wounds were stitched and dressed. On
assessment there were no acute psychiatric symptoms and no clinical indication for
admission. Y was discharged with advice as to coping strategies and was advised as to
how to access services within and out of hours if she required support. She was referred
to the community mental health team.
[21]
In her statement Y said that since 27 June 2024 her mental health has deteriorated.
On 17 July 2024 she "tried to commit suicide". She made cuts on an arm with a kitchen
knife. She "passed out". She was taken to hospital by ambulance but was later discharged
home. She said that she still had suicidal thoughts and that she was not coping without the
9
applicant. Her sister and niece had been helping her, as had F, a lady from the local Muslim
community; but her niece had returned to Spain, and her sister and F could not look after
her permanently. She engaged with her GP on a regular basis and had been prescribed
medication. She had been referred to NHS psychiatric services, where she was on the
waiting list. The statement concluded by saying that if the applicant is extradited she would
not be able to cope without him.
[22]
In his supplementary report Dr Petrie indicated that he visited Y at home again on
10 October 2024. He had access to a copy of her GP records. F, who Dr Petrie stated is
medically qualified, was present. She had been offering support and care to Y. Y's sister
had been living with her to help her. She had recently returned to London for medical
treatment, but she was due back soon. Dr Petrie noted that Y presented as being in an
extremely fragile emotional state. Y informed him of an attempt by her to cut her wrist,
and he was shown "some light scarring" on one wrist. He noted that the hospital
psychiatric admission assessment on 17 July 2024 stated that there was no clinical indication
for admission to hospital; and that at that time coping strategies were discussed with her
and she was referred to the community mental health team. F stated to him that Y needed
support for almost all aspects of functioning, but was able to go to the toilet independently.
F tried to take Y out for a short walk each day. She expressed concern to Dr Petrie that
because of language and cultural barriers Y had not been engaging with support through
the NHS. Dr Petrie concluded that Y continued to experience significant mental health
issues, namely clinically significant levels of anxiety and depression. He considered
her psychological condition to be chronic and severe and to have deteriorated since his
assessment in March 2024. As had been the position previously, there seemed to be an
absence of a longer-term plan to help her cope and recover. In his opinion extradition
10
would be highly likely to lead to further deterioration in Y's mental health. The outlook for
her mental health would be "negative, uncertain and bleak". Y seemed to be "somewhat
disengaged" from NHS mental health services. In his view those services were "unlikely
to be able to alleviate the negative consequences upon [Y] of [the applicant]'s extradition".
If she were to attempt suicide and her risk of further self-harm was thought to be high,
she would be likely to be admitted to hospital where she would be offered more intensive
professional care and support. However, in the longer term it was likely that the burden
of her care would continue to fall mainly upon friends and family.
[23]
Ms Loosemore moved for the new material to be received. The basis of the proposed
appeal was that the conditions in section 104(4) of the 2003 Act were satisfied. The material
was evidence which had not been available at the extradition hearing (s 104(4)(a)). She
submitted that, had it been available to him, it would have resulted in the sheriff deciding
a question before him at the extradition hearing differently (s 104(4)(b)). He would have
decided that Y's article 8 rights outweighed the strong public interest in the applicant being
extradited. He would have required to order his discharge (s 104(4)(c)). The charges which
the applicant faces are very serious, but some time had now passed since the alleged
offending. He had come to the United Kingdom in 2018, 2 years before a complaint had
been made to the police. It followed that he was not a fugitive. He had lived a blameless
life in the United Kingdom. The new material would have tipped the balance in favour of
Y's article 8 rights prevailing. Reference was made to H(H) v Deputy Prosecutor of the Italian
Republic, Genoa [2013] 1 AC 338, Lady Hale at paragraphs 8, 30 and 33; Polish Judicial
Authority v Celinski [2016] 1 WLR 551; DV v Lord Advocate (on behalf of the Government of
Romania) 2020 SCCR 355; PK v Lord Advocate (on behalf of the Republic of Poland) 2024
HCJAC 25.
11
[24]
In response, Mr Edward submitted that the new evidence was not materially
different from the evidence which had been before the sheriff. While in his supplementary
report Dr Petrie spoke to Y's condition having deteriorated since he last saw her, and there
had been an episode of deliberate self-harming since the extradition hearing, Dr Petrie's
prediction as to what would happen if the extradition went ahead was substantially the
same as it had been when he gave evidence, viz that the outlook for Y would be negative,
uncertain and bleak. It was noteworthy that Dr Petrie appeared to pay no cognisance to
the likely involvement of social services (especially if family and friends did not continue
to offer the same care they had provided to date). He seemed unduly dismissive of the
possible mitigatory effects of NHS treatment. In any case, Y's article 8 rights did not
outweigh the very strong public interest in the applicant being extradited to face trial on
very serious charges. The charges here were far more serious than the offences in PK v
Lord Advocate. The interference with Y's article 8 rights was necessary in a democratic
society (article 8(2)). It was justified and proportionate. Section 104(4)(b) and (c) were
not satisfied.
Decision and reasons
[25]
At the conclusion of the hearing we refused the application for leave to appeal.
We indicated that we would provide our reasons in writing. We do so now.
[26]
Article 8 of the ECHR provides:
"
Article 8
1
Everyone has the right to respect for his private and family life, his home
and his correspondence.
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 in the interests of national security, public safety or
12
the economic well-being of the country, for the prevention of disorder or
crime, for the protection of health or morals, or for the protection of the
rights and freedoms of others."
[27]
The general principles relating to the application of article 8 in the context of
extradition proceedings are set out in Norris v Government of the United States of America
(No 2) [2010] 2 AC 487 and H(H) v Deputy Prosecutor of the Italian Republic, Genoa. The
and in some other reports, as H v Lord Advocate), which was heard together with
H(H). In England and Wales a Divisional Court presided over by the Lord Thomas of
Cwmgiedd CJ provided further guidance in Polish Judicial Authority v Celinski
[2016] 1 WLR 551. In DV v Lord Advocate on behalf of the Government of Romania 2020 SCCR 355
(also reported as V v Lord Advocate 2020 SLT 1161) at para [34] this court accepted the
correctness and applicability to Scotland of the principles derived from Norris and H(H)
which were set out in Celinski. That case proposed a "structured approach" with a
"balance sheet" of factors for and against extradition after having made findings of relevant
facts. It also stressed (paragraph 14(iii)) that it should rarely be necessary to cite (at the
extradition hearing or in a subsequent appeal) decisions on article 8 which were made in
other cases, as these would invariably be fact specific and the principles to be applied were
those set out in Norris and H(H). We would add that in Scotland it may be more accurate
to say that the principles are set out in Norris, H(H) and H v Lord Advocate.
[28]
In H v Lord Advocate Lord Hope of Craighead DPSC opined in relation to the weight
to be given to article 8 rights in extradition cases:
"[49] ...The public interest in giving effect to a request for extradition is a
constant factor in cases of that kind. Great weight will always have to be
given to it, and the more serious the offence the greater will be that weight...
...
13
[58] ... It is well established that extradition may amount to a justified
interference under Art 8(2) if it is in accordance with the law, is pursuing the
aims of the prevention of disorder and crime and is necessary in a democratic
society (Launder v UK, para 3; Aronica v Germany; King v UK, para 29)."
[29]
In H(H) Lady Hale drew, inter alia, the following conclusions from Norris v
Government of the United States of America (No 2) [2010] 2 AC 487 in relation to article 8
claims made in extradition proceedings:
"8. ... (3) The question is always whether the interference with the private
and family lives of the extraditee and other members of his 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."
At paragraph 30, in relation to the question whether a person's extradition would be
compatible with the Convention rights, she observed:
"30. In answering that question, the court would be well advised to adopt
the same structured approach to an article 8 case as would be applied by the
Strasbourg court. First, it asks whether there is or will be an interference with the
right to respect for private and family life. Second, it asks whether that interference
is in accordance with the law and pursues one or more of the legitimate aims within
those listed in article 8.2. Third, it asks whether the interference is `necessary in a
democratic society' in the sense of being a proportionate response to that legitimate
aim. In answering that all-important question it will weigh the nature and gravity
of the interference against the importance of the aims pursued. In other words, the
balancing exercise is the same in each context: what may differ are the nature and
weight of the interests to be put into each side of the scale."
At paragraph 32 she stressed:
"... the test is always whether the gravity of the interference with family life is
justified by the gravity of the public interest pursued...".
14
At paragraph 167 Lord Wilson noted:
"... several overlapping considerations which combine to confer upon the
UK's extradition arrangements their profound importance: (a) perpetrators of
crimes should be punished; (b) crime is deterred by the likelihood of punishment;
(c) cross-border crime is increasing; (d) the movement of criminals across borders
has become easier; (e) inter-state co-operation is increasingly necessary in order
to combat crime and to bring criminals to justice; (f) states which offer sanctuary
to criminals substantially undermine the efforts of the others to eliminate any
advantage in remaining in, or indeed escaping to, a jurisdiction other than that of
the prosecuting court; and (g) the UK should adhere to its bilateral (or multilateral)
treaty obligations and its breaches or perceived breaches may generate a more
widespread unravelling of them on both (or all) sides. The especial importance
of adherence to arrangements for extradition is written across all the judgments
in the Norris case, and one could well argue that it transcends even the importance
of immigration control. Of course I accept that an effective system of removal, or
deportation, from the UK of a foreign citizen who has had no right, or has forfeited
his right, to remain here carries an importance which extends well beyond his
particular circumstances; but the destructive effects on societies of crime are far
less plainly and directly countered by immigration control than by adherence to
arrangements for extradition."
[30]
In Celinski (at paragraph 6) the court referred back to what Lady Hale had said in
sub-paragraphs (3), (4) and (5) of paragraph 8 of H(H). It stressed that it was important for
judges to bear in mind when applying the principles set out in Norris and H(H) (i) that H(H)
concerned cases involving the interests of children (paragraph 8); and (ii) that the public
interest in ensuring that extradition arrangements are honoured is very high, as is the public
interest in discouraging persons seeing the UK as a state willing to accept fugitives from
justice (paragraph 9).
[31]
We turn then to consider the application with these principles in mind.
[32]
We are not surprised that the sheriff had some reservations about the evidence of the
applicant and Y, and about aspects of Dr Petrie's evidence. Be that as it may, he proceeded
on the basis that he ought to accept the evidence of Y and Dr Petrie. Nevertheless, he
determined that the interference with Y's article 8 rights which would be caused by the
applicant's extradition was justified and proportionate. It was not suggested that that
15
decision was erroneous in fact or in law. Rather, it was argued that had he had the
advantage of the additional material he would have been bound to have decided that
extradition would be in breach of Y's article 8 rights.
[33]
The new evidence tendered deals with circumstances since the sheriff's decision.
We accept that it is evidence that was not available at the extradition hearing (s 104(4)(b)).
For that reason we allowed its late receipt.
[34]
However, we are not persuaded that the new evidence adds materially to the
evidence which the sheriff considered. While there had been some deterioration in Y's
condition since Dr Petrie's earlier examination, his prognosis for Y in his supplementary
report if the applicant was extradited was not materially different from his prognosis when
he gave evidence. Before the sheriff and before this court the prognosis was that Y's mental
health was highly likely to deteriorate and that the outlook for her was negative, uncertain
and bleak.
[35]
We add, though we do not consider it critical to our conclusions, that we see some
force in Mr Edward's observations that in the supplementary report Dr Petrie may be
unduly dismissive of the possible mitigatory effects of input from social services, NHS
services, and family and friends.
[36]
We are very far from convinced that the new evidence would have resulted in the
sheriff deciding that the factors favouring extradition were outweighed by countervailing
factors. It follows that the conditions in section 104(4)(b) and section 104(4)(c) are not
satisfied.
[37]
Had this court been in the sheriff`s shoes, but weighing the "pros" and "cons" of
the applicant's extradition on the material now before the court, we would, like the sheriff,
have concluded that the case should be sent to the Scottish Ministers for their decision.
16
[38]
The weightiest factor against extradition is the interference with Y's article 8 rights.
We are prepared to proceed on the basis that the consequences for her will be severe.
Further, less weighty, factors on this side of the balance sheet are the interference with the
applicant's article 8 rights; the fact that he did not come to the UK as a fugitive; and that
he made a blame-free life for himself here until his apprehension was sought. In our view
delay is not a further such factor: we are not persuaded that there was any undue delay in
the allegations being reported to the police, or in the Norwegian authorities prosecuting
him, or in their seeking his extradition.
[39]
There are several weighty factors on the other side of the balance sheet, some of
which are formidable. First, the charges which the applicant faces are grave ones, and if
convicted he is liable to receive a lengthy sentence of imprisonment. In these respects the
applicant's case is very different from the cases of the applicants in DV and PK. Second,
while he was not a fugitive when he first came to the United Kingdom, he did not return to
Norway for his trial with the result that the court there has declared him a fugitive. There
are good grounds for serious scepticism of his claims to have had no communication from
his lawyer about the trial hearing. It may reasonably be inferred that it was a condition
of his remaining at liberty that he would attend his trial and that he is in breach of that
condition. Third, he took steps to try and avoid apprehension by the police here. Fourth,
there is the constant and weighty public interest in extradition. People accused of crimes
should be brought to trial. There should be no safe havens to which they can flee in the
belief that they will not be sent back. The United Kingdom should honour its treaty
obligations to other countries. That public interest always carries great weight, but here
the nature and seriousness of the alleged crimes give it very great weight indeed. This is
not a case where that weight is diminished by the occurrence of unreasonable delay since
17
the crimes are said to have been committed, or where the impact upon private and family
life has been materially increased by such delay.
[40]
In our opinion it is clear that the factors favouring extradition outweigh the
countervailing factors.
[41]
We add this. If the applicant were to be tried and convicted of similar offences in
Scotland, the disposal would be a lengthy prison sentence, notwithstanding the resultant
interference with Y's article 8 rights. In light of that, in our view it would be contrary to
international comity to refuse to extradite him on the grounds of interference with those
rights (cf H(H), Lord Judge CJ at paragraph 132).
[42]
The interference with article 8 rights is in accordance with the law. It is in pursuance
of a legitimate aim, the prevention of disorder and crime. It is necessary in a democratic
society - it is a proportionate response to that legitimate aim. The extradition is compatible
with the Convention rights of the applicant and Y (section 87(1) of the 2003 Act).
Disposal
[43]
For these reasons the application for leave to appeal is refused.
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